*1 23593. Jan. No. [S.F. 1978.] EWING, Minor, etc., al., A. et
ROBERT
Plaintiffs Appellants, BOWL, Defendant and
CLOVERLEAF Respondent.
Counsel
Bruce I. Cornblum and Charles for Plaintiffs and McCrory Appellants. Grossman, Bloom, Rosen, Allan F. Judith llene Rosen & Leavitt and Alan Dodd Rosen as Amici Curiae on behalf of Plaintiffs and Appel- lants. W.
Woodrow Kitchel and Richard G. for Defendant Logan Respondent.
Raoul D. Mike C. and Stevan C. Kalmon as Amici Kennedy, Buckley Curiae on behalf of Defendant and Respondent.
Opinion *6 TOBRINER, J. case, bartender, In this an that a experienced knowing had turned 21 of that served his patron just years age very day, young rum, customer 10 151 a shots of as well as vodka coffins straight proof 2 chasers, half; and beer than a of less an hour and a as a during period result, the died the next 2 small children 21-year-old patron day, leaving on whose behalf the instant death action was wrongful brought. facts,
Faced with these
the trial court
defendant’s
undisputed
granted
nonsuit,
law,
motion for
as a mattеr of
that the
conduct
finding
patron’s
amounted to
that
and
the bartender’s conduct
contributory negligence
did not constitute willful misconduct. We shall
that this
explain
ruling
an
and unwarranted limitation of this court’s
represents
illogical
holding
in
v.
623,
395 have flowed that could found death the senseless foreseeably jury the bartender’s reckless conduct.
1. in this case. facts action, the sons In death Robert and this Anthony Ewing, wrongful decedent, and suit their mother Ewing, brought through Christopher Bowl, litem, a Califor- Cloverleaf ad Katherine against Ewing, guardian evidence, the At nia the close plaintiffs’ presentation corporation. nonsuit, dismissed the defendant’s motion for trial jury, court granted for defendant. Plaintiffs and entered appeal.1 judgment case, we are in this and facts guided by assessing stating a defendant’s motion rule a trial court the traditional may grant a in verdict evidence would not nonsuit if support jury only plaintiffs’ 465, 2 Cal.3d 469 (1970) v. Frank G. Co. (Pike favor. [85 Hough plaintiffs’ 629, v. Motors 70 (1969) 467 P.2d Elmore American 229]; Corp. Cal.Rptr. 578, 652, 451 Estate 84]; (1916) Cal.2d P.2d Cal.Rptr. Caspar [75 147, 172 Cal. P. evidence most favorable 631].) “[T]he [155 Bowl, Inc. must be as true.” v. Centennial [plaintiffs] (Taylor accepted Witkin, 114, 561, 65 Cal.2d see 793]; 353, ed. Cal. Procedure (2d 1971) § Accordingly, give p. entitled,. .. which it is “to the evidence all value to legally plaintiffs’ be drawn from inference which every legitimate may indulging .” American Motors evidence in favor. . . v. (Elmore Corp., plaintiffs’ and We evidence” (Estate disregard “conflicting Caspar, supra), supra.) cause, evidence, if whether “viewed favorably [plaintiffs’] inquire (Pike Frank G. verdict” their favor. was sufficient to in support jury Co., supra.) Hough mind, we turn to facts. these Christopher guidelines
Bearing 1971. celebrated his 21st evening, Early birthday April Whitlock, fiance of Chris’ sister Chris and Powers Lloyd Jerry joined was then of Chris’ parttime Jerry Cindy, garage parents. Bowl, at the Fremont. bartender Cloverleaf alley Upon bowling that the of Chris’ Jerry group go learning birthday, suggested Bowl, Chris a drink. Chris Cloverleaf offered to buy Lloyd *7 Chris, Loretta Chris’ sister agreed. Jerry, Lloyd, accompanied 10, filed their The trial court entered judgment 1Plaintiffs on 1971. August complaint 16, (see is a action Li v. Yellow on This therefore January pre-Li for defendants 1975. 1226, 804, 858, 393]); Cal.3d A.L.R.3d Cab 532 78 Co. law, the lens of and not the trial court’s action through pre-Li review accordingly, of comparative negligence. principles Enos, Chris, and Jean a friend of for the left Cloverleaf accordingly Bowl, somewhere between 8:30 and 9 arriving p.m.2
There two were bars at the Cloverleaf Bowl. The main bar was in bar, cocktail with A tables second lounge, capable seating pеople. a bar, “service” or was located outside the cocktail “speed” lounge, for the use of bowlers. primarily
On the of these events Richard Lamont was bartender day only at the Bowl. Lamont moved Cloverleaf back and forth between duty Kerr, two bars. The one cocktail waitress on Diane duty night, recalls that the and cocktail areas were crowded. bowling Powers, Whitlock, and went Chris
Jerry Lloyd Ewing immediately the service bar at the Cloverleaf Loretta Bowl. upon arriving Enos, bar, Jean because were not did not to the but rather they yet go sat at a table about 10 feet the bar. had a Jean Enos clear view of the bar from where she sat. identification, and,
Lamont asked Chris for it upon discovering was Chris’ a him vodka on the collins house. After birthday, gave collins, said, Chris “I’m and I’m not even drinking twenty-one drunk.” Powers “I’ll that will make Jerry replied, give you something drunk.” told Lamont Chris the you drink in Jeny give strongest house.
