Wegleitner v. Sattler

Decision Date18 February 1998
Docket NumberNo. 20211,20211
Citation582 N.W.2d 688,1998 SD 88
PartiesDavid L. WEGLEITNER, Plaintiff and Appellant, v. Brian Lee SATTLER, Defendant, and Town of Lake City, a public corporation, incorporated under the laws of South Dakota, d/b/a Lake City Municipal Bar, Defendant and Appellee. . Considered on Briefs
CourtSouth Dakota Supreme Court

Lee Schoenbeck and John W. Burke of Schoenbeck Law Office, Webster, for plaintiff and appellant.

Roy A. Wise of Richardson, Groseclose, Wyly, Wise & Sauck, Aberdeen, for defendant and appellee.

GILBERTSON, Justice (on reassignment).

¶1 David Wegleitner was injured after being struck by an intoxicated motorist. Wegleitner brought suit against the bar which furnished the intoxicating liquors to the motorist. Wegleitner appeals from summary judgment granted in favor of bar. We affirm.


¶2 On the evening of March 9, and into the early morning hours of March 10, 1996, Brian Sattler was a customer at the Lake City Municipal Bar (Bar). He testified by deposition that he arrived some time after 6:00 p.m. and left at closing time at 2:00 a.m. He testified that he drank in excess of twelve beers at the Bar, became intoxicated, and did not remember the last hour he was there. He later learned that his sister offered to drive him home, but he did not independently recall that conversation.

¶3 Sattler left the Bar, driving south on South Dakota Highway 25. Meanwhile, Marshall County Deputy Sheriff David Wegleitner was patrolling that highway and had caused a suspected drunk driver to pull onto the shoulder. They were seated in the patrol car, amber lights flashing, when Sattler's vehicle violently struck the patrol car from behind, causing severe injuries and damages. Wegleitner sued Sattler and Bar for his injuries. 1 Wegleitner alleges that Bar continued to serve alcohol to Sattler despite his obviously intoxicated condition. The trial court granted Bar's motion for summary judgment and Wegleitner appeals raising the following issues:

1. Whether SDCL 35-11-1 is an unconstitutional violation of the doctrine of separation of powers by the South Dakota Legislature for establishing the consumption of alcohol as the sole proximate cause for negligence in alcohol related cases.

2. Whether SDCL 35-11-1 and SDCL 35-4-78 violate the open courts provision of SD Const. art. VI, § 20.

3. Whether SDCL 35-11-1 is an unconstitutional violation of the doctrine of substantive due process under SD Const. art. VI, § 2.


¶4 Our review of a challenge to the constitutionality of a statute is de novo. Green v. Siegel, Barnett & Schutz, 1996 SD 146, p 7, 557 N.W.2d 396, 398 (citing Kyllo v. Panzer, 535 N.W.2d 896, 897 (S.D.1995)).

To succeed in a constitutional challenge to a legislative act, the challenger must prove beyond a reasonable doubt that the legislature acted outside of its constitutional authority.

City of Chamberlain v. R.E. Lien, Inc., 521 N.W.2d 130, 131 (S.D.1994). "If a statute can be construed so as not to violate the constitution, that construction must be adopted." Cary v. City of Rapid City, 1997 SD 18, p 10, 559 N.W.2d 891, 893, (citing Simpson v. Tobin, 367 N.W.2d 757, 766 (S.D.1985)). 2

Tavern Owners Not Liable at Common Law

At common law it is not a tort to either sell or give intoxicating liquor to ordinary able-bodied men, and it has been frequently held that in the absence of statute, there can be no cause of action against one furnishing liquor in favor of those injured by the intoxication of the person so furnished. The reason usually given for this rule is that the drinking of the liquor, not the furnishing of it, is the proximate cause of the injury. The rule is based on the obvious fact that one cannot become intoxicated by reason of liquor furnished him if he does not drink it.

45 Am.Jur.2d Intoxicating Liquors § 553 (1969) (collecting cases) (emphasis added). There can be no doubt that this was the rule in this jurisdiction as in Paulson v. Langness, 16 S.D. 471, 474, 93 N.W. 655, 656 (1903), we held, "[a]t common law the wife could not recover [from a saloon owner] for the loss of support occasioned by the death of her husband." See also Kennedy v. Garrigan, 23 S.D. 265, 121 N.W. 783 (1909). We continued to recognize this common law rule of nonliability for the supplier of alcoholic beverages in Griffin v. Sebek:

At common law, and apart from statute, no redress exists against persons selling, giving, or furnishing intoxicating liquor, or their sureties, for resulting injuries or damage due to the acts of intoxicated persons, whether on the theory that the dispensing of the liquor constitutes a direct wrong or constitutes actionable negligence. In the same vein, it has been stated that there is no cause of action at common law for selling or giving away intoxicating liquor to one who is strong and able-bodied. The rule is based on the theory that the proximate cause of the injury is the act of the purchaser in drinking the liquor and not the act of the vendor in selling it.

