Rong Yao Zhou v. Jennifer Mall Rest.

Decision Date04 December 1987
Docket NumberNo. 86-809.,86-809.
Citation534 A.2d 1268
PartiesRONG YAO ZHOU, et al., Appellants, v. JENNIFER MALL RESTAURANT, INC., Appellee.
CourtD.C. Court of Appeals

Robert Cadeaux, Washington, D.C., was on the brief, for appellants.

Richard L. Fritts, with whom Joseph P. Clancy, Chevy Chase, Md., was on the brief, for appellee.

Before PRYOR,* Chief Judge, NEWMAN, Associate Judge, and NEBEKER**, Associate Judge, Retired.

NEWMAN, Associate Judge:

In this case of first impression, we are asked to decide whether third parties suffering accidental injuries as the result of the acts of an intoxicated person state a cause of action against a tavern keeper where, as here, they allege (1) that the tavern keeper violated D.C.Code § 25-121(b) (1981) by serving a patron who was, or appeared to be, already intoxicated, and (2) that the statutory violation was a proximate cause of the injuries. We hold, on the basis of those cases in which we have recognized that violation of a statute designed to protect public safety supplies sufficient evidence on which to rest a claim for liability in tort, that Rong Yao Zhou and Xiu Juan Wu have stated a cause of action under District of Columbia law. We, therefore, vacate the order of the trial court granting Jennifer Mall Restaurant's motion for judgment on the pleadings, and remand for trial.


Assuming as true the allegations as pleaded in the complaint, as we must for purposes of our review of a motion to dismiss for failure to state a claim, Vicki Bagley Realty, Inc. v. Laufer, 482 A.2d 359, 364 (D.C. 1984); McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C. 1979), we are presented with the following set of facts. At approximately 11:30 p.m. on the evening of May 28, 1982, Rong Yao Zhou and Xiu Juan Wu, husband and wife, were seriously injured when they were struck by a car operated by a drunk driver on Connecticut Avenue in Chevy Chase, Maryland. The driver, Peter Joray, was returning from the Brittany Restaurant (trade name of appellee Jennifer Mall Restaurant, Inc.) in Washington, D.C. Employees of the restaurant had unlawfully served alcohol to Joray after he had become intoxicated and after his intoxication had become apparent. It was in this impaired condition that Joray entered his car and drove into Maryland, soon thereafter injuring Zhou and Wu.

On May 9, 1984, Zhou and Wu filed suit in Superior Court seeking 3.5 million dollars in damages from Jennifer Mall Restaurant, Inc. Jennifer Mall Restaurant moved under Super.Ct.Civ.R. 12(b) for judgment on the pleadings for failure to state a claim upon which relief can be granted. Judge Hannon granted the motion without opinion on May 6, 1986.


We are confronted at the outset by the question of whether to apply District of Columbia law or Maryland law to a personal injury action arising from an accident occurring in Maryland, near the District of Columbia boundary, where the defendant's allegedly negligent conduct occurred in the District of Columbia by a corporation doing business here, and where plaintiffs are District of Columbia residents. We note that the choice of law issue has not been raised by the parties to this suit, who have assumed that District of Columbia law applies. Under Maryland law, a tavern keeper would not be liable in tort under the facts alleged in this case. See Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981).

The District of Columbia has long followed the "governmental interests analysis" approach to choice of law. Williams v. Williams, 390 A.2d 4, 5 (D.C. 1978); Gaither v. Myers, 131 U.S.App.D.C. 216, 222, 404 F.2d 216, 222 (1968); Tramontana v. S.A. Empresa de Viacao Area Rio Grandense, 121 U.S.App.D.C. 338, 341, 350 F.2d 468, 471 (1965), cert. denied, 383 U.S. 943, 86 S.Ct. 1195, 16 L.Ed.2d 206 (1966). Therefore, it is not the place of the injury that necessarily determines which law is to be applied. Rather, our jurisdiction, and others, see generally Allstate Insurance Co. v. Hague, 449 U.S. 302, 314 n. 19, 316 n. 22, 101 S.Ct. 633, 641 n. 19, 642 n. 22, 66 L.Ed.2d 521 (1981), have recognized that the place of the injury may be a mere "fortuity" in light of the fact that the relationship of the parties to the litigation is centered elsewhere. Kaiser-Georgetown Community Health Plan, Inc. v. Stutsman, 491 A.2d 502, 508 (D.C. 1985) (applying District of Columbia law in medical malpractice action arising from medical services performed in Virginia upon Virginia resident, where services were benefit of plaintiff's employment in District of Columbia and defendant was District of Columbia corporation); Williams v. Rawlings Truck Line, Inc., 123 U.S.App.D.C. 121, 125, 357 F.2d 581, 585 (1965). An automobile or other vehicular accident occurring close to the border between two states presents a classic case of such a fortuity. See Gaither, supra; Allstate, supra, 449 U.S. at 314 & n. 19, 101 S.Ct. at 641 n. 19; Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 134-135, 172 N.E.2d 526, 527 (1961); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 750-51, 191 N.E.2d 279, 284 (1963); see also Estrada v. Potomac Electric Power Co., 488 A.2d 1359, 1364 (D.C. 1985) (contrasting unpredictable situs of injury resulting from lack of due care concerning automobile with fixed situs when negligence involves care of land).

