*1 Baatz, Peggy Kenny BAATZ and Appellants,
Plaintiffs and Bar, Inc., BAR Arrow Ed
ARROW a/k/a Neuroth, Neuroth, mond E. LaVella J. Neuroth, Jacquette Defendants J. Appellees.
No. 15875.
Supreme Court of South Dakota.
Considered Briefs Feb. 1988.
Decided June 1988.
Rehearing Denied
Flynn Fischer, Wessington Springs, for plaintiffs appellants. Strange Palmer,
David Alan Palmer of & P.C., Falls, Sioux appel- for defendants and lees.
SABERS, Justice.
Facts
Kenny
wife,
Baatz claims he and his
Peggy,
seriously injured
when a ve-
operated by
driver,
hicle
Roland
drunk
McBride, crossed the center line of a Sioux
Falls street and struck and crushed them.
Baatz also claims the Arrow Bar served
beverages
alcoholic
to McBride while he
was intoxicated
to the accident.
Therefore, Baatz claims that
the Arrow
negligence
Bar’s
alcoholic bever-
ages
already
to an
intoxicated
con-
tributed further to McBride’s intoxication
injuries.1
and to their
granted
summary judg-
trial court
ment to the Arrow Bar based on acts
passed by
in 1985which are
as follows:
Legislature
SDCL 35-11-1: The
finds
consumption
that the
of alcoholic bever-
injuries
leg amputations,
1. The
resulted in
injuries.
medi-
total loss of income from the date of
$30,000,
expenses
disabilities,
exceeding
cal
judgment proof.
Baatz also claims McBride is
*2
by
a common law cause of action
of alcoholic
an
ages, rather than the
any
against
of
beverages,
proximate
injured party
a seller of alcoholic
by
another
an intox-
beverages
person
inflicted
injury
to an intoxicated
who
Therefore,
in
person.
the rule
icated
injury by
causes
his intoxication. While
Hudson,
City
v.Walz
right
recovery
it is
of
true that this
was
of
(S.D.1982)
hereby abrogated.
recognized originally,
great
there is a
Amendment
to SDCL
...
person
difference
intoxicated
between an
35-4-78:
However,
civilly liable to
no licensee is
driving
buggy
a horse and
on a dirt road
any
person
his estate
any injured
or
teenager
in 1889 and
intoxicated
an
hur-
suffered,
including any action for
injury
tling
highway
great speed
in
down
at
death,
damage suf-
wrongful
property
five-thousand-pound
automobile
in
any
of
intoxication
fered because of the
1972.
alcoholic
to the sale
due
Griffin, supra,
time has come for this court to Sebek, only quote prior history I can Justice South Dakota 2. For of this area of Griffin law, aphorism too of beginning opinion ”[w]isdom Frankfurter’s see Justice Coler’s at 245 comes, ought one not to covering ten never and so all of N.W.2d 482. For a statement issues, reject merely late.” Hen it comes suggested because these reading Justice Dunn's dissent Hallows, C.J., National Bank & Trust slee v. Union Planters the dissent in Garcia v. 290, 293, Co., 724, 736-38, U.S. 69 S.Ct. Hargrove, 46 Wis.2d J., (Frankfurter, dissent L.Ed. ing). Walz, supra at 124. change explanation 3. Justice Wollman’s for the noteworthy: from his view is in its assertion that dissent is incorrect 4.The might why recognized law cause question a common To those who majority recognized my position reversed since the decision in of action. per day, day se on one fully reach but cannot be the did not legislation, we liability before. of SDCL 35- interpretation Dunn’s then now.” Id. The court 4-78(2). doWe did overrule settled law. 35-4-78(2) and concluded discussed SDCL dealt with the common law cause Griffin “a stan- established the statute “prior no settled of action and there was conduct, a breach which dard of care construing liability law” under SDCL (em- matter law.” negligence os *3 35-4-78(2). Walz Clearly, the Id. added) phasis inequitable apply Finally, it is no more to upon a cause action decision is based is, case, retrospectively any than Walz it 35-4-78(2), (which under existent acknowledge of a criminal that violation application). date of control should may finding statute result a Generally, liability. bar owners were Walz argued that should not be It can be 35-4-78(2) it aware of SDCL acts (1) Walz retroactively because: applied ignorance. prohibited and cannot assert application address the did not majority negligence per se rule been has never issue, (2) holds that where caselaw facially those laws restricted to which overturned, the decision settled law criminal remedies provide both civil and applied, and prospectively should be doing ques- of so is not a and the wisdom ineq- retroactively would be apply Walz this court. before uitable. Therefore, reading based clear opinion, believe the Walz majority We of the well-settled and Walz entirety, clearly demonstrates in its read se, negligence per that the rule of we hold “[sjince that this the court determined apply decision Walz was intended to law,” existing statutory applies it decision retrospectively prospectively. both unnecessary to state that the decision retrospective. prospective