Webb v. Regua Ltd. Partnership

• Decision Date: 30 December 1985
• Docket Number: Civ. A. No. 85-0737-A.
• Citation: 624 F. Supp. 471
• Parties: Alice E. WEBB, Administratrix of the Estate of Sharon Lee Cooper, Plaintiff, v. REGUA LIMITED PARTNERSHIP, t/a Valle's Steak House, and Ulysses Auger, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

624 F. Supp. 471

Alice E. WEBB, Administratrix of the Estate of Sharon Lee Cooper, Plaintiff, v. REGUA LIMITED PARTNERSHIP, t/a Valle's Steak House, and Ulysses Auger, Defendants.

Civ. A. No. 85-0737-A.

United States District Court, E.D. Virginia, Alexandria Division.

December 30, 1985.

Jerry M. Phillips, Whitestone, Phillips, Brent, Young & Merril, P.C., Fairfax, Va., for plaintiff.

Benjamin J. Trichilo, Stephen A. Horvath, Lewis & Trichilo, Fairfax, Va., for defendants.

MEMORANDUM OPINION

HILTON, District Judge.

This case comes before the Court on motion of the defendant, by counsel, pursuant to Rule 56, Federal Rules of Civil Procedure, for a summary judgment in favor of the defendant and against the plaintiff. As grounds for the motion the defendant contends that Virginia does not recognize a cause of action against the seller of intoxicating liquors for injuries caused by the unlawful conduct of the purchaser and that the plaintiff has accepted full satisfaction for compensatory damages and is not entitled to a second recovery.

The pleadings, stipulations of the parties, and exhibits contain the following facts. John Frederick McCarthy was a twenty-four year old student at the Computer Learning Center located in Springfield, Virginia. On May 4, 1984 he attended classes during the morning and studied at the center during the afternoon. At approximately 5:00 p.m. he joined a group of students next door at Valle's Restaurant. Valle's was being operated by Blackies' House of Beef, Inc. pursuant to a license agreement with Valle's.

McCarthy had drinks at Valle's and remained there until 11:00 p.m. and drove approximately one mile to Chi-Chi's Restaurant where he had additional drinks. At approximately 12:30 a.m. he left Chi-Chi's and started home down Backlick Road where he was involved in the accident in which Sharon Lee Cooper was killed.

After the accident, McCarthy was found to have a blood alcohol content of .303. He plead guilty to the charge of involuntary manslaughter and was sentenced to five years in the penitentiary with four suspended by the Circuit Court of Fairfax County. In addition he was sued by the plaintiff in the Circuit Court of Fairfax County, Virginia, and after a two day trial a jury awarded a verdict of $45,103.00 compensatory and $100,000. punitive damages. The plaintiff has received a check for the amount of the compensatory damage award.

The question presented is whether a seller of intoxicating liquor is liable for negligence, resulting in personal injuries sustained by third parties, as a result of the negligence of the buyer-consumer after leaving the sellers establishment.

At common law, the consumer of intoxicants was generally unable to recover against the individual furnishing the liquor for injuries sustained resulting from intoxication. Such an action was not recognized for the reason that the drinking of the liquor, not the furnishing of it, was the proximate cause of the injury. See Am. Jur.2d, Intoxicating Liquors Sec. 554, (1969), annotation, 54 ALR 2d 1152. In cases involving injuries caused by, rather than to, a consumer of intoxicants, the same rule historically protected the seller from liability to third persons, based on the absence of proximate cause.

The Court, by Virginia statute is required to follow the common law. Sec. 1-10 of the Code of Virginia provides:

The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and the Constitution of this State, shall continue in full force within the same, and the rule of decision except as altered by the General Assembly.

The requirement in Virginia of adherence to the rule of the common law has existed since the birth of the United States. The history was stated concisely in Foster v. Commonwealth, 96 Va. 306, 31 S.E. 503 (1898). The convention of May 1776, which declared our separation from England, and framed the first constitution for the state acclaimed the common law of England to be the rule of decision, and be considered in full force, until the same shall be altered by the legislative power of the colony. 9 Hen Stat. 127, sec. 6. Numerous subsequent cases attest to this requirement. Wiseman v. Commonwealth, 143 Va. 631, 130 S.E. 249 (1925); Needham v. Needham, 183 Va. 681, 33 S.E.2d 288 (1945); Carter v. Hinkle, 189 Va. 1, 52 S.E.2d 135 (1949); Oehl v. Oehl, 221 Va. 618, 272 S.E.2d 441 (1980); Gray v. Commonwealth, 226 Va. 591, 311 S.E.2d 409 (1984).

The Virginia Supreme Court is generally loath to abrogate the common law. The Court has stated in Bruce Farms v. Coupe, 219 Va. 287, 247 S.E.2d 400 (1978), "that the decision whether a common law rule of such ancient vintage as the one at bar should be reversed is one properly within the province of the General Assembly of Virginia."

There is no Virginia Supreme Court case that has imposed common law liability upon the seller of intoxicating liquors for the torts of an intoxicated patron. In Corrigan v. United States, 595 F.Supp. 1047 (E.D.Va.1984) the court in a well written and reasoned opinion came to the conclusion that since the Virginia Supreme Court had not ruled on this issue that the court should attempt to determine what the Virginia...