Adkins v. Uncle Bart's, Inc.
1 P.3d 528
Utah
2000
Check Treatment

*1 2000 UT 14 and Roberta B.

Michael L. ADKINS

Adkins, Plaintiffs, Appellants, Cross-Appellees, BART'S, INC. dba Uncle Bart's

UNCLE Charley's Club, Inc. dba Char Defendants,

ley's Club, Appellees,

Cross-Appellants, Management, James D. Mickel

Club

son, Mickelson, Douglas B. J. Jeannie

Mickelson, Mickelson, Judy Marlene M. Tracy Duke,

Duke, and Defendants

Appellees.

No. 970261.

Supreme Court of Utah. 18, 2000.

Jan.

Rehearing May Denied *2 Garrett, Garrett, D.

Edward M. James City, Salt Lake for Adkins. Dow, Purser, Donald Darci Lake J. Salt Bart's,
City, for Uncle Inc. Anderson, City, Lake Mark L. Salt Club, Inc., Mickelsons, Charley's Dukes. Scofield, Hinckley, David W. Stuart W. Li- City, Lake for amicus curise Utah Salt Beverage and Utah Hos- censed Association pitality Association. standing the Buchanan vehicle

HOWE, been behind Chief Justice: safety. guardrail leaped over side However, Sean, standing clos- INTRODUCTION who had been others, was lane of travel than the er to the L. Adkins and Ro- Plaintiffs Michael vehicle and killed. struck the Bredehoft judgment appeal from a A. Adkins berta *3 arrested at the scene. T4 Bredehoft was the court by the trial court after entered the time of Toxicology reports showed that at damages awarded the amount of reduced percentage alcohol the the accident his blood by jury a in accordance with Utah them legal § than three times the percent, Ann. 82A-14- .27 more Dramshop Utah Code Bart's, motor vehicle operating limit for Defendants Uncle 41-6-44(1)(a)(1) (1994).1 § Code Ann. Club, Utah Club, Charley's Bart's and Uncle d/b/a gathered following the accident estab Inc., cross-appeal contending that Facts peri against that in the two-and-one-half-hour of action them under lished have no cause prior colliding the Buchanan vehi od with Act. the cle, approximately Bredehoft had consumed patronizing to 24 of aleohоl while ounces BACKGROUND Club, Charley's and Aun Bart's Uncle 1, 1994, seventeen-year-old 12 On March Clubhouse,2 private The three Sistties's teenage boys was one of seven Sean Adkins drinking establishments. seven-passenger wagon station riding in a death, theory the 15 Under a boys, being by Buchanan. The driven Scott plaintiffs, parents, brought this action Sean's High Highland all students at School Salt Charley's against Bart's Club and Uncle Bountiful, Utah, City, traveling Lake were defendants"), "dramshop (together Club the play in their school basketball team to watch Management, (dba Clubhouse), Ann the Club Sisttie They Highland High left a tournament. and Paul Bredehoft. The approximately p.m. and head- School at 6:45 Inc. dramshop de plaintiffs contended that the through on Interstate 80 South Salt ed west fendants, Sisttie, Management Ann and Club junction City. they approached As the Lake vicariously responsible for their son's were of Interstate 80 with northbound Interstate they provided Bredehoft with death because went flat. one of the tires on vehicle The legally aleohol after he was inebriated. drove to the northbound Interstate Buchanan Mickelson, named D. also James parked the vehicle 15 "collector" route and Mickelson, Mickelson, B. Douglas J. Jeannie margin/emergency on the lane. road's Duke, Mickelson, Judy and Tra Marlene M. stopped, After the vehicle several of T3 cy (collectively, "dramshop own Duke stayed keep boys in the car to the brakе ers") alleged complaint as defendants. others, Sean, on, lights including gath- dramshop personally owners were ered behind the disabled vehicle. Near this selling liquor liable for to Bredehoft and as time, same a vehicle driven defendant dramshop corporations. egos the alter Paul Bredehoft entered the collector route pretrial proceedings, dram- During road's mar- and traveled north on the defendants, Sisttie, shop Manage- Ann gin/emergency speed lane at an Club estimated ment, dramshop per owners moved 60 to 65 miles hour. Bredehoft did not speed summary judgment grounds. on several reduce his and collided with the dis- Immediately prior dramshop Management vehicle. owners Club abled Buchanan boys that under were impact, three of the who had contended Utah person may half a beer at The Club- states that Bredehoft consumed "[al 1. This section operate of a within or be actual control vehicle house. breath this state if the has a blood or grams greater of .08 alcohol concentration Management corporation created 3. Club given two hours shown a chemical test within dramshop manage- serve as the owners to alleged operation physical control." after the Charley's entity ment of Uncle Bart's Club doing Club. 2. Ann Sisttie is an individual business as accident, night The Clubhouse. On the 32A-14-101(5) $300,000." personally liable acts the dram- ed to Utah Code Ann. (199 4).4 shops corporations. that were Utah dramshop defendants