Trujillo v. Trujillo
| Decision Date | 27 May 1986 |
| Docket Number | No. 8614,8614 |
| Citation | 1986 NMCA 52,721 P.2d 1310,104 N.M. 379 |
| Parties | Kenneth TRUJILLO, Personal Representative of the Estate of Henry Trujillo, Jr., Deceased, Plaintiff-Appellant, v. Gilbert TRUJILLO, d/b/a El Nido Supper Club, Defendant-Appellee, and Linda W. Treat and Thomas J. Treat, Defendants. |
| Court | Court of Appeals of New Mexico |
Kenneth Trujillo (plaintiff), as personal representative of the estate of Henry Trujillo, Jr., appeals the trial court's dismissal of his claim against Gilbert Trujillo (defendant), d/b/a El Nido Supper Club. The issue on appeal is whether a tavernkeeper who unlawfully serves alcohol to an intoxicated patron is civilly liable for injuries suffered by the patron as a result of that act. We hold that defendant is not liable and, therefore, affirm.
Plaintiff brought an action for the wrongful death of decedent in Valencia County on January 3, 1985. The pertinent portions of the complaint are as follows:
II.
That on or about the thirteenth (13th) day of November, 1984, Defendant Gilbert Trujillo d/b/a El Nido Supper Club, knew or should have known that Henry Trujillo, Jr., deceased was intoxicated and notwithstanding the same negligently and in violation of Sec. 60-7A-16 N.M.S.A. (1978) sold or served Henry Trujillo, Jr., a customer, intoxicating beverages on the premises of El Nido Supper Club.III.
That at all times pertinent hereto Defendant Gilbert Trujillo d/b/a El Nido Supper Club knew or should have known that Henry Trujillo, Jr. would leave El Nido Supper Club by foot or motorized vehicle and by virtue of his intoxication present a danger to himself and others and notwithstanding the same, wantonly and with gross disregard for Henry Trujillo, Jr.'s, safety and that of the public and knowing that Henry Trujillo, Jr., was intoxicated, served or sold Henry Trujillo, Jr., intoxicating beverages.
IV.
That Henry Trujillo, Jr., did wander on foot from the El Nido Supper Club onto the Highway and because of his intoxicated state did stand in the path of a vehicle proceeding north on U.S. Highway 85 and was struck by said vehicle causing him severe bodily injury resulting in his death.
V.
That as a proximate result of Defendant's negiligence [sic], the Estate of Henry Trujillo, Jr., incurred funeral expenses, ambulance expenses and suffered loss of income in an amount as yet not ascertained but believed to be in excess of two hundred and fifty thousand dollars ($250,000.00).
On January 25, 1985, defendant filed a motion to dismiss for failure to state a claim upon which relief could be granted. NMSA 1978, Civ.P.R. 12(b)(6) (Repl.Pamp.1980). The court granted the motion on April 29, mistakenly treating its decision as an interlocutory order. This court denied interlocutory review, and thereafter a proper notice of appeal was filed on May 21, 1985. Two other defendants, Linda and Thomas Treat, are not parties to the appeal. Linda Treat was the driver of the vehicle which allegedly hit plaintiff's decedent, and Thomas Treat was the owner of the vehicle.
All facts pled are accepted as true. McCasland v. Prather, 92 N.M. 192, 585 P.2d 336 (Ct.App.1978). We must determine if, had decedent lived, he would have had a cause of action against defendant. NMSA 1978, Sec. 41-2-1 (Repl.Pamp.1982). Plaintiff argues that (1) the principles expressed in Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982), permit recognition of a common law cause of action for decedent; and (2) NMSA 1978, Section 41-11-1 (Supp.1983), codified a cause of action for decedent. We divide the discussion into three sections: (1) New Mexico decisional law; (2) the effect of the 1983 enactment of Section 41-11-1; and (3) the effect of the 1985 amendment to Section 41-11-1.
