This appeal concerns the remedies available to the parents and the administrator of the estate of Jane Clymer, an adult decedent, in an action against two commercial vendors that served alcohol to a patron who thereafter drove his car and struck and killed the decedent. Plaintiffs Adam and Ann Clymer, parents of decedent, and Adam Clymer, as administrator of the estate of the decedent, appeal from a superior court order dismissing with prejudice their action against the owners and certain employees of two commercial vendors that served *618 alcohol to the man who drove the car that struck and killed their daughter. The dismissal of the suit was the culmination of a series of court orders construing the Dram Shop Act, the Wrongful Death Act, and the Survival Statute. We reverse and remand for further proceedings.
I.
On September 14,1985, after being served alcohol at The Rotisserie Restaurant and at Wesson’s Diner, Theron Webster drove his car and struck Jane Clymer, an eighteen-year-old college student, while she was pushing her bicycle along the side of Route 116 in the town of Williston. Ms. Clymer suffered massive brain damage, but was kept alive until her parents arrived the next morning, when she was pronounced brain dead and allowed to expire. Theron Webster was charged with and pled guilty to DWI-death resulting.
In a complaint filed in July of 1986, plaintiffs alleged negligence against Theron Webster, and a Dram Shop Act violation against the commercial vendors and certain of the vendors’ employees, seeking compensatory damages for medical and funeral expenses, emotional distress, loss of companionship, loss of future earnings, and loss of means of support. Plaintiffs also sought punitive damages against James Wesson, owner of Wesson’s Diner, and Theron Webster; they later moved to amend their complaint to add a claim for punitive damages against The Rotisserie and one of its bartenders. Plaintiffs eventually settled with Theron Webster, and the court dismissed him from the action over the objections of the other defendants. After several rulings that limited the damages recoverable by plaintiffs “to medical and funeral expenses and lost services and guidance,” the court dismissed the action with prejudice and entered judgment for the defendants on the ground that those damages did not exceed the $120,000 plaintiffs had already recovered from the negligent driver.
On appeal, plaintiffs argue that the trial court erred by denying their claims for (1) damages for deprivation of love, affection and society (loss of companionship) under the Dram Shop Act and the Wrongful Death Act; (2) damages for loss of future earnings under the Survival Statute; and (3) punitive damages under the Dram Shop Act and the Wrongful Death Act. Plain *619 tiffs also contend that the cumulative effect of the court’s rulings denied them an effective remedy for their injuries, as guaranteed by the Vermont Constitution. In their cross-appeal, defendants The Rotisserie and its bartender (J. Duguay) argue that (1) the trial court erred in dismissing Theron Webster; (2) the court should exclude expert evidence concerning what signs of intoxication would be exhibited by a person having a certain blood-alcohol level; (3) the Legislature has unconstitutionally delegated its authority to the Liquor Control Board; and (4) the Liquor Control Board regulation designating what constitutes an unlawful furnishing of alcohol is unconstitutionally vague.
II.
We first consider the relationship between the Dram Shop Act (DSA) and the Wrongful Death Act (WDA). As we have noted elsewhere, the Legislature enacted the DSA to create a statutory cause of action where none had previously been available under the common law.
Winney v. Ransom & Hastings, Inc.,
A ... person who is injured in person, property or means of support by an intoxicated person, or in consequence of the intoxication of any person, shall have a right of action ... against a person or persons, who, by selling or furnishing intoxicating liquor unlawfully, have caused in whole or in part such intoxication.
7 V.S.A. § 501.
1
The DSA further provides that “[u]pon the death of either party, the action and right of action shall survive to or against his executor or administrator.”
Id.
The WDA (14 V.S.A. §§ 1491-1492), which predates the DSA, does not create
*620
a new cause of action, but rather a “‘new right of recovery’” or “‘new element of damages’” engrafted upon the already existing cause of action. See
Whitchurch v. Perry,
Aside from out-of-pocket medical and funeral expenses, Jane Clymer’s parents have not themselves been injured “in person, property or means of support” within the meaning of the DSA. Jane Clymer, however, was injured “in person” and would have been entitled to maintain an action under the DSA had she survived. 2 Therefore, we conclude that the administrator of Jane Clymer’s estate has a cause of action pursuant to the DSA and that damages should be determined under the WDA.
