*1 ALEGRIA, Albert I. individually and as
spouse, Raymond Alegria, Joseph A.
Alegria Bunce, and Isabel as the chil
dren and Josephine heirs at law of Marie egria, deceased,
Al Plaintiffs-Appel
lants, PAYONK,
Lawrence Paul John Forbis and Golling, individually
Lorene and as
joint-venturers, partners, d/b/a Barn, 1, 2, 3, 4, 5,
John’s John Doe Corporation, Bobby
XYZ Catlett and Gilbert, individually
Charles and as
joint-venturers, partners, or d/b/a The
Office, 6, 7, 8, 9, 10, John Doe and ABC
Corporation, Defendants-Respondents.
No. 12858.
Supreme Court of Idaho.
Sept. 1980.
Rehearing Denied Nov.
618 damages by sustained injuries
plaintiffs. court
Pursuant to motion the district Meade v. Free- ruled that decision Burke, Barber, Elam, Jep- Phillip M. of man, 389, 54 com- 462 P.2d 93 Idaho Boise, plaintiffs- Boyd, Evans & for pesen, as a matter pelled the conclusion that appellants. a cannot be vending law the of intoxicants Hall, Friedly, Hall Moun- Perce E. & damage per- to a third proximate cause of Home, defendants-respondents for tain granted summary judg- accordingly son and Golling. Forbes and Lorene John against plaintiffs. ment Hicks, Kevan, Francis H. of Hicks & reasonable .Construing the facts all Home, defendants-respon- Mountain for inferences from the evidence in favor of Catlett and Charles Gilbert. Bobby dents as we must in review- plaintiffs-appellants, Risch, Goss, Insinger, D. Goss & David ing summary judgment an order of entered Boise, defendant-respondent Lawrence for defendants, Sequei- in favor of Mitchell v. Payonk. Paul ros, (1978),the presented is whether in this narrow issue DONALDSON, Justice. Chief beverages by a state the sale of alcoholic appeal This case is before us on from an beverages to an licensed vendor of such granting summary judgment against order obviously intoxi- actually, apparently and in favor of defend- plaintiffs-appellants a minor can be person cated known to be liquor vendors. respondents ants— proximate cause contributing actual and year On December old seventeen from damage resulting person to a third Payonk quantities Lawrence consumed of an subsequent negligent operation beer in taverns known as “John’s Barn” and minor, by automobile such intoxicated while evening, “The Office.” Later in the of action thereby giving rise to cause driving allegedly in an intoxicated condi- against such vendor. tion, Payonk collided with a car in which Freeman, supra, In Meade v. this Court Alegría passenger. Aleg- Marie was a Mrs. question was with the presented first her ría was killed the accident and hus- could, under intoxicants whether the sale of band, Alegría, injured. Albert was Albert circumstances, upon the seller lia- visit Alegría and the children of decedent filed tortiously by caused bility for against Payonk suit and the owners and question consumer of such intoxicants. inju- employees of the two taverns for the negative: by was answered Alegría ries sustained Mr. squarely runs theory “[Plaintiffs’] death of The material alle- Alegría. Marie authority. It is the face of almost all are, complaint in sub- gations plaintiffs’ (citations omitted) nearly universally held stance, sold, served and that defendants of intoxicants consumption that it is the dispensed beverages Payonk, alcoholic cause of proximate that constitutes knew notwithstanding that defendants from parties resulting damage to third Payonk should have known that was under acts of the con- the tortious or unlawful legal drinking age years of nineteen intoxi- vending sumer and actually, apparently and knew that he was to be considered cants is too remote so obviously intoxicated at time added) (emphasis 93 cause.” served; occurred as a that the auto collision Idaho at Payonk, the intoxication of result of decade since Meade intervening In the consumption intoxication resulted decided, upon which four of the cases negligently served was beverages alcoholic defendants; been overruled. negli- majority relied have and that the to him Rush, (Cal.1955) and the actual and gent acts of defendants were Cole Dionne, 246, 210 Cal.App.2d Fleckner v. of the death of decedent proximate cause reasonably anticipated were could or foreseen P.2d overruled the Cali- Court in Supreme might fornia the unanimous de- result that a failure to use such care Vesely Sager, added) cision handed down in Kirby v. injury.” (emphasis in such Cal.3d Cal.Rptr. 151 Sonville, 286 Or.
