Rong Yao Zhou v. Jennifer Mall Restaurant, Inc.

ZHOU, al., Appellants, YAO et RONG RESTAURANT, MALL

JENNIFER INC., Appellee. 86-809.

No. Appeals. District of Columbia Court of Argued April 1987. Decided Dec.

NEWMAN, Judge: Associate impression, In this case of first arewe parties asked to decide whether third suf- fering accidental as the result of acts of state a keeper cause of action a tavern where, here, (1) they allege as keeper tavern violated 25-121(b) (1981) serving patron was, be, appeared already intoxicated, and that the violation was a hold, injuries. cause of the on the of those cases in basis which we recognized that violation of a statute protect public safety supplies sufficient evidence on which to rest a claim tort, Rong for Yao Zhou and Xiu Juan Wu have stated a cause action under District Columbia law. We, therefore, vacate the order of the trial granting Jennifer Mall Restaurant’s judgment pleadings, motion for on the and remand for trial.

I.

Assuming allegations as true the as pleaded complaint, in the we must for purposes of our review a motion claim, dismiss for failure to state a Vicki A.2d Bagley Realty, Laufer, Inc. v. (D.C.1984); McBryde v. Amoco (D.C.1979), Oil 404 A.2d following presented with the set p.m. on the approximately facts. At 11:30 evening May Rong Yao Zhou Wu, wife, and Xiu husband and were Juan seriously injured they were struck when Schwartz, Jr., Frederic W. with whom operated by a car a drunk driver on Con- Cadeaux, D.C., Washington, Robert onwas Chase, Maryland. Chevy necticut Avenue in brief, appellants. driver, returning Joray, Peter was Fritts, Joseph Richard L. P. with whom (trade Brittany from the Restaurant name Chase, Md., Clancy, Chevy was on the Inc.) Restaurant, appellee Jennifer Mall brief, appellee. Washington, Employees D.C. of the res- unlawfully taurant had served alcohol PRYOR,* Judge, Joray Before after he Chief had become intoxicated NEWMAN, Judge, apparent. after his intoxication Associate had become **, Judge, Joray impaired NEBEKER Associate Retired. It in this was condition * ** Pair, Judge Judge, originally Hubert B. of this Senior was Nebeker was an Associate Judge Pryor argument. His status member of this division. Chief court at was the time Retired, Septem- replace pursuant changed Judge, drawn to him to the Internal to Associate Operating Procedures of this court. ber

