Tobias v. Sports Club, Inc.

• Citation: 474 S.E.2d 450,323 S.C. 345
• Decision Date: 08 March 1996
• Docket Number: No. 2555,2555
• Court: Court of Appeals of South Carolina
• Parties: Robert L. TOBIAS and Mary Ellen Tobias, Appellants, v. The SPORTS CLUB, INC.; Hotel Associates, a Limited S.C. Partnership; The Ramada Hotel; Mallards; Interstate Management and Investment Corp.; E.L. Pooser; and Robert A. Dean, of whom Hotel Associates, a Limited S.C. Partnership; The Ramada Hotel; Mallards; Interstate Management and Investment Corp.; E.L. Pooser; and Robert A. Dean are Respondents. . Heard

Page 450

474 S.E.2d 450

323 S.C. 345

Robert L. TOBIAS and Mary Ellen Tobias, Appellants, v. The SPORTS CLUB, INC.; Hotel Associates, a Limited S.C Partnership; The Ramada Hotel; Mallards; Interstate Management and Investment Corp.; E.L. Pooser; and Robert A. Dean, of whom Hotel Associates, a Limited S.C Partnership; The Ramada Hotel; Mallards; Interstate Management and Investment Corp.; E.L. Pooser; and Robert A. Dean are Respondents.

No. 2555.

Court of Appeals of South Carolina.

Heard March 8, 1996.

Decided Aug. 19, 1996.

Rehearing Denied Oct. 16, 1996.

Certioraro Granted April 17, 1997.

Deborah R.J. Shupe, James A. Merritt, Jr., and William K. Witherspoon, all of Berry, Adams, Quackenbush & Dunbar, Columbia, for appellants.

James W. Alford, R. Lewis Johnson and Andrew Haselden, all of Barnes, Alford, Stork & Johnson, Columbia, for respondents.

HEARN, Judge:

Robert and Mary Ellen Tobias appeal the trial court's denial of their motion for a new trial. They argue the court erred in submitting the defenses of contributory negligence and assumption of the risk to the jury in their negligence actions based upon alleged violations of S.C.Code Ann. §§ 61-5-30 and 61-9-410 (1990). We affirm.

This case marks the first time a South Carolina appellate court has been called upon to decide whether the defenses of contributory negligence and assumption of the risk are available to a defendant in a suit for injuries sustained when an inebriated person was

served intoxicating liquor in violation of S.C.Code Ann. §§ 61-5-30 and 61-9-410 (1990). We hold that both contributory negligence and assumption of the risk were proper defenses in this case. ¹

FACTS

In his complaint, Robert Tobias alleged he was served intoxicating liquors at a bar in the Ramada Hotel in Columbia on May 3, 1989, when he was already noticeably intoxicated. He had begun drinking that afternoon while playing golf and continued his drinking that evening at three successive bars. The Ramada was the third bar he visited that night. Tobias alleged the employees of the Ramada knew or should have known he was intoxicated at the time they served him; however, Tobias presented no evidence that anyone observed him visibly intoxicated. Tobias left the Ramada, and after driving approximately twenty miles toward his home in Ridgeway, was involved in an automobile accident with another vehicle when he crossed the centerline of the highway. The collision between Tobias and the oncoming vehicle resulted in the death of one of the other vehicle's occupants and injured another. Tobias was also injured in the accident.

Tobias brought this negligence action against the Ramada alleging violations of S.C.Code Ann. §§ 61-5-30 and 61-9-410. His wife, Mary Ellen Tobias, filed a companion suit for loss of consortium. The Ramada defendants answered the complaints alleging, among other things, contributory negligence and assumption of the risk by Robert Tobias. At trial, the Tobiases moved to strike those two defenses. The trial court denied their motion and the jury returned defense verdicts in both cases.

The Tobiases argue the trial court erred in submitting contributory negligence and assumption of the risk to the jury because those affirmative defenses do not apply as a matter of law to private causes of action brought under sections 61-5-30 and 61-9-410. They assert allowing a tavern owner to plead these defenses as a bar to an injured intoxicated person's claim for damages effectively abrogates the remedy provided by law and violates the public policy established by the statutes. We disagree.

