*1 Dist., Onе. Mar. No. 26430. Fourth Div. 1982.] [Civ. BURKE, Petitioner,
DORIS COUNTY, Respondent; SAN DIEGO THE SUPERIOR COURT OF etc., al., HIGGINS, Minor, Parties in Interest. et Real HOLLY *2 Counsel Distel, Nickoloff,
Nickoloff & Greines, Thomas O. Horvitz & Ellis J. Horvitz, Kent L. Richland and S. Thomas Todd for Petitioner.
No appearance for Respondent.
Ludecke, Denton, Denton, McGrath & Steven R. De &Goff Sherman and Victoria J. De Goff for Real Parties Interest.
Opinion Petitioner, Doris Burke,
BROWN P. J defendant in an (Gerald), auto . action, mobile personal seeks a writ of mandate to injury compel trial court to sustain a demurrer to real parties’ complaint.
issue whether a licensed seller such as who sells li petitioner, ato sober under 21 be liable quor age, may to injured when the them parties buyer injures becomes intoxicated drunk his We conclude the enacted statutes li- driving. newly limiting exempt persons do not of alcoholic for the
ability law, we deny hence as matter position in petitioner’s writ mandate. for a petition *3 15, 1981, defendant Mark James The facts are: On March alleged Burke, frоm Doris beverages then alcoholic aged bought Wyatt, Store, Wy- a licensed seller such wares. of San Marcos Liquor owner and became drunk. went to the beach with four other young persons att La in a reckless manner at He drove the beach at Jolla Shores from lost of the ve- from to 80 miles hour and control per speeds ranging hicle, air crashed down. upside Passenger which flew into the and Carol Higgins, Hoop- Ramer was killed. Three other passengers, Holly and have injured brought and Kevin Voeltner were ingarner personally Burke, San for and dba against this lawsuit against Wyatt negligence Store, alcohol to selling intentionally negligently Marcos for Liquor Burke’s de- trial has refused to sustain underage The court person. complaint to fifth of action of murrer the fourth and causes of alcohol illegal Burke for the based on sale injuries allege liability 25658, proximate- Code section in violation of Business and Professions The injuries. in the and fourth resulting ensuing automobile crash ly selling underage cause of states Burke was negligent action known he and the fifth cause states she knew or should have person, intoxicated, drive, drink, and was less 21 and he would become than him with for the safety and sale to conscious disregard and of members of plaintiffs public. li recent laws affecting
Burke’s demurrer is based on the following
first Business and Professions
furnishing
beverages:
for
ability
liquor
it is a
to sell or furnish
section 25602 states
misdemeanor
Code
but
person,
obviously
a habitual or common drunkard or
from
injuries resulting
not
of civil
is
a basis
furnishing
intent to
legislative
declares
expressly
that
intoxication.
statute
(1971)
v.
Finally, provides, qualification Code 1714 now Bernhard, its statement of general negligence liability, Vesely, Coulter, are and the earlier rein- abrogated, is judicial theory stated which held furnishing alcoholic is beverages cause of from the resulting Consumption intoxication. Further, (c) cause. subdivision of section 1714 no social host who says furnishes alcoholic accountable to any person legally party, damages resulting consumption.
The California Supreme Court in Shierloh *4 29 500, 430 629 held Cal.Rptr. P.2d these statutes are 8], constitu- [174 tional. The facts dealt there with furnishing liquor by nonlicensed an person to specified); “minor” not the court obviously (age found immunity from under the new statutes. liability
Also relevant is a statute this and predating controversy, Business 25658, Professions Code section says persons selling liquor under 21 old anyone are The en- misdemeanors. statute guilty Constitution, XX, forces California 22 article section prohibiting sale or furnishing age under the any person of 21 years. situations,
In liquor furnishing early cases assumed the proximate cause of the furnishing, was not hence civil li- drinking, no (Cole be ability (1955) could based on v. 45 furnishing Rush Cal.2d 450, 345 (1949) P.2d 1137]; 54 A.L.R.2d Fleckner v. Dionne 94 [289 246 Cal.App.2d 530]). P.2d Then the California Court Supreme [210 common to a of the “applied sense California tort law where segment (Brockett this was Kitchen commodity noticeably v. Mo- lacking” Boyd (1972) 87, tor Co. 24 93 Cal.App.3d 752]) held Cal.Rptr. [100 could v. furnishing be the cause 5 (Vesely Sager, supra, Court, 153; Cal.3d Coulter Cal.3d That Superior v. 21 supra, new reasoning to find when an applied employer furnished “an liquor to intoxicated minor of the of 19 v. age years” Brockett Co., 87, Boyd Kitchen Motor 24 88. The last Cal.App.3d chap- ter of the recent is the statutes above history quoted removing common cause for “applied abrogating sense” basis liability in situation of li- furnishing beverages, except censed to an intoxicated “minor.”