That drink was 151 rum. Most of the which Lamont proof liquor served at the Cloverleaf Bowl was either 86 or 100 alcohol. Lamont proof knew that the difference in reflected differences in alcohol proof content.3 Bowl stocked one or of 151 two bottles rum. only proof bar, These were not at the service but were rather stored behind kept main bar. Lamont leave therefore had to the service bar to the rum. get a a
Lamont served Chris shot rum. shot straight Although glass glass Bowl, will hold one ounce of at the Cloverleaf the shot are liquid, glasses marked white line at an with ounce level. seven-eighths would fill a to the line. On this bartender shot Ordinarily only glass up occasion, however, Lamont filled to the brim. glass to this Chris had not taken drink that for one beer.
2Up point, day, except perhaps therеfore, 3One 1/2 alcohol. Two hundred proof equals percent is proof liquor, alcohol. percent *8 a that it was warned him strong Chris the Before drank liquor, Lloyd however, Chris, it a drink. said was drink. Lamont also powerful another shot. Lamont the full shot consumed immediately. poured at Chris the rum once. drank Again, Kerr, intervene. was
At this Diane who watching, attempted point, shot, Powers: drank she addressed After Chris the second “Jerry, Jerry he’ll drunk.” wait a few minutes and be don’t replied: Jerry why just you it to all the time.” for fun. do me “It’s They just two Whitlock first drinks. Powers had Chris’ Lloyd
Jerry purchased a full ounce of rum. Chris a third round. Lamont poured again bought “Chris, it on this stuff. time, however, he take At warned: the same easy drank a Chris and knock for It’s to catch with you loop.” you going up the round. third table, Enos, the had been at from her watching
Jean vantage point drinks, three Chris with concern. After these some events finishing not drunk because Jean told Chris he’d better came over to table. get “I’ll all and returned like it. Chris be his mother wouldn’t right,” replied, bar. rum. Jean watched drink Lamont served Chris four more glasses rum, remove drink. After he would the bottle each he shot of poured shot, bar; he be each time he would first from poured consequently, next over to remove bottle its shelf. When Chris came required table, his he told Jean he was drunk. Jean noticed that eyes getting slurred, said, “You’d were his his face red. She better glassy, speech said, do he “I’ll be that.” all Again right.” Bowl, Cloverleaf as a matter of would not serve policy, patrons A
after intoxicated. Lamont knew of this to be policy. sign they appeared it. nonetheless served each Lamont cash proclaimed posted by register more rum when Chris returned to bar.4 Chris three glasses his wife older brother Chris’ Debby stopped Doug at the service Bowl saw Chris Cloverleaf around standing p.m. They dice; bar, Chris, his on the bar with cup speech Jeriy. leaning spilled brother, “Let’s have another slurred, but his he told Lamont: was seeing for a me for Lamont reached down one, and one brother.” one my chasers. consumed two beer the course of his Chris also drinking, During *9 “No, bottle. had He can’t even stand he’s Doug interrupted: enough. walked Chris over to the table. Chris out. and up.” Doug passed Doug him out of the Cloverleaf Bowl. Lloyd dragged Chris in Powers’ car. took Chris back Doug Lloyd put Jerry Jerry to the home of his mother and and Chris’ stepfather. .Jerry stepfather carried Chris inside. Chris was unconscious. The next Chris’ morning mother discovered that he was dead.
Dr. Allan McNie took of blood at the sample Christopher Ewing’s time of the He found level of in the alcohol blood autopsy. testified, was .47 As Dr. McNie alcohol sample percent. subsequently acts as a on the central nervous If the level of alcohol depressant system. in a blood exceeds .20 a casual observer will be able to person’s percent detect that the is drunk. If the level of alcohol is between .30 signs person and .40 will to become If the level comatose. of percent, person begin alcohol exceeds .42 will die as a result of percent, person paralysis centers the brain heart Dr. controlling rhythm respiration. McNie concluded that Chris died of acute alcohol poisoning.