asked court to rule attempt T9 In an to follow the Dramshop provided plaintiffs Act Act's limitation on damages, the trial court them, remedy against their exclusive jury reduced the judg- award and entered a punitive damages under the $200,000 ment of against each Uncle Bart's awarded, could not be and that damages Charley's judgment Club and Club-or awarded could not exceed the plaintiff $100,- favor of each in the amount of $100,000 cap set forth in the Act. dramshop each defendant granted The trial court motions special compensatory damages. Management owners and Club punitive then ruled that an award of plaintiffs' complaints against dismissed the subject would to the Dram- them. The trial court then ruled that *4 shop Act's damages limitation on and award- Dramshop provided plaintiffs' Act exclusive $250,000 plaintiffs ed the punitive in damages remedy against dramshop the defendants against $100,000 Uncle Bart's Club and in Sisttie, and Ann plaintiffs' and it dismissed punitive damages against Charley's Uncle Liquor claim under the Utah Control Act and Finally, Club. the court judgment entered their claim of negligence. common law against $1,507,- Bredehoft in the amount of punitive court also ruled that damages were 725.78, representing jury the full award of prohibited by Dramshop not the Act but $7,725.78 $500,000 special in damages, pu- ruling capping damages. reserved its on $1,000,000 damages, nitive general and Thereafter, T7 jury a trial was held with damages. Bredehoft, Club, Charley's Uncle Bart's appeal contending 110 Plaintiffs that the Club, and Ann Sisttie as defendants. The (1) trial court ruling erred that the Dram- jury Bredehoft, against returned a verdict shop provided Act remedy the exclusive for Club, Club, Charley's Uncle Bart's and but (2) death, their dismissing son's their claim found no against cause of action existed Ann Act, (8) brought Liquor under the Control jury Sisttic. The damages awarded in favor dismissing their claim alleging common law plaintiffs against and Bredehoft and the negligence, reducing and jury's the award dramshop defendants in the amounts of damages. dramshop defendants $7,725.73 special $1,000,000 damages and cross-appeal contending plaintiffs the do not general damages. jury also returned have a against cause of action them under separate awarding verdict the Dramshop Act and that the court erred punitive $500,000 damages in the amount of dismissing plaintiffs' complaint Bredehoft, $250,000 against against Uncle against them. appeal. Bredehoft does not $100,000 against Bart's Charley's Club. STANDARDOF REVIEW verdict, Following the trial court reviewing statutory T11 When inter ruled that cap Act's damage pretation, give we review for correctness and was required constitutional and a reduction no deference to the conclusions of the trial damages against defen Travel, court. Stephens v. Bonneville dants. portion The court relied on that (Utah 1997). 985P.2d the Act reads: "The total amount of damages mаy any person awarded to ANALYSIS pursuant to a cause of action under I. DRAMSHOP ACT AS EXCLUSIVE chapter 1, 1985, July arises after REMEDY $100,000 limited to aggregate may amount which persons be awarded to all T12 The contend that injured aas result of one occurrence is limit trial court erred when it dismissed their damage aggregate may limitation has since been amended amount which be awarded to all to read: "The total amount of persons injured as a result of one occurrence is any person pursuant be awarded to to a cause of $1,000,000." limited to Utah Code Ann. 32A- chapter action under this that arises after Janu- 14-101(6) (1998). 1, 1998, is limited to $500,000, and the ary a statute underage in violation of drinker negligence alleging common claim apportioning in a suit Liquor might be considered brought under the Control their claim defendants, Act by ruling that negligence among several law cause remedy against a common their exclusive neither case established persons against wheth- in favor of third dramshop defendants. To determine of action erred, analyze there we first of alcohol where the trial court commercial vendors er statutory had a cause of no violation. whether dramshop defen- against In then deter- at common law. We will dants statutory cause of and created a was enacted they have a cause of action mine whether law, action, at common which did exist Liquor Act. If cоuld Control dramshops. legislature, like against Our dramshop defen- have recovered states, dramshop legis passed those of other both of these theories under either or dants pre rule abrogate the common law lation to Dramshop Act prior to the enactment liability party who sells or cluding the we must then determine whether provides alcohol to a who is otherwise ruled that the Act properly trial injures another. intoxicated preempted causes of action and now those that existed are enacted to fill the void acts remedy. exclusive serves as imposing form of strict common law at law, did 113 At common illegally who liability specific individuals *5 against havе cause of action generally a classes of consum provide alcohol to certain another dramshops that alcohol to Hollow See Millross v. Plum ers. Golf personal who became intoxicated and caused (1987). 