574 addressed was not underage specifically person a sober
Furnishing at all. (1981) Cal.App.3d v. Anderson 126 in Cantor
The recent decision li be based on 540], found could Cal.Rptr. 124 [178 his with knowledge disabled a developmentally quor dis of the knowledge peculiar the host’s regarded The court condition. precluded injured party abilities as basis Civil Code section supra. immunity provisions host tort “special relationship” found in the reasoning used the same case special protective for failure to warn or exercise where liability cases relationship between plaintiff on a premised particular measures is and raising on defendant plaintiff dependence defendant causing obligation. (E.g., Regents quasi-fiduciary a corresponding Tarasoff (1976) Cal.Rptr. 436 University [131 of California (1953) 116 D’Angelo Ellis v. 1166]; 83 A.L.R.3d P.2d v. State 675]; Johnson [253 of California 352]; 447 P.2d Clemente State Cal.2d 782 Cal.Rptr. The court 799].) 101 Cal.App.3d California Rush, (45 Cal.2d pre of Cole v. out doctrine pointed (Cantor to a providing liquor competent liability only cluded *5 Anderson, 124, 130). 126 Cal.App.3d v. supra, expressly when
We
unpersuaded by
argument
are
153,
5 Cal.3d
Bernhard v. Harrah’s
v.
Sager, supra,
overruled
Court,
Club,
313,
21
supra,
v. Superior
Coulter
and
supra,
law
precluding any
restore a state of common
3d
intended to
Cal.
underage
was
to an
per
third
when
furnished
liability to
parties
existed.
law
has ever
precedent
No such clearcut state of common
son.
involved
sales
furnishing
overruled cases
None
the three expressly
law,”
prece
meaning prestatutory,
Such “common
underage persons.
when a
under 21
as
differs regarding liability
dent
does exist
(See
(1980)
drinks,
Annot.
and
third
injures
parties.
furnished liquor,
include
528.)
finding
party liability
Alsup
no third
97 A.L.R.3d
Cases
Garvin-Wienke,
(Missouri
law);
(8th
1978)
Cir.
575
ee and foreseeability employee would drive after
drinking]; Davis
(Fla. 1963)
365;
155
Shiappacossee
So.2d
(1966)
Elder v. Fisher
Ind. 598
N.E.2d 847];
(1959)
v. Nichols
Rappaport
Cal.2d case very establishing instances, in most nonliability out pointed law common immunity applied to sales “ordinary” man, or “able bodied” and exceptions had always existed based on par ticular vulnerability to whom the liquor was sold Cal.2d at pp. 353-354). The rationale of Cole v. Rush—lack of proxi mate cause because of the independent, intervening act of voluntary consumption—presumes thе wholly nature voluntary drinking liquor, is ipso facto when inapplicable that act is less voluntary and therefore more foreseeable because of the drinker’s mental or phys ical condition. Youth and inexperience make misuse of alcohol more when the likely 21; drinker is under hence the statute it a making mis demeanor to sell to such people, hence the common law exceptions. Thus, Rush, in his dissent in Cole v. Justice Carter out justifiably pointed “the rule of the common law with respect to intoxicating beverages is not so quite defined clearly in favor of non- would appear ...” Cal.2d at p.