(1971).
Hoffman,
Lee v. Peerless Ins.
183 So.2d
95 Ida
Harper
And in
*3
(La.1966)
by
328
was
the Louisi-
overruled
(1974),
933,
stat
ho
P.2d 536
this Court
523
Ketchum,
Supreme
ana
Court in
v.
Pence
ed:
“
(La.1976),
finally, in
In conflicting, is held that “one on undisputed or where facts owes the duty every person society in our reasonable and fairminded dif- men use care injury reasonable to avoid to fer as to the inferences and conclusions to person other drawn, situation which it or where different conclusions
might
footnote,
negligent
we
reasonably
be reached
different
indicated
en-
minds,
question
negligence
...
one who
of an
trustment
automobile
and proximate cause is one of fact to be
be actionable. Kin-
intoxicated would also
submitted to
jury
question
and not a
Smith,
P.2d
ney v.
Idaho at
court;
if,
for
of law
upon all the facts
1237, at n. 1.
circumstances,
there is a reasonable
“negligent
ap-
tort
The
entrustment”
chance or likelihood of the conclusions of
Kinney
recognition of the
is a
risk
proved
reasonable
differing,
question
men
ingredients
when two
exists
”
jury.’
one for the
90 Idaho
combined;
and an in-
the automobile
quoting from Stow-
driver.
competent
incapacitated
Kin-
ers v. Union Pac. R.
may be liable
ney,
party
we said that a
P.2d 1041 with
providing an intoxicated individual
an
Oregon Supreme Court,
with
faced
this case is
automobile. The issue in
*4
appeal from a judgment
involuntary
of
non-
e.,
converse,
ever be
party
i.
should a
held
Sonviile,
Kirby
suit in
v.
supra, framed the
the driver of an
providing
liable for
auto-
central issue as
mobile with intoxicants.
“
plaintiff’s
‘whether
injury and the man-
ruling on
of the
In
the correctness
sum
ner of its occurrence
so highly
[were]
case,
judgment
mary
entered in this
we
unusual that
a matter
say
we can
as
[appellants’] inju
must determine “whether
man, making
law that a reasonable
an
ry and the
of its occurrence
manner
[were]
inventory of
possibilities
the
of harm
highly
say,
we can
as
so
unusual
that
a
which his
might produce,
conduct
would
man,
matter of law that a reasonable
mak
not
expected
have
the
reasonably
injury
”
inventory
ing
possibilities
an
of the
harm
822, quoting
to occur.’
produce,
which his conduct
would
might
not
v.
Plywood
Stewart
Jefferson
reasonably expected
injury
have
the
to oc
(Or.1970).
Sonville,
Kirby
supra.
v.
We
cur.”
are
(1)
In
present case,
alleged
the
it is
that
that,
constrained to
under the
hold
facts
respondents liquor vendors1 sold further in-
proceedings,
this
alleged
stage
at
of the
the
toxicants to a
a time when he
minor at
was
fact,
question is not one of law but of
and
already actually, apparently and obviously
by
should be
the court but
resolved not
intoxicated, with
or
actual
constructive
appel
jury.
appears
It
this
that if
to
knowledge
age
of the
consumer’s
minor
by
preponderance
able to prove
lants are
a
condition;
that such conduct on the
knew
respondents
of the evidence that
or
respondents
part
constituted an actiona-
that the
reasonably should have known
in
general duty
appel-
ble breach of the
owed
operate
minor
would
Payonk
toxicated
lants,
use
society,
as members of
to
reasona-
upon leaving
establish
automobile
their
ble care to avoid
to others in a
injury
situa-
ment,
allegations
in
proving
addition to
tion in which
was foreseeable
should
complaint,
jury could
of the
a reasonable
respondents fail to use such care.
find
conceivably
liability.
Meade,
Subsequent to
in
Court Kin-
Freeman,
supra,
In Meade
the Court
Smith,
ney
Idaho
should, in the
considered whether it
absence
(1973), held that a car owner who lends his
statute,
change
make
in the common
a
may be
vehicle to an unlicensed driver
lia-
in
regarding
negligence
actionable
law
imputed
theory
negli-
ble not
on a
consumers. The
vending of intoxicants to
gence, but also on the basis of the owner’s
negative.
was
entrusting
answer then
independent negligence
However,
as
driver.