Defendants point out that “Vermont’s Dram Shop Act provides the exclusive remedy for cases falling within its scope, and preempts a cause of action in common law negligence.”
Winney v. Ransom & Hastings, Inc.,
We are mindful that the DSA is a strict liability statute, see
Langle v. Kurkul,
Moreover, wrongful death actions are not necessarily based on negligent acts. Some courts have allowed wrongful death damages in strict liability cases involving abnormally dangerous activities and defective products. W. Keeton,
supra,
§ 127, at 946. The Vermont WDA provides a remedy when death is caused “by the wrongful act, neglect or default” of another; thus, it is not limited to acts of negligence. The acts that trigger dram shop liability clearly fit within the broad scope of the term “wrongful act.” See
Bernier v. Raymark Industries,
In recent years, both the Iowa Supreme Court and the Rhode Island Supreme Court have held that the wrongful death of an individual constitutes “injury to person” under the DSA, allowing recovery thereunder. See
Fraternal Order of Eagles,
To sum up, we hold that Jane Clymer was “injured in person” within the meaning of the DSA. Because she would have been entitled to maintain an action under the DSA had she survived, her parents may recover damages available to them under the WDA. Further, because this Court has never recognized a common-law action for wrongful death, see
Thayer
u
Herdt,
III.
The WDA allows the decedent’s personal representative to recover “such damages as are just, with reference to the pecuniary injuries resulting from such death,” on behalf of decedent’s spouse and next of kin. 14 V.S.A. § 1492(b).
4
A 1976 amendment to § 1492(b) added a provision that “where the decedent is a minor child, the term pecuniary injuries shall also include the loss of love and companionship of the child and for
*623
destruction of the parent-child relationship in such amount as under all the circumstances of the case, may be just.” Because the WDA was “designed to allay the harsh common law rule denying liability due to the death of the victim,” it is remedial in nature and must be construed liberally.
5
Oliver,
A.
The question confronting us herein is whether the WDA permits a parent to recover damages for the loss of companionship resulting from the death of an adult child. The 1976 amendment recognizes a right of recovery for loss-of-eompanionship damages when the decedent is a minor child, but it makes no mention of adult children. Although we cannot be certain as to the reason for the omission, the legislative history of the amendment suggests that the Legislature was more concerned with clarifying the scope of damages available to the relatives of minor decedents than limiting the damages available upon the death of an adult decedent. See H. 58 (1975 Vt., Bien. Sess.) (sponsor’s statement of purpose: “the purpose of this bill [is] to provide guidelines for the compensation to parents for the death of a minor child”); cf.
Caledonian-Record Publishing Co. v. Walton;
In any case, the amendment neither expressly nor implicitly precludes a plaintiff who is seeking compensation for the death of an adult child from showing that, under the circumstances of a particular case, he or she is entitled to loss-of-companionship damages. In accordance with our analysis hereinafter, we do not believe the statute should be narrowly construed to foreclose the recovery of loss-of-companionship damages for parents of decedent adult children.
6
As previously noted, the WDA is to be liberally construed. The negative inference that defendants would have us adopt — that loss-of-companionship damages are not available to a parent of a deceased adult child — does not rise to the level of “plain meaning” so as to require us to hold otherwise, and we decline to do so. Cf.