Dr. McNie calculated have the amount of Chris must consumed liquor order to achieve an alcohol level of .47 into account Taking percent. eaten, factors, Chris’ the amount of food he had and other Dr. weight, McNie found that Chris must have drunk 21.6 ounces of 86 proof liquor, 18.6 ounces of 100 or 11.2 ounces of proof liquor, liquor. proof sons, action, this death
Christopher Ewing’s bringing wrongful the Cloverleaf Bowl with both and willful miscon- charged negligence nonsuit, duct.5 In our review of the trial we court’s shall assess plaintiffs’ we facts which have set forth allegations against background defendant, above. we shall consider three issues: whether as Specifically, bartender, its owed a of care to represented by duty Christopher Ewing, customer; its whether a could conclude that juiy reasonably bartender’s conduct amounted to willful misconduct in breach of that and whether a could also conclude that duty; jury reasonably Ewing’s also their 5Originally, plaintiffs sought punitive damages. They dropped punitive claim at trial. damages Defendant their willful misconduct in that argues plaintiffs alleged theory only which addressed the Even if part complaint question punitive damages. (and' defendant is correct that the refer note does least to “reckless” complaint conduct), and even if thus erred as a matter of defendant’s plaintiffs argument pleading, (See irrelevant since is defendant asserts no Buxbom v. Smith appeal prejudice. 305].) Cal.2d 542-543 conduct, even if it did constitute nonetheless contributory negligence, *10 amounted to neither willful misconduct nor of the risk.6 assumption due and incurs to exercise care to A bartender owes a 2. duty patron the caused by to injuries liability patron foreseeable for care. exercise such bartender’s to failure that a rule The of this staté have followed courts general caused his for the foreseeable is liable by injuries reasonably person Bethlehem Steel care. v. to exercise reasonable failure (Rodriguez Corp. 765, 382, 525 P.2d Dillоn v. 669]; 12 Cal.3d 399 (1974) Cal.Rptr. [115 72, 912, 728, 441 P.2d 29 739 68 Cal.2d (1968) Cal.Rptr. [69 Legg 30, 45 Cal.2d 36 P.2d Union Co. (1955) A.L.R.3d v. Ice 1316]; [286 Hilyar 310, 317 44 Cal.2d Co. (1955) Warner Santa Catalina Island 21]; [282 v. Code, of P.2d Civ. 12]; 1714.) causality, foreseeability § questions factual, and thus this rule are derive from and reasonableness which General, v. Inc. Weirum RKO constitute jury. (E.g., questions v. 40, 468, 539 Warner Santa 36]; 46 P.2d 15 Cal.3d (1975) Cal.Rptr. [123 Witkin, Co., 318; 4 of at 44 Cal.2d see Catalina Island Summary p. supra, 492, the chief 2755.) Law ed. 1974) Cal. (8th Similarly, § p. defendant raise affirmative defenses which plaintiffs’ may response S. R. Co. claims, (1869) v. F. & J. S. (Needham contributory negligence v. Oil 409, Cal. of risk 419) Corp. assumption (Hayes Richfield also fact. 375, P.2d are 580]) 38 Cal.2d 384-385 (1952) questions [240 488, 500 Co. 7 Cal.3d v. States Lines (1972) United (See [102 Gyerman 795, Prosser, Law Torts ed. 1043]; (4th 1971) 498 P.2d 447.) p. however, to hold
Until
in cases
which
sought
recently,
plaintiffs
their
to intoxicated
liable for
caused
sale
bartenders7
liquor
injuries
customers,
of bartender’s
the courts did not treat
liability
question
Instead,
the doctrine of Cole v. Rush (1955)
k
of fact.
under
as questiоn
450, 54
our
held that
A.L.R.2d
courts
1137],
stripped exemption statutory law we chose to on the liability: “Although impose liability Vesely defendant the statute, basis of his the clear violating applicable of our decision was that there was no bar to civil undеr import liability modern law.” Cal.3d at (16 325.) negligence p.
Our thus that treat this case decisions we should not prior suggest it because concerns bartender’s sale differently, simply liquor, other case in which claim that defendant breached a plaintiffs however, duty any Defendant, Bernhard of due care. that both and noting Vesely in which third hold bartenders liable involved suits parties sought do not the acts of intoxicated that these decisions purchasers, argues one, Rush, affect the v. in cases like this of Cole application supra, which of the customer himself sue the bartender. representatives concerned, asserts,
Insofar as customer is defendant it still sale, remains true that is the sole liquor, consumption cause of any injury.