178, "[The N.W.2d 17 429 Mich. 413 Intoxicating injury. 45 Li- See Am.Jur.2d Dramshop Act to be legislature intended the Annotation, (1999); ‍​​‌​‌​​​​​‌​‌‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌​​‌‌​​​‌‌‌​‌‌​‌‌​‌‍§ guors see also complete and solution to a a self-contained Damage Right Law Action at Common of for at problem adequately not addressed social Consequence in by Sustained of Plaintiff Fi Browder v. International common law." Intoxicating Liquor Habit- or Sale or Gift of Co., 603, delity 413 Mich. 321 N.W.2d Ins. Another, Drugs 97 A.L.R.3d 528 forming (1982). 668, legis that the We have held (1980). theory general legal behind the cоmpensate purpose of the Act "was to lative party injured by rule is that when a third by making dramshop innocent individual, drinking it of an inebriated is the regard to the strictly liable without owners alcohol, it, furnishing not the intent, fault, wrongful negligent or finding of injury. Yost v. proximately causes the Gentile, part." Reeves v. conduct on their (Utah 1981). State, 640 P.2d 1046 n.2 (Utah 1991). 813 P.2d selling 1 14 A have held that the few courts plaintiffs point to "intent lan- may visibly person liquor to a intoxicated jour- guage" placed in the House and Senate by jury a foreseeable be found a to constitute legislature by the when nals through risk harm to others unreasonable impose liability in 1997 to Act was amended person of the intoxicated and action person: dramshops for thе death of a third negligence cannot be held a matter of law express wrongful death to inclusion proximate resulting to be a cause of a new 31A-14-101 does not create Section Nichols, See, injuries. eg., Rappaport v. person right merely that a has clarifies 188,204, (1959); Campbell 156A.2d 9 N.J. special gen- right to recover both Carpenter, 279 Or. 566 P.2d 893 wrongful death under the eral Dramshop Act. enactment of the Dram- 15 Prior modify any common law The bill does not shop recognize a third- Utah did injuries wrongful or right that exists dramshops. party against action cause of resulting giving, selling, or oth- death However, Albertson's, in Rees v. beverages. providing alcoholic erwise Yost, 1978), again in P.2d 255, 298; Journal, Sess., at at court held thаt Senate 640 P.2d Journal, Sess., at 539. in to an House selling of a vendor alcohol 18 The argue that this "intent safety dressed a statute whereas section language" recognition was legisla- governs private 32A-5-107 liquor club licens- right ture that a common against law existed es and sets forth requirements and duties dramshops per- death of third of obtaining maintaining such licenses in sons. disagree. We was legislature Utah. simply stating that the Act inwas addition to 21 The prescribes section penal- its own any right exist, might common law but it ties for individuals or establishments did not state that a right commonlaw exist- provisions: violate its ed. The language is clear and does not aid corporation Each plaintiffs. or granted We therefore аssociation conclude that private liquor club third-party because a license employ- cause of and its against ees, officers, dramshops managing agent, did not exist this state at com- mem- law, comply mon bers shall with the following common negli- condi- gence requirements. tions and against claim Failure to comply; defendants may suspension result in properly dismissed or the trial court. revocation of the license or other disciplinary action tak- 119 We next consider whether the against en employees individual or man- trial court erred dismissing plaintiffs' agement personnel. $2A-5- claim under Utah Code Ann. § 32A-5-107. Decisions 107(24)(h) regarding suspen- Liquor Control Act. Section sions, revocations, and disciplinary other ac- "operational 32A-5-107 is entitled restric tions are left to the liquor state control com- provides, tions" and part: Miller, mission. See Pride Club v. 572 P.2d (h) officer, director, An managing agent, (Utah 1977). nothing There is employee, any other employed the section that creates a third-party civil by or acting for or behalf of licen- cause establishments that see, sell, deliver, furnish, or violate the liquor licensing prohibitions. permit delivered, cause or to be sold, *6 any liquor furnished any: to 122 We conclude that the trial court did (i) minor; not err in dismissing plaintiffs' claim brought under section 324-5-107 of (ii) the Li- person actually, apparently, or obvi- quor Control Act. Plaintiffs' drunk; remedy, any, if

