Walters v. Sloan

• Decision Date: 30 June 1975
• Court: California Court of Appeals Court of Appeals
• Parties: Dale C. WALTERS, Plaintiff and Appellant, v. Robert M. SLOAN et al., Defendants and Respondents. Civ. 12946.

Page 623

122 Cal.Rptr. 623

49 Cal.App.3d 643

Dale C. WALTERS, Plaintiff and Appellant, v. Robert M. SLOAN et al., Defendants and Respondents.

Civ. 12946.

Court of Appeal, Fourth District, Division 1, California.

June 30, 1975.

Hearing Granted Sept. 10, 1975.

Roy C. Zukerman, Fountain Valley, for plaintiff and appellant.

Robert J. Smith, Justin, for defendants and respondents.

OPINION

AULT, Associate Justice.

Plaintiff Dale C. Walters appeals from a judgment of dismissal after the general demurrer of the defendants Sloan (Robert M., Madylon E. and their minor daughter, Helen Ann) to his second amended complaint was sustained without leave to amend. The Sloans were named defendants in the first four causes of action in the second amended complaint. The fifth and sixth causes of action were directed against Ira James Marlin and certain fictitiously named defendants, remain pending, and are unaffected by the judgment of dismissal.

Walters seeks to recover damages for personal injuries. The first two causes of action are based upon the statutory presumption of negligence or failure to use due care which arises from a violation of statute (Evid.Code § 669, subd. (a)).

The first cause of action is predicated upon an alleged violation by the Sloans of Business and Professions Code section 25658, subdivision (a), which reads:

'Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor.'

After pleading the statute, Walters alleges that on May 12, 1972 he was a police officer for the City of Anaheim and was, in the course of his duties, dispatched to a residence on real property owned by the Sloans. The Sloans had entrusted full and complete control and possession of the real property and residence to Helen, their 16-year-old daughter, who was their agent and who, in doing the things alleged was acting within the scope of her authority as such agent.

It is further alleged that on May 12, 1972 Helen hostessed a party in the residence which was attended by Ira James Marlin and some 200 other persons. Helen Knew Marlin and the fictitiously named defendants were under the age of 21 years, but nevertheless negligently furnished Marlin and the others copious amounts of alcoholic beverages, knowing, or having reason to believe, that Marlin and the others would become intoxicated, thus constituting a substantial risk to the safety of others both on and off the premises.

Walters, in the course of performing his duties, went to the residence. Upon arrival, he observed on the public street fronting the premises, Marlin and others under the age of 21, in an extremely intoxicated and disorderly state. He attempted to place Marlin and the others under arrest for being drunk in public. Marlin and the other defendants, as a proximate result of Helen's unlawful disbursing of alcoholic beverages to them, attacked and injured Walters, causing damage to his person and property.

The second cause of action again alleges a violation of statute by the Sloans, this time Business and Professions Code section 25602 which reads:

'Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.'

Walters pleads the statute and incorporates all the allegations in the first cause of action except those which directly related to conduct under Business and Professions Code section 25658, subdivision (a). In addition he alleges that Marlin, who was attending the party at Helen's invitation, was intoxicated by alcoholic beverages, drugs, or a combination thereof, and that Helen negligently furnished Marlin alcoholic beverages while he was so intoxicated, proximately causing Walters' injuries.

The third cause of action purports to state a cause of action in nuisance. Walters again incorporates all the allegations of the first cause of action. In addition the following facts are alleged.

Helen, for two hours prior to the injury to Walters, negligently permitted and encouraged Marlin and the other guests in the consumption of alcohol, smoking of marijuana, and use of dangerous drugs at the residence. These activities resulted in general harassment, disturbance and endangering of neighbors, guests and other persons. Helen knew, or should have known, that her conduct and the conduct of Marlin and the others created a substantial risk of injury to other persons on and off the premises.

In the fourth cause of action Walters incorporates all the allegations contained in the first, second and third causes of action. He then alleges that the Sloans negligently placed Helen in charge of the premises with knowledge that she was going to have a party attended by approximately 300 minors, without adult supervision. The Sloans knew, or should have known, that Helen and her guests, including Marlin, had a propensity for engaging in parties where guests became intoxicated and became careless and reckless. The conduct of the Sloans and the foreseeable conduct of Marlin created a substantial risk of harm to persons both on and off the premises. The proximate results of the Sloans' conduct were the injuries suffered by Walters.

