Walz v. City of Hudson

• Decision Date: 15 December 1982
• Docket Number: Nos. 13578,13579,s. 13578
• Citation: 327 N.W.2d 120
• Parties: Lela WALZ, Special Administrator of the Estate of Guy William Ludwig, deceased, Plaintiff and Appellant, v. CITY OF HUDSON, South Dakota, a Municipal Corporation, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 120

327 N.W.2d 120

Lela WALZ, Special Administrator of the Estate of Guy William Ludwig, deceased, Plaintiff and Appellant, v. CITY OF HUDSON, South Dakota, a Municipal Corporation Defendant and Appellee.

Nos. 13578, 13579.

Supreme Court of South Dakota.

Argued Oct. 12, 1982.

Decided Dec. 15, 1982.

David V. Vrooman, Sioux Falls, and Lee M. McCahren, Vermillion, for plaintiff and appellant.

Blaine O. Rudolph, Canton, for defendant and appellee.

FOSHEIM, Chief Justice.

Lela Walz (appellant), as special administrator of the estate of Guy William Ludwig, sued the City of Hudson, South Dakota (appellee), doing business as the Hudson Municipal Liquor Store, for the wrongful death of Mr. Ludwig. Appellant's complaint alleged that appellee sold Larry VanEgdom intoxicating beverages when appellee knew or could have ascertained by observation that Mr. VanEgdom was intoxicated; that immediately thereafter Mr. VanEgdom, while driving a car, collided with Mr. Ludwig who was stopped on his motorcycle at a stop sign; and that Mr. Ludwig's resulting death was caused by appellee's negligence in selling alcholic beverages to Mr. VanEgdom. Appellee moved to dismiss the complaint on the grounds that it failed to state a cause of action upon which relief could be granted and that appellant failed to comply with SDCL 9-24-2 ¹ by notifying it of her claim within sixty days of Mr. Ludwig's death. The trial court granted the motion based on failure to state a claim, appellant appeals. The trial court denied the motion based on noncompliance with SDCL 9-24-2, appellee filed a notice of review on that issue. We reverse that part of the order granting appellee's motion and affirm that part of the order denying the motion.

Appellant urges that we overrule our decision in Griffin v. Sebek, 90 S.D. 692, 245 N.W.2d 481 (1976), thus affording her a cause of action against appellee.

In Griffin the plaintiffs brought a negligence action against defendants, licensed tavernkeepers, seeking damages for personal injury resulting from defendants' unlawful sale of alcoholic beverages. Our decision, affirming the trial court's order granting defendants' motion to dismiss for failure to state a claim, said the issue was whether, in the absence of a dram shop act, "the common law now authorizes or should be liberalized to afford a remedy." Id. at 482. We determined that no such cause of action exists in South Dakota and declined to expand the common law to afford a remedy. We also did not extend SDCL 35-4-78(2) ² to impose a civil liability duty. We take judicial notice that since Griffin was decided, alcohol has been involved in 50.8% of this state's traffic fatalities from 1976 to 1981; in 1981 alone, 62% of South Dakota's traffic fatalities were alcohol related. ³ State v. Larson, 81 S.D. 540, 138 N.W.2d 1 (1965); SDCL 19-10-2(2). This tragic waste of life prompts us to review our conclusions in Griffin. If the Legislature does not concur with our application of SDCL 35-4-78(2), as now announced, it is the prerogative of the Legislature to so assert. We fully realize this decision, while hopefully helpful, certainly cannot resolve the problems of alcohol-related deaths or injuries.

Negligence is the breach of a legal duty imposed by statute or common law. Cowan v. Dean, 81 S.D. 486, 137 N.W.2d 337 (1965); Albers v. Ottenbacher, 79 S.D. 637, 116 N.W.2d 529 (1962). Griffin recognized that a liquor licensee is not liable at common law for damages resulting from a patron's intoxication. The common law is in force in South Dakota except where it conflicts with federal or state constitutions and laws. SDCL 1-1-24. ⁴ SDCL 35-4-78(2) makes it a crime to sell intoxicating beverages to one in Mr. VanEgdom's inebriated state and violation of a statute is negligence as a matter of law if the statute "was intended to protect the class of persons in which plaintiffs are included against risk of the type of harm which has in fact occurred." Weeks v. Prostrollo Sons, Inc., 84 S.D. 243, 169 N.W.2d 725, 729 (1969); Martino v. Park Jefferson Racing Ass'n, 315 N.W.2d 309 (S.D.1982); Alley v. Siepman, 87 S.D. 670, 214 N.W.2d 7 (1974); McCleod v. Tri-State Milling Co., 71 S.D. 362, 24 N.W.2d 485 (1946).

