*1 September 25, 1969.] En Banc. 39474. [No. al., Appellants, et
Oliver E. Halvorson v. Birchfield al., Respondents.* et Boiler, Inc., Reed, & Moceri, McClure Thomas Huber, W. for ap- pellants.
Merrick, & Ross Burgess Hofstedt, by F. Burgess, respondents. J. This raises the appeal by plaintiffs question
Neill, an whether employer liable a third who is party an has become injured by employee who intoxicated at Christmas company party.
On
24, 1964,
December
Christmas
company
defendants Birchfield
given by
Boiler, Inc.,
Ace Fur-
*Reported in
nace and for their and limited party began shortly other invitees. The noon on after employers’ premises. employers furnished food and re- including beverages. freshments, alcoholic The businesses day employees obliged had closed noon were not *2 party. to attend the Those who did attend were free go employee to come and at D. an Wolf, will. Russell allegedly party Birchfield Boiler attended the at which he party p.m. became intoxicated. Mr. 2 Wolf left the at about dropped driving He aoff and, home, fellow worker while severely injured plaintiff struck and Oliver Halvorson. plaintiff standing At the time he was struck, was parked parking rear his car in the lane of a Tacoma street. allege
Plaintiffs that the accident was caused con- dition of Mr. Wolf, who was so intoxicated that he was incapable .operating his automobile, and that he had given by become intoxicated at the Christmas defendants. allege guilty
Plaintiffs further that the defendants were negligence they because furnished intoxicants to Mr. knowing properly Wolf, operate he intoxicated was and unable to knowing
a motor vehicle; and he had had his driv- prior They er’s license revoked as the result of a accident. allege further that defendants Mr. allowed Wolf to con- knowledge tinue to consume with that he an permitted away alcoholic; and then him to drive from the party in his automobile.
Shortly
jury
after the commencement of the
trial, granted
ground
court
defendants’ motion to dismiss on the
complaint
opening
statement failed to
state
upon
granted.
claim
relief
could be
The trial court relied on
v. West Coast Wholesale
Hansen
Drug
(1955),
Co.,
825,
289
Wn.2d
P.2d 718
Hall v. Bud
agher,
(1966),
591,
76 N. M.
By ch. Laws of provided “Dramshop Act” which employe,
Every parent, guardian, husband, wife, child, injured person prop- or or other erty, shall be who person, support, by inor or intoxicated means consequence otherwise, of intoxication, habitual or any person, his or her action, have a own shall severally against any person jointly, or name, or liquors, by selling intoxicating giving who have shall, person, damages caused for all the intoxication of such may *3 in a ac- and the be recovered civil sustained, same jurisdiction. competent tion in of On court of the trial plaintiff plaintiffs prove action,
such or must intoxicating liquors sold circumstances were under ordinary intelligence sufficient a to lead man of believe probably that such result in intoxication. sale would 62). (derived RCW of 4.24.100 from ch. Laws dramshop repealed, At the time the statute Hansen was Drug supra, pending Co., West Coast Wholesale was given this a before court. Christmas defendants had guest. allegedly one Mr. Bear Bear was leaving party and, became intoxicated at the it, after was involved in an automobile Hansen accident with who later consequence died as a of the accident. The trial court granted ground on the defendant’s demurrer that the complaint basing ruling of action, did not state a cause its theory liability on the fixed the statute arose only intoxicating liquor. a sale the case While pending appeal, legislature repealed the statute and plaintiff’s right this court held the issue moot to be since action had been abolished.
Consequently, plaintiffs if are to establish on the part theory of the defendants, on a of com- it must be based negligence. mon law Budagher, supra, supra,
Hall v. Rush, Cole v. representative general of the rule at common law which is: give intoxicating liquor
[I] t is not a tort to either sell or ordinary frequently to held men, able-bodied and it has been that, statute, absence of there can be cause against furnishing liquor of action one favor those injured by The reason person the intoxication of the usually given so furnished. for this rule is that the drink- ing liquor injury, of the is the cause of the of it. (Footnotes omitted.) Intoxicating Liquors § 30 Am. Jur. (1958). generally It is held that there can be no cause of action
against furnishing liquor injured one in favor of those person though the intoxication of the so furnished, even given was sold or one violation of a law damage long other than per- under a civil act, so as the given son to whom the was sold or was not in such helplessness debauchery state of deprived or as to be power responsibility his will for his behavior. (Footnotes omitted.) Intoxicating Liquors § 30 Am. Jur. majority
The rationale reviewing of a of the courts this typified by language issue Maryland Supreme Court: [T]he against common law knows no of action intoxicating liquors, “causing” seller of in- such, negligent wrong
toxication of the
whose
or wilful
*4
injury.
beings,
has caused
Human
sober,
drunk or
are
responsible (apart
their own torts. The statute)
recognizes
proximate
no relation cause be-
a
by
tween
sale of
buyer
and a tort
a
committed
liquor.
who has drunk the
Joyce
State, Use
v.