entered his car and Stutsman, Maryland, drove into (D.C.1985) injuring soon thereafter Zhou and (applying Wu. District of Columbia law in medi malpractice cal arising action from medical May On Zhou and Wu filed suit performed Virginia services upon Virgi Superior seeking Court 3.5 million dol- resident, nia where services were benefit of damages lars from Jennifer Mall Restau- plaintiffs employment in District of Colum rant, Inc. Jennifer Mall Restaurant moved bia and defendant District of Columbia Super.Ct.Civ.R. 12(b) under judgment corporation); Rawlings v. Williams Truck pleadings on the for failure to state a claim Line, Inc., U.S.App.D.C. 121, 125, 123 357 upon granted. which relief can be 581, (1965). F.2d 585 An automobile or granted Hannon opinion motion without other occurring vehicular accident close to 6,May the border presents between two states a fortuity. classic case of such a See Gaith II. er, supra; Allstate, supra, 449 U.S. at 314 We are confronted by at the outset n.19, & n.19; 101 S.Ct. at 641 Kilberg v. apply of whether District of Airlines, Inc., Northeast 34, 9 N.Y.2d 211 Maryland person- Columbia law or law to a 133, 134-135, 526, N.Y.S.2d 172 N.E.2d 527 arising al action from an accident Jackson, (1961); Babcock v. 473, 12 N.Y.2d occurring in Maryland, near the District of 743, 750-51, 240 279, N.Y.S.2d 191 N.E.2d Columbia boundary, where the defendant’s (1963); see Estrada 284 also v. Potomac allegedly negligent conduct in occurred Electric Power 1359, 488 A.2d 1364 by District of corporation doing Columbia (D.C.1985) (contrasting unpredictable situs here, plaintiffs business and where are Dis- injury resulting from lack of due care trict of Columbia residents. We note that concerning automobile fixed situs the choice of law issue has not been raised land). when care of involves parties suit, to this who have as- In applying governmental sumed that interests District of ap- Columbia law analysis case, plies. law, to the facts of this Maryland Under we consid- keep- a tavern interests, er the respectively, Maryland er would not be in liable tort under the and the District From alleged facts of Columbia. this case. See Felder v. Butler, ruling Feld- 174, Maryland’s highest 292 Md. (1981). 438 A.2d 494 er, supra, we understand that state ad- long District of Columbia has here to policy protecting negligent bar “governmental followed interests liability, although they owners from civil analysis” approach to choice of law. subject penalties remain to the criminal Williams, Williams v. 4, (D.C. 390 A.2d 5 serving person attach for is 1978); Myers, Gaither v. “visibly influence,” under Ann. Md. 216, (1968); Tra 2B, 118(a) (1957, Repl. art. Code Empresa montana v. S.A. de Viacao Area id., Vol.), see contrast, By 438 A.2d at 498. Grandense, Rio 121 U.S.App.D.C. a District of Columbia rule that would denied, 468, (1965), 350 F.2d cert. tort, make keepers tavern answerable in 943, 1195, U.S. 86 S.Ct. 16 L.Ed.2d 206 well as under the criminal sanctions of (1966). Therefore, place it is not the of the 25-121(b) (1981), signify would injury that necessarily determines which jurisdiction interests of this in compensat- Rather, applied. law to be jurisdic our resulting injuries, victims for as well as tion, others, generally see Allstate In in deterring harmful conduct. Hague, surance Co. v. 449 U.S. n.19, n.22, n.19, 101 S.Ct. The apparent policies clash of be n.22, 66 L.Ed.2d 521 recog have Maryland tween and the District of Colum place nized that the injury may presents be a bia a “false con conflict” “fortuity” light mere of the fact that the text of this case. A occurs “false conflict” relationship parties litigation to the policy when the of one state would be is centered elsewhere. Kaiser-George law, advanced application of its while Plan, town Community Health Inc. v. that of the ad- other state would application vanced of its law. such a state context have concluded that “the situation, jurisdic place the law of the interested liquor unlawfully where the sold prevails. tion Kaiser-Georgetown, greater significance is of than the location 509; Gaither, supra, because, 491 A.2d at 131 U.S. of the accident when an intoxicat Here, App.D.C. at 404 F.2d at 224. driving, ed the actual site of the Maryland’s protecting interest tavern largely fortuitous,” crash is Pardey v. liability implicated owners from tort is not Club, Boulevard Billiard where the restaurant is situated (R.I.1986), and, accordingly, ap in the District of Columbia and the unlaw plied the rule of of the state in ful conduct occurred therein. Hence we which the vendor committed the unlawful apply jurisdiction, the law of the interested See, e.g., Trapp act. v. Investment the District of Columbia.1 (8th Cir.1970); Corp., 424 F.2d DeRock, F.Supp. Bankford any question Should there remain (N.D. 1976); Vogt, Iowa Zucker v. applies whether District Columbia law F.Supp. (D.Conn.1961),aff'd, case, Gaither, this furnishes the (2d Cir.1964); n. Schmidt v. binding precedent2 answer. Gaither Hotel, Driscoll Minn. 82 N.W.2d applies District of Columbia law when (1957); Pardey, A.2d cognizable a cause of action is under Dis at 1352-53. trict of Columbia tort law on the basis of a violation within the District of Columbia of regula of District Columbia statute or III. tion, though even nearby occurs Having determined that District of Co- Maryland in where a similar statute has governs lumbia law the outcome of this interpreted by highest been Maryland’s case, we turn now to examine substan- supporting liability. court as not civil question tive of whether Zhou and Wu have Gaither, regula the District of Columbia stated a cause of action under the law of required