We further point out the cases cited in the dissent which found im- from munity resulting selling Rush, liquor—Cole v. supra; Hitson v. Dwyer 61 Cal.App.2d P.2d 952]; Lammers v. Electric Ry. Co. Pacific *6 Cal. 379 P. 523]; v. Mann Chase 41 Cal.App.2d 701 [107 P.2d 498]; Dionne, and Fleckner v. Cal.Aрp.2d 246 the of exception Dionne, Fleckner v. only did 530]—with not involve both to an furnishing underage person and third party liability. Both Lammers and Hitson involved a plaintiff to seeking recover for his own as a result of the drinking, recovery which would then have been barred by contributory (Mann theories in negligence event. any Chase, Cal.App.2d is similarly distinguishable.) Cole similarly was a wrongful death action the heirs of the decedent had been furnished the and liquor died in a drunken brawl. re- Again, was covery for the sought (death). drinker’s own damage Fleckner Only v. Dionne is That case was a squarely point. two-to-one with decision all, no analysis or stated reasons at blindly accepted parties’ all fur- virtual concession common law blanket for provided immunity then That was and is still. nishing liquor. premise faulty faulty (24. 87) The second Brockett decision Cal.App.3d was to willing on for to a under premise liability furnishing liquor squarely Professions Code section 25658 for- Business and policy underlying the statute as interpreted sales to such That decision bidding persons. (and constitutional) under 21 people a reflecting finding legislative fur- liquor, knowing are not to handle the ready consumption where the public duty, to them therefore breaches a nishing liquor will drive a vehicle is with furnishing knowledge underage 94).1 at The court there Cal.App.3d upon public highways for the demand no less than accountability said law and common sense if, however, that case be of that breach. Even consequences de- the legislatively rejected because follows regarded unpersuasive nevertheless its Sager, supra, cision in involved in of section 25658 purpose conception Furthermore, the first Brockett de- decisions. the legislatively abrogated law principles had on common already cision a knowingly plied demurrer allegations employer a .overruled then him in a car put with liquor party at 19-year-old employee turned on a combination him to drive home. That case and told and the employee for his employer young special responsibility would drive. Those con- intoxicated employee obvious foreseeability abrogated siderations have not been specifically 21 is likely very under people particular vulnerability in fact the to obvi- furnishing liquor preserved reason the Legislature third 25602.1) immunity (§ despite “minors” ously No other intoxicated adults. liquor parties As to the two classes. treatment of warrant disparate reason appeаrs be- special exception made no the Legislature sober persons common immunity no blanket being there necessary, cause none was under- to a sober statute where illegally law or in any third party. to a injury in foreseeable results age person law above common basis for finding cases referred to furnishing liquor underage gen- resulting party liability *7 nature of the injuries. on the foreseeable partly rest or erally wholly class; people who be pertains young it special a is directed to 1"Section 25658 imbibing of with the cope unable to inexperience are years tender cause of their beverages.” Cal.App.3d fact, In of the cases denying is the some Foreseeability key liability. of than foreseeability any per to rest more on lack on liability appear (That ceived for from immunity furnishing liquor. wholesale Bilbo, in would to be true Stanage particularly appear 423, intoxicated friend of the intoxicated “minor” So.2d involving the former a third Foreseeabili liquor, shooting party.) bought is a factual issue which should not be raised on a demurrer. ty generally Cantor, (Thus 124, must emphasized now turn of from the on the foreseeability furnishing, on injury relying General, (1975) 15 analysis causal used in Weirum v. RKO Inc. 40, we note is a 36].) Here there good of in a state where possibility showing foreseeability, public transporta rule, tion is the exception and and where drunk driving keeping drivers off the roads a major social concern. dissenting opinion points, out in a supposed anomaly shop-
keeper being liable for selling 19-year-old sober while he is First, if the legislatively exempt is drunk. 19-year-old there is no the use оf authority the term “minor” section 25602.1 means persons less than 18. The statute in the appears part of Busi- ness and Professions Code liquor transactions to less forbidding persons than 21 of years For age. purposes of these statutes may “minor” mean 21; being under section 25602.1 refer to may under 21 when it preserves liability for sales to intoxicated “minors.” Persons under 21 are the legislatively protected class we deal with here. There is addition- evidence, al in the enactment, form of an uncodified the term showing “minor” in Business and Code Professions section 25602.1 have been intended to refer to persons under than rather under 18. The enactment section 1 of bill, Statutes 1971 chapter other among things, changed from 21 for age minority to 18 most legal in this purposes state. That section 1 states: “Except provi- sions relating thе minimum voting age, provisions relating sale, minimum age purchase alcoholic bever- consumption ages, the provisions to the relating sentencing commitment of persons to the Department Youth or the re- Authority, provisions whenever, benefits, lating law, to veterans’ any provision term ‘21 years similar age’ phrase regarding age appears, shall (Stats. be deemed to mean ‘18 years age.’” ch. p. 3736.) Thus the intent then legislative was to transmute the concept of legal minority from 21 to 18 in the age except area specific (and of alcoholic sales other specified exceptions not here rel- evant). One would infer from this enactment the use the term *8 sales in the statutory provisions regulating