This
fails on its face. The
cause fiction blocked
argument
proximate
Rush,
suits
and third
alike.
Cole
by
supra,
purchasers
partiеs
(Compare
Dionne,
If a
find
bartender was
could
that the
jury
only
negligent
reasonably
and that
was also
Ewing’s contributory negligence
negligent,
trial court’s
of course bar
would
justify
plaintiffs’ recovery
*12
If, however, a
find that Lament’s conduct amounted
nonsuit.
could
jury
misconduct,
conduct was
willful
while
merely
Ewing’s
negligent,
579,
(Williams
583
v.
68 Cal.2d
(1968)
could recover
Carr
[68
plaintiffs
305,
be
and the trial court’s nonsuit would
We must also consider Specifically, question assumption evidence, could whether a on the basis of we must decide jury, plaintiffs’ the risk assumed conclude that reasonably only Christopher If of risk is death. acute alcohol the cause of his assumption poisoning, if law, even a a not recover as matter of could thus established plaintiffs to willful amounted could find that the bartender’s conduct jury 129, 135 143 v. (See misconduct. Yee Foon (1956) Dy Cal.App.2d Ching P.2d 668].) [299 declared, beverages “the of alcoholic have even after that Vesely, drinking 8Two courts that to the drinker from cause of results
and not the is any injury serving proximate (Rose Electrical Workers .. v. International Brotherhood his own intoxication. 276, accord, 736]; v. National Railroad Cal.Rptr. Cooper 58 Cal.App.3d [129 541, 1210].) 76 A.L.R.3d (1975) 45 Cal.Rptr. Passenger Corp. [119 cause rest on obsolete proximate that the decisions in Rose and Cooper extent To the fiction, (1976) 57 We of Kindt of them. also disapprove we disapprove Kauffman in that case in the 603], opinion as dicta majority insofar Cal.App.3d (see id., 854-859) of care to their patrons. owe no duty at that bartenders pp. suggest case, Before return to the facts of this final observation is in order, order. Because we a trial review court’s nonsuit we must inevitably a different standard in the conclusions which a apply identifying jury could draw as to the conduct of Lamont As we Christopher Ewing. facts, noted at outset of our statement of we must view plaintiffs’ in evidence its most favorable insofar as case is light plaintiffs’ concerned. in could conclusions Accordingly, considering jury conduct, draw with to Lamont’s we must view Lamont’s conduct regard hand, other as as the evidence will On the unfavorably permit. the conclusions which a could draw Chris- evaluating jury concerning conduct, we in the must conduct most topher Ewing’s Ewing’s regard reveals. favorable which evidence light plaintiffs’ case, 3. In this could conclude the bartender reasonably jury misconduct, while engaged patron engaged only willful conduct. negligent our misconduct, Because here is search for willful inquiry ultimately we state the standard the outset.. miscon appropriate “[W]illful duct the intentional either with implies doing something knowledge, or that serious ais as express implied, injury probable, distinguished result, from a or the intentional of an with a act wanton possible, doing and reckless Carr, of its (Williams v. disregard consequences.” supra, Cal.2d 579 “If conduct is in consideration sufficiently lacking others, reckless, for the extreme, heedless to an and indifferent to rights *13 the then, it of the actual state of thе consequences may impose, regardless mind of the actor others, and his actual the concern for of we call it rights willful misconduct. ...” 606, v. Membrila 234 (Pelletti (1965) Cal.App.2d 588]; see also v. Southern Co. Cal.Rptr. (1941) Donnelly [44 Pacific 863, Cal.2d 869-870 465]; Southern Trans. Co. Morgan [118 Pacific Torts, 1011-1012 Rest.2d 695]; § order to resolve the issue the of bartender Lamont’s willful
misconduct, activities, we set forth the salient of his them aspects viewing in the most unfavorable to him in which a reasonable could light juiy them. regard
Lamont acted in to Chris plainly intentionally serving liquor Ewing. He also acted in rum. Powers intentionally serving Ewing proof Jeny house”; asked for “the drink in the it was Lamont who only strongest Moreover, selected the rum. because Lamont had remove the initially Chris, reshelve it before and below the bar rum from its shelf serving did conclude that Lamont could after each jury reasonably serving, rum of even the last shots of without not serve Chris knowledge drink he was serving. specific knew, He of differences in knew
Lamont significance proof. twice to which Chris was further, that the rum he served anywhere that Moreover, Lamont knew half ordinary liquors. potency again drinker; which an his Chris was only age, probably inexperienced knew, he saw in but Lamont suggested apparent novelty drinking, conclude, therefore, Chris was not could this fact. Lamont fully between the rum and the radical difference in aware of ordinary potency Lamont’s indeed, evidence Lamont’s own Chris warnings liquor; relative of this experience. knowledge disparity drunk; Chris so. Lamont knew that intended to Chris said