tion at issue car owners to remove jurisdiction. this D.C.Code 25-101 to §§ keys their leaving from their vehicles when Beverage 25-139 the Alcoholic Con- them unattended. The conduct Act, regulates trol liquor the sale of in the occurred the District of Columbia. The 25-121(b), District of Columbia. Section car subsequently was stolen and driven pertinent part, prohibits holders of licenses Maryland, into injured where struck and “permitting] under 25-111 from on the § plaintiff five miles from the District of premises licensed ... Columbia border. any beverage by any person, intoxicated or Finally, jurisdic- we observe that other any person notoriously intemperate hab- its, tions that have question any person appears confronted the or who to be intoxi- keeper liability arising tavern subject a multi- cated. fine ...”3 Violators only Maryland implicat- liquid 1. The containing interest of or solid more than 1 of the 4 litigation, ed protecting in this an varieties above defined is considered as be- interest longing variety higher to that which has the which we infer from its alcohol, according percentage prohibition to the order serving persons under the influ- defined, they except ence, in which are above is consistent with rather than in conflict provided paragraph of this section. applying with a District of Columbia rule of provisions of this section and of this liability. civil chapter apply any liquid shall not or solid (D.C. Ryan, 2. See M.A.P. v. containing per less than one-half of 1 centum 1971). volume, by anything of alcohol nor shall con- chapter tained in this be construed as affect- 3. The Definitions section of the Alcoholic Bever- ing apple the manufacture of cider or the sale age provides: Control Act thereof. beverage" The words "alcoholic or "bever- added). 25-103(5) (1981) (emphasis § age" liquor include the 4 varieties of amendment, above subsequent As the result of (alcohol, wine, beer) spirits, defined 25-121(b) reads, pertinent part, § consumption now "... solid, not, every liquid patented or any or contain- beverages by of alcoholic ... alcohol, wine, spirits, capable person, notoriously or beer and any person intoxicated intemperate or being by habits, being. Any appears any person consumed a human or who imprisonment, pursuant to D.C.Code contact persons.” Id., inebriated (1981). conclude that this (footnotes 484 F.2d at 834 omitted). statute, providing while not itself a cause years Five after the D.C. Circuit’s deci- of action keepers by injured tavern Marusa, sion in Superior Court of the parties, third supplies the standard of care (Hannon, J.) District of Columbia con- by keepers’ which tavern conduct is to be sidered the civil of tavern owners Hence, measured under the common law. in the context of a somewhat different pat- plaintiff alleges awhen keep- a tavern tern of events. In Clevenger v. District of 25-121(b), er has alleges violated he suf- Columbia, Daily Wash.L.Rptr. 1561 negligence that, ficient evidence of when (D.C.Super.Ct. July 11, 1978), plaintiff allegation combined with an patron sought causation, states a cause of action under recover from the restaurant’s owner for District of Columbia law. injuries allegedly incurred at the hands of

police who had been called the tavern keeper for in removing plain- assistance A. premises. tiff from his While the keeper of tavern lia- bility impression is one of first before Hannon addressed the Clevenger court, it has been considered—in cases not case as if entirely separate it raised two binding upon Superior questions: Court of plaintiff could state a claim of us— the District of Columbia and law, the United or, under the common al- Appeals States Court of for the District of ternatively, could he himself avail of an Circuit, Columbia with inconsistent “implied results. cause of action” under D.C.Code In Marusa Columbia, v. District rejected Clevenger’s 25-121. He com- § of U.S.App.D.C. 348, (1973), 484 F.2d 828 plaint grounds. the on both As for the com- D.C. presented Circuit was with a claim ground, Judge mon law Hannon concluded against by person a bar owner shot an that “the concepts of cause and allegedly police officer forseeability follow- reasonable severely become the officer’s of alcoholic strained when ... the claimed re- beverages at the defendant’s independent, establish- sult from intentional torts of ment. The court concluded parties third allegedly provoked by plain- “[i]t settled law this court that ‘violation of tiff’s intoxication.” at 1565. As for Id. promote an ordinance intended safety’ implied claim, to the he drew two give negligence can rise to First, action.” Id. conclusions. he determined that the 833, citing at at F.2d Beverage Whetzel v. Alcoholic Control Act reflected a Management U.S.App. “congressional Jess Fisher purpose promoting of mo- (1960), D.C. 282 F.2d rality protecting public sensibilities” permitting a cause of action rather protecting public safety, than of keeper depart the tavern would not sharply he necessary which believed was to imply a principles. Id., from common law at cause of action under the statute. Id. at Second, F.2d at 835. The court had little trou- view, 1566. Hannon’s determining ble that “it seems assuming obvious that even statutory purpose pro- of regulations governing liquor tecting the sale of public plaintiff are safety, the in Cle- to safety”; intended enhance venger among persons was not the class of imposes the statute provision sought certain duties on the that the statutory pro- to owner; tect, “in light Congress tavern and that since any did “evidence statute, purpose of the ... those protect duties intention to the of individu- community large to the at voluntarily owed ... als who drink to excess.” at Id. [includ- ing] parties might third ... who come into 1567. (1987 25-121(b) provision

