Williford v. L.J. Carr Investments, Inc.

• Decision Date: 24 November 1989
• Docket Number: No. S-2519,S-2519
• Citation: 783 P.2d 235
• Parties: Pauline WILLIFORD, personal representative of the estate of Gilbert Tomaganuk, Appellant, v. L.J. CARR INVESTMENTS, INC., BJG Investments, Inc., Joe Wiley Investments, Inc., Oaken Keg Spirit Shop # 52, a general partnership, and Craig Smalls, Appellees.
• Court: Alaska Supreme Court

Page 235

783 P.2d 235

Pauline WILLIFORD, personal representative of the estate of Gilbert Tomaganuk, Appellant, v. L.J. CARR INVESTMENTS, INC., BJG Investments, Inc., Joe Wiley Investments, Inc., Oaken Keg Spirit Shop # 52, a general partnership, and Craig Smalls, Appellees.

No. S-2519.

Supreme Court of Alaska.

Nov. 24, 1989.

William W. Whitaker, Kenneth A. Norsworthy & Associates, Anchorage, for appellant.

Michael Moxness, Anchorage, for appellees.

Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

OPINION

RABINOWITZ, Justice.

This appeal is from an order of the superior court granting Oaken Keg ¹ summary judgment in a wrongful death action brought by Pauline Williford, personal representative of the Estate of Gilbert Tomaganuk ("the Estate"). Tomaganuk was killed when struck by a car driven by Derald Beigelow in Anchorage April 5, 1985. The Estate alleges that the Oaken Keg caused Tomaganuk's death by providing vodka to Tomaganuk and his nephew, Isaac, while both men were intoxicated.

In entering summary judgment the superior court ruled that the Estate's claim failed as a matter of law (a) because Beigelow's negligence was a superseding cause of Tomaganuk's death, thereby relieving Oaken Keg and its employees of liability under AS 04.21.020; and (b) because Isaac, not Tomaganuk, purchased the alcohol. This appeal followed. ²

I. STANDARD OF REVIEW.

We review the superior court's conclusions of law. Review is therefore de novo. "Our duty is to adopt the rule of law that is most persuasive in light of precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). We read the record in the light most favorable to the appellant. See, e.g., Carter v. Hoblit, 755 P.2d 1084, 1085 n. 1 (Alaska 1988) (citing B-E-C-K Constructors v. State, Dep't of Highways, 604 P.2d 578, 581 n. 4 (Alaska 1979)).

II. FACTS AND PROCEEDINGS.

Gilbert Tomaganuk met his nephew, Isaac, in downtown Anchorage at about noon on April 5, 1985. From that time until about 10:15 p.m., when the fatal accident occurred, the two men shared approximately two quarts of vodka. They purchased the first bottle (a fifth) at about 12:30 p.m. at the Safeway liquor store. While walking around town, both men drank from the bottle. Tomaganuk drank about three-quarters of the bottle, and Isaac drank the rest, which they finished shortly after 2:30 p.m. Isaac became intoxicated, but apparently not so intoxicated as his uncle, who several times fell asleep in the street.

At about 5:45 p.m. Tomaganuk and Isaac went into the Safeway liquor store for more vodka. Tomaganuk tried to make a purchase but was refused because he was intoxicated. Isaac too was intoxicated at the time and was having trouble keeping his balance. The two men then walked to the Oaken Keg. Tomaganuk gave his nephew money to purchase vodka, then followed "right behind" his nephew for six to seven minutes while they walked around the inside and discussed what they should purchase. Isaac took a quart of vodka from the shelf and brought it to the cashier, Craig Smalls. At this time there was no one else in the line, and only two or three other customers in the store. Isaac's hands were shaking, and he was "breathing hard" from the cold. Tomaganuk stood seven or eight feet behind Isaac. Isaac exchanged a few words with the clerk, purchased the alcohol and some candy, then staggered from the store with Tomaganuk three to five feet behind. Isaac stated that he did not try to appear sober while he was in the Oaken Keg; that his uncle staggered while inside; and that Isaac could smell alcohol on his own breath and on his uncle's at the time.

Tomaganuk and Isaac proceeded from the Oaken Keg to Tomaganuk's "camp" near a ditch in a wooded area. There the two men finished the vodka, sharing this bottle evenly. Three or four hours after leaving the Oaken Keg, the two men left their camp to get some food. They crawled up an embankment and tried to cross 15th Avenue approximately 400 feet west of an intersection at Cordova Street. According to Isaac, Gilbert Tomaganuk had crossed the street's center line when both men were struck by a speeding westbound car. Apparently neither Isaac, his uncle, nor the driver, Derald Beigelow, were sober when the accident occurred. ³

III. SUPERSEDING CAUSE.

Oaken Keg contends that Derald Beigelow's actions constituted a "superseding cause" of Tomaganuk's death, thereby relieving Oaken Keg of any liability for the allegedly negligent acts of its cashier. We disagree.

