Winters v. Silver Fox Bar

• Decision Date: 07 August 1990
• Docket Number: No. 13802,13802
• Citation: 71 Haw. 524,797 P.2d 51
• Parties: Mary WINTERS, Plaintiff-Appellant, v. SILVER FOX BAR, White Partnership, Black Corporation, and Does, One through Twenty, inclusive, Defendants-Appellants.
• Court: Hawaii Supreme Court

Page 51

797 P.2d 51

71 Haw. 524

Mary WINTERS, Plaintiff-Appellant, v. SILVER FOX BAR, White Partnership, Black Corporation, and Does, One through Twenty, inclusive, Defendants-Appellants.

No. 13802.

Supreme Court of Hawai'i.

Aug. 7, 1990.

Syllabus by the Court

1. A minor who sustains injury due to his or her own voluntary intoxication is not within the class of persons protected under Hawaii Revised Statutes (HRS) § 281-78(a)(2)(A) and is precluded from suing the commercial liquor supplier.

2. Absent any legislative intent or public policy to extend the protected class to minors who sustain injury due to their own voluntary intoxication, it would be inconsistent to allow a cause of action based upon the minor's own conduct of purchasing liquor which is an activity our legislature expressly intended to prohibit and penalize.

3. Where minors and/or their estates are precluded from suing the commercial liquor supplier, survivors of the deceased minors are likewise barred from pursuing a wrongful death action.

Ned Rowan and Paul Cunney, Honolulu, for plaintiff-appellant.

Ronald G.S. Au and Connie G.W. Meredith, Honolulu, for defendant-appellee Silver Fox Bar.

Before LUM, C.J., and PADGETT, HAYASHI, WAKATSUKI and MOON, JJ.

MOON, Justice.

The United States District Court for the District of Hawaii certified the following question to this court:

Whether the sale of liquor to a minor (in violation of Hawaii Rev. Stat. § 281-78(a)(2)(A) [ (1985 & Supp. 1989) ] ) ¹ who subsequently becomes drunk and sustains injury precludes the minor (or the estate and survivors) from suing the commercial liquor supplier.

On December 8, 1989, this court remanded the question to the District Court for clarification of the term "minor." On April 12, 1990, the District Court responded that "minor" for purposes of this certified question is an individual below the age of twenty-one (21) as defined by HRS § 281-1 (Supp.1989). ²

We answer the certified question in the affirmative.

I.

On October 25, 1987 the Silver Fox Bar (Appellee), situated in downtown Honolulu, sold intoxicating liquor to Daniel C. Ferris, an eighteen (18) year old minor, ³ in violation of HRS § 281-78(a)(2)(A). Daniel consumed quantities of alcohol and subsequently while driving lost control of his motor vehicle and died. We note that the decedent in purchasing liquor from Appellee violated HRS § 281-101.5(b) (1985) ⁴ and could have been subject to criminal penalty pursuant to HRS § 281-101.5(d) (Supp.1989). ⁵

Appellant Mary Winters, mother of the deceased, filed a claim for wrongful death in the United States District Court for the District of Hawaii against Appellee based upon diversity of citizenship alleging dram shop liability. Appellee moved to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

II.

Traditionally, at common law, a cause of action did not exist against dram shops ⁶ when they sold or served liquor to patrons who injured themselves due to intoxication nor when innocent third parties suffered injuries due to the tavern patron's inebriation. The rationale in support of the rule precluding dram shop liability was that the proximate cause of injuries due to the person's intoxication was the consumption of the liquor, not its sale or service. Ono v. Applegate, 62 Haw. 131, 134, 612 P.2d 533, 537 (1980).

In Ono v. Applegate this court recognized a common law dram shop action allowing a person injured in an automobile collision with an inebriated tavern customer to recover damages from the tavern that sold liquor to the customer. Persuaded by public policy reflecting a clear judicial trend across the nation to allow such a cause of action, we held that the liquor control statute, HRS § 281-78(a)(2)(B) (1976), ⁷ created a duty upon commercial liquor suppliers not to serve a person under the influence of alcohol and that such sale or service of alcohol may be a proximate cause of injuries inflicted upon those within the protected class, i.e. innocent third persons.

However, we have refused to further modify the common law dram shop action to permit recovery against commercial suppliers of liquor by inebriated liquor consumers who sustain injuries because of their voluntary intoxication. In Bertelmann v. TAAS Associates, 69 Haw. 95, 735 P.2d 930 (1987), this court in holding that a decedent's estate and his survivors failed to state a claim against a commercial supplier of alcoholic beverages stated:

We agree with the majority of jurisdictions that have passed on this issue and emphatically reject the contention that intoxicated liquor consumers can seek recovery from the bar or tavern which sold them alcohol. Drunken persons who harm themselves are solely responsible for their voluntary intoxication and cannot prevail under a common law or statutory basis.