The reason for this rule is that the statute or ordinance becomes the standard of care or conduct to which the reasonably prudent person is held. Failure to follow the statute involved constitutes a breach of the legal duty imposed and fixed by such statute. Since negligence is a breach of a legal duty, the violator of a statute is then negligent as a matter of law. (citation omitted)

Alley, 214 at 9.

Justice Dunn dissented in Griffin. He argued that SDCL 35-4-78(2) was passed for the protection of the plaintiffs. Since Griffin essentially turned on a reluctance to impose a common law duty in the absence of express civil liability legislation, we did not fully reach Justice Dunn's interpretation of SDCL 35-4-78(2). We do now. We believe that statute was enacted to include the protection of the class of people in Mr. Ludwig's position from the risk of being killed or injured "as a result of the drunkenness to which the particular sale of alcoholic liquor contributes." Id. at 488 (Dunn, J., dissenting), quoting from Waynick v. Chicago's Last Department Store, 269 F.2d 322 (7th Cir.1959); Martino, supra; Alley, supra; Weeks, supra; McCleod, supra. Since SDCL 35-4-78(2) must be liberally construed "with a view to effect its objects and to promote justice," SDCL 2-14-12; ⁵ State v. Hirsch, 309 N.W.2d 832 (S.D.1981); Rapid City v. First National Bank of the Black Hills, 79 S.D. 38, 107 N.W.2d 693 (1961); McCleod, supra, we conclude that SDCL 35-4-78(2) establishes a standard of care or conduct, a breach of which is negligence as a matter of law. Alley, supra. It follows that such negligence must be a proximate cause of any resulting injury and defenses, such as contributory negligence, are available when appropriate.

We therefore reverse the trial court's order dismissing appellant's complaint for failure to state a claim upon which relief may be granted. We affirm the trial court's order denying appellee's motion to dismiss based on appellant's failure to comply with SDCL 9-24-2's sixty day notice provision. SDCL 9-24-2 does not apply to wrongful death actions. Stormo v. City of Dell Rapids, 75 S.D. 582, 70 N.W.2d 831 (1955).

Since this decision applies existing statutory law, prospective or retroactive application is not addressed.

DUNN, and HENDERSON, JJ., concur.

WOLLMAN and MORGAN, JJ., concur specially.

WOLLMAN, Justice (concurring specially).

Although I agree with Chief Justice Fosheim that liability for damages caused by an intoxicated customer may be imposed upon a vendor of alcoholic beverages on the basis of a violation of the statutory prohibition set forth in SDCL 35-4-78(2), I would go further and hold that there is now in this state a common law right of action to recover such damages. I would reach this result because I believe that those of us who were in the majority in Griffin v. Sebek took too narrow a view of the responsibility of the judiciary to fill a void by common law adjudication in the face of legislature inaction. Although certainly deference must be shown by succeeding generations of judges to the considered pronouncements of their predecessors, the common law would long ago have stultified had those succeeding generations not been responsive to the contemporaneous societal needs. What may not have been perceived of as a remedial void requiring judicial action at the time Paulson v. Langness, 16 S.D. 471, 93 N.W. 655 (1903) and Kennedy v. Garrigan, 23 S.D. 265, 121 N.W. 783 (1909), were decided has mushroomed into a societal problem of deadly, both in the literal and figurative senses of that word, proportions, as is well documented in the majority opinion. ^* In this regard, I can do no better than to quote the words of then Chief Justice Dunn's dissent in Griffin v. Sebek:

I would respectfully submit that the time has come for this court to recognize a common law cause of action by an injured party against a seller of alcoholic beverages to an intoxicated person who causes injury by his intoxication. While it is true that this right of recovery was not recognized originally, there is a great difference between an intoxicated person driving a horse and buggy on a dirt road in 1889 and an intoxicated teenager hurtling down the highway at great speed in a five-thousand-pound automobile in 1972.

245 N.W.2d, 481 at 486-87. In so holding, I would join with those courts that have in recent years abrogated the common law rule of nonliability and have held that a vendor of alcoholic beverages may be held civilly liable for injuries proximately caused by an intoxicated customer. See, e.g., Nazareno v. Urie, 638 P.2d 671 (Alaska 1981), and the cases cited in footnote 3 therein. To those who might question why I have reversed my position since the decision in Griffin v. Sebek, I can only quote Justice Frankfurter's aphorism that "[w]isdom too often never comes, and so one ought not to reject it merely because it comes late." Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259, 264 (1949) (Frankfurter, J., dissenting).

Inasmuch as the imposition of common law liability would mark an abrupt departure from our prior holding in Griffin v. Sebek, supra, I would apply the benefit of such a decision only to plaintiff herein and to those causes of action...