Adkins v. Sky Blue, Inc.

ADKINS, Plaintiff, Leland Dean BLUE, INC., Wyoming corpora-

SKY Vlastos, Reeves, J.N. Murdock of tion, Marsh, Mur- Slater Marsh and Joan Brooks, P.C., dock & wife, Casper, “Spike” Skaj, plaintiff. husband and Donna Sheppard, and Ernest Defendants. Day Richard E. and Patrick Murphy J.

No. 84-154. Williams, Porter, Neville, Day & Casper, Blue, Sky Inc., defendants Slater Marsh Supreme Wyoming. Court of Marsh; Skar, Joan Robert E. Casper, May Skaj; defendant argument oral by Mr. Day. THOMAS, C.J., ROSE,

Before ROO- NEY, CARDINE, BROWN and JJ. CARDINE, Justice.

During evening 4, 1982, May Christopher Kennedy became intoxicated as a result drinking liquor at a bar known as Lounge.” leaving “The On “The Lounge” evening purchased he consumed more departing Casper, Wyoming. Approximately twenty Bow, miles north Wyoming, of Medicine being the automobile by Christopher driven Kennedy plaintiff struck Leland Adkins’s vehicle head-on in Mr. Adkins’s lane of killed, Christopher Kennedy travel. passengers. were his two Leland Adkins passenger personal and his inju- suffered resulting ries in the accident in Adkins being quadriplegic. left a after Some time sample, accident blood taken from the body Christopher Kennedy, determined his blood alcohol level to be Leland .11%. Adkins filed suit the United Dis- States Wyoming trict Court for the District of Lounge,” its owners and em- ployee damages personal to recover for the injuries suffered him.

The United States District found Court question that Adkins’s case involved a Wyoming might law the State of and that be determinative controlling prece- there was no clear Supreme dent the decisions of the Court Wyoming; certi- of the State of it therefore 550 instruction, pursuant jected keeper for to 1-13- tavern liability

fied a to to a § W.S.1977,1 question: party, injury the where following results from furnishing liquor. the of intoxicating persons injured by “Do third an intoxi- are called damage statutes civil patron liquor of a state a cated vendor dramshop acts. against liquor relief claim for the vendor McClellan (Wyo.1983)?” causes of Tottenhoff, that arose P.2d prior to seen fit “The n legislature Wyoming ^[*] sR the common law sfc sfc legis- in this case. applies as Whether We answer the in the question certified the dramshop lation in nature of a act negative. damage a civil statute should be included Jow, Wyo., Parsons v. P.2d 396 part liquor our with- control code is by was handed court down this Feb province legislature.” of the ruary 1971. The which is the accident at 397-398. subject May this certification occurred Thus, Wyoming Supreme Court is- plaintiffs cause of claim or ac pronouncement sued a clear that it would arose on tion that date. McClellan Tot adopt dramshop by not undertake to a law tenhoff, Wyo., 666 P.2d was judicial but would decision leave that to the by the Wyoming Supreme decided Court legislature. question When the 28, 1983. June liquor to an person sale of supra, Parsons v. the bar owner Snyder was next considered in v. West McCall, minor, intoxicating liquor sold a Inc., Properties, F.Supp. Rawlins became drunk who and crashed his car into (D.Wyo.1982), the United States District Plaintiff, building. passenger Court, relying upon pronouncements time, car at the owner sued the bar Wyoming Supreme Court stated: damages resulting person- recover his from “The rule is that in the absence injuries. plain- al The trial court dismissed damage dramshop of a civil act enact- complaint tiffs failure to state claim by legislature, ed state the common upon which granted. relief could provided remedy no existed stating that affirmed against tavern owner of li- or vendor * * * “ it cannot be there was no denied quor injuries Wyo- party. to a [third] cause of action at common law ming not have a damages does liquor vendor of in favor one act.” At dramshop 701-702. by a vendee who becomes intoxicated— Thus, February 1982, late as there proximate the reason that anyone suspect was no reason for injury cause of to be the was deemed Wyoming Supreme would, Court patron’s consumption and not opportunity, impose liability upon next regard sale. Our statement in this liquor by an overruling vendors of [citing verified in eases these cases— leaving legis- rather than the matter Alaska, Arizona, Idaho, Illinois, lature. Minnesota, Maryland, Michigan, Wiscon- sin, and citing also 45 Am.Jur.2d Intoxi- Tottenhoff, McClellan decided June cating Liquors 553 and 48 Intoxi- C.J.S. 28, 1983, bev- involved sale of alcoholic cating Liquors § 430]. erage to a minor who became intoxicated “Statutes, states, in a fatally injure number of and drove a car so as to changed the plaintiff. prior warning sug- common rule and sub- Without 1-13-106, W.S.1977, provides: pending 1. Section determinative cause then court, appears supreme and as to may questions federal which it court answer controlling law certified to it court court there is a federal when to the federal no requested by certifying if precedent existing court there are decisions of su- any proceeding involved the federal preme court." questions law of this state occur, approached the court in in the same manner was to as other gestión of what negligence cases. Tottenhoff, stated: that there no cause of action “The rule sells to a consumer when a vendor “We hold that a vendor of owes a party a third injures created who duty degree to exercise of care re- see no the courts. We reason to wait quired person light reasonable n any longer legislature for the to abro- (Emphasis all the circumstances.” add- gate it. Common law created At, ed.) 666 P.2d 410-412. abrogated can judiciary judi- The rule of McClellan v. Totten Id,., ciary.” 666 P.2d at 411. supra, hoff, became effective with the is The common law has served us well 28, opinion suance of court’s on June flexible, grow it is

