Warr v. JMGM Grp., LLC

• Decision Date: 25 July 2013
• Docket Number: No. 57,Sept. Term, 2012.,57
• Citation: 433 Md. 170,70 A.3d 347
• Parties: William J. WARR, Jr., et al. v. JMGM GROUP, LLC, d/b/a/ Dogfish Head Alehouse.
• Court: Maryland Court of Appeals

433 Md. 170

70 A.3d 347

William J. WARR, Jr., et al.

v.JMGM GROUP, LLC, d/b/a/ Dogfish Head Alehouse.

No. 57, Sept. Term, 2012.

Court of Appeals of Maryland.

July 25, 2013.

John Vail (Center for Constitutional Litigation, P.C., Washington DC; Andrew E. Bederman and Jason W. Fernandez of Greenberg & Bederman, LLP, Silver Spring, MD), on brief, for appellants.

Robert B. Hetherington (Amy Leete Leone of McCarthy Wilson, LLP, Rockville, MD), on brief, for appellee.

Michael J. Winkelman, Esq., McCarthy, Winkelman & Marrow, Bowie, MD, Matthew W. Tievsky, Esq., Chaikin, Sherman, Cammarata, Siegel, P.C., Washington, DC, James M. Nichols, Esq., Warnken, LLC, Towson, MD, for amicus curiae brief of the Maryland Association for Justice on Behalf of the Petitioner.

Steven J. Kelly, Esq., Silverman, Thompson, Slutkin & White, LLC, Baltimore, MD, for amicus curiae brief of Mothers Against Drunk Driving.

J. Steven Wise, Esq., Joseph A. Schwartz, III, Esq., Schwartz, Metz & Wise, P.A., Annapolis, MD, for amici curiae brief of The Maryland State Licensed Beverage Association, Inc. and The Restaurant Association of Maryland, Inc., in Support of Respondent.

Argued before BELL, C.J.,^*HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.

BATTAGLIA, J.

This case presents us with the opportunity to consider once again whether or not this Court should recognize dram shop liability.¹

William J. Warr, Jr. and Angela T. Warr filed suit in the Circuit Court for Montgomery County against JMGM Group,²LLC, which owns the Dogfish Head Alehouse (Dogfish Head), to recover for injuries they and their daughter Cortavia M. Harris sustained and for the death of their second daughter, Jazimen, in a car accident. The Warrs alleged that Michael Eaton, ³ the driver of the vehicle that struck the car Mr. Warr was driving, had been served alcohol while Mr. Eaton was “clearly intoxicated” at Dogfish Head. Because members of the Dogfish Head's staff had served Mr. Eaton alcohol while he was so compromised, the Warrs alleged, the tavern had breached its duty to them to “not furnish alcohol to intoxicated persons,” which caused their injuries.⁴

Judge Eric M. Johnson of the Circuit Court for Montgomery County denied Dogfish Head's motion to dismiss. In granting, however, Dogfish Head's motion for summary judgment, Judge Johnson opined that he was bound by our decisions in State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951) and Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981) in which dram shop liability was not recognized as a cause of action in Maryland. The Warrs appealed Judge Johnson's decision but, before any proceedings in the Court of Special Appeals, we granted the Warrs' petition for certiorari, 427 Md. 606, 50 A.3d 606 (2012), to consider whether this Court should recognize dram shop liability.

The undisputed facts that give rise to our consideration of dram shop liability in this case were set forth by Judge Johnson in his opinion granting Dogfish Head's motion for summary judgment and reflect that on August 21, 2008, Michael Eaton was a customer at Dogfish Head Alehouse, which is located in Gaithersburg, Montgomery County. Mr. Eaton began drinking beer and liquor at 5:00 pm, allegedly ordering fourteen bottles of beer and two drinks of hard liquor and drinking at least one other drink that was purchased for him.⁵ Mr. Eaton stopped drinking at about 10:00 pm that evening and left, but returned to the Dogfish Head about forty-five minutes later and allegedly ordered three more bottles of beer and a shot of tequila.⁶ After being served the tequila, Mr. Eaton was informed by his server that he was not going to be served any more alcohol. Judge Johnson also noted that, “[a]n employee of the Dogfish offered to call a cab for this patron who they had cut off from alcoholic beverages. He refused.” The complaint alleges that after Mr. Eaton left Dogfish Head in his vehicle, he was involved in the accident on Interstate 270 that forms the basis of the instant action.

In their complaint, the Warrs asserted five causes of action, all related to negligence. In each count, the theory of liability was that Dogfish Head had a duty to refuse to provide alcoholic beverages to an individual who was either visibly intoxicated or who was considered a “habitual drunkard.” The Warrs asserted that the employees of Dogfish Head knew that Mr. Eaton was a “habitual drunkard” and that they knew, or should have known, that he was visibly intoxicated and still served him alcohol, which was the proximate cause, according to the Warrs, of the collision:

10. At all times material, [Dogfish Head] and its agents, servants and employees had a legal duty to not furnish alcohol to intoxicated persons and to not furnish alcohol to a habitual drunkard.