ously must be in found Act. (iii) drunkard; known habitual (iv) knоwn person. interdicted II. CAUSES OF UNDER

Id. The complain that dramshop ACTION THE DRAMSHOP ACT defendants violated this section they when Bredehoft, sold aleohol to a known habitual ' 23 cross-appeal, On dramshop defen- drunkard actually, who was apparently, or dants that contend the trial court erred when obviously They drunk. further contend that it refused to dismiss the case the violation prima served as facie evidence ruling that have a cause of action under negligence, of and thus stated a cause of > Act. defendants. disagree. 120 We cor 124 To plain determine whether the rectly quote Ryan Services, v. Gold Cross action, tiffs have a cause of we examine the (Utah 423, 1995), 903 P.2d 426 provisions Act, of the Act. The at thе time of states, "It general is a rule of Utah law that accident, tragic this dramshops that safety violation of a standard set statute that serve in alcohol violation of the Act were or ordinance prima constitutes facie "injuries evidence liable for person, in property, or of negligence." agree We with this support state means of person, to third or to However, ment of the law. we spouse, child, have estab parent of that lished that there is no common law person." basis to language This unambiguous; is support a third-party therefore, claim "we do not beyond look the lan against dramshops. Moreover, Ryan guage's plain ad- meaning legislative to divine

534 6 Damage or Civil Within Sun, Royal Order Horton v. intent." of 798 According- AL.R.2d 1991). 1167, 1168 ‍​​‌​‌​​​​​‌​‌‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌​​‌‌​​​‌‌‌​‌‌​‌‌​‌‍P.2d 821 parent, or spouse, persons-or ly, third Property of action for in a cause Injuries B. thereof-have