Lamont get after also that his own to Chris to take it knew urged warning easy, round, third had without that Chris been effect. Knowing pouring did not of the fully probably comprehend implications high potency of the he was as well Chris’ intent to liquоr drinking, knowing get drunk, concluded, concluded, Lamont could have or should have Chris consume an amount of hazardous to his health. As a might liquor bartender with 11Vi Lamont knew or should have years experience, that, level, known creates certain of alcohol an beyond consumption immediate health hazard. Lamont acted in violation of two at the rules of
Finally, practice Cloverleaf Bowl. He filled the shot repeatedly beyond glasses line, Moreover, in contravention of seven-eighths ordinary policy. Enos, view the Jean he continued to serve Chris after testimony intoxicated, rule, Chris was violation of even manifestly posted arrival, to serve Chris at a after his brother attempted Doug’s point which Chris was conscious. barely *14 a want of
This Lamont’s acts not description suggests merely care, but willful misconduct.9 Lamont acted intentionally, ordinary willful miscon Lamont’s conduct to a could conclude that amounted 9Because jury duct, of Appeal those cases in which Courts case is obviously this distinguishable bartenders. barred their actions against have that contributory negligence held patrons’ cases, (See Rose v. claimed that bartenders acted negligently. In only those patrons 276, 278; Workers, 58 Venzor International Brotherhood Electrical v. supra, Cal.App.3d 209, (1976) 353]; Santa Carlisle Barbara Elks v. Lodge Cal.App.3d Cal.Rptr. [128 587, (1972) 24 v. See also Kanaywer Cal.App.3d Cal.Rptr. Sargent Goldberg 246]. [101 940,944 300].) 25 Cal.App.3d aware of the health hazard created Chris’ relative inexperience continued without for the Cloverleaf Bowl’s standard drinking, regard if which followed would have Chris’ short of practices, stopped drinking its fatal conclusion. We that this is not the emphasize interpretation only rendition that a сould conduct; is, attach to Lamont’s it jury reasonably however, one reasonable interpretation. nonsuit, we
Because review a and therefore view case plaintiffs’ in its most favorable conduct in light, analyze Christopher Ewing’s with contrast our review of Lamont’s acts. benign aspect, sharp drunk;
Chris intended to he did not intend to a consume fatal get overdose of alcohol. man would no doubt have Although prudent into of differences in Chris’ failure to inquired consequences proof, so rises to the level of recklessness. In view of his evident inquire hardly Chris had no reason to know of the of alcohol inexperience, possibility Since Chris’ warned him poisoning. companions drunk, he would he could be have said to acted in reckless get perhaps of the usual of intoxication as such.10 His disregard consequences however, did Indeed, not warn him he would die. one companions, associate, Powers, indicated that he himself had in the Jerry past consumed therefore, of 151 rum. did Chris great quantities proof Plainly, court the risk of acute alcohol recklessly poisoning. sum, a reasonable could conclude that was juiy Christopher Ewing If misconduct, establish defendant’s willful merely negligent. plaintiffs Carr, does not bar (Williams contributory negligence recovery. supra, Here, 68 Cal.2d we have that a seen reasonable could already jury Lament, conclude that defendant’s in willful miscon- employee, engaged duct. Unless assumed the risk of acute alcohol Christopher Ewing the trial court erred in defendant’s motion for poisoning, granting nonsuit. intoxication, 10Even with to the usual respect of fact, consequences question willful patron’s misconduct would be a and thus a matter question ordinarily thаt, For be jury. example, able to show he intended patron may although intoxicated, become he took insure that his intoxicated steps conduct would not himself or others. Were a endanger conclude to make such a patron showing, jury might that, intoxicated, did due although not exercise care in patron becoming patron nonetheless did not commit willful misconduct. We of Kindt v. disapprove 852, that, to the extent that it holds as a
Kauffman, supra, matter of law, a commits willful misconduct sufficient patron necessarily consuming liquor about a bring state of intoxication. *15 case, In this 4. could conclude did reasonably jury patron not assume the risk misconduct since the bartender’s of willful risk to which the bartender’s misconduct specific exposed patron was not one which the patron appreciated. that,