11. Notwithstanding this duty, and in breach thereof, [Dogfish Head's] agents, servants and employees negligently furnished alcohol to Michael Eaton, a clearly intoxicated individual who was also known as a habitual drunkard. [Dogfish Head] is vicariously liable for negligence of its agents, servants, and employees and [the Warrs'] resulting injuries and damages.

12. As a direct and proximate result of this breach of duty by [Dogfish Head], and its agents, servants and employees, Mr. Eaton operated his vehicle under the influence of alcohol. During the operation of his vehicle, Michael Eaton struck the rear of the Warr vehicle, causing Jazimen L. Warr to suffer fatal bodily injuries, to experience conscious pain and suffering and to suffer other damages. The Estate of Jazimen L. Warr also incurred medical expenses and burial and funeral expenses.

Dogfish Head filed a motion to dismiss, under Maryland Rule 2–322(b)(2), ⁷ for failure to state grounds upon which relief could have been granted, in which it asserted that dram shop liability was not recognized in Maryland. Judge Johnson denied the motion, stating that, although in our decisions in Hatfield and Felder, as well as the Court of Special Appeals' decision in Wright v. Sue & Charles, Inc., 131 Md.App. 466, 749 A.2d 241 (2000), did not recognize a cause of action against a provider of alcoholic beverages under a theory of dram shop liability, “[o]ral arguments convinced this Court that the factual underpinnings of this case make a change in Maryland's jurisprudence with respect to Dram Shop Liability ripe to the core.” Judge Johnson concluded that dismissal was not warranted, stating that:

[t]he dram shop laws and the rationale in support of them should be as the Court said in Felder ... ‘a vestige of the past no longer suitable for the circumstances of our people....’ Felder v. Butler, 292 Md. 174, 182–83 . Maryland Courts have not hesitated to adopt a new cause of action by judicial decision when they have concluded that course was compelled by changing circumstances. For the reasons set for herein and reflected in the attached Order, Defendant's Motion to Dismiss is denied.

Dogfish Head, thereafter, filed a motion for summary judgment, asserting that Maryland did not recognize dram shop liability and that the facts did not warrant a change. Judge Johnson granted Dogfish Head's motion for summary judgment and issued an opinion that deviated from his earlier denial of Dogfish Head's motion to dismiss, based upon his view that the Circuit Court was not the appropriate judicial actor to make a “radical change” in the common law:

The facts of this case undoubtedly could serve as the impetus to adjusting Maryland jurisprudence on the topic of dram shop liability. This Court, however, is not the proper Court to make such a radical change in Maryland jurisprudence. The decision to overturn stare decisis is the province of the Maryland Court of Appeals. Consequently, this Court is bound by stare decisis and must grant the Defendant summary judgment. The Court is of the opinion that while the Maryland Legislature has not enacted dram shop liability legislation, it has not expressly prohibited it. The Court of Appeals, thus, is in a unique position where it can harmonize our jurisprudence with current societal conditions without being in conflict with the Maryland Legislature. The Maryland Court of Appeals has not hesitated to adopt a new cause of action by judicial decision when it had concluded that course was compelled by changing circumstances. This Court is of the opinion that the same holds true for dram shop liability. For the reasons set forth herein and reflected in the attached Order, Defendant's Motion for Summary Judgment is granted.

The Warrs appealed this decision, but, before any consideration in our intermediate appellate court, we granted their petition for certiorari to consider, once again, whether we should adopt dram shop liability. We shall decline to impose dram shop liability on Dogfish Head in the absence of any duty owed by the tavern to the Warrs.

In considering the question, we do not write on a blank slate. ⁸ We first considered whether to adopt dram shop liability in State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951), in which the widow of James Joyce sought damages for her husband's death in a car accident, caused by a minor who had been served alcohol by Hatfield and then assumed the wheel of a car. The trial court sustained Hatfield's demurrer ⁹on the ground that providing alcohol was not a proximate cause of the accident. We affirmed but limited our analysis, however, to the issue of proximate cause:

[a]part from statute, the common law knows no right of action against a seller of intoxicating liquors, as such, for ‘causing’ intoxication of the person whose negligent or wilful wrong has caused injury. Human beings, drunk or sober, are responsible for their own torts. The law (apart from statute) recognizes no relation of proximate cause between a sale of liquor and a tort committed by a buyer who has drunk the liquor.

Hatfield, 197 Md. at 254, 78 A.2d at 756. We declined to adopt dram shop liability, noting that it was for the...