McAllister v. AVEMCO Ins. Co.,
*625
At first glance, our rules of statutory construction seem to work in favor of defendants. For instance, normally “we must presume that all language is inserted in a statute advisedly,”
State v. Racine,
On the other hand, such canons are routinely discarded when they do not further a statute’s remedial purposes. See
Herman & MacLean v. Huddleston,
By 1976, in Vermont, as elsewhere, the case law concerning the nature and extent of pecuniary loss available under the WDA was in a state of gradual intermittent development. Although no Vermont case had held that relational damages available for the death of a parent or spouse were also available for the death of a child, a parent could recover any reasonable “financial loss which the evidence shows will probably be caused by the death.” It had already long been established that pecuniary loss was not restricted to loss of services, see
Lazelle v. Town of Newfane,
We believe that rather than intending to restrict the development of case law recognizing that pecuniary loss is more than loss of services, the 1976 amendment intended to further that development by ensuring that such damages would be available for the death of a minor child. Because the type of damages available to adult decedents is not essential to the principal remedial purpose of the amendment, we shall not adopt the negative implication of the amendment argued by defendants. See
Pearson v. Robinson,
Death statutes have their roots in dissatisfaction with the archaisms of the law .... It would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied.
Van Beeck v. Sabine Towing Co.,
*627 Having concluded that the 1976 amendment did not foreclose an award of loss-of-companionship damages to relatives of adult decedents, we now consider whether such damages constitute “pecuniary injury.”
At common law, despite the fact that the courts allowed recovery for wrongful injury, a civil action for wrongful death was not permitted. See
Lazelle,
Many early cases, reflecting nineteenth-century social conditions when children were valued largely for their capacity to contribute to the family income, resulted in minimal awards representing the monetary loss occasioned by the parents’ deprivation of their child’s services. See, e.g.,
Allen v. Moore,
*628
By the early 1960s, some courts were rejecting the child-labor measure of pecuniary loss,
7
and expanding its scope to include loss of companionship. See, e.g.,
Wycko v. Gnodtke,
This Court has recently reiterated that the “term ‘pecuniary injuries’ does not limit recovery to purely economic losses.”
Mobbs v. Central Vermont Ry.,
Surely nature recoils from the suggestion that the society, companionship and love which compose filial consortium automatically fade upon emancipation; while common sense and experience teach that the elements of consortium can never be commanded against a child’s will at any age. The filial relationship, admittedly intangible, is ill-defined by reference to the ages of the parties and ill-served by arbitrary age distinctions. Some filial relationships will be blessed with mutual caring and love from infancy through death while others will always be bereft of those qualities. Therefore, to suggest as a matter of law that compensable consortium begins at birth and ends at age eighteen is illogical and inconsistent with common sense and experience. Human relationships cannot and should not be so neatly boxed.
Frank,
In some cases, the close, familial ties that unite a minor child with his or her parents may dissipate as the child becomes an adult. Nonetheless, the WDA does not preclude the parents of an adult child from showing that the death of their child did
*630
in fact injure them by depriving them of the society of that child. Every case must stand upon its own facts and circumstances. In determining whether and what amount of damages are appropriate for loss of companionship, the court or jury should consider the physical, emotional, and psychological relationship between the parents and the child. Accordingly, among other things, the factfinder should examine the living arrangements of the parties, the harmony of family relations, and the commonality of interests and activities. See
Moore v. Lillebo,
B.
Next, we consider whether plaintiffs may obtain damages for future earnings that would have accrued to the decedent. Plaintiffs concede that, under the facts of this case, they are unable to claim damages for loss of economic support; however, they argue that the Survival Statutes, 14 V.S.A. §§ 1451-1453, allow them to recover damages for loss of the decedent’s future earnings.
9
We disagree. Because the DSA has its own survival provision, §§ 1451-1453 are not applicable here. Nevertheless, we see no reason to construe the DSA survival provision differently from the Survival Statutes, to which we look for guidance. In Vermont, as in the majority of jurisdictions, see W. Keeton,
supra,
§ 126, at 943 n.9 and accompanying text, actions under the Survival Statutes allow recovery for loss and suffering from injuries endured by the decedent
prior
to the decedent’s death.
Thayer v. Herdt,
*631 IV.