In Lopez v. Maez, our supreme court changed the common law rule which precluded suit against a tavernkeeper by a third person injured as a result of the tavernkeeper's sale of intoxicating liquor to an intoxicated patron. The court held that (1) a tavernkeeper owed a duty of care to the injured third person founded upon a liquor regulation that made it unlawful to sell or serve alcohol to an intoxicated person; and (2) the sale or service of alcohol to the intoxicated patron could constitute a proximate cause of the third person's injuries. In discussing duty, the court determined that the liquor regulation and a companion statutory provision were enacted for the benefit of the public, and that violation of these provisions was a breach of duty to members of the public. In discussing proximate cause, the court rejected the common law view that the proximate cause of the injury was not the furnishing of the liquor, but the drinking of it. The court stated that the sale or service of alcohol to an intoxicated automobile driver "may be a proximate cause of injuries inflicted upon a third party by an inebriated driver." Id. at 631, 651 P.2d at 1276 (emphasis in original). The court reasoned that a "person who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, although the act of a third person contributes to the final result." Id. at 632, 651 P.2d at 1275. The court concluded that the "consequences of serving liquor to an intoxicated person whom the server knows or could have known is driving a car, is reasonably foreseeable." Id. at 632, 651 P.2d at 1276. Lopez did not, however, hold that the intoxicated patron had a cause of action against the tavernkeeper for injuries sustained by the patron as a result of the unlawful service or sale of alcohol.
The analysis of duty and proximate cause, in Lopez, was applied again in MRC Properties, Inc. v. Gries, 98 N.M. 710, 652 P.2d 732 (1982), under statutes prohibiting service of alcohol to minors. See NMSA 1978, Secs. 60-7B-1(A) and -1.1 (Repl.Pamp.1981). The court held that a third person may have a cause of action against a liquor seller for the seller's violation of the statute prohibiting service of alcohol to minors where the third person's damages were proximately caused by service of the alcohol to the minor.
Next, in Porter v. Ortiz, 100 N.M. 58, 665 P.2d 1149 (Ct.App.1983), this court recognized that a minor has a cause of action against a tavernkeeper who knowingly sells alcohol to the minor where the sale proximately results in the injury or death of the minor. This court extended the class of persons to whom duty was owed to include minors under Sections 60-7B-1 and -1.1. We concluded that these statutes were designed for the protection of minors as well as for the protection of members of the public.
There was no suggestion in Porter that a tavernkeeper's duty ran to an adult patron under Section 60-7A-16 (Repl.Pamp.1981). Section 60-7A-16, upon which plaintiff predicates the existence of defendant's duty to decedent, is a successor to the statutory provisions discussed in Lopez. It states: "It is a violation of the Liquor Control Act for a person to sell or serve alcoholic beverages to or to procure or aid in the procurement of alcoholic beverages for an intoxicated person knowing that the person buying or receiving service of alcoholic beverages is intoxicated." Such violation constitutes a misdemeanor. NMSA 1978, Sec. 60-7A-25(A) (Repl.Pamp.1981).
In defining the duty owed under Liquor Regulation No. 30 (1976), which is similar in language to Section 60-7A-16, the Lopez court stated that "a tavernowner violates his duty to the public if he serves an obviously intoxicated person." 98 N.M. at 631, 651 P.2d at 1274 (emphasis added). The court did not expressly indicate whether the patron himself is to be included in "the public" group. The purpose of the Liquor Control Act, NMSA 1978, Sections 60-3A-1 to 60-8A-19 (Repl.Pamp.1981 & Cum.Supp.1985), of which Section 60-7A-16 is a part, similarly does not expressly indicate the scope of the duty under Section 60-7A-16. Section 60-3A-2 states that it is "the policy of the Liquor Control Act that the sales, service and public consumption of alcoholic beverages in the state shall be licensed, regulated and controlled so as to protect the public health, safety and morals of every community in the state * * *." We must look to separate policy considerations to define the scope of the duty.
We are aware that Porter recognized a minor's cause of action based upon a violation of the statutes prohibiting service of alcohol to a minor. Secs. 60-7B-1 and -1.1. In Walker v. Key, 101 N.M. 631, 686 P.2d 973 (Ct.App.1984), however, we noted that violation of these statutes falls into a special category. In holding that the prospectivity requirements of Lopez did not bar a claim for relief based upon a breach of Section 60-7B-1.1, we noted that Section 60-7B-1.1 "was intended to protect minors and to protect the general public from the risk of injury caused by intoxicated minors. These factors were not present in Lopez v. Maez." 101 N.M. at 634, 686 P.2d at 976 (citations omitted). The immaturity and inexperience which can accompany minors' consumption of alcohol "make misuse of alcohol especially likely * * * " Id. at 635, 686 P.2d at 977. We concluded that "[d]ecisions in New Mexico subsequent to Lopez v. Maez reflect that the legislature has determined that minors fall within a special class, and that public policy dictates that the minors and the public are entitled to be protected from those who would illegally furnish liquor to underaged persons." Id.
Walker correctly suggests that the concerns of public policy do not extend to protect an intoxicated adult patron from the results of his intoxication under Section 60-7A-16. A duty should not be imposed upon the tavernkeeper,...
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