and was both Retrospective Application Walz B. 35-4-78(2) was a statute within the impli- Walz if it were conceded that Even of South Dakota before Codified Laws precedent edly established overrules in this case or oc of the actions Griffin, applied can and should be such, provided curred. As standard retroactively. conduct from the moment it became care or general in civil seems to rule cases negli There has been criticism of the law. overruling unless the be that rule, Prosser, see Law of gence per se only prospec- declares that it shall have 1971); Cooley Torts 3 (4th 36 ed. § effect, overruling the court its (4th 1932); Torts 5 The Law ed. § generally power has the prior decision (1988), however, it is Torts 17.6 clear that § do, overruling precedent judicial of a this rule has been adhered to this court ef- prospective has and retroactive both for some time. “The violation of a statute fect. promote safety neg enacted to constitutes Stock, (1965). Engel Courts § ligence per 20 Am.Jur.2d This se.” (1975); Bo the general rule has been denominated Peterson, Doctrine,” Fitzgerald rn v. 83 S.D. “Blackstonian Hicks, Inc., Boos, Blakey 153 Meissner & Wis. (1968), appears to N.W.2d 305 It is that N.W.2d inconceivable may negligence violation of a statute from a traditional view of the be have evolved added) statutorily-based spectively].” (emphasis Web- that a cause of Id. at 124. action existed. Wollman, special Dictionary, in his concurrence 2d ed. ster’s New International (an urged adoption liability of common law expression of de- defines "would" as "an unnecessary majority already act if the had might expected.” be Nei- sire or wish" "what so), done and within that context said: ‘Inas- comports with an inter- ther of these definitions imposition liability much as the law common pretation suggesting that Justice Wollman adopted] abrupt departure would [if mark an adopted stating the com- prior holding Griffin, from our ... I would liability mon law basis. apply [pro- the benefit of such a decision ... many “As because bar owners did not interpreters of law. judiciary as the law, coverage op liability insurance for these situa- matter of constitutional neither tions could an decision is thus suffer eration of losses, Comment, monetary “Pro severe and that the required prohibited.” state nor Operation Although of Over was and is unclear. spective or Retroactive 2; Decision,” agree imposition liability, ruling A.L.R.3d § Annotation, proven, may financially where be harsh for “United States Retroactive Effect of owners who were not covered insur- Views as to bar Court’s ance, Announcing against New this must be balanced Its Own Decisions (hereinafter Rules,” non-retroactivity 22 L.Ed.2d harsh effect would have Annotation). wrongfully injured The United States Su those whose eco- S.Ct. developed preme physical may has criteria for de nomic and losses more Court above, termining retroactivity Additionally, of new rules which severe. as mentioned substantially the same as those enunci question are there is no that SDCL State One 1966 court prohibited ated bar owners from intoxi- *4 Auto., 270 Pontiac 365 persons N.W.2d cated or minors. The in conduct “(1) 1978). purpose These criteria are: the question prohibited proven viola- rule; (2) by particular the new to be served punishable by tion of the statute was crimi- of the extent reliance which been good- nal sanctions. doWe not believe rule; upon placed the old the effect faith reliance means that violators of SDCL justice 35-4-78(2) on the administration of of a retro only relied violation cost- S.Ct. application active of the new rule.” ing fine, them a one thousand dollar one Annotation, supra at 832. or both. See year imprisonment, of Additionally, appli- 22-6-2. the retroactive purpose The first criteria is the to be signifi- Walz unlikely cation of is to have a Clearly, gen- the new rule. one served justice. cant effect the administration of of the rule Walz was to purpose in eral recognize implied an civil cause of action Prospective Application Walz C. of under a statute. If criminal retroactive application necessary if Walz is to effectuate the Even the decision rule, purpose given only prospective application, then this is a it new would significant giving plaintiffs factor the new rule not bar the suit these under interpretation S.Ct. Annotation prior prospec effect. this court’s application. at 832. The court believed tive § 4[b] pro- that SDCL was enacted to in City Aberdeen v. Meid The court being tect “from the risk of citizens killed inger, injured ‘as result of the drunkenness holding determined that therein particular to which the sale alcoholic prospective application. would have ” Walz, liquor contributes.’ 