“minor” Ac under rather than 18. continue to refer to persons would under 25 and the later Civil Code section Civil Code sectiоn both cordingly, be read should (1973), minority logically setting age 25.1 the alcoholic except intent of the of the light original the new definition of minority. from the sweep beverage regulations (and Constitution) Otherwise, al affecting the statutes presumably, been amended to refer everywhere sales would have coholic beverage the term “minor” Business and Profes under 18. Interpreting persons refer to under 18 is inconsistent persons Code section 25602.1 to sions whole, a disfavored construc scheme as a with the regulatory Bd. Workmen’s (See, Moyer v. Comp. Appeals tion result. e.g., 1224].) 514 P.2d 230-231 have not Second, under we if “minor” does mean persons even In overruling it is of creation. legislative created the rather anomaly; and Coulter no indication Legislature gave such cases as and oth- with the exceрtions young familiar necessarily It beverage furnishing. intoxicating er vulnerable individuals regarding issue at all and re- thereby not involving cases specific overruled than it realized. complex probably far more stored a status ante quo decision, the defendant there stated The first Brockett drunk driving upon high- crime of procuring have been guilty held liable for 69, 73) be accordingly and should way tort, hurt as anyone defendant activated “The consequences. (Id.) Similarly from it.” to recover should be entitled consequence is entitled be here, proven, plaintiff cause can assuming proximate which is not above, proper- is a factual issue cause to recover. As stated demurrer, below perceived. as the court resolved on ly vio- course of liquor will a habitual prove they Real parties argue Burke, it not making 21 by people sales to lations and regular result, these young peo- that some of inevitable but an just drunk, drive, public. members of and injure would become ple before presently within the record However, as such are these facts deliberate fur- negligent state of the complaint The allegations us. cause of his was a proximate Wyatt the 19-year-old nishing and injuring. drinking, driving, se is negligence per law, duty of a statutory tort violation
In general Code, (Evid. can be proved if cause in civil resulting *9 669). a violation when a seller to liquor Such occurs licensed sells § (Bus. Code, person & Prof. Proximate cause is al- § here between the sale and the leged injuries. Although Legislature situations, has in certain abrogated liability specific namely selling (other “minors”) or to intoxicated than obviоusly social host furnishing has not eliminated liabil- anyone, specifically have, ity the situation we licensed a sober underage person. sale to No sound reason occurs us to warrant extending ex- legislative Further, its ception beyond necessary compass. existence of very 25602.1, section the “drunk minor” shows the did exception not eradicate as a proximate cause basis for in all fur- This cases. is a case where such nishing has not been specific immunity provided, hence does not exist.
The trial court did not err the demurrer to the com- overruling plaint seller, alleging petitioner, old, a licensed sold alcohol to a 19 year which act him proximately caused to become intoxicated and precipi- tate an accident. injury-causing
The petition for a writ of mandate is denied. J.,
Staniforth, concurred.
COLOGNE, J. I mustrespectfully dissent. law,
Under current plaintiffs cannot establish cause which (see, Witkin, to create necessary generally, Summary (8th Torts, 488, 2749, 622, Cal. 2904), Law ed. even p. § § (Evid. where it Code, is claimed the presumption exists negligence (a), (2)). par. subd. §
It is the that the bev- consumption law this state now of alcoholic than erages rather of alcoholic is “the proximate cause of inflicted another upon intoxicated (Bus. Code, Code, person” (c); & subd. Civ. Prof. § § (b);1 subd. v. Shierloh 436-437 Cory entirety, 1In their the cited read: sections sells, furnishes, sold, (a) Every furnished, person gives, “25602. or who causes to be given any or away, any or habitual common or drunkard guilty of a misdemeanor. furnishes, “(b) sells, sold, furnished, gives, given No to be causes Shierloh, describes 8]). 629 P.2d with the dealing these sections of the code 1978 amendments *10 (id. immunity” as providing “sweeping alcoholic furnishers beverage well consumer as 436) a suit the intoxicated by to p. operating at “bar[] (id. 437), “to at and p. extending him” by third by persons injured (id. suit ...” from immunity a general of alcoholic providers beverages these statements us with additional at The court p. provides (id. 439), operating at p. rule of immunity” sections grant “general of alcoholic provider of a limit substantially “to or preclude of action 439), pre the causes p. “abrogating at beverages” {id. (id. and Coulter Bernhard opinions” Vesely, authorized in our viously the statutes 440).2 totally justified by is language This broad direction. us clear question provides rule of immu- to this exception general but one
The statute contains
licensee who
beverage
provides
this
to
alcoholic
pertains
any
nity,
furnishing,
minor where the
beverage
“obviously
cause of
the minor is the proximate
of such
sale or giving
(Bus. & Prof.
pеrson.”
sustained
such
by
or death
personal
injury
(a)
civilly
shall be
away, any
beverage pursuant to subdivision
this section
alcoholic
person
injuries
inflicted on that
any injured person or the estate of such
liable to
beverage.
by the consumer of such alcoholic
person as a result of intoxication
“(c)
interpreted
be
so that the
Legislature hereby declares that this section shall
(5
153),
holdings
(16
Vesely Sager
Bernhard v. Harrah’s Club
in cases such as
v.
Cal.3d
(—
—)
abrogated
Cal.3d
be
in favor of
Superior
Cal.3d
and Coulter v.