“the a strength of the common law lies in few In those its demanded. capacity adopt necessary itself to ever chang- poli- ing clearly circumstances. enunciates Although traditional- cases where a court ly change, hesitant to it determina- overruling policy should not fail to cy by either do so where a hoary establishing doctrine loses its legislature tion of the raison d’etre.” 93 Idaho at has refused to policy what the at 60. establish, even more careful a court must be it has examined to demonstrate that decision, We therefore declare that state its competing policies various and to the extent it infers that under common-law adoption of one rule reason for the present vending statutes the preference to another. intoxicants can never be damage cause of parties resulting third today’s majority respect, With I believe from the tortious or unlawful acts of the First, it opinion suffers two defects. consumer, is overruled. Second, provides no wrong in its result. Accordingly, the summary judgment reasoning process. It rather rationale or favor of defendants-respondents is re- gloss very provides only superficial versed and the cause is remanded for fur- large whether the Court should questions of ther proceedings in accordance herewith. in an area in which the judicially legislate Those proceedings may include a renewal of great majority jurisdictions have acted *5 the motion for summary judgment any through legislature policies their or what thereto, response both of which must be by overruling are served of what has made light of the proximate cause stan- nearly been termed unanimous dard as set out in opinion. fails to doctrine. The decision pay lip even service to rule the established BISTLINE, JJ., BAKES and concur. courts, of decision to be by followed our SHEPARD, Justice, dissenting. 1864, originated in Idaho in continues 73-116, to remain codified as I.C. § In my judgment, opinion of a court of requires application of the common law last resort should serve certain functions. England as the rule of decision in all The ultimate decision clearly should be stat- courts of this state to the extent not incon- ed together with sufficient facts so as to sistent with legislatively enacted statutes. enable the decision to be used controlling 796, Seyboldt, See Cannon v. 55 Idaho 48 precedent in similar cases. Assuming would, (1935). course, P.2d 406 Such the case any significance, is of opinion require contrary a result to that of the should state the upon rationale which the majority. decision was reached in order to demon- strate that it was reached on more than Freeman, 389, 462 Meade v. 93 Idaho instinct or result orientation. Hopefully, (1969), indistinguishable from the in there engendered will thus be respect and pro stant case in relevant factor. The acceptance for the “law” announced juncture cedural was the same and the opinion and the institution which so an- nearly facts are identical. There the Court nounced the “law." Perhaps, impor- more noted: “The facts are classic in their sim tantly, a clear statement of the Court’s plicity, legal but questions presented reasoning process development will aid the complex are exceedingly and of first im of the law since will not be useful in pression 390, p. in Idaho.” At p. 462 P.2d at identical or “factually” cases, similar future questions posed 55. Those were as: “Has but also may prove useful in conceptually legislature our authorized a new cause of analogous cases. intoxicants, against purveyor action not,
In the existing legislature unusual cases where and if our has should this overruled, precedent is it is even more im- Court declare a new cause of action?” Meade, it was clearly majority opinion held that there attributes to it. isOne was not then in existence legislatively cre impelled to observe that such a result ated dram shop liability. It was noted that unexpected should not be from a Court at one time a limited form of legislatively which had departed so far from traditional created dram shop liability Idaho, existed in tort doctrine to that a defendant hold but repealed. had been Although Donald reasonably expected be held to have a third son, J.,C. grounds, dissented on other he person would commit murder and thus be point was careful to agreement out his with civilly liable to heirs of the victim. See the majority holding that no legislatively Regents Tarasoff v. University of the created dram shop liability Thus, existed. California, 14, Cal.Rptr. 17 Cal.3d while a majority of other states have creat Hergenrether also See ed dram liability by legislation, Idaho East, 39 Cal.Rptr. Cal.2d had not at the time of Meade. There is no (Cal.1964), P.2d 164 where a defendant was in existence at the present damages plaintiffs, held liable for who legislature time. The is held to be on notice injured were after defendant’s truck was Court, of the decisions of this C. Forsman parties stolen unknown third and there- Hatch, Real Estate Co. v. 97 Idaho plaintiffs’ after involved in a collision with (1976); Oregon Shortline R. Co. v. Pfost, Perhaps practical automobile. a more ob- has had ample opportunity since 196 servation is that difficult facts sometimes have acted in response to the invitation of produce bad law. done, Meade: “If such is to be it should be Sager “Defendant operated owned and done wherein all of the Lodge, Buckhorn a roadhouse located policy considerations can and should be top Baldy near the of Mount Ber- San carefully weighed which, per nardino County, engaged and was chance, liability of type sought here will selling beverages gen- of alcoholic become a reality with the enactment of a public. Beginning p. eral at about 10:00 dram shop p. act.” At p. m., April Sager served or permitted defendant O’Connell to be pass I then to prong the second large quantities served of alcoholic bever- *6 Meade; since legislature the has not acted * * ages Sager *. knew also that the to create shop liability, dram should this only leaving Lodge route the Buckhorn Court so judicially legislate? small Some very steep, winding was a and narrow effort at brevity dictates that reference to mountain road and that O’Connell was Meade will amply reveal that going to drive that road. Never- down did not exist at common law and has been theless, Sager continued to serve O’Con-
judicially
only
created in
a small minority
past
nell alcoholic drinks
the normal clos-
of jurisdictions.
