Fischer v. Cooper

of evidentiary treating physician submit test the peacefully was informed preclude law enforcement opinion. should not this his making probable cause seizure of It is physician true that the testified Schmerber, the United blood. States Woolery that opinion trial he was of the Supreme recognized Court that a warrant- However, he did not testi- was intoxicated. driver, long less as seizure blood trial, of fy, even at that he told the officer probable as cause exists and the withdraw- not opinion. this The officer did indicate of in a al the blood is done reasonable report had informed physician his that the fashion, provisions of comply does with the opinion Woolery him that was intoxi- in his Thus, prob- the amendment. fourth where cated, in his nor he this testimo- include evidentiary test able cause exists and the did not ny at trial. The trial court refer manner, was in a reasonable conducted physician’s opinion one of cir- complied or not officer whether cumstances it took into account conclud- provisions 18-8002(3), re- I.C. § probable that the officer had cause evidentiary sults test should be ad- Woolery’s order test of blood. prosecution. In de- in a criminal missible Woolery’s suppress nying motion in- proof physician Without that cogently explained: court district formed the officer his that Wool- and A of I.C. 18-8004 review intoxicated, ery my view there implied shows consent 18-8006 finding support not sufficient evidence to driving language concerns the crime of probable this cause. would reverse on does control under the influence and not ground. gathering evidence restrict defendant other criminal statutes. The charged with vehic- separately been manslaughter

ular I.C. § prohibit of Ida-

which does State legal obtaining ho from evidence in way facts possible. A review FISCHER, Represent- As Personal Wilma suffi- deputy sheriff had Shows Lloyd ative of Estate of and on Cori that a probable cient cause to believe Behalf of the Minor Children of Cori manslaughter charge vehicular Lloyd: Lloyd Lloyd, Alan and Alicia probable in this the defendant was case____ Plaintiffs-Appellants, This does not believe court ability of 18-8002 restricts the I.C. § police obtain officer to evidence COOPER, Individually Marilyn and the J. To allow a of I.C. violation Community Consisting of Mari- Marital to refuse to submit to evidence defendant Cooper; lyn Doe J. and John crime vehicular on a more serious Watson, Individually, Mi- Christine intent manslaughter not within the Watson, Individually, chael ... Community Composed Marital affirmed. Conviction Watson, and Michael Christine Watson McFADDEN, BISTINE, J. and Defendants-Respondents. Tern., Pro concur. C.J., BAKES, in the result. concurs Bisher, Perry Individually, W. Justice, JOHNSON, dissenting. Defendant. officer concludes that the No. 17065. Woolery’s blood probable to have cause major part of the evidence of Idaho. Supreme tested. A reaching this relies which the June opin- treating physician’s is “the conclusion to concur I am unable ion of intoxication.” conclusion, majority’s because with the the officer does indicate

record Ausey

Marilyn Cooper. J. and John Doe Robnett, argued. III, H. Annis, d’Alene, for de-

Lukins & Coeur fendants-respondents, and Mi- Christine Hosack, argued. Watson. chael Charles W. BISTLINE, Justice. brought wrongful

This death action personal representative of Cori Lloyd on of her and behalf estate two surviving children, Lloyd minor Alan and Lloyd. Lloyd injuries Cori died from Alicia automobile/motorcycle in an col- sustained County lision that occurred Kootenai May Marilyn Cooper and

Robert owned and operated prior Inn Rainbow Febru- 21,1984. ary Marilyn had obtained beverage renewal her retail alcoholic authorizing license her to sell alcoholic bev- erages February at the Rainbow Inn. On 21,1984, Coopers, having filed earlier petition bankruptcy, into a entered lease/option purchase agreement with and Michael Christine Watson under the posses- terms which the Watsons took estate, fixtures, sion the real inven- tory of the Rainbow Inn. The Watsons employees operated hired their own lease'provi- business as a tavern under the agreement sions date May 17, through 1984. The were in the involved busi- possession. ness took It after Watsons however, apparent, only liquor premises, for the which it operated, Marilyn was in the name Cooper. May patronizing On after Inn, Perry Bisher tavern left the high- and drove his motor vehicle on state way headlights 53. Bisher’s were not working time, approximately p.m., at the but Bisher there believed was sufficient remaining daylight in which to home. drive motorcycle Lloyd Cori passenger pulled pass vehicle out a third Wash., Dyreson, ar- Jerry Spokane, T. oncoming light-less and collided with the d’Alene, for gued Arney, W. and Pat Coeur Bisher vehicle. plaintiffs-appellants. respondents Coopers and Watsons Miller,