Defendant willful argues notwithstаnding any possible bartender, its trial could misconduct court nonetheless part defendant’s motion for nonsuit on properly grant theory assumption In of risk. of this defendant refers to two cases support argument, held which Courts have that bar who Appeal patrons knowingly risk, law, intoxicated become assume the as a matter of various to which their intoxicated state renders them vulnerable. (See dangers Workers, Brotherhood Electrical Rose v. International supra, of National 276, 279-280; Railroad Corp. Cal.App.3d Passenger Cooper 541, 76 1210].) A.L.R.3d 393-394 (1975) Cal.App.3d see, however, we shall cases are relevant here. As these to recover defendants in order In sued compensation plaintiff Cooper, make while to incurred from fall which attempting plaintiff injuries com- train. Plaintiff’s on board defendants’ of restroom facilities use when bоarded an state she that she was in intoxicated alleged plaint intoxicated, train, that, was defendants’ but she obviously although train. The her further drinks on board the defendants nonetheless sold The Court of trial court sustained defendants’ demurrer. general Appeal trial insofar it affirmed the court’s order as theory rejected plaintiff’s at a were sold her time when she defendants because liable they liquor and in the server is was intoxicated. obviously though negligent “[E]ven to an violation of law serve alcoholic continuing beverages by drinker, action . . . intoxicated the drinker’s cause of is barred obviously risks incident his known and voluntary conspicuous by assumption in bars. of alcoholic [Citations omitted.] consumption beverages that the is the of these risks One known conspicuous possibility the drinker’s will fail bartender obviously recognize negligently omitted].) 393-394 condition.” (45 intoxicated pp. [fn. Rose, an individual killed in survivors of who was an automobile defendant, sued claim-
accident after defendant’s shortly leaving picnic, that defendant the decedent had furnished ing negligently intoxicating while The trial he was a state of intoxication. obviously beverages court sustained defendant’s demurrer. the Court of Cooper, Relying upon affirmed, that “the cause of action barred drinker’s is holding Appeal *16 406
his of a known risk...(58 voluntary assumption Cal.App.3d p. are, do facts, We not consider whether and Rose their Cooper Rather, the case at hand. we conclude that the court distinguishable Rose, in and the court thus in characterized the rules Cooper, incorrectly which define whether or not assumed risk. plaintiff Accordingly, these cases cannot control here. the erred court on the
Specifically, Cooper focusing exclusively conduct which creates the risk. “a if he is Certainly, person, fully informed, assume risk even condition is may though dangerous caused of others.” v. (Prescott Co. by negligence Grocery Ralphs 158, 42 (1954) Cal.2d 162 an individual also 904].) Perhaps may [265 context, however, assume risks created willful misconduct. In this by of defendant’s is not the ultimate issue: degree instead, culpability simply hold,
as our cases
to determine whether there is a
repeatedly
risk,”
of the
we must
“voluntary acceptance
identify
specific “danger
involved,” and
individual’s
“knowledge
judge
appreciation”
Co.,
that
v.
(Prescott
danger.
Grocery
Ralphs
supra.)
“To warrant
of the doctrine
application
assumption
[of
must
evidence
show that the victim
appreciated
specific
risk]
involved.
does not
He
assume
risk he does not know or
danger
any
apprеciate
____Stated another
before the doctrine is
the victim must
way,
applicable,
have
of a
but must have
only general knowledge
danger,
knowledge
is,
of the
that
of the
of the risk
particular danger,
knowledge
magnitude
v.
(Vierra
involved.”
Avenue Rental
266,
Service
60 Cal.2d
(1963)
Fifth
193,
accord.,
271
As have the facts of this as already plaintiffs them, refute both alternatives. Plaintiffs’ evidence developed suggests that was an drinker. As Christopher Ewing inexperienced plaintiffs’ shows, evidence both the bartender Lament and the waitress Diane Kerr Chris conclude, therefore, naivete. We cannot recognized Ewing’s case, their own established plaintiffs, defen- presenting conclusively dant’s claim of conclude, of risk. Nor can we assumption light evidence to the that it must bе case plaintiffs’ contrary, necessarily that all consumers of of 151 rum know of their great quantities proof we hold that the trial court’s nonsuit is not peril. Accordingly, justified of the risk. upon theory assumption Conclusion,
5. case, an vendor of
In this commercial liquor, experienced before, him had bartender, that the standing youthful patron knowing in the course customer served become day, young years age in the drink of the and a half hours lethal of one “strongest quantities the trial court Yet died of acute alcohol house.” The poisoning. youth an based around this an armour of upon cast entrepreneur protection his own intoxication rule that a who suffers inflexible injury patron reckless the bartender, or no matter how recover from a cannot negligent of the Even conduct be. young bartender’s assuming negligence may the- on the find willful misconduct could well рart jury very patron, bartender; remove the bar of such conduct would contributory negli that, while A well conclude contributorily could also very gence. jury alcohol the risk of acute did not assume the youthful patron negligent, death. the risk of his own poisoning, motion, for nonsuit. defendant’s
The trial court erred granting is reversed. judgment Sullivan, J.,* Manuel, J., Mosk, Richardson, J.,
Bird, J., J., C. concurred. by under assignment Court sitting *Retired Associate Justice of Supreme the Judicial Council.