Court
beverages
finding
consumption of
rather than
prior judicial interpretation
alcoholic
injuries
upon an-
serving
beverages
proximate
as the
cause of
inflicted
the
other
alcoholic
by
person.”
an intoxicated
acts,
(a)
Every
responsible,
only
is
for the result of his willful
but
“1714.
one
manage-
by
ordinary
want of
care or skill in the
injury
for an
occasioned to another
his
has, willfully
byor want of
property
person, except
his
so far as the latter
ment of
ordinary
care,
in such cases is
brought
injury upon
himself. The extent
by
Compensatory
defined
the Title on
Relief.
“(b)
abrogate
holdings in cases such as Vese-
It is the intent of the
313),
153),
and Coulter v.
ly Sager
v.
Cal.3d
Bernhard v. Harrah’s Club
Cal.3d
(—
—)
prior judicial interpretation of this
Superior Court
Cal.3d
and to reinstate the
injuries incurred as a result of
al-
section as it relates to
coholic
cause for
furnishing
intoxication,
beverages
person, namely that the
of alcoholic
to an intoxicated
injuries resulting
but rather
beverages
proximate cause of
is not the
beverages
upon
inflicted
consumption
is the
cause of
person.
anоther
an intoxicated
le-
“(c)
any person
shall be held
No social host who furnishes
injury
gally
damages
person,
suffered
or for
accountable
of,
of,
resulting
consumption
from the
of such
property
beverages.”
person,
or death
151];
(1971)
Cal.Rptr.
486 P.2d
Bernhard v.
v.
2Vesely Sager
5 Cal.3d
719];
Cal.Rptr.
That here since the furnished alcohol exception inapplicable nor a “minor” under the allegations. was neither intoxicated” “obviously both the of the Considering language and the legislation unmis- takable import Court’s those I Supreme description provisions, cannot in this case. join majority
The law as developed interpretation before now by judicial controls civil of a subject of alcoholic provider beverages. That “it is the judicial interpretation not the voluntary consumption, *11 sale or of the gift, intoxicating liquor proximate cause of injury (Cole v. Rush 345, from its use ...” 45 Cal. 2d 356 P.2d Shierloh, 450, As noted in Cory 1137]). 54 A.L.R.2d 29 430, Cal. 3d 25602, Business and Professions Code section subdivision (c), and Civil section (b), Code subdivision “are merely descrip tions the ‘prior of judicial interpretation’ on the subject of the provider Cal.3d beverages” p. 437). at That law was aptly 158-159): summarized at pp. “Until fairly it was recently, uniformly held that an action could be maintained at common law the vendor of against alcoholic beverages for furnishing such who, beverages to a customer intoxicated, as a result of being in jured omitted; himself or person. The rationale [Fn. citations.] for the common law rule was the consumption and not the sale of was liquor the proximate cause of injuries sustained result in toxiсation. ‘The rule was on based the obvious fact that one [Citations.] cannot be intoxicated by liquor reason furnished him if he does not drink it.’ common law rule has been abro substantially [Citations.] gated in states many by statutes which impose civil specifically upon a furnisher of intoxicating liquor under specified circumstances. (See Comment, 995, 996, fn. Cal.L.Rev. the 20 listing states that statutes.) California, however, have such has not enacted similar legislation.”
A pre-Vesely judicial civil interpretation barring of the alco- holic beverage furnisher under facts similar to the case bar at “Notwithstanding 3Business Code section reads: Professions 25602.1 subdivision (b) brought any person of Section a cause of action be or on behalf of injury against any who or licensed pursuant has suffered death to Section 2330 sells, furnishes, sold, gives given away to be any causes furnished or beverage furnishing, giving minor the sale where such proximate personal injury the the minor is cause of the or death sustained person.” Fleckner Dionne There it 530]. was the when alleged consumer-driver was both a minor and intoxicated sold, liquor thus the making illegal.4 the sale common Applying law rule of the injury, no cause between sale and proximate fur Fleckner affirmed a dismissal of suit judgment against nisher of an intoxicated whose drunk caused a driving minor (id. 250-251). at It had been plaintiffs pp. alleged, collision injuring other knew a mi among the tavern owner furnisher Dionne was things, nor, intoxicated, sold to him while he was intoxicating liquor already he had near it when he knew an automobile the tavern and would drive left, and this joined with Dionne’s own negligence produced (id. 247). Nevertheless, face of the рlaintiff’s injuries negli statute, se founded the violations of per upon gence argument furnisher’s was sustained and the dismissal which followed demurrer was affirmed the basis of an cause under on absence (id. 250-251). law This decision applies “prior common rule at pp. (Bus. & Prof. on the cause judicial interpretation” subject Code, (c); Code, (b)) subd. should con Civ. subd. § § trol the case at bar." *12 (1940) Cal.App.2d v. Chase 41 701 P.2d