Paine, Hamblen, Coffin, respective summary judg- Brooke & filed motions for Judge d’Alene, Judge Magnuson. Mag- defendants-respondents, ment Coeur Henry, granted Coopers’ opinion, Bergman v. nuson motion for more recent they (1988), summary judgment on basis that wherein any power effectively retain control over- it is stated that activities, Watsons’ and therefore had no 262-63, 766 ruled Idaho at Meade. 115 opportunity prevent to the harm holding of P.2d at 732-33. The central appellant’s Judge Magnu- complaint. Bergman is does cause action “[A] son determined that could not be spirits for lie a licensed vendor Coopers solely imposed on the on the basis continuing negligently to serve alcoholic that the license to sell at the Rain- alcohol beverages obviously intoxicated to an Marilyn bow Inn in the name of Coo- 732. adult.” Idaho at 766 P.2d at per. serving Alegría imposed liability for Since granted minor, The trial court also Bergman imposes liability Wat- for a on judgment adult, sons’ motion for obviously no service to an intoxicated not, time, basis that Idaho did at that rec- part Berg- of the rule of remains. Meade for ognize an action common law bar man overruled Meade. operator liability persons

owner or to third patrons why no an injured by intoxicated bar. We see reason unlicensed seller, recognized that our operating The Court here a tav the Watsons Act,1 Shop passed ern, since a Dram but escape liability imposed should no ruled that the statute had retroactive of, upon, duty required of care a effect. guarded to licensed seller. The hazard be same, unleashing an against is the that of appeal requires This us to address the upon obviously intoxicated adult or minor following issues: highways. Bolstering this view 1. Whether the trial court erred 23-603, -605, very Idaho Code two granting summary judgment to the Wat- broadly pro statutes of which worded both recog- on Idaho did not sons the basis that punishment as a for vide for misdemeanor against a vendor nize a common law action obviously a intoxicat service to minor or party on injuries for to a third alcohol by any person: ed adult May 1984. Disposal to minor. Idaho Code 23-603. § erred in 2. the trial court Whether sell, give, shall or person who Any fur- to granting summary judgment the Coo- sold, nish, given, be or or cause to fur- pers Coopers on exer- the basis that the intoxicating liquor to alcoholic or nished operation over the cised no control age years, person of 21 ex- under the Inn, though Marilyn Cooper even cept purposes, shall for medicinal be Inn’s the record holder of the Rainbow A second or guilty of a misdemeanor. liquor license. subsequent this section violation of defendant shall constitute the same I. added.) (Emphasis (Supp.1988). felony. recog ruling Idaho did not Disposing to Idaho Code § against a vendor nize a law common action sells, gives or Any person who party liquor injuries a third drunk. — intoxicating any alcoholic dispenses incorrectly May the trial court who is intoxicat- another Freeman, upon relied Meade v. apparently intoxicated shall be ed or court rea (1977). (Em- guilty of misdemeanor. Payonk, Alegria soned added.) phasis (1980),merely created prior rule exception Thus, Watsons, this case must in Meade. established applica- court for remanded to district Henry rule tion of the However, agree with Justice John- we noted in the Court’s above. special concurrence son’s (Supp.1988). I.C. § discharge applicant faithfully ii. (citations imposed on him duties or her. grant The trial court also erred in omitted). personal nature Finally, the ing summary judgment liquor by the drink privilege to sell they the basis that exercised no control reading clearly can most be seen tavern, over the even pertinent which states though Marilyn Cooper was the record that, part “[ejvery license issued under holder of the Rainbow Inn tavern’s provisions separate of this act is recently license. This Court has and force person except distinct and no the licen- fully operate reaffirmed that the except herein oth- see therein named pursuant liquor per tavern to a license is provided shall exercise erwise sonal to the record holder of license. of privileges granted thereunder.” Ahlin, 364, Uptick Corp. In v. among the (1982), Bakes, right The to renew is included speak 647 P.2d 1236 Justice four-judge privileges appurtenant liquor to a for wrote: privilege is exercised and is a which to be purpose The of the Retail Liquor- Sale of exclusively by the named licensee. To Act, by-the-Drink seq., I.C. et persons hold otherwise would enable health, protect is to welfare and safe- subjected who have not to ty people themselves of the of the State of Idaho and promote and encourage temperance scrutiny approval the di- of (citations beverages, Department the use of alcoholic rector Law En- omitted). person wishing A acquire to obtain a an interest in a forcement liquor application license must submit an policy license and circumvent the Enforcement, Department of Law only qualified persons act that own li- setting applicant’s qualifica- forth the rights censes and exercise thereunder. tions and statements and information rel- 368-369, 103 Idaho at 647 P.2d at 1240-41 premises ative to the the liquor where is added). (emphasis Only to be sold. after § Thus, unequivocal language clear and investigation applicant and a de- Uptick only Corp. establishes that named ap- termination that the contents of the may operate authority licensees under the true, plication applicant nothing the license. There is qualified premises and that the are suit- record, and the have made no able, director, discretion, may the in his claim, finding Cooper to sustain a that Mrs. issue a ap- license. I.C. 23-907. This § liquor transferred her license to the Wat- plication procedure procedure and the pursuant requirements sons of Idaho liquor to be in transferring followed statutes. The relevant statutes must be licenses, see I.C. makes it McBride, Thus, complied supra. with. clear that the painstakingly escape responsibility Mrs. cannot attempted depart- to ensure that oper- for the activities of a tavern which is complete ment have control over who ated under a license issued to her on her license, may liquor own a and that application. only persons depended who could be upon support position for this policies to advance the the act We find from jurisdictions. Legrue, were entitled to a license. Alesna v. 614 (Alaska 1980), very P.2d 1387 close factu- Nampa Lodge No. 1389 B.P. O.E. v. ally There the court to the instant case. 212, Smylie, 71 Idaho 229 991 summary judg- appeal of a (1951), reviewed recognized per this Court dismissing complaint against ment sonal nature licenses and licensees of a restaurant and bar. The trial privilege per stated that a license is a court held that the licensees were not vicar- sonal to the licensee. See also McBride 350, iously employees liable for acts of on the 84 Hopper, premises. appellate court spirits by retail reversed sell judgment may the director’s and concluded that licensees is conferred ability qualifications civilly held liable for violation of Alaska’s 378 therefore, clear, the trial A previous decision It laws. case, motion