Chairperson CLARK, J., Like the I am too moved Dissenting. majority, who, sober, two minor of a man visited sons cold young tragedy upon out to drink himself into oblivion.1 sets intentionally Unlike the I cannot conclude that a bartender who majority, negli- *18 the drinks ordered shall be liable to gently—even recklessly—sets up himself. While who intentionally injures reaching patron sympathetic result, the is destined to create unfortunate law.2 majority’s paternalism factual, are the issues us cross-
Because essentially concerning the record is as it relates to illumination revealing, particularly misconduct. Ewing’s drink in bar, to consume went to the strongest challenged
Ewing witnesses, drink 10 bet he could the house. to Ewing According plaintiffs’ friends at the bar in the shots of rum.3 Arriving company 151-proof intentions, 21 I’m not even drunk.” stated: “I’m and aware of his Ewing Powers, A drink was served with a statement Ewing 151-proof friend, Friend that it would make him drunk. bartender off-duty Ewing’s drink, warned that it was a and the bartender Whitlock also strong drank two in immediate characterized it as a drink. Yet Ewing powerful wait a few At cocktail waitress he succession. this point suggested after minutes and he would become drunk. But he drank a third surely warned, “Chris, catch the bartender táke it on this stuff. Its to going easy with and knock for a up you you loop.” 1This action in behalf of the is their mother. The dissolution of her minors brought by death, to had become final before his she marriage Christopher Ewing had shortly although from him 15 months earlier. She testified he was a fond separated approximately and he his children whenever she them to his home so parent could exercise visitation brought parents’ enjoyed However, he never contributed to the children’s rights. support wife, after children welfare. With from his one separating supported being he visited the children when were to him. possible exception only they brought course, Mr. if is not But his heirs are entitled to recover Ewing, being compensated. action, in a death then he too would be entitled to recover for wrongful personal injuries then, suffered had medical in his intervention resulted survival. In net effect prompt would condone an award of lifetime for an imbiber who succeeds majority in only support his nеrvous The same drinker who falls off his bar permanently damaging system. stool his arm must under the also be injuring drinking compensated majority’s holding. was with Such bet claimed have been made Powers who denied Jerry having sister-in-law, friend, Enos,
made it. to the Jean Deborah both testified Ewing’s girl Ewing, friend further to the was wager, girl testifying pursuant wager, Ewing to, fact, Whitlock, and did in consume the drinks in an hour. required Lloyd engaged sister, also so testified. Ewing’s third, moved his friend’s table where she asked After the girl Ewing He he be all that fast.” would him to right, drinking replied “stop to the bar. immediately returning succession,
After four more of the same returned to his quick Ewing and, friend’s table while he to be intoxication girl appeared experiencing drunk, her, admitted to a little he he being again ignored insisting bar, would be all to the he had three more of the same. right. Returning drinks, All 10 to his friend’s were consumed in according girl testimony, an hour to minutes.” “[h]alf hold—the bartеnder’s actions constitute
Assuming—as majority misconduct, willful such is not actionable if either committed willful misconduct Rathbaum (see Cawog *19 P.2d or assumed the risk of acute alcoholic 1063]), poisoning [331 (see Yee Foon Ching v. Dy
668]). misconduct, the issue of willful the addressing majority gratuitously and drunk, hold that while intended to his inexplicably Ewing get conduct (Ante, 404; rises to the level recklessness.” italics “hardly p. of But added.) the record He with friend his compels opposite. wagered to drink 10 shots of the drink in the house—all in an hour. He strongest won that—his last notice he was not “even drunk” wager—after serving at the of his He was warned both beginning drinking orgy. initially friend and bartender of the warned after two drinks beverage’s potency; waited; he be would drunk if he warned the bartender only again by stuff”; before the third drink it to “take on this warned his easy again by drink; friend to slow down after the third and after the seventh girl drink, further returned for three more. notwithstanding warning, By what standard claim this conduct was not reckless as a may majority matter of law? willful, hand, On the one hold the bartender’s misconduct majority “ ‘the of either with intentional
constituting doing something knowledge, or as from a that serious is injury probable distinguished express implied, result, a and or the intentional of an act with wanton possible, doing ” other, On the how (Ante, reckless of its disregard p. consequences.’ it as a law did out can be said matter of not set intentionally to consume 10 with that serious drinks was knowledge injury probable? did he consume the alcohol with not Alternatively, intentionally are The for answers wanton reckless consequences? disregard obvious. bartender,