90 S.D. 692, 695, 245 N.W.2d 481, 483 (1976) (quoting 48A C.J.S. Intoxicating Liquors § 428 (1981) (emphasis added)), overruled on other grounds by Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982). Walz was superseded by SDCL 35-11-1, infra, as stated in Wildeboer v. South Dakota Junior Chamber of Commerce, Inc., 1997 SD 33, 561 N.W.2d 666.

Legislative Involvement in the Allocation of Fault in Alcohol Related Accidents.

¶6 The South Dakota legislature has enacted a statutory scheme regulating the selling of alcohol. SDCL 35-4-78 provides:

No licensee may sell any alcoholic beverage:

(1) To any person under the age of twenty-one years; or

(2) To any person who is obviously intoxicated at the time.

A violation of this section is a Class 1 misdemeanor.

However, no licensee is civilly liable to any injured person or his estate for any injury suffered, including any action for wrongful death, or property damage suffered because of the intoxication of any person due to the sale of any alcoholic beverage in violation of the provisions of this section.

The South Dakota legislature has codified the common law in the area of liability for injuries inflicted by intoxicated persons. SDCL 35-11-1 provides:

The Legislature finds that the consumption of alcoholic beverages, rather than the serving of alcoholic beverages, is the proximate cause of any injury inflicted upon another by an intoxicated person. Therefore, the rule in Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982) is hereby abrogated.

¶7 This Court has recognized this legislative policy determination that no civil liability "will attach to a bar for the furnishing of alcoholic beverages to a person who subsequently causes an injury to a third party." Wildeboer, 1997 SD 33 at p 29, 561 N.W.2d at 671. Therein we cited SDCL 1-1-24 which provides: "[i]n this state the rules of the common law ... are in force, except where they conflict with the will of the sovereign power, expressed in the manner stated in § 1-1-23." Id. In affirming summary judgment in favor of the Jaycees, this Court noted that the legislature simply codified the common law of negligence by enacting SDCL 20-9-1 which provides:

Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.

Id. 1997 SD 33 at p 13, 561 N.W.2d at 669 (citing In re Certif. of Questions (Knowles v. United States) (Knowles ), 1996 SD 10, p 21, 544 N.W.2d 183, 188 (citing Baatz v. Arrow Bar, 426 N.W.2d 298, 304 (S.D.1988) (other citations omitted))). SDCL 35-11-1 and the amended SDCL 35-4-78 merely, by codification, return to the common law rule of nonliability for furnishers of alcoholic beverages. In Wildeboer, we concluded that:

If the Legislature can validly enact, repeal and amend statutes, we know of no constitutional doctrine that precludes it from interpreting a statute by the enactment of another statute. Our cases are legion where we seek to interpret the intent of the Legislature.


¶8 As previously noted, this Court in Griffin, supra, answered "no" when asked to decide whether "in the absence of a Civil Damage Act, otherwise referred to as a "Dram Shop Act," the common law ... authorizes or should be liberalized to afford a remedy" against those who furnish intoxicating liquors. The Griffin court found no common law or statutory right giving rise to such an action and declined to judicially legislate in this area. Id. 245 N.W.2d at 483. "That the creation of rights and remedies in these civil damage acts is a proper exercise of legislative power has been so long settled that no citation of authorities is necessary." Id. (citing Kennedy, supra ).

One thing must be constantly borne in mind when considering these civil damage acts--the right and the remedy created by these statutes are exclusive. No right of action exists save that expressly given by the statute, and the remedy prescribed cannot be enlarged except by further legislative enactment.

Id. (citing Kennedy, 23 S.D. at 268, 121 N.W. at 785). The common law rule that the consumption of alcoholic beverages is the proximate cause of any damages, rather than its furnishing, was again recognized by this Court, and continued to be adhered to. Id.

¶9 As noted, Griffin was subsequently overruled by Walzon nonconstitutional statutory grounds. However, Walz was abrogated by SDCL 35-11-1. This legislative act merely codified a return to the common law as set forth in Griffin. The passage of SDCL 35-11-1 and the analysis in Wildeboer have reaffirmed the common law doctrine of nonliability recognized in Griffin thus creating the basis for Wegleitner's constitutional challenges.


¶10 WHETHER SDCL 35-11-1 IS AN...

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