contrary granting That cited was overruled. was in error court Magnuson, upon by Judge negligence judgment to and relied on the for per- reasoned that it unfair hold plaintiff’s complaint count ... for acts civilly son liable 761, Ill.Dec. Amato, Ill.App.3d Hix v. Lund, 568 could control. Barton v. not 762, 767, (1977); ac 365 N.E.2d (Alaska 1977). The court Alesna cord, Corp., Ill. Del Woodward Pro overruling that: stated App.3d 381 N.E.2d 847 21 Ill.Dec. a licensee unfair hold [I]t Williams, (1978); Ashbaugh v. see also oper- responsible for the establishment’s N.M. 747 P.2d though ation the licensee does not even (“There is a rational basis full day-to-day have actual control of the might otherwise insulate licensee who licensee, whether functions. accountability or herself from himself control, from in actual derives benefits passes profits to the through a lease that enterprise. The free to licensee is irresponsible les lessor/licensee assign or not to those choose whether see.”); Allen, v. 449 So.2d 388 Santiago operational relinquish and to benefits (Fla.App.1984). Coopers The cited us have fraught In a business so with control. contrary research authority to no and our interests, public a licensee should not Therefore, none. the order disclosed enter- be to the the entitled benefits granting summary judgment to the Coo responsibili- prise, be the yet relieved of reversed, pers and this cause re is also away. merely contracting them ties proceedings trial court for manded to the approval to a the board Without opinion. with this consistent the transfer, there is no assurance that with directions. and remanded Reversed responsible. purchaser will be appellants. Costs to supra, 614 at Legrue, Alesna v. P.2d added).2 (emphasis JOHNSON, JJ. HUNTLEY and applying Illinois Appeals, concur. same reasoning, has reached the similar an Illinois result. The court noted that JOHNSON, Justice, concurring is liquor license a provided statute that specially. personal could not be purely privilege and opinion I in of Justice Bistline concur the statutory compliance: without transferred However, goes. apply I so far as it would conclude, as a matter We therefore retroactively, suggested as I the decision cannot, law, liquor licensee Henry, Bergman done in should be shop allowing his leasing the dram 729, 259, 261-62, operate under lessee to J., (Johnson, concurring specially). license, (an liquor act lessor’s law), himself of the contrary to divest in BAKES, Justice, concurring Chief opera- obligation properly control dissenting part: part and shop. facts Under the tion of the dram majority I of Part concur the instant case we conclude grant the trial court’s which holds that Amato, irrespective of that defendant Wat- judgment in favor of the Galloway, un- any agreement with sons, owners/operators of the who were the Three Crown duty to control the der the exces- allegedly served tavern and who long operated under as it was Room so Bisher, Perry tortfeasor license, spe- sive alcohol his (Amato’s) liquor his remanded and the case must reversed cific sanction. is issued. The for which the license ness our Idaho Code similar to Alaska has statute statute, solely responsible provides: for the lawful AS 04.10.180 licensee under this licensed of the business personal superintendence. conduct Financial interest title, except provided in this title. shall have a than licensee No busi- in the financial interest direct or indirect proceedings. liquor for further That result fol- Inn license after the Rainbow sold, stating, ante at 377, P.2d at lows from our recent decision in 1219, Cooper escape “Mrs. cannot re- Henry, 259, sponsibility for the activities of a tavern operated which is under a license issued II, however, As respectfully to Part application.” majority her on her fur- Although majority correctly dissent. states, ante at 1219, ther 775 P.2d at recognizes