Similarly, Mann [107 the rule of no cause to bar 498], applied common law was proximate on the violation the defense of based contributory negligence to drunk driver defendant who was liquor the plaintiff’s furnishing 61, under 21 Alcoholic Control years (§ Beverage the age 758, Act; 330, 1123, 1937, ch. 1935, amended Stats. p. by Stats. ch. said; 2175; is 4.) to a minor giving liquor see The court “The p. fn. the cause of accident but necessarily proximate unlawful not drunk and his par- follow. If minor driver [defendants, appellants’ sustained, holding it would result in be position should ents] against creates presumption a minor a conclusive liquor to giving recov- Where the basis of that the will become intoxicated. donor minor then read: applicable prohibitions 4The sold, sells, furnishes, furnished gives, or to be (a) causes Every person “Sec. 61. twenty-one beverage age away any any person given alcoholic or guilty of be a misdemeanor. shall beverage who consumes any any or minor “(b) Any alcoholic purchases minor who premises guilty of a misdemeanor.” beverage any is any on-sale sold, sells, furnishes, or gives causes be furnished Every person who “Sec. 62. drunkard, any ob- or to or common away, any habitual given 330, 1935, (Stats. p. ch. guilty be of a misdemeanor.” viously shall 1937, 758, ch. by as amended Stats.
583 a violation of upon action is predicated denial in a negligence ery accident, of the otherwise law, cause proximate must be such violation contended that the It be reasonably is immaterial. cannot the violation and ef- of its use subsequent liquor, independent mere of the furnishing fect, the accident.... directly contributed a causal connection case it is essential to establish
“In a negligence act, and the unlawful act and the resulting injury; between a wrongful In must be the efficient cause. independent intervening agency, with no cause was the intoxication resulting this case the proximate the car Chase while so in- and the consumption liquor, driving connected liquor remotely toxicated. The of the only contributed, all, if at only indirectly with the cause of the accident and Chаse, (Mann Cal.App.2d to the injury.” 704-705.) pp.
Thus is law cause of is expressed injury the common rule proximate (see due to not of alcoholic intoxicants consumption, Rush, 356; Cole v. Lammers v. Electric Pacific Co. “it has been Ry. 523], uniformly Cal. P. held in the that the sale absence of statute to of intoxicat- contrary ing liquor not cause of received injuries subsequently intoxication”; the purchaser of his Hitson v. Dwyer because “in the absence of a 952], showing sale of the wrongful liquor cause contrary, but the so drinking purchased.”). *13 a third permitted party Vesely Sager, supra,
When a tavern against keeper serving claim of civil plaintiffs resulted in an accident whose later obviously driving Cole, found it to overrule Lam necessary the court injuring plaintiff, Hitson, involved, to, or arguably pertained all of mers supra, (5 rather than a third party claims the intoxicated by case 167). party liability at the third Vesely disapproved Cal. 3d p. Dionne, (id. From p. of Fleckner v. as well Vesely, Court by Supreme action express overruling of the the com language stating as from the nature broadly applicable decisions, considered the rule in it is clear quite mon law those dealing class of case it was then rule to the third applied party plaintiff case involved in the with in to the intoxicated person type addition overruled decisions. Shierloh, 3d too, seen, Cal. Cory we have does
So as the overruled cases has ap reinstatement of consider the 1978 third party and the plaintiff to both the intoxicated party plication must conclude that section the court said: plaintiff, “[W]e construed, the intoxicated (b), bars a suit reasonably subdivision him. other con Any third persons injurеd by consumer as well result, a tort permitting would anomalous produce singularly struction consumer, while bar the intoxicated provider by recovery against an innocent third person the same provider by ring recovery against same consumer.” Cal.3d at who was injured by of this case dissimilar to those sufficiently The facts of are not complaint alleged valid In Cory, plaintiff’s to warrant distinction. became intoxicat- he was a minor who was furnished alcohol at a party, while trying when he lost control of his vehicle ed there and was injured at defendant to drive home. Four of nine causes of action were directed Shierloh, who hosted and supervised one of various named defendants These causes alleged: party.5 controlled the leased 1 ... defendants so negligently operated
“[ ] sustainеd that became intoxicated and premises plaintiff thereby injuries; . . the occupancy premises . manner of Shierloh’s use and
“[2] nuisance, in that he thereon the unlicensed and constituted a permitted minors and beverages sale and alcoholic unlawful others; ... Shierloh’s unlicensed and conduct “[3] unlawful caused his intoxication beverages plaintiff proximately and subsequent injuries', ... Shierloh sold or furnished negligently