because able to in plaintiff accident which requirements changing meet the condi subject involved and which is the of this society. tions and a different There are 1982, May 5, occurred more than a change necessary; times when is but year prior pronouncement court’s important of stare doctrine decisis is also If McClellan v. the rule an Tottenhoff therefore, organized, society. Change, an nounced in v. Tottenhoff, slowly, deliberately occur after applies prospectively only is in the — that experience, possible much and if so as not future, and from now on—then henceforth rights things vested in the to affect plaintiff’s subject case is to the common- Thus, it is that: past. said nonliability law rule of for sellers of intoxi may apply or effectuate courts “[T]he cating as stated in Parsons v. Jow. principles light in the common And, Jow, as was held Parsons v. conditions, altered or new and when the dismissed. must be circumstances and conditions are differ- Initially issuing it was held that a court ent, principles in that the common law overruling merely decision had discover- are unsuitable to new circumstances or law; existing ed and announced since conditions, society, the needs of law, overruling not create new but case did public policy, the courts conflict with merely recognized always had what changes modifications may make such law, operate retro- such law would both (Footnotes requires.” as the situation prospectively: spectively and omitted.) 15A Common Law 13. C.J.S. “ decisions, taking a modern ‘[B]ut See, Coluccio, Wash.App. Irwin v. pragmatic judicial view of the func more 510, (1982). 648 P.2d 458 tion, recognized power ought to be an Acknowledging that there overruling to hold that an change extreme the common reluctance to prospectively only and operative recognizing law and benefits of obvious rights of the operative upon the even decisis, yet on occa- the doctrine of stare overruling case. As a mat parties to the eminently sion it clear that become does:- op ter of constitutional society point long passed beyond has nei overruling decision is eration of an ” an ancient viable. where doctrine remains Thome required prohibited.’ nor ther This court believed it had at that arrived Newton, 229 Kan. City Tottenhoff, place deciding McClellan v. Anno., (1981)(quoting from supra the law of this state —and —now Retroac Prospective Comment Note — stating: Decision, 10 Overruling Operation of hereby “We overrule Parsons v. (1966)). 1371, 1378 A.L.R.3d supra. held that We have drawn between

