Emory ASHBAUGH, Petitioner, v. Nancy M. Engleman WILLIAMS (formerly Nancy Engleman White), as Personal Representative of the Estate of Marsha Maria Engleman, Deceased, and Donovan Rakestraw, as Personal Representative of the Estate of Constance Louise Rakestraw, Deceased, Respondents.
No. 16547.
Supreme Court of New Mexico.
Dec. 18, 1987.
Rehearing Denied Jan. 7, 1988.
747 P.2d 244
William H. Carpenter, Daymon B. Ely, Carpenter Law Office, Ltd., Albuquerque, for respondents.
ON MOTION FOR REHEARING
Petitioner‘s motion for rehearing is granted. The Opinion filed December 18, 1986, is withdrawn and the following Opinion is substituted in its place:
OPINION
RANSOM, Justice.
This case is before the Court on writ of certiorari to the court of appeals to review the correctness of that court‘s imposition of vicarious tort liability upon an absent owner-lessor of a liquor license. Liability arose out of lessee‘s service of alcohol to an intoxicated patron who injured third parties. Lessor Ashbaugh was granted an interlocutory appeal when, based on the Liquor Control Act,
Under
New Mexico has recognized no innkeeper accountability apart from violations of the Act. Further, in 1983 the legislature provided specifically that:
No civil liability shall be predicated upon the breach of
Section 60-7A-16 NMSA 1978 by a licensee, except in the case of the licensee who:(1) sold or served alcohol to a person who was intoxicated; and
(2) it was reasonably apparent to the licensee that the person buying or apparently receiving service of alcoholic beverages was intoxicated; and
(3) the licensee knew from the circumstances that the person buying or receiving service of alcoholic beverages is [was] intoxicated.
Liability of the person licensed must now be predicated upon the knowing acts of the licensee, or upon vicarious liability for the knowing acts of agents or servants whose work the licensee has the right to control. See SCRA 1986, 13-403 and 406. The absent owner-lessor of the license would not be liable for the acts of a lessee not in the employ of the licensee. See id.
Plaintiffs do not assert liability of the licensee based upon any use of the license except as related to a breach of
We cannot now apply
[A] ‘vested right’ is the power to do certain actions or possess certain things
lawfully, and is substantially a property right, and may be created either by common law, by statute, or by contract. And when it has been once created, and has become absolute, it is protected from the invasion of the Legislature by those provisions in the Constitution which apply to such rights. And a failure to exercise a vested right before the passage of a subsequent statute, which seeks to divest it, in no way affects or lessens that right. (Emphasis added.)
There is a rational basis for full liability of a licensee who might otherwise insulate himself or herself from accountability through a lease that passes profits to the lessor/licensee from an irresponsible lessee. It is contemplated that the person who seeks and is awarded the license be responsible and accountable for use of the license. While the legislature may not be said to have specifically foreseen in its 1981 legislation that a licensee would be liable for third-party injuries proximately caused by a lessee‘s violation of the Liquor Control Act, the legislature was not required to consider all prospects for liability when it provided that the licensee be fully liable and accountable for the use of the license. The legislation was clearly intended to be all inclusive, not selective.
Legislation is often written in terms which are broad enough to cover many situations which could not be anticipated at the time of enactment. So a statute, expressed in general terms and written in the present or future tense, will be applied, not only to existing but also prospectively to future things and conditions. 2A N. Singer, Sutherland Statutory Construction § 49.02, at 348 (Sands 4th Ed. 1984). See also Anderson v. Black & Decker (U.S.), Inc., 597 F.Supp. 1298, 1302 (E.D.Ky.1984) (“Under the plain meaning rule statutes ordinarily apply to unforeseen developments unless such application would lead to an absurd result.“).
We agree with the court of appeals that
IT IS SO ORDERED.
SOSA, Senior Justice and WALTERS, J., concur.
SCARBOROUGH, C.J. (not participating).
STOWERS, J. (dissenting).
STOWERS, Justice, dissenting.
I respectfully dissent.
This case was correctly decided in the opinion filed on December 18, 1986. A further review, after rehearing, does not change my conclusion. I incorporate herein the reasoning of the original opinion.
The sole issue before us is whether, under the facts in this case, dramshop liability can be imputed to the absent, nonoperating, nonparticipating owner-lessor for the actions of his lessee. The incident at issue occurred on December 10, 1982.
There was no dramshop liability in New Mexico when the Legislature enacted the Liquor Control Act in 1981, see Marchiondo v. Roper, 90 N.M. 367, 563 P.2d 1160 (1977); therefore, no such liability was contemplated when
In Lopez v. Maez, 98 N.M. 625, 632, 651 P.2d 1269, 1276 (1982), we permitted a cause of action against a tavernkeeper-operator where an injury to a third person had resulted from the tavernkeeper‘s sale of intoxicating liquor to an obviously intoxicated person. Lopez provided a cause of action against tavern operators and was not intended to apply, nor does it apply, to an absent, nonoperating, nonparticipating owner-lessor.
Petitioner was not present, did not operate the tavern or authorize anyone on his behalf to sell liquor to Nuanes. It is unreasonable to hold a person civilly liable for that over which he has no control and which he therefore has no opportunity to prevent.
As further evidence of the fact that the Legislature never intended to impute liability to an absentee-owner for the actions of his lessee without knowledge or reason to know of those actions, we have only to look at the subsequent legislation. Section 41-11-1 enacted in 1983 states:
A. No civil liability shall be predicated upon the breach of
Section 60-7A-16 NMSA 1978 by a licensee, except in the case of the licensee who:(1) sold or served alcohol to a person who was intoxicated;
(2) it was reasonably apparent to the licensee that the person buying or apparently receiving service of alcoholic beverages was intoxicated; and
(3) the licensee knew from the circumstances that the person buying or receiving service of alcoholic beverages was intoxicated.
Accordingly, the judgment of the district court should be reversed and the case remanded for entry of an order granting summary judgment in favor of petitioner.