Superseding cause is a variant of the doctrine of proximate cause. This court has explained that the doctrine of superseding cause will relieve a negligent actor of liability only in exceptional cases. Dura Corp. v. Harned, 703 P.2d 396, 403 (Alaska 1985). We have explained that an action of a third person which intervenes to injure the plaintiff will shield a negligent defendant only " 'where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.' " Yukon Equip., Inc. v. Gordon, 660 P.2d 428, 433 n. 4 (Alaska 1983) (Yukon II ) (emphasis supplied) (quoting Restatement (Second) of Torts § 435(2) (1965) (hereinafter Restatement)), quoted in Dura Corp., 703 P.2d at 402, and in Morris v. Farley Enterprises, Inc., 661 P.2d 167, 170 (Alaska 1983); ⁴ see also Restatement § 435 comments c, d, e. ⁵ Thus, an act will not constitute a superseding cause where, though unforeseeable by the original negligent actor, it does not appear in retrospect to have been highly extraordinary. See Restatement § 435 comment d.

The evidence in the instant case, when viewed in the light most favorable to the Estate, shows that Smalls, the Oaken Keg clerk, may have known that Isaac was accompanied by another man and that both men were drunk when Smalls sold Isaac the vodka. ⁶ Statements by Isaac and a third party witness ⁷ suggest that Tomaganuk's intoxication may have been a cause of the accident. It is not "highly extraordinary" that an intoxicated person might be struck by a speeding car on a dark road, driven by a drunken driver. ⁸ Neither is the accident extraordinary for Oaken Keg's professed inability to foresee the accident in all its detail; ⁹ rather, we have held that "[w]hen the risk created causes damage in fact, insistence that the precise details of the intervening cause be foreseeable would subvert the purpose of that rule of law." Yukon Equipment, Inc. v. Fireman's Fund Insurance Co., 585 P.2d 1206, 1212 (Alaska 1978) (Yukon I ).

Finally, an additional and related rule of liability which precludes a finding of superseding cause is that "[w]here the negligent conduct of the actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing the harm, such intervention is not a superseding cause." Osborne v. Russell, 669 P.2d 550, 557 (Alaska 1983) (quoting Restatement § 442A).

Appellants therefore allege facts which, if undisputed, preclude a finding of superseding cause. Where material facts remain in dispute, the question whether an intervening causal act was highly extraordinary should not be decided on summary judgment, but instead should be left for the trier of fact. See Sharp v. Fairbanks North Star Borough, 569 P.2d 178, 183-84 (Alaska 1977). The superior court thus erred in ruling that Beigelow's act constituted a superseding cause.

IV. LIABILITY UNDER AS 04.21.020.

The Estate asserts both common-law and statutory causes of action against Oaken Keg. The common-law claims are no longer viable. ¹⁰ We therefore focus upon the relevant statutes, AS 04.21.020 and AS 04.16.030.

The current text of AS 04.21.020 is as follows:

A person who provides alcoholic beverages to another person may not be held civilly liable for injuries resulting from the intoxication of that person unless the person who provides the alcoholic beverages holds a license authorized under AS 04.11.080--04.11.220, or is an agent or employee of such a licensee and

(1) the alcoholic beverages are provided to a person under the age of 21 years in violation of AS 04.16.051, unless the licensee, agent, or employee secures in good faith from the person a signed statement, liquor identification card, or driver's license meeting the requirements of AS 04.21.050(a) and (b), that indicates that the person is 21 years of age or older; or

(2) the alcoholic beverages are provided to a drunken person in violation of AS 04.16.030.

(Emphasis added.)

Alaska Statute 04.16.030 states in relevant part:

A licensee, an agent, or employee may not with criminal negligence (1) sell, give, or barter alcoholic beverages to a drunken person....

Oaken Keg interprets the word "provides" in AS 04.21.020 narrowly, arguing that a vendor "provides" alcohol only to the person who actually purchases it. The Estate argues that under the facts of this case Oaken Keg had "provided" alcohol both to the actual purchaser, Isaac, and to Tomaganuk.

In interpreting a statute we must first look to its language. The word "provide" is commonly used to mean "to make available; supply; afford ... to furnish with." Webster's New World Dictionary 1144 (2d college ed. 1972). We conclude that a vendor may "provide" alcohol even unwittingly to third parties. The protection of AS 04.21.020 lies in its further requirement that the vendor first, with criminal negligence "sell, give or barter" that alcohol to a drunken person in violation of AS 04.16.030.

The intent of the legislature in enacting AS 04.21.020 was to limit vendor liability in cases where the vendor has provided alcohol in a statutorily permissible manner. We hold that AS 04.21.020 does not immunize vendors who violate AS 04.16.030. ¹¹ We remand to determine whether Oaken Keg sold vodka to Isaac "with criminal negligence" ¹² in violation of AS 04.16.030, and if so, whether Tomaganuk's injuries ...