to be intoxicated." D.C.Code § of that of § has not been added). Supp.) (emphasis alleged in this case. 25-121(b) (1981) prohibits also § beverages sale of alcoholic to minors. Violation curred, question keeper plaintiff The liability tavern and the can establish his relationship statute, revisited the D.C. Circuit in 1986. In the unexplained Nor Marrocco, U.S.App.D.C. wood v. violation of that standard renders the effectively F.2d 110 the defendant over as a matter of law.” Marusa, relying Superior ruled 945, quoting Id. at Gregory, Richardson v. intervening Clevenger Court’s decision. U.S.App.D.C. 281 F.2d Factually, amalgam Norwood was an (1960) (added deleted). emphasis Marusa, Clevenger. As in Marusa and Hence, “[occasionally legislative ... action plaintiff claiming was a third party applicable fashions standards conduct damages pa assault an intoxicated which fix duty themselves of care re- However, tron of defendant’s restaurant. quired[;] [fjailure to community meet these Clevenger, plaintiff as in himself was in ‘negligent,’ standards stamps offender toxicated, although as the result of drinks failing degree i.e. to exercise that of care served elsewhere. necessary particular in the situation.” Richardson, supra, U.S.App.D.C. at The Circuit in focused D.C. Norwood ex- 266, 281 F.2d at See also clusively “implied on whether an cause of Restate- 285 comment c at § action” could be found under D.C.Code (Second) ment Torts (1965) (“Even legislative where a enact- 25-121, concluding “ap- that was and— express ment provision contains no that its propriate refer for author- Clevenger liability, violation result in shall tort and no guidance” on itative District law implication effect, may, to that the court question Columbia—answered that types and in customarily certain of cases negative, 4-5, at will, adopt requirements enact- Hence, 112-13. ignored Norwood necessary ment as the standard conduct plaintiff of whether the had negligence.”); avoid W. Kee- stated a action cause of under ton, Keeton, Owen, Dobbs, D. D. principles. common law R. Pros- ser & the Law Keeton on of Torts (5th 1984). B. ed. reject approach taken Nor- rule that of an ordinance “[violation which, believe, Clevenger, negligence,” wood and promote safety intended to is Hartman, inappropriately 217, the isolates from Ross 78 U.S.App.D.C. v. 218, 14, liability significance (1943), denied, common law the 139 15 F.2d cert. 25-121(b) of Beverage 790, 790, the Alcoholic Con- 321 U.S. S.Ct. 88 L.Ed. 1080 64 By asking, respect trol Act. to in principle with that is rooted the that failure Act, only “implied comply requirement whether it creates an to a statutory action,” ignore cause of protect public those cases a fun- to “is to fall safety principle diligence damental of our short to which common law and of the standard misapply organized theories in society that allocate roles be- those who live conform,” legislatures. tween courts and duty endorse under a to Martin v. Her 164, 168, 814, zog, instead the view taken in 815 Marusa. That 228 N.Y. 126 N.E. (1920)(Cardozo, J.). Hence, upon long principle view rests a “axiom of established this recognizes in tort the District of Columbia tort law the continued ... law, entirely vitality including and one the consistent with role of of the common the giving torts, depends upon ability the courts in content to common law of its contemporary community law. reflect values Whetzel, supra, U.S.App. and ethics.” Coleman, in Corp. As we stated Ceco v. 388, D.C. at 282 F.2d at 946. (D.C.1982): 441 A.2d 940 “general jurisdiction Incorporating rule” in The this into the common law particular statutory a legislative that “where a standard of care set a en protect regulatory determining standard is actment is from that a enacted distinct arises, plaintiff’s position the persons by implication, in or to cause of action under type prevent the of accident that oc- a statute. latter matter of task is a statutory construction, requiring the employee; escape court prevented because doors legislature determine whether in unlawfully inside); locked on industrial something tended other than which it regulations, see Bowman v. board provided expressly. University Cannon v. Co., Redding & U.S.App.D.C. 294, 301- Chicago, 441 U.S. 677, 688, 694, 99 S.Ct. 02, 956, (1971); 449 F.2d 963-64 traffic 1946, 1953, 1956, (1979). L.Ed.2d Wilson, regulations, see Leiken v. 445 A.2d appropriately Courts making refrain from 993, (D.C.1982); Sragow, Bauman v. except such inferences under certain nar 243, (D.C.1973); 308 A.2d Danzansky Cort v. rowly defined circumstances. See Zimbolist, v. 234, App.D.C. 236, Ash, 2080, 2089, 422 U.S. 95 S.Ct. 457, (1939); codes, see housing (1975) (standards implying L.Ed.2d 26 Whetzel, supra, 392, 108 U.S.App.D.C. at private causes of action under federal stat (injury F.2d at 950 by falling to tenant utes). contrast, By adopt the decision to ceiling; landlord’s violation of code rent- penal from a statute a standard of care to ing habitation “in repair” sufficient to applied determining neg common law negligence send claim of jury); and the ligence “purely one, judicial for the making statute police criminal for a offi- Restatement, to make.” force, cer to use excessive see District of 26; 286 comment d at Ontiveros v. Bo White, Columbia v. 159, A.2d 163-64 rak, 500, 3, 136 Ariz. 510 & n. 667 P.2d (D.C.1982) (violation supports neg- claim of (1983) (en banc). Defining 210 & n. 3 ligence wrongful action). death liability, including contours of common law duty may addition, have been breached In even where the court a. case, negligence traditionally is a task preceive with does not public safety purpose purview judicial Kel enactment, branch. legislative vio Gwinnell, ly v. 538, 552-53, 555-57, 96 N.J. neg lation be admitted as evidence of (1984); 476 A.2d El Chico ligence, although neg it does not constitute Corp. Poole, v. 732 S.W.2d Hall, 314-15 per se. ligence Stevens (Tex.1987). (D.C.1978); Whetzel, supra, 795-96 947; U.S.App.D.C. 282 F.2d at recognized Our courts have that a varie Peigh v. Baltimore Ohio R. & ty of public statutes safety purpose 200-01, 204 F.2d justifying application of the rule that (1953). Compare 393-94 Standardized Civ their negligence. violation constitutes Jury il Instructions for the District Co Ross, Gaither, supra, jur lumbia, (1981) (“If No. you find that a isdiction held that violation of an ordinance protect regulation intended to ... prohibiting leaving vehicle owners from thereby has been violated their automobiles key unattended with the regulation caused which the ... ignition per se constituted avoid, negli- must intended to you personal in a action the car find added) with No. 5-9 gence_”) (emphasis party owner a injured by third the sto (“The ..., regulation violation of a which is following len vehicle its theft. In the plaintiff’s a cause of a evi ... view, purpose court’s evident of re “[t]he dence ... to be considered quiring motor vehicles to be locked is not to by you.”) (emphasis added). Finally, prevent theft for the sake of owners or the public where the statute safety pur has police, promote but the of the pose, Ross, put but the defendant public in the has forth evi streets.” excusing violation, dence its U.S.App.D.C. at that violation 139 F.2d at 15. Sim negli also be ilar conclusions considered evidence of have been drawn with re gence negligence per spect codes, rather than see H.R.H. Con se. Leik building en, supra, Ceco; struction v. Conroy, Co. su U.S.App.D.C. 03; at 1002 — pra, (1969) Hecht Co. v. (injury 945; F.2d A.2d at worker); McLaughlin, 382, 385-86, construction Elliott Michael James, Inc., 182 U.S.App.D.C. (although F.2d de (1977) (stabbing partment of restaurant arguably store in viola- door was code, building regulate tion of its installation had scheme to the sive sale and use of approved by Building Department capital. been alcohol the nation’s Senator Inspection).4 supported Prohibition, Sheppard, who and

