621 So. 2d 285 | Ala. | 1993
Michael Moreland appeals from a summary judgment entered in favor of Jitney Jungle, Inc., in Moreland's action against it seeking compensation for personal injuries allegedly resulting from Jitney Jungle's violations of sections of the Alcoholic Beverage Licensing Code and the Dram Shop Statute. We affirm.
In reviewing the propriety of a summary judgment for a defendant, we "review the record in a light most favorable to the plaintiff and resolve all reasonable doubts against the [defendant]." Motes v. Matthews,
At approximately 4:40 p.m. on October 25, 1991, Michael Quillan and Amanda Hamner, who were 19 and 21 years of age, respectively, visited the Jitney Jungle supermarket in Florence, Alabama, operated by the defendant Jitney Jungle, Inc., to purchase beer. Quillan, accompanied by Hamner, carried a carton containing 24 cans of the beverage to the front of the store and placed it on the conveyor belt at the checkout counter. The checkout clerk asked: "Which one is of age?" Miss Hamner replied: "I have an ID." She then paid for the beer and carried it from the store.
At approximately midnight, Quillan was driving his vehicle on Lauderdale County Road 38 and, while attempting to negotiate a curve in the road, collided with Michael Moreland, who was riding a motorcycle. Moreland subsequently sued Jitney Jungle; he alleged that Jitney Jungle had violated the Dram Shop Statute and that its violation had caused the injuries he suffered in the collision. On October 30, 1992, the trial court entered a summary judgment for Jitney Jungle. On appeal, the plaintiff, Moreland, contends that Jitney Jungle "sold" beer to Ouillan in violation of Ala. Code 1975, §
"(a) It shall be unlawful:
". . . .
"(3) For any licensee or the board either directly or by the servants, agents or employees of the same, or for any servant, agent, or employee of the same, to sell, deliver, furnish or give away alcoholic beverages to any minor, or to permit any minor to drink or consume any alcoholic beverages on licensee's premises."
Section
"(a) Every wife, child, parent or other person who shall be injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages."
(Emphasis added.)
It is undisputed that Jitney Jungle was legally entitled to sell beer to Miss Hamner. The plaintiff contends, however, that the transaction was, in effect, a "second-sale subterfuge," that is, that the checkout clerk knew or should have known from the "totality of the circumstances" surrounding the sale that the beer was purchased by Miss Hamner for consumption by Quillan "contrary to the provisions of law," within the meaning of the Dram Shop Statute, considering the provisions of §
The phrase "totality of the circumstances," which forms the nucleus of the plaintiff's argument, is borrowed fromLaymon v. Braddock,
Laymon,"We interpret the words 'furnishes' and 'furnishing' in §
6-5-70 [the Civil Damages Act] to extend liability under §6-5-70 to a seller or furnisher of spirituous liquors, who, from the totality of the circumstances, must reasonably infer that the person to whom the spirituous liquor is sold or furnished will permit a minor to consume some of this spirituous liquor."
Two years later, we clarified the scope of the "totality of the circumstances" rule. In Espey v. Convenience Marketers,Inc.,
Although the trial court entered a summary judgment in favor of Convenience on the Dram Shop Statute claims, it applied the "totality of circumstances" test to those claims. Specifically, it stated:
Espey," 'As to the claim under [§]
6-5-71 , considering the evidence most favorably to the plaintiffs there is no evidence that the defendant furnished alcohol to the minor who caused the injury i.e. Connie Price. There was evidence that the defendant's clerk, who sold the beer, could have seen Connie Price if she had looked out the window of the store and thereby determined that Connie Price was a minor and that she could have been expected to consume the beer. However, there is no evidence that the clerk looked out the window or that she saw Connie Price. Therefore, there is no substantial evidence before the court to support the plaintiffs' claim that the defendant furnished beer to the minor who caused the injury as claimed under [§]6-5-71 .' "
Although in Espey we affirmed the summary judgment on the Dram Shop Statute claims, we held that the application of the "totality of the circumstances" test to those claims was erroneous. In particular, we stated: "The bench and bar should understand that Laymon's 'totality of the circumstances' test is specifically related to the terms 'furnishes' and 'furnishing' in §
Id. at 1232-33 (footnote omitted)."Convenience sold the beer to [James], not Connie; that is undisputed. The sale to [James] was contrary to the provisions of law, but the claim involved in this appeal involves the alleged disposition of beer to Connie. Although it may be argued with some merit that Convenience 'otherwise dispos[ed]' of the beer to Connie, we will not hold that Convenience's sale of the beer to [James], who then gave it to Connie, was a disposition of the beer to Connie by Convenience that was 'contrary to the provisions of law.' Consider this example. A clerk sells beer to an adult, who can legally buy the beer, and that adult later gives the beer to a minor. The clerk in the example has no right to refuse to sell the beer to the *288 person legally entitled to buy it. According to the plaintiffs' argument, although the sale itself was legal, the retailer would be liable for selling the beer 'contrary to the provisions of law.' Such a holding would for all practical purposes impose strict liability on retailers of alcohol; we expressly reject such a holding."
The plaintiff in this case has presented no compelling reason for extending the application of the "totality of the circumstances test" to Dram Shop Statute claims. On the contrary, the language and, therefore, inferentially, the purpose of the Dram Shop Statute, differ substantially from those of the Civil Damages Act. Moreover, the list of potential claimants identified in the Civil Damages Act — parents, guardians, or those standing in loco parentis — is far smaller than the one set forth in the Dram Shop Statute. The latter statute, which authorizes an action by any "person who shall be injured in person [or] property," §
These reasons and those set forth in Espey compel us to reject the plaintiff's contentions. Consequently, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON and INGRAM, JJ., concur.
STEAGALL, J., concurs in the result.
"Either parent of a minor, guardian or a person standing in loco parentis to the minor having neither father nor mother shall have a right of action against any person who unlawfully sells or furnishes spirituous liquors to such minor and may recover such damages as the jury may assess, provided the person selling or furnishing liquor to the minor had knowledge of or was chargeable with notice or knowledge of such minority."
(Emphasis added.)