Lead Opinion
In this сase we add our voice to the appellate chorus descanting that the 1978 legislation eliminating social host liability for injuries resulting from the intoxication of a guest is not retroactive. Here a negligence cause of action was pursued against social hosts under Business and Professions Code section 25658, which makes it a misdemeanor to furnish alcohol to a person under 21 years of age. We hold that the 1978 legislation applies prospectively only and consequently does not immunize social hosts found civilly liable for injuries resulting from an accident occurring before the January 1, 1979, effective date of the legislation.
We further conclude that the adoption of comparative negligence in California eliminated the need for the special class exception to the bar of contributory negligence in cases of statutory violations. We hold therefore that unless the Legislature expressly states otherwise, a plaintiff’s contributory fault must be apportioned even when the defendant violates a statute which was arguably intended to protect plaintiff against his own negligence. Consequently, the social hosts here were entitled to have plaintiffs’ negligence apportioned under the principles of comparative negligence.
Finally, we consider and resolve issues relating to the indemnity rights of the parties.
Procedural Background and Facts
The accident in question occurred about 1:20 a.m. on October 28, 1978, in a Toyota land cruiser recently purchased by plaintiff Charles Sagadin from defendant Chuck Swift Dodge-Chrysler (Swift). According to the conflicting testimony, it was either being driven by Sagadin or plaintiff Kenneth Ripper, both of whom were in the front seats; Ripper and Sagadin both denied driving the vehicle and each claimed the other was driving. Gary Schlauch, the third plaintiff, was a passenger in the back seat. At the time of the accident Ripper and Schlauch were 19 years of age while Sagadin was 20. Both Ripper and Sagadin were legally under the influence of alcohol at the timе of the crash. Ripper’s blood alcohol content was .19; Sagadin’s was either .13, according to the California Highway Patrol analysis, or .15, according to expert toxicologists called as witnesses by plaintiffs and the defendants Boats.
The driver had proceeded south on Park Boulevard in West Sacramento, ran a stop sign at Park’s intersection with Stone Boulevard at 35 to 40 miles per hour, and turned right, or west, onto Stone. In that right turn the vehicle began a centrifugal skid to the left followed by a centrifugal skid to the right. The vehicle straightened out and headed essentially west on Stone near the end of an “S” turn maneuver when it tipped over in the street onto its right side. It had begun to roll over when its windshield area hit a tree.
A week or two before the accident Bruce Boal asked his parents, Robert and Lillian Boal, if he and his friends could have a Halloween party at the Boal home on October 27, 1978. Mr. and Mrs. Boal agreed to allow the party. Some written invitations were sent, but Bruce invited the three plaintiffs orally. The invitations neither included a request that guests bring their own alcohol nor indicated that beer or other alcohol would be provided. Mrs. Boal helped with food and decorations for the party.
The party was to be held in the Boals’ family room where Mr. Boal had previously installed a beer dispenser for his own use. The dispenser accommodated a 15'/2-gallon “keg” of beer. Bruce did not ask his father if he and his friends could use the dispenser for the party, but Mr. Boal told Bruce that if they drank any of his beer, it would have to be replaced. Before the party, Bruce had arranged for the purchase of two half kegs of Coors beer for the party from Country Maid, a nearby convenience store where Bruce and others in the group of friends had worked in the past and, in fact, where one of the group, David Hogan, was working at the time of the accident.
The party began about 7 p.m. Mr. аnd Mrs. Boal left the house before the party began and went to the home of some neighbors. They planned to meet their daughter and her husband there later in the evening, change into costumes of their own, and return to their home to join in the party.
Before the party began, there was a keg of Mr. Boal’s beer already in his dispenser, one-third to one-half gone. The balance of this keg was consumed by the 35-50 people at the party. The first full keg was picked up at Country Maid by one of Bruce’s friends, and Bruce connected it to the dispenser about 8:30 p.m. This keg was also consumed at the party. It was empty at about the time the party broke up. Bruce testified that Sagadin went to Country Maid to get the second full keg and returned with it to the Boal home after almost everyone had left the party. This second Country Maid keg was not tapped or consumed at the party.
Ripper and Sagadin denied drinking anything of an alcoholic nature before arriving at the Boals’ home. Each testified that he served himself from the dispenser during the party whenever he wanted mpre beer. None of the Boals served beer to Ripper or Sagadin or anyone else. Neither Ripper nor Sagadin could say how much beer he drank from Mr. Boal’s partial keg which was in place when the party began or how much beer he drank from the first Country Maid keg, which was installed about 8:30 p.m.