opposed legislation regulating the the rein- of alcohol the District of Co- troduction C. lumbia, among many was certain that difficulty concluding We have no that associated with the substance was evils 25-121(b) Beverage of the Alcoholic Con- § “multiplies it the hazards on our that public safety purpose, trol Act has a and highways, imperiling and the lives streets its unexcused that violation therefore con- motorists, pedestrians, and little chil- se, i.e., negligence per stitutes breach Cong.Rec. (1934). majori- A dren.” duty keepers care that tavern owe to ty Congress apparently shared Sena- Thus, public. when members concern, when, Sheppard’s safety tor here, public allege, plaintiffs as that enacting Beverage the Alcoholic Control keeper’s negligence the tavern was the le- 25-121(b), Act, included, alongside § gal injuries, they cause of their state a prohibits operation of a 25-127 which § cause of action under District of Columbia locomotive, streetcar, elevator, watercraft, law. or horse-drawn vehicle an intoxicated (1934). person. Hannon, 48 Stat. ch. Section In Clevenger, in consider- 25-127, terms, by its also left intact anoth- claim, ing implied statutory concluded statute, pre-existing 25-121(b) er 46 Stat. 1428 ch. public did not have a safe- § 40-716, pro- now codified at ty purpose, “purpose pro- but rather a § hibiting driving of motor vehicles while in- moting morality protecting public and sen- toxicated. Daily Wash.L.Rptr. sibilities.” 106 at 1566. shortsighted,

