Barton v. Lund, 563 P.2d 875

Barton v. Lund

563 P.2d 875

Alaska

1977

Check Treatment

*1 BARTON, Appellant, William B. Schultz,

Elsie LUND and Herman

Appellees.

No. 2726.

Supreme Court of Alaska.

May

Chancy Croft- Loutrel, and David B. Croft, Loutrel, Thurlow & Anchorage, for appellant. Stone,

Timothy M. Hagans, Smith & Brown, Anchorage, appellee Lund. Patch, Thorsness, Mary Hughes Hughes, Gantz, Brundin, Anchorage, Powell & appellee Schultz. BOOCHEVER, Justice,

Before Chief RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.

CONNOR, Justice. appeal, In this we consider whether a serving of an establishment lessor beverages, who takes no in the man- agement establishment, or control of the may nevertheless be held liable in tort for occurring therein. *2 principle common law of vicari- injured on December Were the Barton William in the Bon- during ground an altercation for 16, liability only the relied ous Anchorage. An inebriated Lounge in difficulty fire we would have no recovery, Shinn, a allegedly threw J. Melba patron, summary judgment. the affirming Since eye. Barton bottle, which hit over, had no control and Mrs. Lund Schultz control, right to the bartender who actu- or building in which the Lund owned Elsie Shinn, drinks to Melba there the ally served located. She Lounge was Bonfire the Fletcher, holding vicariously them no basis to Edwin is premises the leased included Lounge. The lease conduct. Restatement his operated liable Fletcher exer- 219, (1958); which option purchase, Agency 2 F. (Second) §§ 5,1973, incident after the February James, cised on of Torts & F. The Law Harper no control over Lund had question. Mrs. Co., (1956); see DeVille v. Oil 26.3 Shell of the business.1 management 1966); (9th Cir. Hobbs v. Mobil 366 F.2d (Alaska 1968). Corp., 445 P.2d 933 See 04.10.180, Oil requires which to AS Pursuant Rogers Luth & Babler Construction having a direct or indirect also all 761, 1973) Co., (Alaska interest in an alcoholic 763-64 names listed on have their employment); must Fruit v. (scope business license,2 the license for 1972) (same). the establishment’s (Alaska 140-41 to Edwin Lounge was issued Bonfire however, Barton, relies on AS Lund, Schultz, Fletcher, and Herman Elsie 2, supra. He asserts out in footnote set had no connection Schultz brother. Lund’s of alcoholic that this statute makes holders merely signed he premises; licenses, remote no matter how brotherly as “a for a license application prem- management of the licensed from the his sister.” gesture for be, in tort for violations they may liable ises brought against this action Melba Barton 04.15.020(a). of AS Fletcher, Lund, and and also Shinn Room, L Distrib- In Jet Inc. v. K & Sabre Schultz, 04.15.020(a), makes citing which AS 1963), utors, Inc., 384 P.2d 952 liquor to an intoxicated to serve it unlawful passive lessor attempt was made to hold alleged that the Bonfire’s bar- He person.3 the debts of business liable for liquor to Melba Shinn had served tender business, on 04.10.180. We based intoxicated, and that this had she was while ration- to do so. We examined the declined injuries. of his Lund the cause been concluded that it did ale for this statute and judgment granted summary were Schultz itself, any civil liabili- impose, and of not they had no control over ground claimed, must liability, any if is ty. “Civil way and hence were premises, law.” upon the commercial injuries. depend for Barton’s Barton at 955. appealed.4 Id. persons. It is prem- minors or intoxicated “Sale to contained covenants that the 1. The lease any give, barter or sell intoxicat- any unlawful ing liquors, be used for would not ises pose wine, including beer and to a Lund harm- that Fletcher would hold years age under the regulations any of laws or violations less for person, and for a it is unlawful intoxicated licensee to arising out the busi- and ness, tort claims selling, permit giving, barter- except Lund’s for those drinking any intoxicating liquor ing or negligence. own by premises a license to covered within the classes, by of the forbidden nor either reads: 2. AS 04.10.180 drinking permit of hard the licensee shall or distilled premises person other than the licensee shall have “No liquors by any person upon the interest in the or indirect financial license, by direct it his unless covered the license is issued. business for which permitted under the classification of his solely responsible for the lawful licensee license.” this licensed under conduct of complaint. Fletch- did not answer 4.Shinn except provided in this title.” answered, but did not move for er party appeal. judgment and is to this reads full: poses imposing would not be furthered the same conclusion reach We party responsibility that the on a who had no control He hold here. upon liquor casts licensees business.7 over criminal responsibility answer similarly persuaded We are that as a 04.15.100 and to imposed sanctions of policy civil should not matter *3 of the Alcohol sanctions administrative the on imposed vicariously persons who do The of Beverage purpose Board. Control ic power alleged control have to the prevent of the is to evasion general This is to be tortious. the common regulations control statutes and liquor liability, as law rule for vicarious we have of hidden financial through the creation to Legislature’s prevent The desire noted. liquor to in businesses unknown interests creation of hidden financial interests in the regulatory public. authorities or to the the businesses, in reflected alcoholic persons that all with helps insure 04.10.180, of AS does not enactment in are an interest such businesses depart us we should from the persuade that Beverage Alcoholic Control to the swerable concerning liability. rule civil Our Board.5 leaves criminal and administrative decision policy em- available enforce sanctions Walker, v. Ill.App.2d In 63 Robinson in but also furthers bodied 204, 488, 211 N.E.2d 18 A.L.R.3d 1317 it is legal system that unfair of the belief attempt on facts similar to these an (1965), person civilly for that over hold a liable made hold trustee held liable a who was control, he no and which he has which upon the li legal land which opportunity to prevent. has no therefore premises stood, had censed but no other distinguishable to the of The situation here relation Myers, 494 business within. Unlike the Alas that Vance v. Estate of P.2d statutes, (Alaska 1972). we held that the the Illinois statute a “dram There ka 816 term, operated who shop act” in the usual sense of that of estate administrator liable, liability “any could be held explicitly imposing upon civil bar business decedent’s representative torts owning” premises upon capacity, for licensed in his person The difference then a bartender. served to a committed actively injures Vance administrator an intoxicated state is that as inci- enterprise managed The court the word the business construed property.6 conduct occurred. of which the tortious “owning” light purposes of of dent appellees had no control statute, case at bar shop held that those In dram Rich, out, 1973); correctly v. 554 dissenting opinion points (D. see Bachner The Alaska Baxter, (Second) 1976); citing v. 484 287 of the Restatement Ferrell section 430 P.2d Torts, statutory (Alaska 1971). Supreme admin- criminal and of of Court 250 P.2d provisions penalty shop” liability on have no effect istrative has found “dram California liability impose whether the decision to AS 04.