child or means property, person, in "injuries next dramshop defendants 127 per- injured by a they were where support" not suffered plaintiffs have that contend dramshop in by a alcohol was served son who son's result their property as a injuries in the Act. violation of argue specifically The defendants death. comfort, society, coun "support, loss Person in Injuries A. inju an constitute does not and services" sel property. ry in do not dramshop defendants 125 The cases that no Utah Although there are men have suffered dispute that thе in the "injuries property" in analyze or define death their son's grief over anguish and tal context, jurisdictions grief do Act's from other anguish cases that mental but contend The Illinois Su the issue. addressed have person." in "injuries not amount under their held that has "injuries preme in Court construe dramshop defendants property include injuries in Dramshop Act injuries." bodily "physical person" to mean property- personal injuries to real or only interpretation. agree with We comfort, support, or damages loss of anguish and emotional The mental monetary one for which society a loved does plaintiffs have suffered under might recoverable the mean- injuries" within "bodily constitute Doglio, Howlett v. aсt. See wrongful death Act. The in the words as used ing of those 713-14 N.E.2d Ill. "physi- means "injuries person" rule that not recover mother could (holding that mental or emo- injuries" and not bodily cal daughter's death her Dramshop Act because widely recognized. injuries tional injury property an not constitute did Izzo, N.E.2d T1l.2d Knierim v. mother). However, at least two courts suffering re- (1961) (holding mental funeral ex payment of have held injury injury physical is not sulting in no parents is an a minor child penses of un- recoverable therefore not meaning within "injury property" brought by wife Dramshop Act der New v. Glaesemann Act. See husband); Robertson following death of 130 N.W.2d Brighton, 268 Minn. White, Tll.App.2d N.E.2d (N.D. Jorda, (1964); N.W.2d Iszler v. *7 (1956) pain and suf- (holding that emotional 1957). obligated pay to legally are Parents injuries under compensable not fering are children, minor expenses of their funeral Ins. Act); Mut. Auto. Dramshop Farm State of the of assets results in a diminution 36, Isle, 360, 41 122 N.W.2d 265 v. Minn. Co. funeral costs and agree that parents. We (1963) to not entitled (stating wife "injuries burial are expenses to the attendant Dramshop Act person under injury to parents. property" to did suffering where she her mental based injury); accompanying physical sustain Support Injuries in Means C. 509, Tiedemann, 522 A.D.2d 185 Lyons v. next dramshop defendants (1987) plaintiffs 159, (stating 160-61 N.Y.8.2d suffered have not contend that pain and suf- recover for conscious could not agree that support. We injuries in means of under wrongful death fering and Locke, wages and Act). Anno- lost George A. suрport" includes generally "means of living, not Damage to earn a tation, inability Civil continue Recovery Under to comfort, society, etc. See support, emotional Intangibles (Dram-Shop) Act for Ltd., Tree, 187 Ill Low's Lemon Embarrassment, v. Loss Stevens Anguish, Mental 293, 58, 458, N.E.2d Ill.Dec. 543 135 .App.3d Like, 78 Companionship, or Affection Annotation, (1989); Trust (1977) Bank & What Farmers State 1199 297-98 Inc., Ill.App.3d Property" Co. v. Lounge, Lahey's "Injury in Person Constitutes 473, 116 Ill.Dec. 123-25 (1969); see also Messenger v. Vogler, 195 N.E.2d App.3d 866, Ill. 142 Ill.Dec. 553 N.E.2d (1990) (holding that pain decedents' Here, have not suffering prior to death have been injuries support suffered in means of because compensable under but not they were financially supported by their death). instantaneous seventeen-yеar-old son. See Jones v. Fish er, (Minn.1981) 309 N.W.2d (stating 1 33 We therefore plain- conclude that the money damages injuries in means of tiffs injuries have not person, suffered support do not include loss sup of emotional property-except for funeral and burial ex- port but are limited to support means of penses-or support, means of and because dependents); Robertson, 186 N.E.2d at 555 there provision was no allowing recovery for (affirming lower parents' court's dismissal of death under Act when the dramshop suit where deceased child was not killed, son have no cause financially supporting parent 'at time of of action to sue the dramshop defendants for death); child's see Angelоff also Raymond, v. their son's death. App.3d 594, Ill. 27 Ill.Dec. 388 N.E.2d (holding children of father who III. THE ACT AND THE WRONGFUL was shot and killed intoxicated defendant DEATH STATUTE injuries did not suffer support means of where father did provide trial, 34 Prior sup financial and the port death). prior to his stipulated defendants that "the el- ements of damage for a cause of action for

D. Person, Death is Not Injury an the wrongful death of a child as established Property, or Support Means under the wrongful death statute 78-11- [section Dramshop Act interpreted and the 6] case law of appel- late courts of the apply 131 The State of Utah legislative Act is a without enact exception ment to this that creates cause of statutory claiming cause of violation specific injuries of the Dramshop resulting Liability Act its viola 32A-14-101, (1958)." tion. "Application UCA of basic principles of stat utory construction enlargement forbids an stipulation, Based on that the trial the classification of injuries actionable following entered the order: Rogers Act." Dwight, That stipulation of defendants as set F.Supp. 587, (E.D.Wis.1956) (citations forth above is the "law of the case" in this omitted); see also Richardson v. Matador action and that the elements of a cause of House, Steak 948 P.2d 349-50 action for the death aof child as set forth (Utah 1997) (refusing enlarge the classifi in title 78-11-6 UCA 1953 and the inter- cation persons who could recover under pretive appellate deсisions of the courts of beyond its language). clear The Act apply this state exception without to the plainly bring action, states that to per cause pending of action in this court based son injuries must have suffered "person, upon (Dram- title 82¢A-14-101 UCA 1953 *8 property, or support." § means of 32¢A-14- Act). shop Liability 101 The defendants now contend that 132 The provide Act does not despite stipulation, their the trial court erred death,5 recovery for and rights because the when it entered the engrafting order conferred may the Act not enlarged, be stipulation as the "law of the case." there can recovery be no for death unless the expressly Act right. states such a See 45 186 Our wrongful death statute Am.Jur.2d, Intoxicating Liquors § 564 provides is fault-based and parents of a de- person" legislature In 1997 the amended per- for "the death the Act, and a third 32A-14-101(1) added). effective son." 1, (emphasis January that violate That dramshops the Act can be injury held liable for "an amendment has no force or effect in this case person, property, or support means of where the son was killed in 1994.