327 N.W.2d at Meidinger deci The court stated that Thus, interpret- 122-123. to effectuate the cases handled apply “does not sion statute, purpose ed intent and it was ... courts previous to the date of this give necessary and is the decision retro- added) Id., (emphasis decision.” N.W. application. active prior A 2d at 334. review cases involv argued good-faith ing prospective appli It is there was both and retroactive (i.e., and, prospective appli Griffin) reliance on the old rule cation make it clear that therefore, decision is applied should not be cation means the cases retroactively. Specifically, argued applied commenced the de before Therefore, inequitable apply that it is rule cision announced.5 the new Theatres, (S.D.1988), given appli- Sioux Falls v. Mini-Kota Art limited retroactive (S.D.1977) ("Since Shamburger 247 N.W.2d this case cation: "We conclude that the deci- Meidinger, applicable pending on direct was tried supra, to our decision in ... sion is to all cases appeal ment.”); of its announce- defendant cannot avail itself of that to this court at the time hold- Billion, Connors, ing.”); Vogt v. 405 N.W.2d State (S.D.1987) Behrens, (1967) (Escobedo (Shamburger v. and Miranda separate com- as indicated and enacted applied to cases above overruling decision is statute —SDCL 35-11-1. the decision announced. menced after announced decision was First, legislative finding in SDCL 35- this action in 1984. commenced and Baatz consumption 11-1 that rather than applies to the Therefore, the Walz beverages proximate of alcoholic is the Baatz action. any injury cause inflicted another person, may may an intoxicated argued prospec- Although it can be depending upon the fact circum- mean the decision is should cases, many stances. there are more or events oc- applied only to transactions one, contributing than if not several factors deci- announcement curring after the negligent injury. to an acts or omis- sion, our caselaw is not what this wrongdoers sions of several can contribute sound reason. for obvious indicates and proximate resulting to and be the cause of addition,
injuries. In task determin- THE ABRO- proximate injuries 2. CAN LEGISLATURE in indi- duty THAT PLOW FROM cases is the of the courts and RIGHTS vidual GATE legislature.7 juries, not the In view of OR STATUTES? ACTS LEGISLATIVE uncertainties, legislative finding these legislature enacted SDCL in SDCL 35-11-1 is not effective to abro- as amended SDCL 35-4-78 35-11-1 and gate the rule Walz. thereafter, Shortly indicated above. The amendment to SDCL 35-4-78 Lien, court held Selchert presents question. ap- clearly a closer It (S.D.1985), surviving wife had a pears legislature’s that the intent was to *5 wrongful against death of action for destroy the cause of action which the South employees liquor and his where a licensee recognized under Dakota Court serve the hus- they continued to intoxicated question 35-4-78. The is whether SDCL of SDCL re- band violation they accomplished their intention. In this sulting in his death.6 court acknowl- context, necessary it is to examine the ba- abrogation edged legislative Walz, sis of the rule in that which was noted the statute became effective but statute, safety passed 35-4-78 a 1985, 1, thereby impliedly refusing July injured. As protection for the stated give application. it retroactive Walz, supra at 122: legislature abrogate Obviously, the can for this rule is that the stat- The reason rights legislative that flow from acts ute or ordinance becomes the standard They simply by so and statutes. can do reasonably care or conduct to which the repealing rights from the statute which the prudent person is held. Failure to follow case, they all flow. to do was involved constitutes a breach the statute repeal they But legal duty imposed SDCL 35-4-78. did not and fixed statute, repeal they simply negligence is amended it such statute. Since a "apply only disputed, to trials commenced the contention falls within the decisions after are courts, the date on which each decision was an nounced.’’); province of the under the distribution Auto., supra (ap One 1966 Pontiac governmental powers prescribed our pellant judgment against had default entered constitution.” operative year him one unconstitutional); before statute declared Lindsay, v. State ex rel. 38 Board Education Hoffman, State v. 409 N.W. (Ohio 1894). N.E. (S.D.1987) (decision prospective 2d is may weight Legislature not declare the ”[T]he retrospective appel but covers given to be to evidence or what evidence shall appeals entry lants and sion). filed of deci fact, proof be conclusive of an issue of ... probative value is a whether evidence is of Legislature legal question, im- and the cannot bar, 6. Decedent-husband drove home from the judicial analysis pair and resolution of such parked garage, garage his car in the closed the control, vehicle, questions.” stayed door remote in the 725, 730, poisoning. Burling, and died of carbon 224 Neb. monoxide State v. (1987). "Where, however, the facts out of a legal obligation moral or is claimed to arise Land, Sapulpa legal duty, the violator 101 Okl. of a P. 640 breach negligent (1924). Therefore, as a matter of is then statute amendment omitted) (citation law. accomplish 35-4-78 also fails to its purpose. Siepman, Alley v. DATE 3. EFFECTIVE OF SDCL 35-11-1 provide in continues to SDCL 35-4-78 AMENDED AND SDCL 35-4-78 AND
