Shannon v. Wilson

• Decision Date: 23 June 1997
• Docket Number: No. 96-762,96-762
• Citation: 329 Ark. 143,947 S.W.2d 349
• Parties: Marlan Dale SHANNON, individually and as Administrator of the Estate of Charles Shannon, Deceased, Appellants, v. L.K. WILSON and Elizabeth Ashworth, individually and as Partners of City Liquor, a Partnership, Appellees.
• Court: Arkansas Supreme Court

Page 349

947 S.W.2d 349

329 Ark. 143

Marlan Dale SHANNON, individually and as Administrator of the Estate of Charles Shannon, Deceased, Appellants, v. L.K. WILSON and Elizabeth Ashworth, individually and as Partners of City Liquor, a Partnership, Appellees.

No. 96-762.

Supreme Court of Arkansas.

June 23, 1997.

Bruce L. Mulkey, Ramona G. Stein, Rogers, for Appellants.

Kenneth R. Mourton, Rayburn W. Green, Fayetteville, for Appellees.

David D. Stills, Fayetteville, for Amici Curiae.

ARNOLD, Chief Justice.

This is an appeal asking us to reconsider our decisions in Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965), and the line of decisions following that ruling in which we determined that there is no liability imposed upon one who sells intoxicants to minors for injuries caused by minors who became inebriated. Appellant asks us to modify our rule to allow the issue of whether the seller is negligent to go to a jury for determination. We reverse and remand holding that, under the facts which may be proved by the pleadings, a cause of action for common-law negligence against the vendor has been stated.

Marlan Dale Shannon filed suit against L.K. Wilson and Elizabeth Ashworth, individually and as partners of City Liquor in Fayetteville, for the wrongful death of his son Charles Shannon. The trial court dismissed the complaint pursuant to an Ark. R. Civ. P. 12(b)(6) motion made by appellees. Upon our review, we accept all facts alleged in the complaint as true and view them in the light most favorable to the appellant. Neal v. Wilson, 316 Ark. 588, 596, 873 S.W.2d 552, 556 (1994).

On the evening of January 28, 1995, Charles Shannon and Jarred Sparks, both aged thirteen, were passengers in a Ford pickup truck driven by David Farmer, aged sixteen. Between 7:00 p.m. and 8:30 p.m., the three boys drove up to the drive-through window of City Liquor, located in Fayetteville, Arkansas. An employee of City Liquor sold them a six-pack of beer and a six-pack of malt liquor without asking for identification.

After leaving City Liquor, the three boys began drinking as they drove to St. Paul, Arkansas. At a pool hall in St. Paul, David Farmer exited the vehicle. Charles Shannon and Jarred Sparks remained in the vehicle drinking the rest of the liquor. At some time, the two boys left the pool hall in the pickup.

At approximately 9:10 p.m., the Arkansas State Police were notified of an accident in Madison County. Arriving at the scene, police found the Ford pickup had left the road, traveled through a fence, hit a telephone pole and finally come to rest after hitting a tree. The police surmised that the pickup was traveling at excessive speed and that the accident occurred while the driver was attempting to negotiate a curve. Jarred Sparks was found in the driver's seat of the truck and Charles Shannon in the passenger's seat. Both were pronounced dead at the scene. Blood tests revealed that Jarred Sparks had a blood alcohol level of .10% and that Charles Shannon had a level of .07%.

Marlan Dale Shannon, father of Charles Shannon and executor of the estate, filed suit asserting that appellees were negligent in selling alcohol to the three minors. The complaint alleged that it was foreseeable that the minors who purchased the liquor at a drive-through window would drive the vehicle on the roads of Arkansas thereby endangering their health and safety as well as that of other persons traveling on the roads. The trial court granted the appellee's motion to dismiss for failure to state a claim upon which relief could be granted. Appellant appeals the dismissal and urges that the law in Arkansas be changed to recognize the potential liability for a vendor who knowingly sells alcohol to minors.

In Carr v. Turner, supra, this Court first addressed the issue of whether a person who was injured in a collision with a drunk driver had a cause of action against a tavern owner whose unlawful sale of liquor brought upon the inebriation. This Court determined, at that time, that it should follow the view of the majority of other jurisdictions in observing the common-law view that the proximate cause of any subsequent accident was the consumption of liquor, not its sale. Id. at 890, 385 S.W.2d 656 (citations omitted).