DISCUSSION

I.

We begin our consideration of the questions presented mindful of the rules which apply in an appeal from a judgment of dismissal entered after a general demurrer has been sustained without leave to amend. In this procedural posture, we must accept as true not only the facts expressly alleged in plaintiff's complaint (Endler v. Schutzbank, 68 Cal.2d 162, 165, 65 Cal.Rptr. 297, 436 P.2d 297), but also facts essential to a cause of action which the facts alleged supply by reasonable implication or inference (Harvey v. City of Holtville, 271 Cal.App.2d 816, 819, 76 Cal.Rptr. 795).

The causes of action predicated upon violation of the two sections of the Business and Professions Code (§ 25658, subd. (a)--furnishing alcohol to a minor and § 25602--furnishing alcohol to an intoxicated person) may be treated together.

Until 1971 California courts, following the common law rule, held that a person injured as the result of another's intoxication could not recover from the supplier of the alcoholic beverage because it was the consumption of the beverage, not the furnishing, which was the proximate cause of the injury (Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450; Lammers v. Pacific Electric Ry. Co., 186 Cal. 379, 199 P. 523; Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530; Hitson v. Dwyer, 61 Cal.App.2d 803, 143 P.2d 952).

In Vesely v. Sager (1971), 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151, the California Supreme Court reexamined the common law rule of nonliability, found it 'patently unsound,' and overruled it (p. 157, 95 Cal.Rptr. 623, 486 P.2d 151). The court determined:

' . . . civil liability results when a vendor furnishes alcoholic beverages to a customer in violation of Business and Professions Code section 25602 [furnishing alcohol to an intoxicated person] and each of the conditions set forth in Evidence Code section 669, subdivision (a), is established.' (p. 157, 95 Cal.Rptr. p. 625, 489 P.2d p. 153.)

The Evidence Code section referred to, in effect, provides that a presumption of negligence arises from the violation of a statute which was enacted to protect the class of persons of which the defendant is a member against the type of harm which the plaintiff suffered as a result of the violation of the statute. ¹

Vesely brought an action to recover damages for personal injuries sustained in an automobile accident. He sued both the driver of the car which collided with his automobile and Sager, who owned and operated the Buckhorn Lodge and who sold the defendant driver large quantities of alcoholic beverages, knowing the driver was becoming intoxicated. In reversing the judgment of dismissal entered after Sager's demurrer to the complaint was sustained without leave to amend, the Supreme Court enunciated the general rule stated above and then dealt with the question of proximate cause.

'To the extent that the common law rule of nonliability is based on concepts of proximate cause, we are persuaded by the reasoning of the cases that have abandoned that rule. The decisions in those jurisdictions which have abandoned the common law rule invoke principles of proximate cause similar to those established in this state by cases dealing with matters other than the furnishing of alcoholic beverages. (Citations.) Under these principles an actor may be liable if his negligence is a substantial factor in causing an injury, and he is not relieved of liability because of the intervening act of a third person if such act was reasonably foreseeable at the time of his negligent conduct. (Citations.)' (Vesely v. Sager, 5 Cal.3d 153, 163, 95 Cal.Rptr. 623, 630, 486 P.2d 151, 158.)

The court then addressed the substantial issue in such cases:

'The central question in this case, therefore, is not one of proximate cause, but rather one of duty: Did defendant Sager owe a duty of care to plaintiff or to a class of persons of which he is a member?' (p. 164, 95 Cal.Rptr. p. 631, 486 P.2d p. 159.)

Little difficulty in finding the requisite duty was encountered in Vesely:

'In the instant case a duty of care is imposed upon defendant Sager by Business and Profession Code section 25602 . . .. This provision . . . was adopted for the purpose of protecting members of the general public from injuries to person and damage to property resulting from the excessive use of intoxicating liquor.' (p. 165, 95 Cal.Rptr. p. 631, 486 P.2d p. 159.)

The court found the other requirements of Evidence Code section 669, subdivision (a), were apparent from the circumstances alleged in the complaint, and concluded:

'From the facts alleged in the complaint it appears that plaintiff is...