“[tjhere is no distinction ruling may litigation; a criminal involving civil and cases vendors “Henceforth, may apply only and it parties will be ” invalidity holding nonretroactivity.’ of statutes as well as to S.Ct. at 355. overturning a decision effect of rules; long-established common-law This court has on several con- occasions prohibits constitution neither nor re- sidered whether law should quires retrospective effect and the feder- operate retrospectively prospectively. al Constitution no voice Russell, In Nehring v. 582 P.2d subject; and, accepted today we stated that “ * * * in appropriate interests determination is ours justice, a court make its decision make, we conclude that in consider- [and] prospective.” (Emphasis and footnote in ation of factors any prior all the omitted; added.) original emphasis our involved, holding our reliances should be State, Wyo., 538 P.2d Ostwald v. i.e., applied prospectively only, to this accruing action and all causes of action days following after 30 date of Where an decision announces decision.” law, change in guide- the common some lines are set forth in Oil Compa- Chevron v. County Oroz Board Com’rs of of 97, ny Huson, 349, v. 404 92 S.Ct. U.S. County, Carbon L.Ed.2d 296 whether opera- its ques- we were faced with the same retrospective tion should be or tion operation prospective only and held only: stating: fully cognizant dealing long “In our “The court is with the that a nonre- placed upon reliance has of troactivity question, we the rule generally have it immunity and that will raise separate First, considered three certain factors. problems must be which considered and the decision to applied nonretroactive proper arrangements upon made. ly Based principle must establish a new of considerations, these the doctrine gov- by past either clear precedent immunity ernmental as it is to applied on litigants may relied, which have see governmen- counties all similar other e.g., Shoe, Hanover Inc. v. United Shoe any tal is subdivisions abolished as to supra, Machinery Corp., [481], 392 U.S. 1, arising and all on July claims and after 496, at [2224], at S.Ct. [20 However, appellant this L.Ed.2d (1968)], by deciding or an not recipient pyrrhic victory be the of a issue impression of first whose resolu proceed. but should be allowed to There foreshadowed, see, tion was not clearly authority propriety abundant as to the e.g., Elections, Allen v. State Board of approach.” of this At 1159. supra, [544], 393 U.S. at 89 S.Ct. [817], 835, at L.Ed.2d 1 Sec [22 ]. It repeatedly has been stated that where ond, it has been stressed that ‘we must might produce ineq- substantial * * * weigh the merits and in demerits uitable if applied retroactively, results each by looking case to prior history appropriate such hardship injus- to avoid or question, the rule in its purpose and by tice providing prospective operation effect, and retrospective opera whether only. Huson, Company Chevron Oil v. tion will further retard operation.’ its supra. liquor Vendors of in this state had Walker, supra, Linkletter v. 381 U.S. suspect no reason to that this court would [618], [1731], 1738, at adopt S.Ct. dramshop-type placing liability [14 L.Ed.2d (1965)]. Finally, we liquor. on There vendors were no cases weighed inequity imposed by Jow, following supra, suggest- retroac v. Parsons application, ing a decision an imminent the law. The ‘[w]here this produce Court could court firm substantial in had assurance in Par- equitable Jow, if retroactively, results that this supra, sons v. was a matter ample there is legislature. basis in our cases for As late as avoiding “injustice Inc., or hardship” by Snyder Properties, v. West Rawlins beverage seriously District coholic cannot supra, the United States they good conscience contend that Wyoming, reaffirmed the rule violated District Jow, liquor provided relying upon non- laws v. v. Parsons Parsons escape liability. in- We liability persons injured by Jow do not suggest Li- patron liquor they relying upon vendor. violated the toxicated suggest insur- they may no to obtain Parsons Jow. do quor vendors had reason purchased expensive themselves not have protect insurance ance otherwise protection Insur- not exist. otherwise financial against liability that did obtained liability newly-created ing against this kind of broad re- justified upon they surely were liance Parsons That is the expensive, and v. Jow. pronouncement speak. respect of this we With relying upon the reliance which liquor purchasing insurance cover- to the violation of the laws in re- upon liance Parsons is not age. likely, for im- severe criminal sanctions are public policy of The McClellan v. Totten posed procedures resulting as are by purposes and the to be served hoff license loss whether revoca- li liability upon imposing civil vendors tion or refusal to renew. (a) care are to cause them to exercise quor (b) following liquor; to refuse There was no series of cases dispensing suggested in vio even persons or refuse sell Parsons Jow law; (c) might provide financial intimated that the court overrule lation pur responsibility negligence. Those Parsons Jow. vendors of justifiably retroac law as stated poses are not served affected relied we the of operation the incident it to be. To hold now that vendor tive of already liquor, damages not under the complained of had occurred—noth liable it. ing change existing could to The stated at time of accident be done nevertheless, later, promoted by year involved public policy would not be became retroactively by holding the liable liable because vendor legis manifestly unfair. damages. note here also that the case would be We session, lature, general was its language find of the comfort and this of the law concerned about area wherein Tottenhoff ” legislation subject.2 on this enacted type this of we stated that “henceforth upon ordinary prospec- would determined suggested It is that the case case is held such negligence principles. It operation of the rule of McClellan “hereafter,” “thereafter,” and of al- terms as is weak because vendors Tottenhoff intoxicated; May liquor beverage malt was holic or 2. Enrolled Act No. effective provides: or "(ii) reasonably relating or should The licensee knew to "AN ACT to create W.S. 12-8-301 beverages; limiting liability in some the circumstances that the alcoholic have known from liquor selling providing receiving or alcoholic li- person buying cases the alcoholic or exceptions; beverages; providing for or malt beverages quor or was intoxicated. malt providing and for an effective date. "(b) person who is a licensee who has No not Legislature It the State “Be Enacted gratuitously legally provided li- alcoholic Wyoming: beverage any quor person other is or to malt to read: "Section 1. W.S. is created 12-8-301 damages by the caused intoxication liable for "ARTICLE 3 person. of the other “DAMAGES liability "(c) This does affect the section not liability. “12-8-301 Limitation person damages. of "(d) "(a) damages No is caused licensee liable for does not affect the This section person whom licensee an intoxicated person li- if the alcoholic licensee liquor legally sold or furnished alcoholic beverage provided quor or was sold malt beverages licensee sold or malt unless the Wyoming statutes. violation of title "(e) beverages provided or malt alcoholic is purposes of section 'licensee' For this intoxicated, person a "(i) who was and: 12-l-101(a)(viii) in- in W.S. defined reasonably apparent to It the licensee employees.” employee or cludes the licensee’s buying receiving person the alco- operation. speak “shall be” It court. treated as a neu- is in would, C.J.S. Statutes 413. Henceforth tral word. It perhaps, have been category. as: same It is defined proper for this court to address issue of retroactivity McClellan, which, futurity, employed “A but it did not. word documents, statutes, Ordinarily supreme like, legal and the court will not de- always imports continuity questions requisite adjudication. of action cide forward, present Corporation condition time Reno from Livestock v. Sun Oil past.” (Delaware), Company, Wyo., but excludes all Black’s Law 638 P.2d 147 1979). (5th Dictionary ed. If this court had intended to rule retroactivity case, on the McClellan I We, therefore, that the rule of hold McClel- assume .it would have so in done clear supra, applies lan Tottenhoff, prospec- terms, by dropping and not a hint with the only, tively to claims or causes of action use one word. publication, that accrue after date wit, June principles Other should therefore be em- BROWN, Justice, dissenting. ployed to determine if McClellan v. Totten- is prospectively only. to be hoff There holding In that McClellan v. Tottenhoff prohibition is no clear in McClellan only 666 P.2d 408 pro- retrospective application nor spective application, the majority bases its requiring there clear only pro- mandate language decision on in the McClellan spective application. rule is notion that vendors that, cases, in civil ap- decisions are to be Jow, Wyo., relied on Parsons plied retroactively. to insulate them civil liabili- ty illegal liquor. sale of Neither of banc, sitting The Tenth Circuit en these reasons is valid. One is based on thusly: stated the rule grammatical parsing; other, even if general rule, course, is that ret- true, totally unjustified. roactive effect to decisions over- * ”* McClellan, the court said: ruling prior holding. Bene- “ n * * Henceforth, involving States, ven- dict Oil Company v. United parties (10th