5386 the ele- stipulation-that parties' ing if of action a cause child with minor ceased applied to wrongful death action act or by the ments of was "caused death stipulation be- dramshop action-the must be their It § 78-11-6. another." neglect of They in the case. controlling law breached negligently came that a -defendant shown not rule that issues general point out the also and that child duty owed to the some raised ‍​​‌​‌​​​​​‌​‌‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌​​‌‌​​​‌‌‌​‌‌​‌‌​‌‍for be court cannot in the trial raised If the death. caused proximately breach appeal. time on the first parent's proven, a be can elements those intangibles may damages include recoverable correctly state 140 The companion- society, child's loss of the are bound "[olrdinarily, courts rule that v. See Jones affection. protection, and ship, First Den 1982). parties." (Utah between stipulations Carvell, 105 641 P.2d & Zundel v. C.N. Mortgage Investors ver 1979). Assocs, 527 P2d 600 hand, the other ... when However, case is not "such Hability fault-based, a strict rather not judicial determination rеquiring of law points imposes Thus, Act because statute. point earlier we have Id. As involved." are defendants, while liability on strict cause of opinion, the in this ed out neg proof of requires statute wrongful death statutory and purely Act is provided by the cause, the two statutes proximate ligence damages recoverable. narrowly confines merged into be and cannot incompatible are person, proper "injuries to specifies The Act Knierim, action. one cause expansion of Any support." means of ty, or (holding that action at 160-61 N.E.2d must be may recovered be damages that un maintained properly could not be tavern not the courts. legislature, by the undertakеn statute; damages under wrongful death der Furthermore, in Kaiserman As as we noted expanded limited or be Dramshop Act cannot Town, P.2d sociates, v. Francis Inc. act); v. also Lein see wrongful death (Utah 1998), an aban "an overlooked Pietruszewski, N.E.2d 61 Ill.2d compel an erro argument should doned (1975) act wrongful death (holding that not be foreed should neous result. We separate dis Dramshop Act are parties just have because the law ignore Fisher, 730- tinct); 309 NW.2d Jones arguments." pursued obvious not raised or (Minn.1981) damages (stating recoverable case, construing legislative we are In this to loss of limited Dramshop Act are under controlling only that will be act dependants; decedent's support means of alter a We cannot in future cases. case but wrongful death damages under recoverable both simply because construction correct companionship, ad may include loss act trial Act in the misconstrued D.I.G.I., Inc., counsel); vice, Bongiorno v. court. 969, 971 516, 515 N.Y.S.2d Misce2d (1987), 529 N.Y.S.2d aff'd, A.D.2d (1988) wrongful death and (noting that DAMAGES IV. PUNITIVE "wholly unrelated both are dramshop actions dramshop defendants seope purpose"). toas damages are not punitive that next contend Beaupre v. Bou plaintiffs rely on 1 38 trial that the the Act and recoverable (R.I.1986), 510 A.2d Billiard levard Act does by allowing them. erred recovery for court held that