We believe that this view is Congress regulat- understood that it was legislation may For even if the best. substance, dangerous and accurately regarded respects in some as potential injury and accident associated post-Prohibition legislation “morals” —desi- in- amplified intoxication is when the gend to contain that which Prohibition had placed controls of toxicated attempting altogether , failed to ban — device, particularly in- a mechanical one imperative the “moral” to control the distri- When, alleged transportation. as volved bution and of alcohol cannot case, an customer who apart separate be said to have existed and liquor in has been served violation of recognition consump- from a that excessive Beverage Control Act crashes his Alcoholic presents tion serious threats to safe- shortly departing after from defend- car ty. establishment, parties, injuring third ant’s has occurred we believe that a harm which Congress clearly in 1934 was aware 25-121(b) prevent public safety hazards associated with abuse, negligence per doctrine of se incorporated safety con- alcohol integral part comprehen- apply.5 cerns of its should circumstances, i.e., 4. Under both of the above disease), Keeton, in Prosser & quoted injury where results from violation of a statute at 225. having safety purpose, or where safety from an excusable violation of a results 1934, evidence, course, 5. Since the of has statute, negligence per se is not the rule of of the hazards combin- mounted associated with applicable cannot be said that the because it See, ing drinking driving. e.g., and Rep. H.R. statutory violation has frustrated 867, 7, Cong., reprinted in 1982 No. 97th 2d Sess. Leiken, purpose. 03; supra, See 445 A.2d at 1002- 3367, Cong. (half of U.S. Code 3367 & Admin. News ("the Scott, Ex. Gorris v. L.R. 9 125 related). all traffic fatalities are alcohol damage contem is of such a nature as was not Although the facts us involve acciden- before statute”; by swept plated livestock at all injuries resulting acci- a motor vehicle tal from place in storm after carrier failed to overboard dent, appropriate analysis be a similar would pens required prevent spread of animals in 1276 Gardiner, supra, mitigated by proposi- App.D.C. is not 39 at

Our view 393. The only jurisdictions, courts of public safety may examining other tion that have been prohibitions 25-121(b), nearly identical to partial purpose legislation. of the a Nordstrom, have such an v. concluded that enactment District Columbia 117 of legislative 165, “unquestionably reflects a con- 327 F.2d 863 surrounding dangers cern for the clear regula- court held that violation of a traffic provision sale or to those of alcohol prohibiting parking of vehicles on the tion Largo, supra, it,” safely cannot consume negligence in in which sidewalk was a case Finley, Thaut v. 1108; see also 727 P.2d at injured pedestrian a claimed that she was 613, 820, 611, 50 N.W.2d 822 Mich.App. 213 when, to avoid stepping off the sidewalk (1973) (“it indeed to main- would be absurd vehicle, stepped unlawfully parked she purposes tain of the statute that one of the and fell. The court concluded into hole public protect was not to “[reasonably regulation construed the (statute injury”) prohibit- from the risk of part at least for the minors). sale of alcohol to Violation pedestrians_ It is reasonable to as- prohibit statutes that sale of alcoholic bev- sume, of evidence to the the absence erages persons or to minors intoxicated contrary, regula- the framers of the upon has common basis been most danger tion were aware pedestri- duty which courts have found breach of the might obstructing result from ans which necessary imposing that is tort of care purpose sidewalk and that one regu- resulting keepers on tavern Id. prevent danger.” lation was to such injuries.6 168, added). (emphasis 327 F.2d at 866 think easily We that the same can be said IV. statutory provision prohibiting tav- keepers serving per-