dors of Cir.1978). F.2d approached will be in the same manner The Sunray court v. Company Oil as negligence other cases.” at 411. Revenue, Commissioner Internal 147 962, quotation (10th Cir.1945)), This is subject to F.2d more than 963-964 cert. de interpretation. 861, majority says 1201, one The it nied. 325 U.S. 65 S.Ct. 89 L.Ed. (1945), means that claims or general causes of action 1982 also stated rule: *“ * * 28, 1983, which accrue after June will be general a It is rule that the deci governed by principles McClellan, highest appellate sion court of a and that claims or causes action which jurisdiction overruling a former decision n * 28, 1983, accrued gov- before June will be retrospective operation in its *.” by prior law, is, erned that v. Parsons Other courts abide by this rule: supra. matters, involving purely “In actions however, quotation, The also could be the law of the state of Arizona has al reasonably interpreted to mean that claims stated, ways been that unless otherwise causes not barred stat- opinion operates a retroactively as ute of limitations will “henceforth” be prospectively. well [Citations.] negligence treated as other cases. The re- is, then, presumption opin There that sult in McClellan did not that mean by appellate ions courts of this state are cause of action vendors of retroactive as prospective.” well 28, could until not accrue after June Company Superi Chevron Chemical v. 1275, 431, word perhaps ambig- “henceforth” is P.2d 131 Ariz. 641 problem (1982). uous context 1279-1280