“[4] intoxicated and would be plaintiff, plaintiff knowing 433-434; added.) italics pp. a car thereafter.” Cal.3d at driving *14 the relied the 1978 amendments to Shierloh’s demurrer on general above, Civil sections set forth Business and Professions Code and Code ante, of this the sale or of asserting furnishing because legislation defendants, including liquor liquor 5The stores which sold the other named building, parties appeal. the lessor of the were not to the alcoholic to Cory was not a cause of beverages Cory’s injur- assertion, ies. The Court this the trial Supreme accepted affirming court’s dismissal after demurrer complaint of Shierloh’s to all four above causes of action was sustained for failure to state a quoted so, cause of action. In our court doing high emphasized section pro- alcoholic hibiting furnishing intoxicated beverages “any obviously (Bus. Code, person” 25602). & Prof. From the court’s description § however, complaint’s allegations, the last apparent only quoted cause of action dealt with the intoxicated furnishing “any obviously per- section, son” and the above italicized of the descriptions complaint reflected sufficient se pleading per for violation negligenсe theory of the prohibition against furnishing under 21 years age (Bus. Code, & 25658). Prof. connection, In this it is interesting § note the Supreme Court Business and quoted Professions Code section (b), subdivision without its including “obviously intoxicated per- son” language, sells, as providing: “Wo person furnishes ... any alcoholic . . . shall be civilly liable to . . . any injured person for injuries inflicted on that a result of intoxication (Italics consumer of (29 such alcoholic added.)” beverage.’ Cal.3d at p.
The court held this provision was controlling, as it does “immunizing defendant Shierloh from liability to plaintiff, whose are alleged to have resulted from his own intoxication his following consumption of (29 437). beverages” Cal.3d at Thus fell p. all four of these action, causes of including those not dependent on a showing obvious ' intoxication. The Supreme Court also with agreed the trial court’s analysis conclusion that civil statutes immunizing applied to the sale or furnishing beverages “in violation of licensing statutes” Cal.3d at summarized the complaint’s charg- ing allegations as asserting Shierloh caused “unlawfully plaintiff’s intoxication, occur, or permitted such intoxication to and that plaintiff was injured 437). as a result thereof” Cal.3d at p. unlawfulness included alleged Cory more than furnishing liquor to an It obviously person.6 included allegations of unlicensed and, minor, since plaintiff was a alleged unlawfulness included to a under 21 age, liability against permitting 6The section civil furnisher of alcoholic Code, (Bus. 25602.1) intoxicated minor & inapplicable Prof. be § Code, (see cause defendant Shierloh was not a licensee &Bus. Prof. §
case now before the court Business and involving Professions Code sec- tion 25658.
IWhilе do not view as Cory representing a direct the 1978 holding statutes bar a se civil because a furnish negligence per liability theory of alcohol to a ing person under is not the years age proximate cause of the I as plaintiff’s read this injury, Cory requiring conclusion. facts are too similar and its statements Cory’s concerning immunity Besides, too broad to admit of another conclusion. aware fully of the Business and Professions Code section 25658 prohibition against sales to persons under 21 for it cited this in dis years age, section scheme, cussing constitutional of the 1978 validity its in Business and Professions section particularly provision Code 25602.1 licensed of alcoholic preserving liability against providers 3d p. intoxicated minors Cal. at The obviously court could have to its facts a similar easily applied thеory so, that propounded here. It did not do and I submit by majority that is because it could not do so under the 1978 amendments to which the court rules: “It is well settled that the applied following Legisla ture a broad both to establish and to abolish tort possesses authority causes of action. As former Chief Justice Gibson it over 30 put as the otherwise has ago, ‘Except provides, Legislature Constitution It to determine the of individuals. complete power rights [Citation.] which have ex create new that may rights provide rights previously isted shall no arise ... longer p. [Citations.]” tort cause of action the al- against has abolished the furnisher, exception to the subject single coholic beverage 25602.1, which does Business and Professions Code section essence, as- providing, right not here. It has done so apply existed under previously such furnishers which against sert civil liability (29 Cal.3d at “‘shall no arise’” longer and Coulter Vesely, Bernhard cause, 439), proximate judicial interpretation and the prQ-Vesely rule, In ruling foreseeability shall to such cases. apply common law law of proximate the majority applies Vesely is the key liability, 153, 163-164),7 (see pre- cause Vesely Sager, supra, cause, says, extent that the common law rule part: “To the proximate 7On cause, by the rea concepts persuaded we are nonliability is based on may if his actor be liable soning of the cases that have abandoned rule.... that [A]n causing injury, an and he is not relieved of negligence substantial factor in is a intervening reasonably if such act was foreseeable act of a third because of negligent at the time of his cоnduct.... per of an alcoholic is clear that the “... [I]t upon individual a third inflicted be a cause son