In my judgment,
the ma-
m.,
ing
a.
on
time of 2:00 a. m. until 5:15
jority opinion fails to even
ques-
address the
leaving
lodge,
April 9. After
the
O’Con-
tion of whether this Court should create a
road,
into the
nell drove down the
veered
new
cause of action where the
lane,
opposite
plaintiff’s
and struck
vehi-
has
merely
refused to do so. It
notes that
complaint
alleges
cle. The
also
that
some jurisdictions have supposedly reversed
with the
O’Connell drove the automobile
themselves since Meade. We are favored
consent, permission,
knowledge
with no
and
why
reasoning
discussion of
the
defendants,
some decisions should be
remaining
considered more
the
that each de-
persuasive than others
why
and
that rea-
employee
agent
fendant was the
and
soning recommends
itself
this Court.
defendants,
the other
and that each of
acting
the defendants ‘was at all times
I note that
majority
the
cites the Califor-
scope
said
purpose
within the
nia decision of Vesely Sager,
5 Cal.3d
” Vesely, 486
(1971).
agency
employment.’
Cal.Rptr.
The
California
Cal.Rptr.
Court indeed held that which the
P.2d at
at 626.
those intoxicated or un-
liquor
The second of the cases relied on
sale of
policy.
Ketchum,
question of
majority
age
clearly
is Pence v.
The third case
upon by
majori-
relied
explana-
no
phy.
majority here offers
ty
State,
(Iowa
Lewis v.
“With case See supporting position on-premises law nesses for be parties, State, liability both Is such supra. the ultimate decision of Lewis v. wine, whether of beer or impose duty any purveyor a civil on the extended to the convenience including supermarket, tavern owner of a drawn because statute store, store, protect neighborhood Pa public preventing the Ma and resort, raceway, transportation patron the automobile the ski his mode of and if the course, golf county fairgrounds, driving the fra- intends to commit the crime of ternal or picnic, service club and the innu- upon departure? pro- If a while intoxicated organizations merable other businesses and prietor inquire does so and receives satisfac- may engage vending which incidently answers, discharged? tory duty has his been of beer or wine under various circumstanc- proprietor Must the count and record distinction, es? any, What if is to be drawn patron? of drinks served each If a number “purveyors”? between different Is this (assuming such patron has four drinks new liability applied only to be to “ven- produce would a blood alcohol content be- dors”? What of the social host who fur- level, 49- yond presumptive I.C. § nishes or “purveys” intoxicants to his social 1102(b)(2)), use proprietor should or must a guests? From the majority’s “every use of prevent force to persuasion physical or even person” quoted Hoffman, Harper as from patron vehicle? a motor entering one must persuasive- proprietor If the so fails in his surmise that the new is not re- ness, discharge is that nevertheless a of his problem stricted to those who sell. The that he served the duty or is an admission Turner, illusory. far from See Carr Will it be suffi- patron many too drinks? (Ark.1965); Dixon, S.W.2d 656 Dwan v. beverages, as in tobacco cient if all alcoholic (1963) Cal.Rptr. 749 [denying liability of a sales, or there is are served containers social as contrasted with Brockett v. host] drinking may be imprinted “driving after Boyd Cal.App.2d Kitchen Motor of others”? Per- hazardous to the health Cal.Rptr. [affirming liability any must business haps importantly, most of social 57 Calif.L.Rev. 995 host]. anticipate proprietor reasonably foresee crime be- will commit a that a customer purpose It serves no and is of no assist- sold, fur- commodity cause of or with the ance to the bench and bar for the nished, to the cus- prescribed or delivered negligence to state that cause tomer. questions jury, are for the nor is it of regard- assistance to state rules general face- questions may appear The above ing a duty to use care to avoid when tious, repeated that the trial but it must be such can be “reasonably anticipated or fore- must, instructions, be able jury court in its seen.” A jury does not arrive at a verdict recognized by law.” “duty to define the vacuum, in a but rather as a result of and future, Further, must and in the this Court in conformance with instructions of the tri- how, all, “duty” vary will consider if at case, al court. In the instant jury is the tavern, bar or proprietor of a as between be left to its speculation own under the with a business restaurant as contrasted
