Marjorie ALLISEN, Plaintiff and Appellee, v. AMERICAN LEGION POST NO. 134, Defendant and Appellant. AMERICAN LEGION POST NO. 134, Third-Party Plaintiff and Appellant, v. STATE of Utah, DEPARTMENT OF TRANSPORTATION; Clearfield City, a municipal corporation; Utah Power and Light Company, a Utah corporation, Third-Party Defendants and Appellees.
No. 880031
Supreme Court of Utah
Oct. 28, 1988
763 P.2d 806
466 U.S. at 697, 104 S.Ct. at 2069.
As to each of plaintiff‘s ineffectiveness claims, he has argued that the alleged error had “some conceivable effect” on the outcome of the trial. He has only speculated as to whether the alleged errors had any prejudicial effect on the jury. He has failed to demonstrate that but for the errors, it is reasonably probable that the result would have been different. State v. Frame, supra. In other words, he has failed to establish the likelihood that absent the errors, the jury would not have found him guilty.
Even if plaintiff had carried his burden to establish prejudice, we cannot say that based on the record counsel‘s performance fell below an objective standard of reasonable professional judgment. “Trial tactics lie within the prerogative of counsel and may not be dictated by his client. Decisions as to what witnesses to call, what objections to make, and, by and large, what defenses to interpose, are generally left to the professional judgment of counsel.” State v. Wood, 648 P.2d 71, 91 (Utah), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982). Thus, the evidence supports the district court‘s findings and conclusions that plaintiff‘s claims are without merit, including the claim that his counsel was inebriated at trial. Plaintiff‘s conviction was firmly based on evidence establishing his guilt beyond a reasonable doubt.
III
Finally, plaintiff contends that even if none of his claims taken separately would have prevented his conviction, the cumulative effect of the assigned errors constitutes grounds for relief. We disagree. “‘Cumulative error’ refers to a number of errors which prejudice [a] defendant‘s rights to a fair trial.” State v. Ellis, 748 P.2d 188 (Utah 1987); State v. Rammel, 721 P.2d 498, 501-02 (Utah 1986) (citation omitted). Because we hold that no substantial errors were committed, the concept of cumulative error does not apply. Ellis, 748 P.2d at 191.
We have thoroughly reviewed the transcript and record below and hold that plaintiff received a fair trial where his rights were adequately protected.
AFFIRMED.
HALL, C.J. and STEWART, DURHAM and ZIMMERMAN, JJ., concur.
Barry Gomberg, Ogden, for American Legion Post No. 134.
James R. Hasenyager, Ogden, for Marjorie Allisen.
Paul Proctor, Salt Lake City, for Utah Power and Light Co.
David L. Wilkinson, William F. Bannon, Stephen J. Sorenson, Salt Lake City, for State, Dept. of Transp.
HALL, Chief Justice:
This case is before us on appeal from an interlocutory order denying a motion to dismiss brought by American Legion Post No. 134 (“American Legion“). We reverse and remand for entry of an order dismissing the case against American Legion.
On January 30, 1985, Wesley Harju was served approximately six light beers over a period of several hours on the premises of American Legion in Clearfield, Utah. It is undisputed that on the day in question, American Legion owned a license to sell light beer only and that Harju consumed no other alcoholic beverages.
Marjorie Allisen was crossing the street on foot when she was struck and severely injured by a car driven by Harju within minutes after Harju had left American Legion‘s premises. Harju‘s blood alcohol content at the time of the accident was .14 percent.
Allisen sued American Legion under the Utah Dram Shop Act. American Legion filed a third-party complaint against third-party defendant Utah Power and Light for negligent design and maintenance of a utility pole and against third-party defendants Utah Department of Transportation and Clearfield City for negligent design and maintenance of the intersection where the accident occurred. American Legion asked for contribution by third-party defendants in the event it was found liable. In lieu of an answer to Allisen‘s complaint, American Legion then filed its motion to dismiss the complaint on the ground that the Dram Shop Act did not apply to the sale and consumption of light beer. The third-party defendants likewise filed their motions to dismiss American Legion‘s actions against
On appeal, American Legion contends that the version of the Utah Dram Shop Act in effect at the time of the accident did not apply to those who provided light beer as defined by the Utah Liquor Control Act, Utah Code Ann. title 32. We agree and therefore find it unnecessary to reach other issues raised by American Legion.