In Carr, we noted that the enactment of a dramshop act by the legislature would be the appropriate method to change the common-law principle. This Court in Carr examined two existing Arkansas statutes to determine whether in either of them the legislature had acted to change the common-law rule. The first statute directed that liquor be sold in packages and not consumed on the premises; this was enacted to avoid the return of "saloons" to the State. Ark. Stat. Ann. § 48-309 (Repl.1946), recodified at Ark.Code Ann. § 3-4-604 (Repl.1996). The second statute established a misdemeanor crime for anyone who sold or gave away liquor to a minor, a habitual drunkard, or an intoxicated person. Ark. Stat. Ann. § 48-901 (1947), recodified at Ark.Code Ann. § 3-3-206-210 (Repl.1996).

This Court determined that neither of these two statutes changed the common-law rule of nonliability. In making this determination, we noted that the majority of other jurisdictions adhered to this principle and that the "cases finding liability are so few that they may be reviewed quickly." Carr, 238 Ark. at 891, 385 S.W.2d 656.

Since Carr, this Court has been entreated to reevaluate the issue of a seller of alcohol's liability on numerous occasions. Repeatedly we have held that absent a change in the common-law principle by the legislature, this Court would not depart from the ruling in Carr and its progeny.

In Milligan v. County Line Liquor Inc., 289 Ark. 129, 709 S.W.2d 409 (1986), we addressed the issue of liability for the provider of alcohol. In Milligan, the appellee, County Line Liquor, was charged with violation of an Arkansas statute by selling beer to a minor. Ark. Stat. Ann. § 48-901 (Repl.1977). We upheld the premise that there is no liability for selling alcohol, even in the instance where a statute was violated. Specifically, we held:

It may be that a Dramshop Act is to be desired, but such a measure should be the result of legislative action rather than of judicial interpretation. The primary purpose of this appeal is to see if we will reverse our position and now adopt such a measure by judicial fiat .... we decline to change our position because of the essential soundness of the common-law rule. That is, it is the consumption of intoxicants, not the sale standing alone, which is the proximate cause of injuries.

Appellant next argues that the trial court erred in ruling that as a matter of law there was no proximate cause between violation of the statute prohibiting the sale of beer to a minor and the accident. The argument, in essence, is simply another way to contend that Ark. Stat. Ann. 48-901 (Repl.1977) is a Dramshop Act. We have previously rejected the argument. In Carr v. Turner, supra, we stated it is clear that in enacting Ark. Stat. Ann. 48-901 the General Assembly did not intend to change the common-law rule of nonliability.

In several cases following Milligan, we rejected appeals to deviate from the Carr v. Turner rule. In Yancey v. The Beverage House of Little Rock, Inc., 291 Ark. 217, 723 S.W.2d 826 (1987), the appellee twice sold alcohol illegally to a minor; on the second occasion, the minor was intoxicated at the time of the sale. The minor then had an accident where two teenagers were killed. Also, in First American Bank of North Little Rock v. Associated Hosts, Inc., 292 Ark. 445, 730 S.W.2d 496 (1987), a "happy hour" customer was allowed to leave the bar in an intoxicated state after having consumed more than a dozen drinks in three hours. Upon leaving the bar, the customer fell and was injured. In both of these cases, we reaffirmed the Carr holding of nonliability for the seller of alcohol. In 1995, we again held in Mann v. Orrell, 322 Ark. 701, 912 S.W.2d 1 (1995), that the holdings of Carr and its progeny were controlling and that there is no liability to be imposed on tavern owners or liquor store owners for injury to a patron or third person when injury results from the consumption of alcohol.

Since 1965, our holdings have been consistent in declining to impose liability on the provider of alcohol by holding that the proximate cause of any injuries later occurring is the consumption of the alcohol, not its sale. In fact we have continually stated that a dramshop act is the preferred measure to deal with this issue and that "such a measure should be the result of legislative action rather than of judicial interpretation." Carr at 892, 385 S.W.2d 656, supra. For twenty years, we have followed precedents while stating that the legislature should address this issue, and we have held to the contention that replacing the common-law rule is a matter of public policy best left to the legislature. Despite this Court's preference for legislative action, there has been no action directly addressing this troublesome question; so, we will address this issue now.

In Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), this Court addressed the issue of abolishing the common-law principle of governmental immunity from tort actions and noted that "[t]he Legislature's broad investigative powers to determine facts and its greater flexibility in dealing with complex problems indicate a preference for a solution by statutory action." Id. at 1242, 429 S.W.2d 45. While a legislative deliberation was the preferred method to address the issue, this Court concluded that "considerations of public policy are not and never have been for determination by the legislature alone." Id., citing Oliver Wendell Holmes, The Common Law, 35 (1881).

Carr was decided in 1965 utilizing a rule of law from the early 1800's. In the 1800's when the common-law rule was formulated, most people walked and some rode in horse-drawn...