over-generalized language of the majority? or wine for off- dealing liquor, beer grocer, as a premises consumption,
As set forth in the majority, “negligence” type other dispensary, is an or some concept liquor abstract which must state be jury consisting defined for a of vendor. of certain elements. First and foremost among those generalization Within the of vendors elements there must “a duty recognized intoxicants, the combination of only is it by law.” Without the existence of “a drinking driving which is to result in law,” recognized by remaining elements exposure liability? negli- Is it irrelevant and can not themselves be with intentional torts gent as contrasted the basis of a cause of action in negligence. While liability? result
What duty is the of the defendants here inhibitions in may incapacitate or release some, plaintiffs brutalizing toward and how should a trial well known for it is also court define that instructions to required in its a vendor be others. Should jury? proprietor category patron may a a fall inquire Must about determine may protected against be sobriety every entering patron? of within he so that wife, patron a of an assaulted proprietor inquire brought Should a of an action The driver. the drunken lems of that it child, contends police officer who by the enact- such conduct proscribed that led vending of the intoxicants has was the damage resulting statutes. to the assault and to the of criminal ment Rush, 45 v. plaintiff? to the See Cole case, this member Indeed, the instant in in (1955), overruled Cal.2d Force was undesir- Air of the United States Vesely Sager, supra. manslaughter of convicted discharged, ably policy deci- The tells us that the penitentiary. the State and incarcerated response problem of sion is made daily in which the day passes Hardly a driver. We are told that the drunken not contain columns of in- newspaper does liability if he expose vendor will himself to relating to the conviction formation may who he already serves one intoxicated routinely fined who are drivers drunken will drive a reasonably expect thereafter placed probation without incarcera- and completely he serves a motor vehicle or if evidently responding legislature, tion. The where he becomes person point sober to the policy made a decision that problem, to that reasonably believe may intoxicated if he person driving convicted of drunken every may thereafter drive a mo- person that the required mandatory to serve a should be is, course, only one tor vehicle. Such five-day jail policy, term. With that I disa- What the vendor prong problem. I would have deferred to the gree, but who sells a vehicle to a automobiles However, legislative policy decision. person habitually he knows drives or occa- McCoy, State sionally impose drives while drunk? Do we (1971), made short shift of that liability like on the vendor of motor vehi- legislative attempt problem to alleviate the cles? major- The of the drunken driver in Idaho. keepers may journey Saloon and bartenders be on a into the tortuous ity embarks which, largely legal unloved and considered fair policy and waters of uncharted game. Perhaps category into that same are judgment, legislature. is left to my best restauranteurs, grocers, to be placed small, who in any way,
others
however
deal
McFADDEN, J., concurs.
any quality.
in intoxicants of
Perhaps
McFADDEN, Justice, dissenting.