ern from alcohol to unex Accordingly, hold that the we already apparently sons intoxicated or in- keeper of D.C. cused a tavern violation Liquor frequently toxicated. control laws 25-121(b) (1981), serving per Code § District Colum- multiple purposes, intox already apparently son Gardiner, 389, bia v. App.D.C. 39 393 icated, keeper renders the tavern (1912); Ontiveros, 211; se, proxi 667 P.2d at per injuries are and that where 1098, Largo Corp. Crespin, v. 727 P.2d mately caused to a member (Colo.1986) (en banc), and our keeper 1108 courts that violation the tavern damages. have held that “a liberal and reasonable reverse the trial liable in given granting construction shall be these statutes Mall Res court’s order Jennifer on the objects pur- judgment in view of their remedial taurant’s motion for for trial. poses purposes],” pleadings, so as to effect remand the[se Anctil, 1329, (Mont.1986); Ramsey types v. for other of accidental associated P.2d 1334 900, (1965); 375, Rappa of alcohol. excessive 106 N.H. 211 A.2d 901 1, Nichols, 188, 8-9 port 156 A.2d v. 31 N.J. Urie, 671, See, e.g., v. 638 P.2d 675- Nazareno 625, (1959); Lopez 651 P.2d v. 98 N.M. Maez (Alaska 1981); Ontiveros, supra, 76 667 P.2d at Park, 1269, (1982); Berkeley v. 47 Misc.2d 1275 1108-09; 209-11; Largo, supra, 727 P.2d at 290, 381, (Sup.Ct.1965); 262 N.Y.S.2d 293 365, (Fla. Shiappacossee, Davis v. 155 So.2d 367 1, Hankins, N.C.App. S.E.2d v. Hutchens 131, 1963); Applegate, 62 612 P.2d Ono v. Haw. 191, 584, 592-94, denied, N.C. 305 S.E. rev. 598, 533, Fisher, (1980); Elder v. 247 Ind. Con-Teena, Inc., (1983); Billy’s v. 2d 734 Davis 847, State, (1966); Lewis v. N.E.2d 850-51 351, 75, (1978) (in banc); 284 Or. 587 P.2d 76-78 181, (Iowa 1977); 256 N.W.2d 187-89 Pike v. 164, Campbell, 328 S.E. Christiansen v. 285 S.C. 626, (Ky.1968); George, 627-28 434 S.W.2d 351, City (Ct.App.1985); v. Hud- 2d Maine, Walz Klingerman Corp. v. SOL 120, son, (S.D.1982); Mitch- 327 N.W.2d 474, Sons, (Maine 1986); Adamian Three v. 755, 656, Ketner, Tenn.App. S.W.2d 498, 18, ell v. Inc., (1968); 353 Mass. 233 N.E.2d (1964); Chico, 821-22; at 312- Thaut, El 732 S.W.2d supra, 213 Trail v. N.W.2d 13; Christian, Young Corp., v. 99 Wash.2d Caravan 298 Minn. 213 N.W.2d 625- (1983) (en banc); Peterson, v. (1973); Munford, 663 P.2d McClellan Inc. v. 368 So.2d LaCounte, (Miss.1979); Tottenhoff, (Wyo.1983). Nehring 666 P.2d