197
Hatfield, Md. 249, 254,
Such rationale also to the donor who intoxi-
763 75 ordinary See eating man. able-bodied to an (1961), cases cited therein. 833 and A.L.R.2d general rule hold supporting common law the The cases is not the of the intoxicant the that sale injury whereas, law; a matter cause of the departed rule have said strict have from that courts which foreseeability element, connection and that causal liability attaches, before both which must be established E.g., see questions of the facts. of fact the trier (1965); Ramsey 375, 900 106 211 A.2d Anctil, v. N.H. (7th Waynick Chicago’s Dep’t 322 Store, 269 F.2d Last v. 1959); Rappaport 75 1, A.2d Nichols, v. 31 N.J. Cir. A.L.R.2d 821 Boyd Brockett Kitchen
Plaintiffs draw our attention to (1968), Rptr. App. Co., Motor 264 Cal. 2d Cal. employer Appeals an which the California Court held injured damages in an liable for to third were who employee defend- automobile an accident caused employee a Christ- ant, after intoxicated at had become party given by case, the court mas the defendant. In that general above, common law rule stated but relationship special found that there was between employer employee; employer directed and had that employee car; minor his and instructed him drunken placed employer had, effect, home. Thus the to drive position responsibility accepting himself in a was Liability control of the situation. found the basis was employer actually improper oper- induced the had relationship ation automobile. find no We control in instant case. they quarrel state in their
Plaintiffs brief that have rules, these common law but contend that Mr. with Wolf “ordinary They man.” an able-bodied assert that drinking problem; Mr. defendants knew Wolf had strong he, therefore, was not a that able-bodied man incapable voluntarily resisting becoming and was intoxi- cated. allegations do not think these
We create the distinc- suggested plaintiffs. Mr. Wolf is not tion under *5 legal disability nor he been has interdicted under RCW may good place 71.08. reason ven- There be to licensed liquors suggested by plaintiffs, dor of under a burden but possibility we in need consider a this case. Here not involving many people liquor we have a social event where is available, but not in the sense of an individual order sold procurement adjudge position or to or from a in a to physical guest. condition of each This difference be- vending tween commercial quasi-social and or intoxicants the social liquor recognized Rap- aptly paport supra, Nichols, 205: fully policy
We are
mindful that
considerations and the
conflicting
balancing
truly
interests are the
vital
molding
application
and
factors in the
law
of the common
principles
negligence
and
causation.
recognition
plaintiff’s
But we are convinced that
justice
claim
a
afford fairer measure of
to
will
innocent
parties
injuries
brought
by
third
unlawful
whose
are
about
negligent
beverages
and
sale of
alcoholic
to
strengthen
persons,
give
minors and intoxicated
will
and
greater
enlightened statutory
regulatory
force
and
precautions against
frightening
such sales and their
con-
sequences,
place any unjustifiable
and will not
burdens
upon
always discharge
can
defendants who
their civil
by
responsibilities
the exercise
due care. It
be
must
plaintiff’s complaint
borne in mind that the
has no rela-
by persons
engaged
liquor
tion to service
in the
busi-
by liquor
ness or
lawful sales and
service
or
licensees,
by reasonably prudent
to sales
licensees who do not
patron
have
reason to believe that
know
is a minor
allegations
served;
or is intoxicated when
of the com-
plaint
expressly
keepers’
are
confined to tavern
sales and
negligent. Liquor
service
and
unlawful
licen-
operate
way
by
privilege
sees, who
their businesses
right,
long
rather
gation
as of
than
have
under
strict obli-
not to serve
minors
intoxicated
if,
likely,
as is
the result
have
we
reached
the conscien-
judicial
tious
exercise
our traditional
function substan-
tially
diligence
honoring
obligation
increases their
public
very
then the
interest
indeed
will
be
well served.
departing
Each of
cases
earlier
noted
from the
regular
rule
involved
sale of
a sale
constitute
did not
Defendants’ activities
vendor.
concept.
unable
have been
We
broadest
even
predicated
has been
to find
case wherein
gift
of intoxicants.
consequences
may
and economic
It
be that the social
*6
liquor”
“mixing gasoline
a rule of ac-
lead to
and
should
countability by
one
who
furnish intoxicants
those who
by
intoxication,
of
but
becomes a tort-feasor
reason
legislature
by
policy
full
after
made
the
decision should be
investigation,
of
merits
examination
the relative
and
debate
City
conflicting positions. Accord, Hamm v. Carson
of the
(1969).