- on criminal statute similar based a Instead, negligence. we to considerations look 153, 15.020(a) Sager, (Vesely v. 5 Cal.3d 95 policy. public 623, (1971)), Cal.Rptr. 486 P.2d 151 and based purely on common law without reliance 3, 04.15.020(a), supra, set out in footnote 6. AS Club, (Bernhard Harrah’s 16 v. the statute shop” give does not a “dram act unlike 719, 215, 313, Cal.Rptr. 546 128 Cal.3d liquor-dispensing es- cause action cert, 726-27, denied, 859, U.S. 97 429 S.Ct. person injured by an intoxicat- to a tablishment Contra, (1976)). g., 159, 50 136 e. L.Ed.2d specifies suspen- 04.15.020(b) person. ed Rafalovich, F.Supp. 12 88 Cherbonnier license as or revocation sion (Alaska law). (1950) generally See 634 Alaska furnishing liquor to sanction for administrative Annot., (1961 Supp.1975). & A.L.R.2d person, AS 04.15.100 makes an intoxicated case, disposition of this we view of our In punishable by impris- find it a misdemeanor question. opinion express on this onment. 7.Annot., (1968), 18 A.L.R.3d 1323 discusses States District Court the United We note that involving law, cir- various factual of cases number held under Alaska for Alaska per “control” can negligence from which this rule cumstances violation of States, F.Supp. generalized. Vance v. United se. beverage dispensary 04.15.020,1 or interest in the over there is nothing set forth in that was the source appellant’s business which Beverage section or the Alaska Alcohol injuries. Act which Control indicates an intent on legislature of the to exclude civil that in the We hold circumstances of liability. case at bar does not extend to position appellees. agree I (Second) of Restatement superior entry (1965) court’s Torts that: in favor of Lund (cid:127)judgment and Schultz is provision penalty legislative A in a affirmed. enactment . . . has no effect negligence penalty unless the BOOCHEVER, Justice, Chief with whom is found to intended to exclude it. Justice, RABINOWITZ, joins, dissenting. States, F.Supp. In Vance v. United alleges Mr. Barton he was *4 (D. 1973), Judge 756 Alaska Plummer held result of a violation of AS a violation of that AS 04.15.020 could be a it which makes unlawful to serve to for imposing liability. basis He found person. intoxicated an AS 04.10.180 states that “the statute unquestionably is de- unequivocally solely licensee is “[t]he signed protect at least in to responsible for the lawful conduct of the personal injuries caused intoxication.” licensed under this except as F.Supp. 355 at 759. While Vance did not in this title.” provided according Since to deal vicarious of a licensee allegations complaint Mr. Barton presented by I see no more the beverage dispensa- because to reason limit this latter section to criminal lawfully conducted, not ry was the statute making sanctions than the section it unlaw- responsi- would seem make the licensees ful to sell to minors or intoxicated ble. Mr. Schultz and Elsie Lund are admit- persons. licensees, tedly but escape responsi- seek to bility for Mr. injury Barton’s by contending Nor do I find that the case of Sabre Jet applies 04.10.180 only to criminal Room, Distributors, Inc., Inc. Kv. & L 384 majority sanctions. The would read into (Alaska 1963), requires contrary P.2d 952 language question that the licensee is case, holding. In that the court was con- solely responsible law, alone, under criminal merely cerned with liability. contractual for the lawful conduct of the business. No evidence indicated that wholesale li- restriction is to such be found in the stat- quor concerns opera- extended credit to the ute. dispensary being tor of after While it is specific corporate true that criminal advised licensee would penalties prescribed are for violation of AS not be for his bills. Sabre Jet specifies: 1. AS 04.15.100 upon suspend pro- the license as hereinafter municipal Penalties for violation of title or first and second violations vided for the ordinance, (a) person A may violates upon third violation revoke the license provision of this title other than 80§ of this and declare the bond forfeited. For the chapter guilty misdemeanor, is of a section, pose of this the terms “second viola- punishable by imprisonment conviction of only and “third violation” include tion” those year, not more than one a fine of not years violations occur within five of separate $500. more than Each violation is a violation, but are not limited to re- the first offense. peated statutory provi- of violations the same (b) Upon conviction of a licensee for a vio- municipal ordinance. sion (a) section, lation under of this or for viola- (1) First violation. license of the' municipal adopted by tion of a municipality ordinance may premises suspended involved be for not conformity with 70 of this days. more less than nor than 45 chapter, judge having jurisdiction shall (2) Second violation. The license of the together send a notification of conviction may premises suspended involved be for a copy with a certified of the record of convic- days period of less than nor more than may, upon tion to the board. The board days. majority members, direction of a of its there- enacting what it state intended said authority regarded cannot Boom 04.10.180, namely of licensees re- arising for tort out make of civil denial dis- unlawful sponsible the busi- unlawful conduct of quite likely may contention in There was no Sabre ness. that a licensee pensary. Thus, operation. only financially Boom solvent Jet responsibility of the specifying injured person look for re- may whom conduct of the busi- “for lawful con- covery. licensee The statute should not be applicable. was not permit a licensee to stand ness” strued so as to arrangement behind the shield some Soldotna, Although City Morris manage- whereby given a third 1977), we conclud- ment the business. to undertake inappropriate it was ed that expansion the Safe Place to judicial 133, 138- In Fruit v. Safety or the Code so as Act General Work (Alaska 1972), we discussed what we damages for civil an action provide philosophical basis for believed to be for harm injured workman liability. Although we were com- vicarious Code, of the Act or we stat- from breaches menting common law rather than statu- ed: tory we believe that the considera- liability, par- we enunciated in Fruit are tions which