1277 remanding, In ry general type we caution that our that the statute was i.e., prevent, holding open injury intended to leaves a number of issues accidental public. prevail members To at Gaither, proof at trial. generally See su trial, however, plaintiffs must show that 16, pra, U.S.App.D.C. 131 at 221 n. 404 fact, they, in suffered such an First, F.2d at 221 jury n. 16. must prove “time, proximity place its and cir- surmount the threshold of wheth cumstances,” id., alleged statutory to the er, fact, the statute has been violated. violation. Stevens, 2; A.2d supra, 391 at 796 n. Bau man, supra, 308 A.2d at 244. The defend that, As a final caveat we note may present ant in turn considering evidence as to proximate the issue of causa tion, jury whether the violation was excusable under is not free to find that the customer’s of the alcohol was the circumstances or whether other acts of intervening plain an cause of the harm to negate due negligence implied care by tiff, thereby negativing proximate cause as statutory Gaither, violation. supra, it keeper’s furnishing relates to the tavern 16, U.S.App.D.C. at 221 n. 404 F.2d at permit of the drinks. To such a conclusion 16; Co., 221 n. Hecht supra, U.S.App.D. give would be to very argu force to the 384-86, C. at F.2d at 214-16. ment that the per rule of se addition, In plaintiffs prove must preempt. The essence of that violation was the rule is that “the conduct of the defendant injuries. cause of Although Boss, their agent or his precisely be supra, the circuit court held that “[b]oth it person cause created a risk that a third negligence and causation are too clear in improperly. would act In such circum this case ... for jury,” submission to a 78 stances, the fact that a third does U.S.App.D.C. 218-19, 15-16, at 139 F.2d at improperly intelligible act is not an reason other emphasized cases have that causation excusing Ross, supra, defendant.” proof, Ceco, is a matter for supra, see 219, U.S.App.D.C. 16; at 139 F.2d at 945; H.R.H., supra, A.2d at U.S.App. accord, Gaither, supra, U.S.App.D.C. 724; Gaither, D.C. at F.2d at supra, 221; Ceco, 404 F.2d at see also (“The at 221 n. supra, F.2d at 441 A.2d at 944 negligent act 16; Richardson, n. party operate supersed of a third will U.S. as a App.D.C. 266-67, 629-30; plaintiff’s cause of the only harm 281 F.2d at see original where actor should not have Casey also v. Corson & Gruman act.”). anticipated that It is our view that U.S.App.D.C. 178, 179, 221 F.2d adopting rule we are tends to make “[t]he ordinance; (key-in-ignition negli by discouraging streets safer the haz gence was “too remote the collision in from ardous conduct which the for ordinance time, place proxi and circumstances to be a puts bids. It burden the risk ... plaintiffs’ injuries,” mate cause of where Ross, upon those who create it.” accident occurred fifteen miles south of U.S.App.D.C. at 139 F.2d at 16.7 Petersburg, Virginia, many hours after the statutory violation occurred in the Reversed and remanded. District Columbia). applying the doctrine of NEBEKER, Judge, Associate Retired: negligence per holding plain se and upon tiffs have stated a cause of action I dissent for two reasons. To an extent granted, relief related, which we necessar they are for in the end each dic- plaintiffs ily alleged inju- hold that tates abstention this court. courts, fact, suggests holding today 7. The dissent our Some have made a distinction made, upon slippery heading step slope, inexora- that the dissent assumes will not be re- bly judicial recognition fusing toward social host to hold a social host or other non-licen- liable, jurisdiction. slippery although precedent Like all see rec- bound arguments, slope ognize liability this one is fallacious because it for the same acts had the defend- See, presumes unwilling e.g., keeper. that courts are unable or ant been a tavern Keckonen Robles, (Ct.App.1985) make kinds of reasoned distinctions that 146 Ariz. P.2d 945 Ontiveros, precisely (distinguishing supra)', in the nature of courts to make. Boutwell v. When one examines the basis for the cient alcohol to become drunk before he it, stated, majority holding, simply car, is that drives off in his must be held to ac- against proscription permitting the criminal complaint charging count under a similarly (or so), apparently a drunk one from 22-105, to this one. Section makes consuming alcoholic drink bridge is a principal one who aids and abetts the impose duty civil on an A.B.C. license principal prosecutions offender “[i]n derogation ordinary This is holder. any pun- criminal offense ... whatever the respecting intervening rules be.” Id. These criminal stat- ishment cause. surely 25-121(b), are as utes available as § duty predicate to form a for civil I do not the cases view relied on Indeed, I liability. suspect they are better 1274-1275) majority requiring {ante 25-121(b), they than lack the baseless They us to hold as do. only we are exam- serving distinction one is between who ples holdings of similar in different con- aiding getting drunk and one drunk and texts, some of which are better reasoned operating then a car. others, representing than but each an indi- judicial judgment case, vidual call. In this sure, step expanding To be this next not, choose, being I would free to follow viz., liability my objection, first would cure expanding liability. the course of irrationally discriminate some victims of drunk drivers. It is both my unwillingness The first reason for is prompt reasons which me to abstain from that we work a reasonless discrimination holding. political process this is far between victims of drunk drivers who are better suited to decide whether and to what injured by drunk, permitted get one but alcohol, suppliers extent which lead to permitted consump- thereafter not further tion, intoxication and to innocent third primary and those whose malefactors parties, subject are permitted were further of al- to suit. becoming my after cohol intoxicated. argument If there is even a colorable view, obligation we fail in our to administer (and question legislature that this is for the

justice fairly judicially when we create a stronger), judges I think it is far then two cause of action for some innocent third ought of this it alone. decide parties by using operates a statute which Surely apply the en court should itself banc to exclude others without reason. deciding to the task of issue of absten- My disagreement second reason for is legislative process. tion or deference to the premise based on the this kind of I dissent. remedy political pro- should left to cess. Once we turn the comer on license- liability

holder based 25-121(b) (1981), go logically we must us, step presented next when the case be, surely step quite as it will The next 40-716(b) simple. Under D.C.Code § (1986), it operate is an offense to a motor vehicle with a certain level of alcohol. blood

When that statute and the aider and abet- (D.C. (1981))

tor statute Code § holder, together, taken a license or a social host, aids another to consume suffi- Sullivan, (Miss.1985) course, (distinguish- Of host 469 So.2d of social 6);

ing Munford, supra note see also Garren v. presented suggest is not no this case and we Inc., Cummings McCrady, S.C. & question. view here as to that (distinguishing (Ct.App.1986) S.E.2d Chris- tiansen, 6). supra note

Case Details

Case Name: Rong Yao Zhou v. Jennifer Mall Restaurant, Inc.

Court Name: District of Columbia Court of Appeals

Date Published: Dec 4, 1987

Citation: 534 A.2d 1268

Docket Number: 86-809

Court Abbreviation: D.C.