Nugget,
Also see
Inc.,-Nev.-,
We with the trial court that the granted. claim which relief can be Judgment affirmed. J., McGovern, JJ., concur. C.
Hunter, Weaver, Hale, (dissenting) majority J. concludes that Finley, —The plaintiff’s com- of to the cause action such as was unknown consequently law, mon action cannot be a common law today, repeal of the entertained the courts and that the destroyed Dramshop plaintiff’s I action. Act has agree. as a matter cannot The first conclusion is correct freeway, high-com- the However, historical interest. high-speed pression gasoline engine, and the automobile the social were also to the common law. So were unknown dangers resulting of alcohol from lackadaisical mixture changes gasoline. change, Times and the surely slowly, perhaps, quite his- with the but —as times— Llewellyn, clearly perspective See K. torical demonstrates. The Common Law Tradition remedy Dramshop extended to
The Act was persons injured by “any person, or in conse- intoxicated
quence intoxication, otherwise, habitual or (repealed . . .” 1955, RCW 4.24.100 ch. Laws 1). § liability upon Plaintiff seeks to establish ground injury flowing giving drinks in an excessive party. amount to a known alcoholic an office cursory reading repealed most of the statute estab- lishes that which it created was so much broader and more inclusive than that contended plaintiff that no conclusion whatever in in- relation to the repeal stant case should be drawn from the of the Dram- shop Act. Drug
Hansen v. West Coast
Co.,
Wholesale
47 Wn.2d
(1955),
plaintiff
It is also to state with that the liabil- ity accruing under RCW 71.08.080 was in sense in- Dramshop tended as a for substitute the Act. When the legislature destroy right seeks to action, a common of law it generally explicitly. e.g., my See, does so In RCW 51.04.010. opinion, majority extremely the has drawn conclu- dubious public policy legisla- sions as to from a most insubstantial history. tive remedy majority
The to which the would restrict plaintiff is RCW from 71.08.080—which dates the territorial period. catalogue major A achievements in reconcilia- changed tion of common law to social conditions since exercise; statehood would be a futile common but the law unchanging compendium is not an of maxims. desiccated Nor of is the field tort one in which the courts should always legislature. defer to the The Peck, See Role of Legislatures Courts in the Law, Tort Reform of (1963). Minn. L. Rev. 265 majority’s
Even the
assertion that at common law there
right
supplying
a
alcohol to
of
for
was no
action
strictly accurate.
is
of this case
under the circumstances
capable
common law”
“at
no automobiles
First, there were
mechanism
useful
from a
of
an inebriate
transformation
impor-
engine
More
and destruction.
into an
violence
recovery
tantly,
a
common law
habit-forming drugs
provision
a known user. Such
to
services,
loss of
of actions for
sales were the basis
support,
It courts, is correct that most at common injuries flowing personal fronted a suit for with third days provision men in the alcohol to able-bodied prior provision of automobile, to the modern held that the injury. reason- alcohol was not the ing cause Such persuasive annoying or is far more when a drunkard carriage assaulting passerby, riding driving a horse, his through village breathtaking speed of 10 to street at the per incompetent hour, an is in miles than when inebriate juggernaut powered by three control of 2-ton metal horsepower. hundred myriad risk-creating
Adaptation the law torts agencies society requires and devices of modern continuous application easily principles ple- understood basic divergent emerging continually thora of combi- factual singularly judicial process *8 nations. The task to the suited grand and of common in the tradition law. See Llewel- lyn, supra. problems The resolution involved would requiring impracticable prodigies legislative be a task worthy Furthermore, it is almost a effort. rule-of-thumb — legislative judicial usually notice—that the branch reacts only organized public vocal interest. There is no such to
organized socially part vocal interest on the effort significant persons injured today number miscellaneous through socially significant the drunkenness of a number operators. motor vehicle say judicial cognizance functioning
I must of, that and great hardly within, the common can char- law tradition be judicial legislation except through acterized as naivete to legal history. change society If each occasioned tech- nological involving negli- developments potential and other gent legislation requires harm to individuals before tort justice results, Would have been con- and would unnecessarily illusory many tinue to be in too instances.