where damages and punitive allow expressly had under wrongful death could damages specifically enumerates However, Dram- Dramshop Act. state's may be awarded: inju "any recovery for shop The total amount out, our pointed have earlier ry." As we *9 pursuant to a any person to be awarded narrowly and does Dramshop Act is drawn chapter cause of injury." recovery "any allow is limited July after arises amount $100,000 aggregate the however, contend, plaintiffs The injured as a persons all awarded to accept- an order entered the trial court when $300,- result of one occurrence is limited to est on the amount of jury the verdict and the trial granting court's stay of execution with a minimumbond are moot questions. added). (emphasis 32A-14-101 legislature's purpose stated in enacting the Dramshop Act compensate "was to innocent CONCLUSION third by making dramshop owners 44 We conclude that the trial court did strictly liable regard without finding the not err in determining plaintiffs that the had fault, wrongful intent, negligent conduct no cause of against the dramshop de- Reeves, part." on their 818 P.2d at 116. The fendants under the Liquor Control Act or at Act created a cause of action for innocent common law based negligence. Moreover, parties, third place and "intended to the eco- plaintiffs did not have a cause of action consequences nomic of intoxicated behavior under the Act because did not suffer primarily on the profited businesses injuries рerson, property except for funer- liquor trade." Carriage Walter v. al expenses, and burial support. means of Hotels, Ltd.,

House 164 TIlL.2d 207 Ill.Dec. trial court erred accepting par- 646 N.E.2d The Act is stipulation ties' that a death action punish intended to dramshop owners and could be brought Act, under the and it erred their employees, and because it does not by allowing an award punitive damages. expressly permit punitive damages, we will expand permit the Act to 1 45 their We are not award. unmindful deep of the loss plaintiffs conclusion, suffered In this in the tragic death we are in accord with courts many However, other puni- states that their son. judicial allow pre- restraint tive damagеs only when vents expressly us from affording greater authorized recovery to by statute. plaintiffs against Nelson v. Restaurants defen- Towa, Inc., (Iowa 1983), N.W.2d dants where legislature did pro- not so therein; vide. and cases cited Coughlin v. Radose- vich, 372 N.W.2d (Minn.Ct.App. 820-21 judgment is reversed and re- 1985). manded with instructions to enter judg- ment in favor of the in the amount v. THE CONSTITUTIONALITY of the funeral costs and expenses attendant OF THE DAMAGE CAP burial, together with interest thereon.

T42 The next contend that trial court violated provisions several 1147 Justice RUSSON concurs in Chief Utah Constitution capped when it the dam- opinion. Justice HOWE's ages $400,000 awardable to them at as re- quired by They Act. assert Justice ZIMMERMAN concurs in capping II, III, violated provisions IV, V, constitutional sectiоns and VI of majority guaranteeing open opinion courts oper- and uniform the result of section I. ation of the law and prohibiting special leg- DURHAM, Justice, Associate Chief islation. Inasmuch as we have held that dissenting: can only recover funeral and expenses,

burial which will be far less than majority opinion categori states cap, their that, constitutional challenges cally ‍​​‌​‌​​​​​‌​‌‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌​​‌‌​​​‌‌‌​‌‌​‌‌​‌‍"[plrior are to the enactment of the moot. Act, Utah did not recognize a third-party common law cause of action

VI. ADDITIONAL ¶ ARGUMENTS dramshops. Maj. Op., (referring State, (Utah to Yost v. 1981)); P.2d 1044 ' 43 Because the exclusive reme- Albertson's, Rees v. 587 P.2d 130 dy lies in the we need not address the 1978)). I cannot draw the same inference plaintiffs' assignment of regarding error from those cases. granting of summary judgment dismissing dramshop owners from Rees, the action. More- plaintiff 50 In was a minor and over, the trial court's refusal to award inter- injured intoxicated who had *10 paid the consideration amount of the pay to required had been and who defendant, vehi- of the the driver Rees, P.2d at 181. [another compensation. Nee release, the Albertson's, his seeking contri- for crashed] cle that plaintiff sued pro- release illegally amount, sold the any, by it had if that on the basis bution id. reduced. intoxication. See the total claim shall that caused the