We must also determine whether the trial court erred in excluding plaintiffs’ claims for punitive damages under the DSA. Although the DSA provides a “right of action” for those “injured in person, property or means of support,” it neither expressly allows nor expressly excludes punitive damages. Defendants argue that punitive damages are inappropriate because the DSA is a strict liability statute, not requiring proof of proximate cause or a particular mental state. We conclude that the DSA does not preclude such damages. 10
As a general rule, punitive damages are recoverable in any action for damages based upon tortious acts, see, e.g.,
Pettengill v. Turo,
The fact that the DSA has been referred to as a strict liability statute does not make punitive damages inappropriate in cases where the plaintiff persuades the factfinder that the defendant acted, at a minimum, with reckless disregard of another’s rights. Regardless of the mental state required to obtain compensatory damages under the DSA, punitive damages cannot be awarded absent a showing that the defendant acted recklessly. Thus, punitive damages are not awarded on the basis of strict liability; indeed, the defendant must be more than negligent — he or she must act with reckless disregard — in order to incur punitive damages.
*632 Defendants insist, however, that punitive damages are inappropriate because plaintiffs are not required to show that defendants’ reckless conduct proximately caused plaintiffs’ injuries. We disagree. In the broad sense of the term, “proximate cause,” or “legal cause,” assures that there is some reasonable connection between the act or omission of the defendant and the damages suffered by the plaintiff; it is the limitation, based on justice and social policy, that courts place upon the actor’s responsibility for the consequences .of his or her conduct. As a practical matter, the extent of one’s responsibility for a given act depends on whether the actor has a duty to protect the person injured from the consequences of his or her act, which, in turn, often depends on the foreseeability of those consequences. See W. Keeton, supra, § 42, at 273. •
Until the late 1950s, the courts unanimously held that a common-law negligence action was not available against tavern owners who served alcohol to intoxicated persons. See
Largo Corp. v. Crespin,
Defendants rely heavily on
Healey v. Cady,
We agree with the Oregon Court of Appeals that the circumstances that give rise to the need for punitive damages may apply in a dram shop action, and that dram shops should not be exempt as a matter of law from such damages:
We are not prepared to hold as a matter of law that serving a visibly intoxicated person cannot be as wanton and reckless an act as driving while intoxicated. When the act of serving an intoxicated person is found to meet the requisite disregard of social obligations, an award of punitive damages may be appropriate. We cannot say that punitive damages . . . will have any less of a deterrent effect on wanton and reckless conduct than in other types of cases in which punitive damages are traditionally approved by the courts.
Pfeifer v. Copperstone Restaurant & Lounge, Inc.,
In
Pfeifer,
the court held that Oregon’s dram shop statute, which makes a vendor liable for “damages incurred or caused by intoxicated patrons,” did not preclude the imposition of punitive damages against a vendor that served alcohol to a driver who later caused the death of a child.
Id.
at 604-05,
Defendants cite
Nelson v. Restaurants of Iowa, Inc.,
The Rotisserie defendants also contend that an award of punitive damages under the DSA would violate various constitutional guarantees. Because there has been no award of punitive damages as of yet, and because the issue has barely been briefed by the parties, these constitutional arguments are premature. Cf.
Lane Construction Corp. v. Vermont Electric Generation & Transmission Coop.,
V.
The Rotisserie defendants also raise four issues on cross-appeal. First, they argue that the trial court should have granted their pretrial motion to exclude expert evidence regarding the signs of intoxication that would be exhibited by a person having a certain blood-alcohol content. We decline to review the court’s preliminary evidentiary ruling at this interlocutory stage of the proceedings before final consideration of the issue in the context of the trial. See
In re Pyramid Co.,
Second, defendants argue that the trial court erred in dismissing Theron Webster, the driver, as a defendant. We agree with the superior court that the real issue here concerns the apportionment of damages should the jury find for plaintiffs, not whether a settling party should be kept in the case, and that the trial judge should be the one to consider this issue if it arises. At this point, the issue is premature.
*635
Third, defendants argue that the Legislature’s delegation of authority to the Liquor Control Board to make rules concerning the furnishing of alcohol is unconstitutional.