Legislation
required
is not
The
and never has been.
peculiarly
judicial process.
instant case is one
to the
suited
ever-growing carnage
highways
on our
is notorious.
driving
isSo
the relation between drunken
and accidents.
alleged
compelling
Plaintiff has
a clear
case
and
factual
negligent
harm,
foreseeable
this
in that
lawsuit is
posture
allegations
where inferences drawn from the
must
plaintiff.
those most favorable to the
be
legislative
requires
fact-finding
It
no
establish
Legisla-
risk-creating
alleged.
existed on
facts
conduct
proof
public
tive inaction is not
of inexorable social or
legislature
policy.
provision That the
has not forbidden
purposes
may
alcohol for business
to known alcoholics who
reasonably
expected
personal
scene in
to leave the
their
be
judicial
automobiles is not
barrier to
determination
liability. If
ana-
that determination is consistent with the
lytic
legitimate
torts,
framework of the law
it is
modernly
appellate
should be effectuated
in this
court.
judicial
unprece-
Such
determination is
means
provision
A
dented.
common
action for
of alcohol has
visibly
person,
held to
sale to a
exist
intoxicated
personal injury.
and resultant
See Annot.
769 holding general the sale of cases that rationale those furnishing liquor man does of to an able-bodied resulting injury produce liability is the in that tort cause of in- is not the theory jury. Translating analysis the tort that archaic into e.g., presently applied see, v. Holm- court, Rikstad this berg, (1969), 265, 76 456 355 the court should Wn.2d P.2d provision inquire by if the risk created the act of pre- to a alcoholic driver’s license has known whose viously he revoked, at an office at which could rea- sonably by personal be believed to have arrived use of his reasonably expected auto, from he could be to depart manner, same creates an risk of unreasonable persons rightfully public highway. harm to abroad on the If query, reasonable men could differ as to the result of the jury question negligence presented absence countervailing policy. social analysis, going
It is this and not the examination of dicta by applied to a court, result not reached which should be Rappoport to Nichols, the instant facts. N.J. (1959),
A.2d
The substance of the issue before this court is whether negligence the common of action for should be abridged by judicially recovery. created barrier It any responsible should clear *10 be citizen that automobile upon brought accidents of the sort this is which suit furnishing foreseeable result of drivers, drink to alcoholic if perhaps furnishing not the foreseeable result of excessive anyone driving high-powered drink to modern automobile public thoroughfare. majority’s liability on a The denial of reasoning policy, is based its own as to social I unnecessarily believe is limited. limiting
There pol- are three factors which a social icy reasonably could be founded. One is that there nowas sale in case; this a second is that this case does not involve liquor licensee of the control board; the third is that there liability furnishing should be for the of alcoholic bever- ages to even purely such as this defendant in a social context.
The convincing. first Suppose factor I do not find Athat buys lounge. B’s drink at the cocktail this, this, Does should liability insulate obviously the owner from roaring if B is drunk when he leaves? 66.44.230; RCW WAC 314-16- Cf. (forbidding liquor “give supply” retail licensees to persons). to intoxicated
A second factor for consideration is whether case involves a retail licensee of the control board. At first blush this is an attractive distinction. Those who are licensed to profit sell at retail extract a from their sales— surely they required can be to bear the cost of the trade in mangled They privilege; regulation bodies. hold valuable of their conduct is detailed; and the state interest is ob- only vious. But, it is reaps the retail licensee who ignore benefit from a of alcohol. We must century realities of life in the twentieth if we assume that only sale with coextensive business is somehow benefit profit. had for three this lawsuit defendant business-firm parties
years deducted the costs of these Christmas —these pur- expense for federal tax “social” events—as a business obviously only poses. within confirms it is That action what namely jury firm province to find— employee party as a source considered the Christmas goodwill for a hence held business purpose. may, persuasive. A if it more business
The third factor is purposes provision of alcohol for business considers the operations, spread itself and the risk essential to its insure likely An less its conduct. individual both be aware pass along possible and unable to the cost part of the overhead to the ultimate consumer. The busi- reality provision of alcohol is ness of. adopted constitution,
article section 8 the state permitting promotional amendment, as the 45th host- *11 ing by public purpose. port public for a districts as a use legitimate expenditures Such are also as busi- ness deductions in the internal revenue code.
If relevant, the third factor is then there should be liability genuine gathering, if this was a social but gathering should if in the instant attach the so-called social purpose. case for a in the was business food and drink employers; case instant were furnished premises. required was held their Attendance was employees, from the but it seems a inference warranted alleged employers expect facts could rewards good employee party. Accord- will from the relations ingly, question presented I on this believe that fact issue. plaintiff
If the establish the fact issues relative to can purpose, opinion alcoholism and business I am of the good negligent he has a law action conduct part employers. attempt He is entitled to to make his I at- must therefore dissent proof. majority’s close the doors tempt justice.
Hill, Rosellini, Finley, and Hamilton, JJ., concur with J.
December 1969. Petition for denied. rehearing Department September 39555. [No. 1969.] One. Respondents, Administrator, al., et Marvin Myers, Appellants.* al., James J. Harter et *12 *Reported P.2d in 459 25.