587 Vesely interpretation as the 1978 statute requires. Brockett v. Kitchen Motor Boyd Co. 24 Cal.App.3d Cal.Rptr. 752], on relies, which the formula of majority applied Moreover, Brockett’s statement of legislative purpose for Busi cause. ness and Professions Code section 25658 seems quite to be clearly minors, addressed class,” protection “a special “young people,” “tender 94). “unable to years,” cope” at Its purpose, Brockett, stated does not to extend to the appear class of persons as a result injured of the minor’s consumption, intoxication and driving Shierloh, (see Cory 29 Cal.3d 430, 441, v. limiting “[a]s class minors, of protected consumers to the Legislature might reason have ably deemed such persons more in need of safeguarding adults, intoxication than because of the comparative inexperience of mi nors in both drinking driving.”). view,
Under the a in the law majority strange anomaly is created. Business and Professions Code section 25602 immunizes the alcoholic furnisher, here the shopkeeper, from for sales to obvi intoxicated ously persons under 25602.1 for (except sales licensees § minors). to obviously holds, however, intoxicated The majority be liable shopkeeper may under Business and Professions Code section if the sale is ato sober between 18 and 21 person age. Thus under the to a sober the sale majority’s holding person between 18 and 21 create while under the statutes considered in Shierloh, a sale to a drunk in the same person even age grоup, minor, a sale to a drunk creates no unless the sale is a li censee to an person who is also a That “minor.” makes no sense. One well-known rule of construction is that an absurd or result will never be ascribed to the unjust ex Legislature, cept (see where the Brown language so clear as to admit of no doubt Beach Huntington etc. Sch. Dist. 15 Cal.App.3d 646 [93 Cal.Rptr. 417]). believes majority meant “minor” to be apparently
a “under 21” in this instance. That is an assumption. unjustified The Business and Professions Code no definition of provides special “minor” and in 1971 California adopted definition a minor (Stats. 1971, under 18 ch. cause, person. If is a it is so because the consumption, result intoxication, ing causes, injury-producing intervening conduct are foreseeable or at least injury-producing conduct is one of the hazаrds which makes such negligent.” (5 163-164.) pp. all “minors are says Civil Code simply section *17 the when of adopted by Legislature of The statement intent age.” years the provision relating this states for “[e]xcept section was enacted sale, consumption for the or of purchase ... minimum age . . “‘2/ similar years phrase regard- . the term beverages age’ of T8 It years it shall be to mean of age.’” deemed ing age appears, ap- did “when word ‘’minor’’ say is not significant Legislature ” The effort here was to it shall deemed to mean . .. . pears be 18 for 21 of but not to redefine age substitute age years “minors.”
It is all the has done in other areas inconceivable after Legislature (see Code, 25.1) a definition of since 1971 to establish uniform Civ. § direction it was moving minors that 1978 it would ignore use the “minors” Business and Code section 25602.1 word Prоfessions event, under In any to mean a under 21 rather than a 18. person case Code is to this pertinent Business Professions séction 25602.1 to the scheme under consideration. part statutory extent only It otherwise bear this case. directly does not on
I for this because do believe we can fault Legislature anomaly had the prior if we assume the in mind an understanding “minor,” no such would common law and its own definition anomaly construction, this assump- occur. Under settled principles statutory (Keeler (1970) 2 tion is 625 required Superior Court 617, 40 420]). Cal.Rptr. A.L.R.3d rational, I a common sense interpretation apply would provides scheme, view of the The sale of alcoholic legislative wit: sober, a drunk or no on the person, part whether creates unless, which within vendor follow provisions 25602.1, the under purchaser Business and Professions Code section 18 and intoxicated.8 totally exempts 8This is also Code the social consistent with Civil section 1714 host. 540], I can reconcile v. Anderson Cantor of action developmentally handicapped which held sale minor create a cause to a only plaintiff “plead prove if the that defendants not knew of could minor’s] [the on him
disability but also have known the effect that would have knew should violent)” disability (i.e., his that it him to lose control and become reason would cause Here, special (i p. 131). there is the defendants had a no contention d. allege purchaser. plaintiffs The best the could relationship anything or knew about many age. were under was the vendor had sold to other furnish- violation of the alleged Plaintiffs here cannot prove Code, (Bus. proximately & Prof. ing § their caused injuries. let
I would the writ issue. de- Court was Supreme hearing by Petitioner’s application Mosk, J., the application was of the opinion nied 1982. May be granted. should