that the issue in II Part operate pursu- “that a tavern granting “whether the trial court erred personal to a license is ant summary judgment Coopers on the though license.” record holder of the Even Coopers basis that the exercise no control only Cooper’s Mrs. license was issued Inn,” over the of the Rainbow her, though and even states ante at 775 P.2d at it then errs personal to the hold- that a analysis in its of the issue. As the affida- record, majority, er of without ex- Coopers vits of the and other filed evidence planation, summary judgment reverses show, with the trial court sold Cooper, apparently as to both Mr. and Mrs. February Inn on both Mr. and Mrs. finding Cooper liable retaining power to control the Watsons’ Cooper’s under Mrs. license.3 The subsequent activities to the sale. Under notwithstanding holds Mr. liable its scenario, pos- the Watsons then took “only conclusion that named licensees [here session of the Rainbow Inn and its invento- Cooper] may operate Mrs. au- ry, employees, hired their own and com- of the license.” Ante thority menced of the business as its P.2d at 1219. They oper- owners. continued to own and theory holding Coopers Neither for the business, Coopers’ ate the free of the con- majority sup- liable advanced the is supervision, through May trol or ported by the law or the facts: the Bisher/Lloyd the date of the accident because, theory “control” fails as is ex- spawning Accordingly, this action. under above, plained Coopers the exercised no sale, the actual terms of the and consistent actual control over the Watsons’ actions operandi, Watsons’ modus the with the 21, subsequent February the on to sale Coopers opportunity prevent had no the to 1984; (2) holding Cooper Mr. liable on appellants’ complaint. harm in the Cooper’s liquor fatally Mrs. license is They simply had no connection the with because, majority the flawed as acknowl- 21, February Inn after its sale on edges, operate pursu- “the to a tavern 1984. The had the business been sold and personal ant to a license is Coopers control, exercised no either con- license,” record holder of the which here structively legally, or over the Watsons If, Cooper only. majority as the was Mrs. Therefore, subsequent to the sale. there is states, Cooper “Mrs. escape respon- cannot legal holding for Coopers basis the lia- sibility for the activities of a tavern which grant ble and the trial court’s of the Coo- her operated issued to on pers’ summary judgment motion should be 377, ante her P.2d at application,” affirmed. added), (emphasis upon then what ba- Nevertheless, summary majority purports majority the sis does the reverse the Cooper? Cooper judgment Mr. sim- as to Mr. Since the hold both and Mrs. liable judgment reverses the ply Cooper because Mrs. continued to hold ORDERED, AND granting Coopers’ ‘IT IS HEREBY ADJUDGED The court’s order mo- and causes of ac- DECREED that the claims summary judgment part as tion for reads in plaintiff capacity in his as tion asserted follows: personal representative of the Estate of “This matter came before the for hear- court Lloyd of on behalf of the minor children Cori Marilyn Cooper defendant and de- J. Lloyd, Lloyd, Lloyd Alicia Cori against Alan Summary Cooper’s Robert fendant motion for Marilyn Cooper and de- defendant Judgment____ hereby Cooper Robert dismissed fendant prejudice." with Cooper’sliability, minor, Mr. and Mrs. as to both that it constitutes cants to legal something rationale has to be of exception to the otherwise rule Meade imposed liability than the claim Freeman. who “the holder record opportunity This Court next license,” because Mr. of dram question address the common law According- “record holder of the license.” shop liability in case of Estates in Idaho ly, theory holding neither Pete’s, Inc., 108 Idaho Braun v. Cactus of liable under this scenario is based law or (1985). The there Court grant