The take The comfort an easier home. majority along path is of willful misconduct because of his they say, guilty superior rule, and from after a motion knowledge reviewing judgmеnt for nonsuit has been that all must be construed granted, testimony do toward toward defendant. But we favorably plaintiff unfavorably in not who was more this bout. Ours is not judge culpable drinking distinctions, of fine fault. of the Regardless process weighing majority’s are relief if was willful not entitled to misconduct Ewing’s plaintiffs within established standards.4 meaning has been in recent for its criticized failure judiciary justly years conduct, on one whether place liability truly guilty irresponsible reckless, willful, case, criminal or drunken. In this we not negligent, only relieve true for but reward him wrongdoer liability nobly who, someone while neither nor succeeding fingering originating misconduct, the course of became the instrument encouraging paving to destruction. path decision. effect the societal today’s concern I am alone my *20 the matter instant judgment process During appellate District, Division of First the Court was аffirmed Appeal, nonsuit by “ ‘The must be Justice Rouse’s quoted: A of good Two. opinion portion cries out for self-control reason and preservation inestimable gift each devolves its upon preservation duty every person, to and the of reason the restraint ability When of the member public. conscious, act are self-indulgent for one’s self care perverted no casts those off which powers, intoxication temporarily voluntary is social or nor violation or policy societal public personal wrong, his for alone held answerable violated if the actor is or accomplished willful we not whether are plaintiffs 4Because misconduct was need consider Ewing’s deceased risk of reason that the assumed the clearly for further precluded recovery “the conclude the risk was assumed becаuse acute alcoholic poisoning. majority risk,” i.e., was he the risk of to which was not one exposed, poisoning specific could conclusion, fail to consider again such appreciate. reaching majority who him he would become advised cautioned undisputed warnings. relevant Everyone after Yet he consumed four to five times drunk two drinks. recklessly or.three alcohol, he he “all Even after he was drunk would be stating admitting amount right." more, him if he had then been three alcohol make drunk consumed to enough quickly sober, it he had How can be to all information received. according completely law, stated, even as a matter of did not assume Christopher knowingly objectively the risk of acute alcoholic poisoning? . . . [f| . Governmental from their injury paternalism protecting people own conscious individuаl and is to fosters folly irresponsibility normally be .... To another and allow discouraged yet go step monetary recovery to one who becomes intoxicated and himself is knowingly thereby injures ” in our view indefensible.’ morally
Justice Rouse in turn from of the Court of an Appeal, quotes opinion Third District. In Kindt v. [129 Kauffman for the court affirmed a for den.), (petn. hg. judgment 603] sustained, defendant tavern after the trial court had without leave keeper amend, the demurrer to a defendant had served complaint alleging an intoxicated who himself while liquor obviously patron, injured court, his car. The Kindt that alcohol is driving noting responsible “the from automobile accidents” devastating highway carnage resulting stated: be done conceivable should “Everything reasonably discourage it, such should done to be activity; conversely, nothing encourage A rule of here could have no other particularly by judiciary. liability effect than to them to excessive possible upon patrons encourage liquor at taverns. Forthwith announcement of rule of consumption upon law which a drunken to recover for his own permits patron damages from the tavern have who heretofore felt injuries keeper, patrons concern for their intoxicated, own should become will safety they overly efforts, relax First, their for three reasons: personal readily apparent because will assume that the bartenders will exercise care they greater behalf; second, their because will feel that if are they very naturally they hurt; hurt will third, we, be for such because they compensated will in effect have their judiciary, encouraged overindulgence, by their (Id., pampering delinquency.” p.
This court has
the same concerns. In
Cole Rush
previously expressed
(1955) Cal.2d 345
A.L.R.2d
death
1137],
wrongful
*21
action, we affirmed
for
a
defendants after the
judgment
sustaining
demurrer to a
had
defendants
furnished
complaint alleging
negligently
to a
his death. The court’s
intoxicating liquor
patron, causing
principal
concern
case was the
new rules
propriety
announcing
conduct and liabilities
a matter for the
governing
normally
Legislature.
make,
contrast
to the
court’s
to
sharp
present
through
proclivity
nature,
a
the Cole
decisions of
judicial pronouncement, policy
legislative
court
concluded it was not
to do what this court
properly
empowered
'does
also Kindt v.
(See
cavalierly
today.
Kauffman, supra,
851;
Airlines,
also see Borer v.