555 Lewis, Utah, held, among dents. The court en banc v. oth Malan things, the court stated: er that where violation of a statute pertaining to furnishing liquor to those rule from time immemorial general underage already to who are in ruling deemed who are of a court is is that shown, law both toxicated is negligence the true nature of the exists as state In civ- prospectively. and matter of law and the retrospectively may rule be retroac least, nei- cases, tively prospectively il constitutional applied. The court prohibits retroactive requires reasoned, nor citing ther Chevron Chemical Com decision, overruling of an operation pany Superior Court, [Cita- 131 Ariz. of cases a majority (1979): in the vast but P.2d 1275 tions] prospectively effective decision is both Co., “In Chevron Chemical we overruling an retrospectively, even applied three-part set out in test gen- Whether decision. [Citations.] Huson, Chevron Oil Co. U.S. departed from de- rule should eral 106-07, 349, 355, 92 S.Ct. 30 L.Ed.2d 296 injustice whether substantial pends on presumption to determine if this otherwise occur. would [Citation.]” retroactivity had if overcome added.) (Emphasis apply only prospective- a decision should also, Apartment International See Studio ly- “ Association, Lockwood, Fla.App., Inc. suggests ‘That test in order for that (1982); Kloppenberg’s In re 421 So.2d opinion prospective applica- to have Estate, N.J.Super. 196 A.2d 800 opinion (1) only, tion must have Marshall, Tenn., (1964); Marshall legal principle by a new established (1984). S.W.2d overruling and reliable either clear cases, course, are not without These by deciding an issue precedent exception: resolution not foreshad- whose owed; (2)