The Utah Dram Shop Act (“the 1981 Act“) in effect in January 1985,
(1) Any person who gives, sells, or otherwise provides intoxicating liquor to another contrary to subsection 16-6-13.1(8)(d),1 subsection 32-1-36.5(1)(l),2 section 32-7-14,3 or subsection 32-7-24(b) or (c),4 and thereby causes the intoxication of the other person, is liable for injuries in person, property, or means of support to any third person, or the spouse, child, or parent of that third person, resulting from the intoxication.
(2) A person who suffers an injury referred to in subsection (1) of this section, shall have a cause of action against the intoxicated person and the person who provided the intoxicating liquor in violation of subsection (1) above, or either of them.
(3) If a person having rights or liabilities under this section dies, the rights or liabilities provided by this section shall survive to or against that person‘s estate.
The Act prohibits the sale of intoxicating liquor to minors, persons actually, apparently, or obviously drunk, known habitual drunkards, known interdicted persons, and persons under the influence of liquor. The Liquor Control Act in effect at the time,
Contrary to Allisen‘s response that the legislature could not have intended such absurd results, both the language of the statute and the legislative history point to an express exemption of light beer providers from liability under the 1981 Act. Where statutory language is plain and unambiguous, this Court will not look beyond to divine legislative intent. Instead, we are guided by the rule that a statute should be construed according to its plain language.7 The statute‘s plain language holds providers of intoxicating liquors liable for injuries a person under the influence of intoxicating liquors may inflict. Intoxicating liquors do not include light beer, and the 1981 Act therefore expressly exempts providers of light beer from liability for injuries caused through intoxication from light beer.
Recent legislative history underscores the limitations just stated. After the repeal of the 1981 Act and the enactment of the 1985 Act, the Citizens’ Council on Alcoholic Beverage Control8 submitted its annual report and recommendation to the Utah legislature.9 The Council expressed concern that the language in the Dram Shop Act limited liability to providers of liquor and exempted providers of beer. It then recommended that the statute be amended to encompass all “alcoholic beverages.”10 The Act, as amended in 1986, now provides for liability of all providers of alcoholic beverages, and alcoholic beverages expressly include light beer.
We take no position on Allisen‘s claim that she should be able to proceed against American Legion on a common law negligence theory because the issue is not before us. Allisen‘s complaint was brought under the Dram Shop Act, and the district court limited its ruling to the Dram Shop Act applicability.
We hold that the 1981 Act did not include light beer in the definition of “intoxicating liquors” and that Allisen‘s complaint against American Legion for liability under the Dram Shop Act must therefore be dismissed. The order of the trial court is reversed, and American Legion is dismissed from the case.
HOWE, Associate C.J., and STEWART, J., concur.
ZIMMERMAN, Justice (dissenting):
I dissent from the opinion reversing and remanding this case without argument. The Court takes the view that it is “plain and unambiguous” that the phrase “intoxicating liquor,” which appeared in the 1981 version of Utah‘s Dram Shop Act, see
The heart of the 1981 version of the Dram Shop Act is its imposition of liability on those who sell or otherwise provide “intoxicating liquor.” Nothing in the 1981 version shows a plain intent that the term “intoxicating liquor” should have the same meaning as the term “liquor” used in the later versions, which imports with it the rather arcane and, some would argue, objectively rather absurd distinctions used in Utah‘s laws regulating the sale of alcohol. It seems as likely, if not more so, that the term “intoxicating liquor” should be read as “intoxicating beverage.” The broad purpose of dram shop acts in general—to compel those who sell intoxicants to do so with care, upon pain of incurring tort liability—is certainly not furthered in any way by importing distinctions that may have been drawn by the legislature between various kinds of intoxicants for other purposes. A drink may be “intoxicating” and may result in the harms to which the Dram Shop Act was directed without regard to whether it contains more than 3.2 percent alcohol by volume. Nothing indicates that the legislature, in passing the 1981 Act, had any such narrow and artful distinctions in mind. In fact, given this state‘s general policies regarding the sale and consumption of alcohol, there is every reason to assume that the 1981 legislature had the broadest purpose of a dram shop act in view when it passed the original statute.
In the absence of clear legislative intent indicating otherwise, I would construe the 1981 Dram Shop Act as covering all intoxicating beverages. The fact that sellers of “light” beer were somehow able to persuade the legislature to free them from liability under the Dram Shop Act in 1985 and to preserve much of that immunity in 1986 in no way convinces me that the legislature intended to grant them that immunity when it passed the initial statute.
DURHAM, J., concurs in the dissenting opinion of ZIMMERMAN, J.
STATE of Utah, Plaintiff and Respondent, v. Charles Robert OTT, Defendant and Appellant.
No. 870225-CA.
Court of Appeals of Utah.
Oct. 28, 1988.