Whitlaw v. Kroger Co., 23498

• Decision Date: 07 January 1991
• Docket Number: No. 23498,23498
• Citation: 410 S.E.2d 251,306 S.C. 51
• Parties: David D. WHITLAW, Sr., as Personal Representative of the Estate of Christopher Whitlaw, Deceased, Plaintiff, v. The KROGER CO., Defendant. . Heard
• Court: South Carolina Supreme Court

Page 251

410 S.E.2d 251

306 S.C. 51

David D. WHITLAW, Sr., as Personal Representative of the Estate of Christopher Whitlaw, Deceased, Plaintiff, v. The KROGER CO., Defendant.

No. 23498.

Supreme Court of South Carolina.

Heard Jan. 7, 1991.

Decided Oct. 14, 1991.

Ronald A. Maxwell, of Johnson, Johnson, Maxwell, Whittle, Snelgrove & Weeks, Aiken, for plaintiff.

David A. Brown, Aiken, for defendant.

PER CURIAM:

Pursuant to Supreme Court Rule 46, we agreed to answer the question whether a private cause of action for damages may be instituted under S.C.Code Ann. §§ 61-9-40 ¹ and 61-9-410(1) ² (1990) where a minor consumes alcohol purchased by another minor and suffers injuries as a result. We hold that these sections give rise to civil liability only where the violation is used to establish negligence per se, and where the violation is the proximate cause of the minor's injury.

FACTS

Plaintiff alleges that on November 21, 1987, the Defendant, the Kroger Co., sold beer to an underage youth who was accompanied by the Plaintiff's son. It was further alleged that the underage youth gave a portion of the beer, procured from Defendant's place of business, to Plaintiff's son. After becoming intoxicated, the Plaintiff's son lost control of the vehicle he was driving and struck a tree. The Plaintiff's son died as a result of the injuries he sustained in the accident.

As the personal representative of his son's estate, the Plaintiff brought this action in state court pursuant to the wrongful death statute of the South Carolina Code of Laws. The Plaintiff contended that S.C.Code Ann. §§ 61-9-40 and 61-9-410 gave rise to a private cause of action where an underage person consumed an alcoholic beverage purchased by another underage person, and suffered injuries as a result of becoming intoxicated. The case was removed by the Defendant to the United States District Court where the Plaintiff's question was certified to us for an interpretation of state law.

LAW/ANALYSIS

In Rayfield v. South Carolina Dept. of Corrections, 297 S.C. 95, 374 S.E.2d 910 (Ct.App.1988), the Court of Appeals set forth the test for determining when a duty created by statute will support an action for negligence.

In order to show that the defendant owes him a duty of care arising from a statute, the plaintiff must show two things: (1) that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and (2) that he is a member of the class of persons the statute is intended to protect.

If the plaintiff makes this showing, he has proven the first element of a claim for negligence: viz., that the defendant owes him a duty of care. If he then shows that the defendant violated the statute, he has proven the second element of a negligence cause of action: viz., that the defendant, by act or omission, failed to exercise due care. This constitutes proof of negligence per se.

Id. at 103, 104, 374 S.E.2d at 914.

The statute can establish a duty to plaintiff. See Id. A breach of the duty can be found with a showing of violation of the statute. The finding of a statutory violation, however, does not end the inquiry. The causation of the injury must also be evaluated. The relationship between negligence per se and causation is discussed in Scott v. Greenville Pharmacy, Inc., 212 S.C. 485, 48 S.E.2d 324 (1948), where violation of a statute, while negligence per se, did not support recovery of damages because the violation was not the proximate cause of the injury. Id.

A useful outline of the causation analysis necessary under South Carolina law is set out in Bramlette v. Charter-Medical-Columbia:

Proximate cause requires proof of (1) causation in fact and (2) legal cause.

Causation in fact is proved by establishing the injury would not have occurred "but for" the defendant's negligence. [citation omitted] Legal cause is proved by establishing foreseeability. [citation omitted] Although foreseeability of some injury from an act or omission is a prerequisite to establishing proximate cause, the plaintiff need not prove that the actor should have contemplated the particular event which occurred. The defendant may be held liable for anything which appears to have been a natural and probable consequence of his negligence. [citation omitted] A plaintiff therefore proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendant's negligence.

302 S.C. 68, 74, 393 S.E.2d 914, 916 (1989).

In this case, plaintiff would be required to show that the statute created a duty to plaintiff, ³ and that defendant breached that duty by violating the statute. Only then would the plaintiff have established negligence per se. Plaintiff must then show the causal connection between defendant's negligence and plaintiff's injury before plaintiff is entitled to damages.

Violation of the statute, thus, is not conclusive of liability. The statutes in this case are designed to prevent harm to the minor who purchased the alcohol and to members of the public harmed by the minor's consumption of that alcohol. ⁴ Without more, however, we decline to extend the class of persons the statute is intended to protect to all persons to whom the purchasing minor may give or sell the alcohol. ⁵ This is not to say that the seller owes no duty under the statutes when he sells alcohol to several minors. The record before us is insufficient to make such a determination. The record is equally unclear as to whether the defendant violated §§ 61-9-40 and 61-9-410...