fact trial court’s sum- Appeals reversed decision the Court judgment mary as both Mr. and Mrs. purported expand which would have Cooper should affirmed. be shop liability in Idaho. common law dram expand this to so Therein Court refused SHEPARD, *, dissenting. Justice shop liability, holding dram that such deci- Bakes, portion agree with that necessary sion since the case C.J. which dissents. further dis- actuality presented only a conflicts of law disagree what I view an sent and as question; i.e., Idaho Ne- law of unnecessarily truncated discussion of the disposition of the It vada control the case. issues. controlled, was held that the law of Nevada shop liability issue dram Idaho recognize did not and Nevada law common Freeman, 93 was addressed in Meade v. liability. shop law dram (1969). There a question rejected majority of the the assertion The Court next addressed Court shop Bergman common law dram show in Idaho in dram imposed in Idaho in the absence should Henry, 115 Idaho 766 P.2d specific large portion statute. opinions dissenting in Meade were two appears relied the decision of have argument early devoted to the Appeals Brawn the Court Estates of statute should be considered Pete’s, Inc., Idaho v. Cactus still then effective. noted, (1985), previously which as by was later this Court. Of overruled years Alegria Some eleven later in however, importance, is the more conclud- Payonk, 619 P.2d (1980), Court, personnel, ing paragraph “majority” opinion this with different exception holding Bergman a to the that carved narrow wherein it stated “finally, in Alegría legislature v. Freeman. given Meade that the Idaho fact plaintiffs alleged carefully noted that “that act, subsequently passed shop a dram sold, dispensed served and alco defendants only apply prospective- shall today’s ruling notwithstanding beverages Payonk, holic is, ly, only to this case and other that knew should have that defendants arising subsequent Sep- causes action legal Payonk that was under known 20, 1988, yet which have come tember drinking age years nineteen ...” and judgment.” to final actually, apparently, and that he knew was Henry, it is well noted in In further obviously intoxicated. The Court Bakes, dissenting opinion of J.: noted, presented “the narrow issue opinion does not state wheth- The Court’s of alcoholic whether this state sale overruling or not it is Meade v. Free- er beverages by licensed of such a vendor opinion man, supra. majority mere- beverages actually and apparently an states, see no reason for distin- ly “We obviously person known to be intoxicated serving liquor mi- guishing between to a contributing can be actual and minor obviously when either is nor and adult my proximate damage cause of the ...” Does that statement mean intoxicated.” view, opinion makes clear Alegría that Meade is overruled? through emphasis its sale of intoxi- * SHEPARD, J., prior fully and to his participated decision death. sat 115 Idaho at type P.2d at 734. The Idaho. I.C. § Bakes, goes provides dissent on to state: as follows: (1) legislature finds that it is not the opinion recognizes While the Court’s furnishing beverages of alcoholic that is legislature passed that the Idaho proximate injuries cause of inflicted act,” shop “dram effective by persons intoxicated and it the intent April recognize it fails to therefore, legislature, to limit legislation narrowly is more drafted liability; pro- and social host and tailored than the Court’s broad state- vided, finds that the ment that see no reason for distin- “[w]e furnishing of beverages may alcoholic guishing serving liquor between to mi- proximate injuries constitute a cause of nor and an obviously adult when either is persons inflicted intoxicated under the intoxicated.” (3) circumstances set forth in subsection 115 Idaho at 766 P.2d at 734. of this section. suggest today’s opinion internally inconsistent. The ma- person A who has injury, suffered jority suggests first that it makes no dif- damage death or caused license, ference who held the actual person, intoxicated may bring a claim or alleged holds the actual dispenser to liabili- cause of action any person who ty. the next breath the tells [In sold or otherwise furnished alcoholic bev- us that the important, license is all and will erages if; person, only intoxicated be used to potential liability determine the (a) The person young- intoxicated of the license holder.] legal age er than the consump- for the suggest I next that the majority citations tion of beverages alcoholic ... or of I.C. 23-603 and inapplica- 23-605 are (b) The person intoxicated was obvi- ble the instant case. Both statutes are ously intoxicated at the time the alco- precisely worded to make criminal the actu- beverages furnished, holic were sold or giving al or dispensing of alcoholic bever- person and the who sold or furnished ages to minors or drunks. I view both beverages the alcoholic ought knew or carefully tailored, statutes as know reasonably to have known that in- of no rule of law which apply would vica- obviously toxicated intoxi- rious criminal who cated. part no of such service to a drunk, and in fact had part opera- (5) No claim may or cause of action tion of the tavern. brought per- under this section As correctly noted by today’s majority son who sold or otherwise furnished alco- opinion, the LeGrue, facts of Alesna v. beverages holic person to an intoxicated (Alaska 1980), are similar to the person bringing unless the the claim or instant case. The Supreme Alaska person cause of action notified the who deed hold may that licensees be held sold or otherwise alcoholic furnished civilly liable for violation of Alaska’s beverages person to the intoxicated with- However, laws. today’s what eighty days one hundred does not tell us about Alesna is that that the date the claim or cause of action decision was based on specific Alaska arose certified mail that the claim or providing statute that a “licensee is (Em- brought. cause of action would be solely responsible for the lawful conduct of added.) phasis the business licensed under this title ...” view, my In by the enactment of that Today’s majority does not base its decision legislation legislative govern- branch of any statute similar to that relied ment has amade conscious to oc- decision by the Alaska court in Alesna. cupy shop liability the field of dram 1986, rightly