In applying governmental interests analysis to the facts of this case, we consider the interests, respectively, of Maryland and the District of Columbia. From the ruling of Maryland's highest court in Felder, supra, we understand that state to adhere to a policy of protecting negligent bar owners from civil liability, although they remain subject to the criminal penalties that attach for serving a person who is "visibly under the influence," MD. ANN. CODE art. 2B, § 118(a) (1957, 1979 Repl. Vol.), see id., 438 A.2d at 498. By contrast, a District of Columbia rule that would make tavern keepers answerable in tort, as well as under the criminal sanctions of D.C.Code § 25-121(b) (1981), would signify interests of this jurisdiction in compensating victims for resulting injuries, as well as in deterring harmful conduct.

The apparent clash of policies between Maryland and the District of Columbia presents a "false conflict" in the context of this case. A "false conflict" occurs when the policy of one state would be advanced by application of its law, while that of the other state would not be advanced by application of its law. In such a situation, the law of the interested jurisdiction prevails. Kaiser-Georgetown, supra, 491 A.2d at 509; Gaither, supra, 131 U.S. App.D.C. at 224, 404 F.2d at 224. Here, Maryland's interest in protecting tavern owners from tort liability is not implicated where the negligent restaurant is situated in the District of Columbia and the unlawful conduct occurred therein. Hence we apply the law of the interested jurisdiction, the District of Columbia.1

Should there remain any question whether District of Columbia law applies in this case, Gaither, supra, furnishes the answer. Gaither is binding precedent2 that District of Columbia law applies when a cause of action is cognizable under District of Columbia tort law on the basis of a violation within the District of Columbia of a District of Columbia statute or regulation, even though the injury occurs nearby in Maryland where a similar statute has been interpreted by Maryland's highest court as not supporting civil liability. In Gaither, the District of Columbia regulation at issue required car owners to remove their keys from their vehicles when leaving them unattended. The negligent conduct occurred in the District of Columbia. The car was subsequently stolen and driven into Maryland, where it struck and injured plaintiff five miles from the District of Columbia border.

Finally, we observe that other jurisdictions that have confronted the question of tavern keeper liability arising in a multi-state context have concluded that "the place where the liquor was unlawfully sold is of greater significance than the location of the accident because, when an intoxicated person is driving, the actual site of the crash is largely fortuitous," Pardey v. Boulevard Billiard Club, 518 A.2d 1349, 1352 (R.I. 1986), and, accordingly, have applied the rule of liability of the state in which the vendor committed the unlawful act. See, e.g., Trapp v. 4-10 Investment Corp., 424 F.2d 1261, 1265 (8th Cir. 1970); Bankford v. DeRock, 423 F.Supp. 602, 606 (N.D. Iowa 1976); Zucker v. Vogt, 200 F.Supp. 340, 343 (D.Conn. 1961), aff'd, 329 F.2d 426, 428 n. 2 (2d Cir. 1964); Schmidt v. Driscoll Hotel, 249 Minn. 376, 82 N.W.2d 365, 368 (1957); Pardey, supra, 518 A.2d at 1352-53.


Having determined that District of Columbia law governs the outcome of this case, we turn now to examine the substantive question of whether Zhou and Wu have stated a cause of action under the law of this jurisdiction. D.C.Code §§ 25-101 to 25-139 (1981), the Alcoholic Beverage Control Act, regulates the sale of liquor in the District of Columbia. Section 25-121(b), in pertinent part, prohibits holders of licenses under § 25-111 from "permit[ing] on the licensed premises . . . the consumption of any beverage by any intoxicated person, or any person of notoriously intemperate habits, or any person who appears to be intoxicated. . . ."3 Violators are subject to fine or imprisonment, pursuant to D.C.Code § 25-132 (1981). We conclude that this statute, while not itself providing a cause of action against tavern keepers by injured third parties, supplies the standard of care by which tavern keepers' conduct is to be measured under the common law. Hence, when a plaintiff alleges that a tavern keeper has violated § 25-121(b), he alleges sufficient evidence of negligence that, when combined with an allegation of proximate causation, states a cause of action under ...

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