Id. at 100, 735 P.2d at 933 (citing Wright v. Moffitt, 437 A.2d 554 (Del.1981)).

We reasoned that:

HRS §§ 281-78(a)(2)(B) and 281-78(b)(1) were created to protect the general public from drunk driving accidents, not to reward intoxicated liquor consumers for the consequences of their voluntary inebriation. See Wright, 437 A.2d at 557.

Id. 69 Haw. at 101, 735 P.2d at 934.

Appellant contends that minors were intended to be included in the protected class and that Bertelmann is not applicable to the instant case as Bertelmann involved an adult consumer of alcohol. This court in Bertelmann specifically left open the question which is now presented to us in the form of the aforestated certified question. We noted that:

At least one jurisdiction has ruled that public policy, to prevent alcohol abuse by immature and inexperienced minors, requires those who illegally furnish liquor to minors be held legally accountable. See Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310 (N.M.Ct.App.), cert. denied, 104 N.M. 289, 720 P.2d 708 (N.M.1986). ⁸ However, the majority of cases, like Miller [v. City of Portland, 288 Or. 271, 604 P.2d 1261 (1980) ], makes no distinction between minors and adults and rules that, under common law and/or statute, neither minors nor adults who hurt themselves after becoming intoxicated possess a cause of action against whoever provided them with liquor. See Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716, on remand, Sutter v. Turner, 174 Ga.App. 743, 332 S.E.2d 175 (1985); Ruth v. Benvenutti, 114 Ill.App.3d 404, , 449 N.E.2d 209 (1983).

Id. at 101 n. 3, 735 P.2d at 934 n. 3. See also Annotation, Liability of Persons Furnishing Intoxicating Liquor For Injury To Or Death Of Consumer, Outside Coverage Of Civil Damage Acts, 98 A.L.R.3d 1230, 1260-63 (1980).

The rationale of the majority view is that absent legislative intent or public policy to change the common law and allow a tort right of action utilizing regulatory and criminal statutes to establish duty and conduct of care, the courts refuse to judicially legislate. In Miller, the Oregon court noted it had previously modified the common law to allow an action against a commercial seller of liquor for the death of a third party killed by a minor who received liquor in violation of its liquor control statute prohibiting the sale of liquor to a minor. However, the court held that the inebriated minor was not within the protected class of the statute and refused to allow a cause of action against the tavern where the injured minor himself violated a statute prohibiting minors from purchasing liquor. The court stated:

[W]e believe it is inappropriate to use ORS 471.130(1) [Oregon state statute prohibiting the sale of liquor to persons under the age of twenty-one] as a basis for civil liability by licensees to the underage minor. ORS 471.430 prohibits minors ... from purchasing or acquiring alcoholic liquor and provides a penalty for the violation (a fine). It would be inconsistent with apparent legislative policy to reward the violator with a cause of action based upon the conduct which the legislature has chosen to prohibit and penalize.

288 Or. at 279, 604 P.2d at 1265 (footnotes omitted).

Similarly, in this jurisdiction there is absent any legislative intent or public policy to extend the protected class to minors and the same inconsistency as pointed out in Miller would exist if this court were to allow the cause of action sought by Appellant insofar as decedent's own conduct of purchasing liquor was an activity which our legislature expressly intended to prohibit and penalize.

Feliciano v. Waikiki Deep Water, Inc., 69 Haw. 605, 752 P.2d 1076 (1988), provides further confirmation of this court's refusal to judicially enlarge the protected class to include any persons who sustain injuries due to their own voluntary intoxication in the absence of any legislative expression, intent or public policy to do so regardless of their level of maturity, sophistication or state of intoxication at the time they are served alcoholic beverages by a commercial liquor supplier. Feliciano, an "unsophisticated nineteen year old", ⁹ grew up in Waianae in a sheltered environment due to injuries he received years previous preventing him from attending school for a considerable time. Prior to the accident, he had never driven to Honolulu nor had he been to Waikiki. He was not accustomed to drinking although he had tasted beer on prior occasions.

On the date of accident, Feliciano and some friends went to a Waikiki hostess bar. He alleged that while at the bar he was apprehensive and felt intimidated by the bar's hostesses who continually encouraged and coerced him to consume at least four (4) alcoholic beverages over a two and a half hour period causing him to spend approximately $175.00. Feliciano argued that the service of alcohol to him while intoxicated was in violation of the liquor control statute, HRS § 281-78(a)(2)(B), and that because he was unsophisticated the aggressive conduct of selling drinks by the bar's employees constituted a breach of duty on the...