part that RETROACTIVE APPLICATION any may sell alcoholic bev- “No licensee attempted abrogation of the erage: rule Wait did not bar Baatz’ cause of action for another reason. The statute and age of To under the amendment enacted into dur law twenty-one years; or legislative the 1985 session and became any person obviously is in- To who effective on 1985. Baatz started time, toxicated or who known against their action Bar in 1984. Arrow an to the seller habitual drunk- It is settled in this state that a ard.” operate retroactively statute will not unless clearly expresses act an in amendment, despite It obvious Adams, Matter of operate. tent that it so provide the statute continues to a standard (S.D.1983); State ex rel. duty, the contin- of care or breach which Janklow, Van Emmerik v. injuries give ues to rise to an action for (S.D.1981); First Nat. Bank Minne wrongdoer, wrongdoers against a as the Ranch, apolis v. Kehn may case be. “As the cannot also SDCL 2-14-21. (S.D.1986). See al- set aside the construction of the law “Also, 2-14-24, under SDCL no civil action cases, ready applied by courts to actual present commenced before the code of laws compel neither can it the courts for the provisions.” effect is affected its took adopt particular future to construction of Bank, supra First Nat. at 716. Accord legislature permits to re- law which the ingly, that the Baatz we conclude lawsuit Cooley’s Constitutional main force.” against filed Arrow Bar in 1984 is not (8th 1927). Limitations say ed. To *6 subsequently affected a statute enacted wrongdoing liability that civil for such shall in 1985. consumer, solely rest to the exclu- with wrongdoers, questiona- sion of all is other LAW, STATUTORY, 4. AND COMMON fact, In theory. ble fact and in CONSTITUTIONAL RIGHTS acknowledge of words the amendment attempt legislate in beverages The this area fails of alcoholic as a cause injuries contrary legislative of find- for an more basic reason—the Consti- to the even ing in is of SDCL 35-11-1. The amendment tution of the State South Dakota and is, inconsistent with the statute. That on other South Dakota law existence legislative amendment find- July contradicts the 1985.
ing; simply purports to absolve civil lia- Constitution, South Dakota art. VI § done, bility therefor. This can be elimi- provides: statute, nating the done but it was not every open, “All courts shall and man addition, above, In here. as indicated property, injury for an done him in his (and determining proximate task of person reputation, remedy or shall have liability wrongdoing) belongs for law, right by due of and and course courts, legislature. judi- not the “The justice, or administered without denial power power cial ‘is the to hear and deter- delay.” life, mine those matters which affect the provides part: SDCL 20-9-1 liberty, property or of the citizens of the ” Cooley’s responsible injury is Constitutional Limita- “Every State.’ tions, supra citing City person, property, rights at 184 n. to the of an- HENDERSON, J., concurs. acts or caused by his willful caused
other
ordinary care or skill[.]”
by his want
WUEST, C.J.,
part.
concurs
above,
these constitutional
As indicated
JJ.,
MILLER,
dissent.
MORGAN and
in full force
statutory provisions
and
They
continue
and effect
WUEST,
(concurring in
Chief Justice
Bego
In
this date.
as of
in existence
part).
(S.D.1987),
Gordon, 407 N.W.2d
(Retrospective or Pro-
in issue 1
concur
suit
immunity from
noting
state’s
after
spective Application of SDCL
consent,
stated:
without
Walz)
(Effective
Date
and issue 3.
employee for his
liability of a state
[T]he
SDCL 35-4-78
35-11-1 and amended
SDCL
is an
intentional acts
negligent or
own
majori-
of the
Application)
and Retroactive
respon
“Every person matter.
other
ty opinion.
requires
This
a reversal
property,
person,
injury to the
sible
my opinion,
In
judgment
the trial court.
by his willful
rights of another caused
issues
unnecessary to discuss the other
it is
ordinary
care[.]”
acts or
... want
dissenting opinions.
remedy provided
20-9-1.
constitution-
This court will review a law’s
sup
by this statute
common law and
only
necessary for a determina-
ality
when
“open courts”
ported not
Investiga-
upon
merits of a cause.
tion
constitutional
by other substantial
provision but
Bartholow,
Hy.