However, nowhere in either the statute ticularly indicating a literal applicable there regulations can be found or the 04.10.180: construction of AS a claim for relief and authorization for *5 injured to an damages of civil award employment” as a test for “Scope of resulting workman harm from respondeat superior would application of Safety of the breach Act General Code. encompass if it insufficient failed to course, private that a the fact tort Of enterprise every to the social duty remedy is not created specifically by gives community which it life and con- itself, not, by disposi- of the Act is terms prosperity. its . . . The tributes to may In some instances a court con- tive. superior has been cor- respondeat basis of legislature impliedly clude rectly as “the desire to include in stated remedy, private that a authorized inevitable losses to the costs sounding necessary action in tort carrying third incident on an protect fully whose ben- enterprise, and thus distribute burden enacted, legislation (cita- efit among enterprise.” those benefited omitted) tions (citation omitted)3 Place to Work Act and The Safe General licensee, whether a or other- landlord language do Safety Code not have similar wise, is He is enterprise. benefited specifying responsi- in AS 04.10.180 to that liability by protect himself from able of the licensee. bility insurance, cost of and the extra means of price doing seems to me that reflected in the may frame- of the alcohol It seems to me legislation product. work of the assume grounds legislature for a restrictive the licensee gives non-liter- intended injuries provision responsibility construction of al rather of the business makes the licensee conduct for lawful of the that burden on place business. conduct than manager of the that the beverage dispensary affects a event substantial I, responsibility. public interest. Much of Alaska’s crime business lacks therefore, reverse physical injury improper results from would licensees favor of the granted beverages.2 judgment, use of Under these circumstances, by the trial court. logical it seems more State, 140-41. P.2d at 2. See Peter v. 3. Fruit v. 1268-69 1975).