In or wrongly, legisla- our previously has specula- been an arena for ture made a decision codify previous dram tion and indecision caused It is also clear of this Court.

decisions is now shop cause action

me that a dram a minor has to the situation where

limited served, person obviously who is or a

been liability

intoxicated, and in event sold or to “the who

is restricted beverages.” sug- the alcoholic

furnished twenty past

gest that this Court for diversity opin-

years engaged policy in most desirable social

ions as to the dispensed alco- against vendors who

claims my In beverages tort feasors.

holic

view, legislature has now made clear policy the state of Idaho public

what the liability dispensers regarding the view, beverages. my today’s

alcoholic giant step majority is a seek-

opinion of the liability upon other- potential to find If the trend people. innocent

wise continues, suggest that retail wine, of beer and wholesale vendors Liquor Dispensary,

together State of their provisions

had best look to if assuredly policies, for insurance stands, shop type

today’s decision expanded as such

liability will be further brought Perhaps to this Court.

cases are by this Court will be achieved

the ultimate found and brewers will be

when distillers the basis that a similar

to have their

they have known that knew or should being dispensed by ultimately

spirits suffi- liquor stores without

bartenders or sobriety age

cient attention customers.

their Kehne, Boise, defendant-ap- Rolf M. pellant. Plaintiff-respondent, of Idaho STATE Boise, Jones, Gen., Atty. plain- Jim Stahman, Dep- Myrna tiff-respondent. A.I. WRIGHT, Lee Laura Gen., argued. uty Atty. Defendant-appellant. No. 17033. HUNTLEY, Justice. of Idaho. Supreme Wright appeals her conviction Laura Lee 13, 1989. June of lewd conduct with a minor on one count sixteen, felony, charged jointly L.

Wright was Robert was also convicted two counts Giles who

Case Details

Case Name: Fischer v. Cooper

Court Name: Idaho Supreme Court

Date Published: Jun 13, 1989

Citation: 775 P.2d 1216

Docket Number: 17065

Court Abbreviation: Idaho