11
Defendants ask that we distinguish or disregard
Ackerman v. Kogut,
Fourth, defendants contend that General Regulation 19 of the Revised Regulations Governing the Sale of Alcoholic Beverages, which makes it unlawful to furnish alcohol to a person “apparently under the influence of intoxicating liquor,” 12 is unconstitutionally vague. We disagree.
Prior Vermont case law has adequately defined “apparently under the influence.” In
In re Tweer,
*636 The prohibition of sales to a person “apparently” under the influence of liquor requires that the purchaser’s intoxication be observable. Moreover, the observation must be made by the one selling the liquor. It is not enough that the purchaser’s intoxication was apparent to someone else. The seller, of course, is not permitted to close his eyes to that which is apparent. The seller has a duty to observe that which is observable to a reasonable person.
We conclude that the regulation is “sufficiently clear to give a person of ordinary intelligence a reasonable opportunity to know what is proscribed.”
Brody v. Barasch,
Reversed and remanded.
Notes
The Legislature amended the Dram Shop Act in 1987. Among the changes, the Legislature deleted the word “unlawfully” and, instead, stated that persons liable under the act are those who furnish or sell intoxicating liquor to minors, to persons apparently under the influence of alcohol, to persons after legal-serving hours, and to persons who it would be reasonable to expect would be intoxicated as a result of the amount of alcohol already served them. 1987, No. 108, § 1. Aside from The Rotisserie defendants’ unlawful-delegation and vagueness arguments in their cross-appeal, the amendment does not affect the issues addressed in this case.
Apparently, Jane Clymer was in a coma from the time she was struck by the car until her death the next day. Therefore, the administrator of the estate has, at best, a limited remedy under the DSA’s survival provision. See
Thayer v. Herdt,
Several jurisdictions have permitted contribution between a dram shop and an intoxicated driver despite the lack of a common theory of liability between those defendants. See 6 M. Minzer, J. Nates, C. Kimball
&
D. Axelrod, Damages in Tort Actions § 49.31[2][b], at 49-88 to 49-92 (1991); see, e.g.,
Ayers v. Straight,
The Survival Statutes, 14 V.S.A. §§ 1451-1453, allow a decedent’s estate to recover for injuries sustained by the decedent prior to his or her death, see
Whitchurch v. Perry,
Defendants, however, argue that this action is brought under the DSA, which is penal in nature. Some courts have determined that the DSA is penal in nature and must be construed narrowly. See, e.g.,
Matusak v. Chicago Transit Authority,
Nor does our holding in
Hartnett v. Union Mutual Fire Insurance Co.,
The issue in this case, however, is whether the Vermont WDA permits parents to collect loss-of-companionship damages for the death of an adult child. The Washington Supreme Court has held that parents cannot recover damages under the Washington WDA unless the decedent child is a minor or the parents are dependent on the child.
Warner v. McCaughan,
Under this approach, pecuniary loss consisted of the financial burden upon the parents that resulted from loss of the child’s services.
In
Hartnett,
Under wrongful death statutes, survivors of the decedent may recover for injury to themselves resulting from the death; under the survival statutes, the representatives of the victim may recover for injury to the victim'. J. Stein, Damages and Recovery: Personal Injury and Death Actions § 265, at 598 (1972).
Because we conclude that punitive damages are available to plaintiffs under the DSA, we need not address the issue of whether punitive damages are available under the WDA.
7 V.S.A. § 104(8) provides that the Liquor Control Board shall “[m]ake rules and regulations concerning, and issue permits under such terms and conditions as it may impose for the furnishing ... of alcohol . . . .”
As noted, in amending 7 V.S.A. § 501 in 1987, the Legislature replaced the term “unlawful” with specific delineations of prohibited conduct. See n.l, supra. The four types of prohibited conduct correspond with the conduct proscribed by Liquor Control Board regulations promulgated prior to the amendment.
The 1987 amendment to 7 V.S.A. § 501 defines “apparently under the influence of intoxicating liquor” as “a state of intoxication accompanied by a perceptible act or series of actions which present signs of intoxication.” 7 V.S.A. § 501(h).