Tomlinson v. Love's Country Stores, Inc.

• Decision Date: 08 June 1993
• Docket Number: No. 77682,77682
• Citation: 854 P.2d 910,1993 OK 83
• Parties: Thomas Lee TOMLINSON and Linda Tomlinson, individually, and as co-personal representatives of the Estate of Brad Cooper Tomlinson, deceased, Appellants, v. LOVE'S COUNTRY STORES, INC., an Oklahoma Corporation, Appellee.
• Court: Oklahoma Supreme Court

Page 910

854 P.2d 910

1993 OK 83

Thomas Lee TOMLINSON and Linda Tomlinson, individually, and as co-personal representatives of the Estate of Brad Cooper Tomlinson, deceased, Appellants, v. LOVE'S COUNTRY STORES, INC., an Oklahoma Corporation, Appellee.

No. 77682.

Supreme Court of Oklahoma.

June 8, 1993.

On Certiorari to the Court of Appeals, Division 1.

CERTIORARI PREVIOUSLY GRANTED. COURT OF APPEALS OPINION VACATED. JUDGMENT OF TRIAL COURT REVERSED AND REMANDED.

Duke Halley, David B. Christian, Halley & Christian, Woodward, for appellants.

Tracy L. Pierce, Jeff R. Beeler, King, Roberts & Beeler, Oklahoma City, for appellee.

ALMA WILSON, Justice:

We are presented with the question of whether to expand the holding in Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300 (Okla.1986), to include liability against commercial vendors of beer for consumption off the premises when those vendors sell to minors. We answer affirmatively.

Procedurally, this matter comes before us on certiorari. The trial court below granted a motion of the appellee to dismiss the appellants' claim for failure to state a claim upon which relief could be granted. The Court of Appeals affirmed. We have previously granted certiorari to consider this new aspect of the line of cases beginning with Brigance.

The petition of the appellants alleges that on September 29, 1989, the appellee, Love's Country Stores, Inc., in Guymon, Oklahoma, and its agents sold and delivered beer to Brad Cooper Tomlinson, Jason Budd and Marcus Urias, all of whom were under the age of twenty-one years. The petition asserts that at the time of the sale the agents of the appellee knew that the minors intended to drink the beer while driving or riding in a motor vehicle. With Jason Budd driving, and Tomlinson and Urias as passengers, Budd became intoxicated, lost control of his vehicle and crashed it, injuring Tomlinson, who died as a result of those injuries. The petition alleges that the appellee was negligent in violating the statute prohibiting the sale of the beer to the minors.

The appellee moved to dismiss, arguing that Brigance and the cases that followed, dealing with the issue of the liability of vendors of alcoholic beverages to others injured due to the consumption of the alcohol, are restricted in their application to vendors of alcoholic beverages for consumption on the premises. Because the appellee sold beer for consumption off the premises, it asserts that Brigance had no application to the facts before the trial court. The appellee concluded that the appellants had failed to state a claim upon which relief could be granted. Without elaboration, the trial court granted the motion to dismiss.

Regarding the facts alleged, the critical question to be answered where a case has been dismissed for failure to state a claim, is whether the petition contains allegations sufficient to state a legally cognizable claim. Hulsey v. Mid-America Preferred Ins. Co., 777 P.2d 932, 936 (Okla.1989). For the purpose of this appeal, all facts alleged in the petition are considered from the viewpoint of whether they support a legally cognizable claim. A claim must not be dismissed for failure to state a legally cognizable demand unless it can be determined as a matter of law that the pleader cannot prove any set of facts that would warrant relief in his favor. Hulsey, 777 P.2d at 936, n. 15. See also, Niemeyer v. Fidelity and Guaranty Co., 789 P.2d 1318, 1321 (Okla.1990).

A review of the facts of Brigance reveals that a group of minors were served intoxicating beverages. An employee of the Velvet Dove knew that Jeff Johnson, one of those minors, had driven the group to the restaurant because the employee had assisted Johnson to his car when the group left the restaurant. The beverages served to the minors had caused Johnson to become intoxicated, or had increased his prior intoxication. Johnson's condition caused him to wreck the car he was driving and a passenger, Shawn Brigance, was injured. Brigance held that [P]ublic policy is better served by holding that the common law principles of negligence are applicable where a commercial vendor for on the premises consumption is shown to have sold or furnished intoxicating beverages to a person who was noticeably intoxicated from which a jury could determine that such conduct creates an unreasonable risk of harm to others who may be injured by the person's impaired ability to operate a motor vehicle.