Const. Ind.
provis
ions.[8]
Big
(S.D.1985);
State
N.W.2d
simple codification
20-9-1 is a
Head, 363 N.W.2d
(S.D.1985);
essence,
negligence.
common law
Bank
Black
v. First Nat.
Baldwin
then,
Dakota Constitution
the South
Hills, (S.D.1985).
an in-
statutory
provide
existing
remedy
right
to a
jured person has
MILLER,
(dissenting).
Co.,
v. Budd
Zacher
wrongdoer.
against a
I dissent.
(S.D.1986);
Oien
(S.D.1986);
Falls,
Sioux
Supply
Co-op Bldg.
Daugaard v. Baltic
RETROACTIVE/PROSPECTIVE
Ass’n,
(S.D.1984).
This is
ANALYSIS
wrongdoer acts alone or
so whether
view,
erred in
my
the trial court
supra.
wrongdoer. Bego,
with another
addressing
prospec-
the retroactive versus
impose reasonable
can
issue,
merely
rather than
restrictions
available remedies
that the ruling
decision was statutori-
with
rights
even
in accordance
these
majority compounds the
ly abrogated. The
constitution,
long
they
do
as
as
analysis of
through its flawed
error
constitution;
they cannot
violate the
but
my opinion, the trial court’s
issue.1 In
destroy
rights in
of the con-
these
violation
should be affirmed on the basis
judgment
*7
stitution.
City
of Walz v.
prospective application
of a
Hudson,
Thus,
result
147
vary
632,
deci-
may
(1941);
from
Stout,
State v.
Fla.
duce substantial
results if
upon by major-
4. This annotation was relied
retroactively,
ample
there is
basis in our cases
ity.
reality,
supportive
my
it is more
avoiding
“injustice
for
holding
omitted.)
hardship” by
position.
”
(Citations
nonretroactivity.’
...
*9
immunity.
uphold
tb
their
e.g.,
er decisions
of Walz —
retroactively ap
jurisdictions have
possible
subjected
Such
defendants are
to severe
overruling
plied the
decision to the overrul monetary liability,
hinges
all
which
itself,
prospectively to all oth
case
but
ability
ability
predict
their
lack of
Darling
v. Charleston Com
er cases.
In
has,
law of this state when this court
326,
Hospital, 33 Ill.2d
munity Memorial
reality,
Everyone,
caused the confusion.
253,
946,
cert. denied
211 N.E.2d
383 U.S.
individuals,
merchants,
they
be
bible
or bar
1204, 16
(1966),
86 S.Ct.
L.Ed.2d 209
where
owners, is entitled to fundamental fairness
appeared
corporations
in it
that charitable
process.
and due
could
held liable for more than its
now be
CONSTITUTIONAL ISSUES
coverage,
liability insurance
the court not
addressing
Before
the constitutional
is-
corporations may
relied
ed that such
sues,
important
point
it is
for me to
out
deciding
on earlier decision
whether to
insurance,
agree
major-
carry
philosophically
I
with the
and how much. The court
be,
exception
ity
held the new rule would
with
and concurrences in their condemnation
hand, given prospec
prohibits
to the instant case at
in-
act which
only
against
tive effect
from the date
which
parties
recovering
jured
from
opinion in the
case
too,
instant
became final.
Philosophically,
agree
I
wrongdoers.
Molitor,
supra;
Spanel
See also
Walz,
prior holding in
this court’s
with
Dist.,
279,
Mounds View School
264 Minn.
time,
recognized,
for the first
(1962);
Parker
Port
wisdom, policy,
well be a
”
Behrns,
heady, enjoyable
experience
S.D.
to correct
legislation.’
may perceive
unwise,
what we
J., concurring special
ill-
be
(Coler,
93at
legislation,
conceived
I see no warrant
and
Wollman Win
by Justices
ly joined—
for us to do so in
palpably
the absence of
Spink Hutte
ans);
rel. Dunker
ex
State
legislative
unconstitutional
action. The
215,