the beer vides that foreseeability, analysis turned on The court's omitted). (footnotes and сitations Id. at 1048 straightforward: its conclusion words, { an court affirmed the In other be- minds could think reasonable [We pro- the running from liability of allocation minor, a such selling beer to in lieve that injured party liquor to a third the vider of reasonably the defendant plaintiff, as minor, subject to a reduction an intoxicated itof the likelihood foreseen have should only liability. The own for the an automobile with being combined a common ruling is for basis theoretical occurrence such in some [sic] result party injured third by an law cause of here. eventuated liquor. illegally sells who against one with in connection considered To be princi- are these above has been said what course, difficulty that nеi- is, 4 54 It negli- relating to questions that ples: an extensive Yost contains nor ther Rees generally cause are proximate gence and a cause of the determination analysis of fact-trier, jury, to deter- court or lie, if legitimate to ask and it is would deprived of party not be A should mine. to which recognized the extent fully adjudica- an having such privilege princi- existing extending common it was appears it unless tion of his claims history a solid without type of claim ples to a by him he facts claimed upon the even hand, the lack On the other in Utah. recovery. a basis not establish could might well question to the serutiny applied omitted). (footnotes and citations assumption by Id. at 133 underlying reflect an analysis tort principles of court that standard suing for in Rees was not plaintiff 1 51 The causation, of Habili- (foreseeability, allocation sought contribution injuries; he his own course to a matter of applicable as ty) were injuries to third liability an allocation event, any I do not pattern. In fact could or contribution claim for parties. No adequate to dis- accurate or it to be believe liability duty potential lie absent would summarily, as does the holdings miss these party to the running from Albertson's definitively They are majority opinion. (henee the foresee- care to assess the court's least, assumption based, on an at the Rees injuries). The third-party ability of give to a could rise оf alcohol illegal provision of a court, fact, legitimacy recognized I think the parties. liability to third claim of permitted it claim when third-party "neither it asserts majority errs when the contribution go to trial on plaintiff to ac- law cause of a common established case question. against com- persons in favor of third tion later, the court reaffirm- years Three there was where of alcohol mercial vendors plaintiff in Yost position Rees. ed its Nei- Maj. Op., 115. statutory violation." no (Utah 1981), State, had been 640 P.2d 1044 might call we language opinion uses ther allegedly accident injured in an automobile ruling could stand neither "establishing," but of li- illegal sale by the defendant's caused were claims аssumption that such without id. at 1045-46. minors. See to several quor not available Contribution legitimate. The court declared: liability not have who does a defendant liability percentage of Regardless of place, nor is first injured party to liquor seller] defendant [the attributable defendant lability to allocation of defendants, is lia- he the other relative setting. other possible damage, re- total [plaintiff] Yost's ble for majority's conclusions Because 1) percentage of by: duced Dramshop Act are 2) the effect Yost, about greater attributed *11 predicated on its conclusion that no common 2000 UT 36 prior enactment, existed to its RIVERA, minor, By Vanae Through join Furthermore, I reasoning. cannot its if guardian, her natural mother and Joan existed, in fact such a common law claim it is RIVERA; Berger; Chris and Debra why persistence not clear to me its would be Mikesell, Appellees, Plaintiffs precluded by the statutory scheme of the Dramshop express an absent determina STATE FARM MUTUAL AUTOMOBILE tion the legislature to override related COMPANY, INSURANCE an Illinois common law. Act contains Corporation; Phillip Toledo; Harmon's determination, no such strange and in fact is corporation; a Utah Linda Motua ly devoid of language explaining purpose.6 its puaka; Goodro; Gwen Doe; John reasons, 56 For the foregoing I dissent Toledo; Amy Esther the Estate of Mo majority's holding tuapuaka; and Allstate Insurance Com had no common law cause of action. At the pany, Aрpellant. Defendants least, very I think this court should have No. 990197. engaged independent in an analysis of wheth- er the common law cause of action acknowl- Supreme Court of Utah. edged in ought, our old cases as a matter of April

policy development, and law to co-exist in ‍​​‌​‌​​​​​‌​‌‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌​​‌‌​​​‌‌‌​‌‌​‌‌​‌‍the Act, era in by ushered our or be

definitively analysis. abandoned after agree I majority's with the conclusions

regarding the interaction of the

Act and death claims. The harsh

result this case in fact reflect one of ought

the factors that to be considered in

deciding vitality of, for, current and need

the common law opposed cause of action as the limited remedies

Dramshop Act.

1 58 Justice STEWART concurs

Associate Chief Justice DURHAM's

dissenting opinion. majority language 6. The declaration; cites from Reeves v. Gen- appears reveals no source for the it 1991), simply assumption to have tile, 813 declaring been an made P.2d legislative purpose dramshop legis- court based on its assessment of unfortunately, opinion general. examination of the Reeves lation in