Brigance, 725 P.2d at 305. Prior to the effective date of the Brigance opinion, a tavern owner could not be held liable for furnishing alcoholic beverages to one who, after becoming intoxicated, injured either himself or another. McClelland v. Post No. 1201, VFW, 770 P.2d 569, 571-572 (1989). This Court unanimously agreed that the tavern owner should be liable.

This Court based its holding on what we found to be a clear trend in establishing a civil cause of action by an injured third person against a commercial vendor of liquor for on premises consumption. Brigance, 725 P.2d 300, 303. The Supreme Court of Kansas, in Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985), revealed just how strong the trend was in the appendix to its opinion. It reported that fourteen states had dram shop statutes that gave a right of action to persons injured in person, property, or means of support, by an intoxicated person, or in consequence of the intoxication of any person, against the person selling or furnishing the liquor that caused the intoxication in whole or in part. That court further reported that twenty-nine jurisdictions, including the District of Columbia, had judicially abrogated the common law doctrine of no liability, and that six states with dram shop laws had judicially imposed liability in some form. Only six states had no dram shop laws and refused to impose liability judicially. Ling, 703 P.2d at 736. ¹

The appellee argues that Brigance was specifically limited to sales made for on-the-premises consumption. But when this Court determined to join the overwhelming majority of states choosing to reject the antiquated common law rule, a sampling of jurisdictions were cited in the footnotes. In footnote 2 of Brigance, the Supreme Judicial Court of Massachusetts case of Michnik-Zilberman v. Gordon's Liquor, 390 Mass. 6, 453 N.E.2d 430 (1983) was cited. That court affirmed a lower appellate court decision that upheld a jury verdict in behalf of the plaintiff in that action. The facts reveal that a seventeen-year-old boy bought a six-pack of twelve ounce containers of beer from a liquor store. Although he had a young appearance, and had not yet started to shave, he was not asked for any identification. Later in the evening he drank three or four beers, some while he was in his automobile. He struck and killed an adult bicyclist. The Massachusetts court reasoned that "The Legislature has placed on every vendor who holds a license to furnish alcoholic beverages and a concomitant right to profit from its sale the responsibility to refrain from supplying those beverages to minors or to intoxicated persons. The court found that the vendors had to exercise the care of a reasonably prudent person, and found that its statutes fixed a standard for vendors, and that if the vendor violated that standard, it was responsible for all the proximately caused injuries. The court noted that one of the more foreseeable risks was that the minor would drive and cause harm to third persons while intoxicated. Michnik-Zilberman, 453 N.E.2d at 434.

Another jurisdiction cited in footnote 2 of Brigance is Oregon, and the case of Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977). In that case tavern owners were held liable for injury to a third party after the tavern continued to serve a patron who was intoxicated, drove his automobile and killed two people. But Campbell was cited as authority by the Supreme Court of Oregon in Davis v. Billy' Con-Teena, 284 Or. 351, 587 P.2d 75, 77 (1978). Two minors purchased a keg of beer from the defendant. They gave some of the beer to another minor who was driving the car. He became intoxicated from the beer, struck another automobile and killed its occupant. The court held that one of the purposes of its statute that forbids sale or service of liquor to minors was to protect the health and safety of other people of the state including persons who may be killed or injured by inebriated minors. Davis, 587 P.2d at 77. In violating the statute, the defendants' conduct was presumably negligent as a matter of law. The court reversed the trial court, which had dismissed the complaint of the plaintiff upon the defendants' demurrers.

In footnote 3 of Brigance, the North Carolina case of Hutchens v. Hankins, 63 N.C.App. 1, 303 S.E.2d 584 (1983), is cited to support the statement that "Several states with dram shop laws have also recognized a new common law right of action against a vendor of liquor." The issue as stated by the court in Hutchens was whether a common law dram shop liability existed in North Carolina for injuries or death sustained by innocent third parties in an automobile collision with the customer of a tavern who was sold alcoholic beverages while he was intoxicated. Like the Oregon court, the North Carolina Court of Appeals cited its earlier case and expanded on the rationale to include sale of alcoholic beverages for off-premises consumption. Freeman v. Finney, 65 N.C.App. 526, 309 S.E.2d 531 (1983). ² The court stated the issue as whether defendants are civilly liable for automobile accidents caused by the negligence of intoxicated minors who purchased malt beverages from the defendants. The court held that the claims of the plaintiffs were improperly dismissed. The court reasoned that the purpose of its statute that imposed a duty upon vendors not to sell beer to minors was to protect both the minor and the community at large from the possible adverse consequences of the...