Vance v. United States

• Decision Date: 16 March 1973
• Docket Number: Civ. No. A-84-71.
• Citation: 355 F. Supp. 756
• Parties: Mrs. John C. VANCE, Individually and as Guardian Ad Litem for John C. Vance, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Alaska

355 F. Supp. 756

Mrs. John C. VANCE, Individually and as Guardian Ad Litem for John C. Vance, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. A-84-71.

United States District Court, D. Alaska.

March 16, 1973.

COPYRIGHT MATERIAL OMITTED

Leroy J. Barker, of Robison, McCaskey, Strachan & Hoge, Anchorage, Alaska, for plaintiffs.

A. Lee Petersen, Asst. U. S. Atty., Anchorage, Alaska, for defendant.

MEMORANDUM AND ORDER

PLUMMER, Chief Judge.

This case comes before the court on defendant's second motion for summary judgment. Plaintiff is seeking recovery in this action for injuries to John C. Vance and his dependents resulting from injuries sustained by Mr. Vance while he was intoxicated. Plaintiff's action is brought against the United States under the Federal Tort Claims Act, 28 U.S.C. A. §§ 1346(b) and 2674, on the theory that Mr. Vance was negligently served intoxicating liquors at the Non-Commissioned Officers' Club at Clear Air Force Station, Alaska.

Defendant's first motion for summary judgment was denied on June 21, 1972, but defendant has renewed its motion in light of two recent decisions from California, Carlisle v. Kanayer, 24 Cal.App. 3d 587, 101 Cal.Rptr. 246 (1972), and Sargent v. Goldberg, 25 Cal.App.3d 940, 102 Cal.Rptr. 300 (1972). In these cases the California Court of Appeals held that contributory negligence is a defense where the claim is based upon injuries to an intoxicated person as it is in the present case. Defendant contends that by becoming intoxicated Mr. Vance was contributorily negligent as a matter of law and that a trial is therefore unnecessary.

In its order of June 21, 1972, the court held that plaintiff's claim is cognizable under the law of Alaska and the Federal Tort Claims Act, but the court did not discuss the effect of contributory negligence.

It is necessary to begin with an examination of the effect on this case of A.S. 04.15.020(a), which makes it a crime to give or sell liquor to minors or intoxicated persons. Plaintiff does not contend that this statute creates a new civil cause of action. Compare, e. g.: Campbell v. Village of Silver Bay, 315 F.2d 568 (8th Cir. 1963); Konsler v. United States, 288 F.Supp. 895 (N.D.Ill.1968). Rather, plaintiff contends that this statute sets a minimum standard of care for purposes of the common law cause of action based upon ordinary negligence.¹ That is, plaintiff is contending that a violation of this statute is negligence per se.

In Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971), the Alaska Supreme Court approved the rules of negligence per se found in Restatement (2d) of Torts at sections 286 and 288. Although Ferrell involved the violation of a traffic regulation, the court clearly did not intend to limit the doctrine to traffic cases. See generally Comment, 2 UCLA-Alaska Law Review 54, 63-67 (1972).

Under the Restatement rule followed in Alaska, an unexcused violation of a statute or regulation is negligence in itself if the court adopts the statute as defining the conduct of a reasonable man. (If the statute is not so adopted, a violation may be considered as evidence of negligence.) The court may and usually must adopt the statute as the minimum standard of care if the purpose of the statute is at least in part: (a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results.

Applying this test to the statute in question, it is clear that requirements (b), (c) and (d) are satisfied; the statute unquestionably is designed at least in part to protect against personal injuries caused by intoxication. The principal issue is whether requirement (a) is met; that is, whether the consumer himself is within the protected class.

Defendant first contends that the statute does not apply to a private club such as the Non-Commissioned Officers' Club involved in this case since drinking in such clubs is tantamount to drinking in one's own home. The short answer to this contention is that the statute proscribes not only selling liquor to an intoxicated person but also giving liquor to such a person. The statute draws no distinctions among the places where liquor might be served. Turning to the nub of the issue, it is apparent that, although the principal purpose of the statute may have been to protect innocent third parties from the negligence of an intoxicated consumer, the purpose at least in part was also to protect the consumer himself. If the consumer involved in this case were a minor rather than an alleged intoxicated person, it would be logical to conclude that the statute was enacted by the Legislature to protect minors. The statute does not purport to discriminate between minors and intoxicated persons and therefore it should logically follow that both are protected. Accordingly, the court adopts A.S. 04.15.020(a) as the minimum standard of conduct for defendant's agent in the present case.

Since plaintiff's claim is grounded upon the alleged negligence of defendant's agent, contributory negligence would ordinarily be a defense. This is true even though the negligence may be proved by comparing the defendant's conduct to a statutory norm rather than to the hypothetical conduct of a reasonable man.² See Restatement (2d) of Torts section 483. However, as section 483 also points out, there are exceptional statutes which are intended to protect persons from their own misconduct and to place the entire responsibility for the harm upon the one who has violated the statute. The Restatement cites the following example:

"Thus a statute which prohibits the sale of firearms to minors may be clearly intended, among other purposes, to protect them against their own inexperience, lack of judgment, and tendency toward negligence, and to make the seller solely responsible for any harm to them resulting from the sale. In such a case the purpose of the statute would be defeated if the contributory negligence of the minor were permitted to bar his recovery."

A.S. 04.15.020(a) presents an even more compelling example of a statute intended to place the entire responsibility for resulting harm upon the violator, for it is virtually impossible for the statute to be violated without contributory negligence on the part of the plaintiff-consumer. Also, like the example in the Restatement, the statute is clearly intended to protect minors from their own misconduct. Since the statute does not purport to treat sales to minors differently from sales to intoxicated persons, it should logically follow that both are protected to the same extent. The two California cases cited by defendant as the basis for renewing its motion for summary judgment, supra, did not take into account section 483 of the Restatement. In fact, the Restatement rules of negligence per se have not been adopted in California as they have in Alaska. See Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151 (1971), applying a legislative codification of the common law rule of negligence per se. Nor can it be said that Mr. Vance was contributorily negligent per se if he is found to have violated A.S. 11.45.032 (making certain drunkenness a crime), for the purpose of that statute is obviously to prevent annoyance and not to protect one who serves liquor to an intoxicated person against civil liability. The court therefore holds that contributory negligence is not a defense to negligence per se based upon a violation of A.S. 04.15.020(a).

Defendant contends that if contributory negligence is not a defense then the case becomes one of "strict liability," and that strict liability is not consented to in the Federal Tort Claims Act. Defendant relies upon Konsler v. United States, 288 F.Supp. 895 (N.D.Ill. 1968). However, the government's liability in that case was predicated upon a Dram Shop Act which created a new civil cause of action without regard to fault. Here, plaintiff does not contend that the statute creates a new cause of action but that the statute merely sets the minimum standard of care for purposes of ordinary negligence liability. Therefore removing the defense of contributory negligence does not result in strict liability, because negligence is still required. Plaintiff's claim is still based upon an allegedly "negligent or wrongful act or omission" of a federal employee within the meaning of 28 U.S.C. § 1346(b). Compare Dalehite v. United States, 346 U.S. 15, 45, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Thus, the court's holding of June 21, 1972, that this claim is cognizable under the Federal Tort...