DISCUSSION

At common law, a tavern owner ² had no liability for serving alcohol to an intoxicated person who later injured himself or others. See 45 Am.Jur.2d Intoxicating Liquors § 553 (1969). The rationale for this rule was that consuming, not supplying, the alcohol was the proximate cause of intoxication. Id. Many jurisdictions, however, have departed from this common law view. In an effort to deter drunk driving and to compensate innocent victims injured by drunk drivers, many state legislatures have enacted "dram shop acts." ³ These statutes impose civil liability on tavern owners under various circumstances, such as supplying alcoholic beverages to minors or to obviously intoxicated persons. ⁴ In states where dram shop legislation has not been enacted, some courts have imposed liability on vendors of alcoholic beverages using principles of negligence, often basing a private cause of action on the violation of beverage control statutes. ⁵ At least three jurisdictions have refused to interpret their penal statutes to create a civil cause of action, ⁶ while others believe that such public policy decisions should be made by the legislature. ⁷ Still other jurisdictions, embracing the common law view, have enacted legislation which renders servers of alcohol immune from liability. ⁸

South Carolina is among those jurisdictions that have recognized a civil cause of action based upon the violation of a penal statute. Christiansen v. Campbell, 285 S.C. 164, 328 S.E.2d 351 (Ct.App.1985), cert. denied, S.C.Sup.Ct. order dated June 27, 1985. ⁹ In Christiansen, as here, the plaintiff, who was also the intoxicated person, brought a private cause of action relying onS.C.Code Ann. § 61-9-410 (1976) which provides, in part:

"[n]o holder of a permit authorizing the sale of beer or wine or any servant, agent, or employee of the permittee shall knowingly do any of the following acts upon the licensed premises covered by the holder's permit:

. . . . .

(2) sell beer or wine to any person while the person is in an intoxicated condition;"....

Appellants also base their action on S.C.Code Ann. § 61-5-30 (1990) which reads:

It shall be unlawful for any person to possess or consume any alcoholic liquors upon any premises where such person has been forbidden to possess or consume alcoholic liquors by the owner, operator, or person in charge of the premises.

No person or establishment licensed to sell alcoholic beverages pursuant to this article shall sell such beverages to persons in an intoxicated condition and such sales shall be deemed violations of the provisions thereof and subject to the penalties contained herein.

No person, corporation or organization for whose premises a license is required shall knowingly allow the possession or consumption of any alcoholic liquors upon such premises unless a valid license issued pursuant to subsection (3) or (4) of § 61-5-20 has been obtained and is properly displayed.

Since this cause of action was judicially created in South Carolina, we have no statutory guidance on the class of persons who may recover or on the availability of defenses. In many states where such a cause of action is statutorily authorized, the dram shop act or cases interpreting it have specifically precluded the intoxicated person from that class of plaintiffs who may bring suit. ¹⁰ In addition, many courts in jurisdictions with penal statutes, including most of those relied upon by the Court in Christiansen, have precluded first party recovery. ¹¹ Christiansen, however, clearly extended the cause of action to the intoxicated person himself. Therefore, our only inquiry today is whether defenses may be asserted against the intoxicated person by the tavern owner.

Appellants argue that to permit a tavern owner to raise traditional tort defenses in a suit against it would undermine the cause of action recognized in Christiansen, asserting this cause of action is more in the nature of one grounded in strict liability. We cannot accept this characterization. The cause of action recognized in Christiansen sounds in negligence. Under Christiansen, the jury must determine if the statutory violation is a proximate cause of the alleged injury. Subsequent decisions of the Supreme Court and the Court of Appeals have held the South Carolina liquor control statutes also create a private cause of action in favor of injured minors who were unlawfully served alcohol as well as innocent third parties injured by the inebriant. See Whitlaw v. Kroger Co., 306 S.C. 51, 410 S.E.2d 251 (1991) ( sections 61-9-40 and 61-9-410 give rise to civil liability if third party plaintiff can establish negligence per se. After establishing negligence per se, plaintiff must prove the violation of the statute was causally linked, both in fact and proximately, to the injury); Jamison v. The Pantry, Inc., 301 S.C. 443, 392 S.E.2d 474 (Ct.App.1990) (third party plaintiff has cause of action under sections 61-9-40 and 61-9-410); Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (Ct.App.1990) (third party and intoxicated minor have cause of action under section 61-9-410); cf. Garren v. Cummings & McCrady, Inc., 289 S.C. 348, 345 S.E.2d 508 (Ct.App.1986) (social host incurs no common law liability to third party plaintiffs when he serves alcohol to his adult guests). Thus, Christiansen and the decisions which followed it clearly indicate liability should be predicated upon a negligence standard, i.e., "whether the bartenders negligently served alcoholic beverages to a person who, by his appearance or otherwise, would lead a prudent man to believe that person was intoxicated." Daley, 303 S.C. at 87, 399 S.E.2d at 16.

We hold that while a plaintiff who proves a violation of the statute has established negligence per se, certain defenses which break the causal chain may still be asserted by the defendant. This construction is consistent with the Supreme Court's holding in Whitlaw v. Kroger Co. that "[v]iolation of the statute, thus, is not conclusive of liability.... We can only say that if any cause of action exists for this plaintiff under the statute, the cause of action will be subject to any valid defenses and limitations which may break the causal chain." Id. 306 S.C. at 54-55, 410 S.E.2d at 253. See also Crolley v. Hutchins, 300 S.C. 355, 387 S.E.2d 716 (Ct.App.1989) (liability under S.C.Code Ann §...