State,
Iowa,
State, supra,
as in
Lewis v.
is
to be held to
under
our Tort Claims
Freeman, 93 Idaho
In
Meade
Act.
recognized
this court
rule that an
to a third
It must be remembered that what is done
person
intoxicated
is
caused
person
today
beyond
reaches far
this one class of
against the vendor who sold
not actionable
instrumentality
business. Who
what
placed
person because
liquor to the intoxicated
hands,
mouth or
of another
control
remote,
proxi-
and not a
sale was
person
whether
placement by
mate,
We stated in
injury.
cause of the
ques-
vendor can be a causative factor are
law rule arises
Meade that
the common
tions of enormous
import to
law of the
assumption
person
from the normal
that a
sweep of
The reach and
State
Idaho.
should not be able to relieve himself from
such new doctrine
philosophy
can be
responsibility
by becoming
for his own acts
enormous. Almost
business which sells
any
intoxicated,
assump-
and from the further
many
profes-
type
goods
not a tort to sell
to an
tion that
majori-
sions
aby
logical extension of the
person,
liquor vending
able-bodied
since the
ty’s
subject
doctrine
now be
to liabili-
legitimate
purchaser
business is
ty.
responsible.
deemed
Id. at
previously
many
As
stated in Meade and
jurisdictions,
prob-
other
such multifaceted
on which the com-
legisla-
logical premises
lems of
best left
Idaho,
changed
the mon law rule is based have not
ture.
it cannot
said
per-
prob-
the Meade decision. Intoxicated
legislature has been unaware of
since
*9
dispenser
liquor
injury
or
of
for
legally responsible
are still
for their
vendor
sons
acts,
is
liquor vending
legitimate
still
persons by
on
an intoxicated
inflicted
third
business,
consumption
liquor
of
is
Moreover,
argument
person or minor.
injury
closer to the
in terms of causa-
still
legisla
that
the Idaho
by appellant
raised
dispensing
than the sale or
of the li-
tion
the common
inferentially
ture has
modified
changed
has
is this court’s
quor. What
enacting statu
non-liability
law rule of
disregard
premises
willingness to
on
forbidding the retail dis
tory provisions
based,
law
is
which the common
rule
visibly
who are
pensing
liquor
persons
of
to
replace
emphasis
policy
them with an
on
23-603, 23-
(I.C.
intoxicated or minors
§§
arguably
considerations which
indicate a
605, 23-929)
It is true that in
inapposite.
is
liability.
need for vendor
held that a violation
other contexts we have
majority’s abrogation
of the common
to the ones
of criminal
similar
statutes
attempt
an
law rule reflects
reallocate
to cause of actions
give
raised here
rise
bearing
injured
the burden of risk
from
negligence per se. Bale v.
sounding in
Per
damages
persons
liquor
to vendors of
ryman, 85 Idaho
627
reserved under our constitution for
as the
rule is
lief are
long
common—law
“[S]o
to, it
adhered
matters not whether
legislative consideration.
Idaho Const. Art.
furnishing liquor may
act of
be con-
II,
I-§
simple negligence
negli-
sidered as
conclusion is not without
The above
gence per se in violation of the criminal
See,
v. Ca
authority.
g.,
recent
e.
Profitt
cannot, alone, leap
statute-it
the common
nez,
235,
(Ariz.1978)
lems could also arise in the MENDENHALL and Vivian LaVern *11 sorting liability among Eades, ment or out of Mendenhall owners of various bars visited on ‘bar Plaintiffs-Respondents, hopping’ excursions. The correct stan- dard of presents care to be used also CAINE, Vonda Mendenhall problem, as does the determination of Defendant-Appellant. patron, including whether all acts of the torts, 12583. intentional should be included with- No. liability of the tavern owner or Supreme Court of Idaho. operator.” Sept. 1980. agree
“We with the conclusion City Nugget, court Hamm v. Carson Rehearing Denied Nov.
Inc., that, Nev. controlling
in the final analysis, con- are public policy
siderations and whether
the court or legislature should declare it.
We believe that the decision should be legislature.
left hearings, hold debate the relevant considerations,
policy weigh the testimo- and,
ny, the event it determines a
change in the law is necessary or desira-
ble, it can then draft statutes which
would adequately most meet the needs of general, public balancing while
interests of specific sectors.” Id 244
N.W.2d at 70.
As the reasoning above from the Holmes clear,
case majority today makes is cre- unknown
ating a cause of action at common potentially
law with uncertain and far
reaching ramifications. The vice of the ma- cannot, opinion is that this court
jority decision, legal
short of a create the injuries
position liability of vendor persons specific
third in the absence of a
statutory being scheme. There no such state, the cre-
statutory declaration
ation of vendor is a matter best left legislature.
to the Idaho