“Although adversely there is a traditional must affect effect giving purpose question, favor rule in behind the decision, overruling has become produce ineq- to an and must substantial subject to recognized retroactively.’ this rule is results if uitable exceptions, example, where Co., various supra. Chevron Chemical on de- justifiable there has been reliance test, applying “In the first factor subsequently cisions which are overruled today’s decisions acknowledge that we those who so relied believe, precedent. clear overrule effect substantially harmed if retroactive however, certainly result was to the a contin- There has been foreshadowed. Annot., 10 A.L.R.3d 1384 rule in upon the ued assault common * * trend of us, however, line of cases *. The case before [T]he in and the contin- imaginable exception authority other states weakest case for an shop of cases progression rule. can vendors dram How ued certainly in beverages seriously courts through of alcoholic and the Arizona they most com- good conscience contend that violated have alerted all but the should laws, relying danger rule would on Parsons v. Jow that the placent to liability? escape changed they, civil like eventually and that be others, civilly liable would become most Raybuck, Ariz. Brannigan v. violating the law. for (1983), of P.2d 213 has elements both factor, dowe respect to the second “With and case. the case us the McClellan law ad- change in the find that the of Brannigan, surviving parents In underlying purpose versely affects passengers and driver killed minor nonli- Removing the rule of the law. wrongful brought accident a an automobile neutral have a ability probably would operators action death tavern possi- could principles, tort and furnishing dece- effect on liquor to the negligently bly furthering be viewed as the underly- majority Russell, The Nehring cites v. ing providing Wyo., of purpose compensation (1978), 582 P.2d 67 v. Oroz negligently injuries. County Board inflicted Commissioners Car- of of County, Wyo., bon 575 P.2d “Finally, we do not believe substantial support of its decision that McClellan inequitable produced by results will be only apply prospectively. Those Defendants, application. cases not authority are problem business, all others have here, they specifically provide because rely upon never been entitled to the lack prospective application only. liability. for which civil The acts de- least, years, In subjected recent at when being fendants are now we have intended that decision prospec- long have criminal. been De- application only, tive we have said In so. therefore, complain, fendants cannot that the Oroz case we retroactivity ruled on the being they pay are made to for conduct governmental In immunity. making our which, prior under proper. was held prospective only, we held: Further, important, and most ques- fully cognizant long “This Court is tion of relative fault. that a In those placed upon reliance has been the rule defendants have furnished immunity it will raise certain persons, minors they problems which must be considered and guilty have been Many of a crime. proper arrangements made. Based those injured who been are blame- * * considerations, these the doctrine gov- probable less. In the majority of immunity applies ernmental as it to coun- cases, course, question comes sim- ties governmental and all.other similar ply choosing between defendant any subdivisions abolished as to and all past whose conduct violated the law and arising claims on July and after 1979.” victim, blameless, relatively who has at 1159. Retrospective killed. ap- plication favors the prospec- Similarly, latter and in the Nehring we abro- gated guest favors former.” In Brannigan doing, statute. so we Raybuck, supra, specifically held: 667 P.2d at 220-221. “ * * * Further, cognizant that the deter- State, In Wyo., Ostwald 538 P.2d 1298 make, mination is ours to we conclude (1975), we approved three-prong test to all consideration of the factors be employed determining whether a deci- any prior involved, reliances our sion should be retroactive. holding applied prospectively should be (1) purpose test is served i.e., only, to this action and all causes standards; (2) the new extent of re- accruing days following after 30 standards; liance on the old date this decision. [Citations.]” justice effect on the administration Russell, Nehring supra, 582 P.2d at retrospective application new stan- dards. also said that in determining County Washakie School District whether a retrospective decision should be Herschler, No. One 606 P.2d or prospective that “there no distinction intending when that our deci- drawn litiga- between civil and criminal given prospective application sion be only, tion.” reasoning 1303. The em- specific we made finding that the “relief ployed by the Supreme Arizona Court to granted opinion and direction of the court’s justify its determination that its decision in * * * prospective.” are Brannigan Raybuck, supra, should be applicable respects in all specific no such us, the case before and satisfies the three- finding was made. In Tottenhoff s motion prong test approved by this court rehearing, strong Ost- she argument made a wald. for only application of the deci- of her “careful consideration” sion. After

motion, we denied same. this dissent majority strive

Both circuitously to arrive at di-

mightily albeit argue that logic, Both

vergent views. justice support their posi-

precedent, avoid the real basis of Both how

tion. or, made from the dissent’s

decision

view, made. should been “ * * courts now treat the ques- [M]ost how an

tion of judicial policy as one

operate rather power, judicial recognize

than of reached,

varying depend- results particular

ing on the circumstances particular and the

presented affect- Annot., 10 A.L.R.3d 1378

ed.” hold

I would that McClellan should be retroactively prospective- well

ly. STAMPER, (Defendant), Appellant

Pete BE ORDER THAT NOTICE OF APPEAL A PETITION FOR CONSIDERED CERTIORARI; WRIT ORDER OF Wyoming,

The STATE of PETITION FOR CER- (Plaintiff). GRANTING Appellee TIORARI; AND AFFIRM- ORDER No. 85-36. ING DENIAL OF THE MOTION THE Supreme Wyoming. Court of TO DISMISS This came before ease May 24, 1985. jurisdiction own to consider motion Rehearing Denied June appeal the Order this court to hear an Dismiss, by the Denying entered Motion County Fremont District Ninth Judi- defendant, District, Pete cial Stamper. having examined the The court being fully in this case files and record that: premises advised in the finds filed in the 1. An information with charging the defendant district court battery a dan- aggravated assault and with 6-4-506(b), weapon, gerous deadly § 6-2-502, W.S.1977, (now W.S.1977 occurred for an incident which Cum.Supp.),

Case Details

Case Name: Adkins v. Sky Blue, Inc.

Court Name: Wyoming Supreme Court

Date Published: May 24, 1985

Citation: 701 P.2d 549

Docket Number: 84-154

Court Abbreviation: Wyo.