It appears that the party was over and everyone was gone from the Boals’ by no later than 11:30 p.m. Mr. and Mrs. Boal returned to the party around 10 p.m. There was no evidence either of them was even aware of the number of vehicles parked out front. Mr. Boal had not seen the land cruiser and did not know Ripper or Sagadin was driving. In the house Mrs. Boal estimated there were about 65 people at the party. She had understood there would only be about 24 there. She asked Bruce to end the party.
After the party broke up, Ripper, Sagadin, Schlauch, and Scott Gleba left in Sagadin’s land cruiser to get and drink more beer. They went to World Wines in West Sacramento where either Ripper or Gleba bought more beer. According to Ripper, they bought either two 6 packs or a case of Heineken beer in bottles; according to Gleba they bought one or two 6 packs. Gleba’s testimony was uncontradicted that Ripper and Sagadin opened and began drinking beer in the land cruiser as they left World Wines. They went to a spot on the levee of the Sacramento River and continued to drink beer. The evidence showed that at least Sagadin and probably Ripper each had at least two bottles of the beer purchased at World Wines.
Plaintiffs left the river and returned to West Sacramento, where they saw Bruce Boal in his truck and John Dorris in his truck on Deerwood Street, where they all stopped in their vehicles to talk. They all decided to go to Eppie’s in West Sacramento for breakfast. The three vehicles proceeded in tandem with Bruce’s vehicle first, Dorris’s vehicle second, and the Sagadin land cruiser last. They all proceeded south on Park and turned west on Stone. When Bruce realized something was wrong, he turned around on Stone and returned to discover the accident. As we have noted, Sagadin and Schlauch were rendered quadriplegic as a result of the accident; Ripper sustained severe brain damage and virtual blindness.
As might be expected, these events gave rise to a series of lawsuits. Ripper, Sagadin and Schlauch each filed separate suits seeking damages from numerous defendants. The first group of defendants consisted of those whose liability was predicated upon the design and condition of the vehicle. The principal defendants in this group were Toyota Motor Sales, U.S.A., Inc., and Toyota Motor Company, Ltd. (hereafter collectively called Toy
At trial, there were serious questions concerning just how much of Sa-gadin’s and Ripper’s blood alcohol content was from beer at the Boals’ partial keg and how much from the Country Maid keg. Furthermore, there was dispute as to how much of the blood alcohol content was attributable to beer consumed away from the Boal residence, both before and after the party and in the interim period when Sagadin and Ripper left the party and returned.
Apart from the involvement of the alcohol, there was another issue of contributory negligence. Sagadin had been driving his land cruiser for at least a week or 10 days before the accident with knowledge it had seriously defective brakes. On two prior occasions he had been involved in minor collisions because of the bad brakes on the vehicle. Both Schlauch and Ripper were aware that the brakes were bad. In fact, Ripper had driven the vehicle with its bad brakes earlier on the evening of the accident when he left the party on one occasion shortly after it began.
Procedurally, the following facts are рertinent. Before trial, Sagadin and Ripper had settled their mutual claims against one another, and Schlauch had settled with both Ripper and Sagadin. The plaintifFs had also settled with other defendants who are not parties to this appeal. The first week of trial was taken up with intensive settlement negotiations, and as a result, immediately before the actual commencement of testimony, Schlauch settled with all of the Toyota entities, Swift, and Dancer-Fitzgerald-Sample, Inc.
Sagadin and Ripper proceeded to trial against Swift, Dancer-Fitzgerald-Sample, Inc., the Toyota entities, and the Boals. Schlauch proceeded to trial against the Boals only. Dancer-Fitzgerald-Sample, Inc., was granted a non-suit at the close of plaintiffs’ evidence.
Following a complex and protracted trial, the jury rendered its verdict for all three plaintiffs. The special verdict for Sagadin was in the amount of $1,250,500 against the defendants Swift, the Toyota entities, and the Boals. The jury found that Sagadin was 60 percent at fault; Toyota was 15 percent
As we shall see, the trial court held that plaintiffs, being under the age of 21, were members of the protected class for whose benefit the statute prohibiting furnishing alcohol to minоrs had been enacted. Consequently, it ruled that plaintiffs’ recoveries, as to any defendant who furnished alcohol, were not subject to any reduction by reason of their own contributory negligence arising from their consumption of alcohol. Because of this comparative fault ruling, two separate awards were necessary in the judgment. First, there was a joint and several judgment against the Boals, Swift, and Toyota for that portion of the Sagadin and Ripper verdicts for which comparative fault was applied. For the portion of the verdict where no comparative fault was applied, the Boals were held to be solely liable.
The trial court thus entered an amended judgment in favor of Charles Sagadin calculated in round figures as follows: From the $1,250,500 verdict, $750,300 (or 60 percent) was deducted for Sagadin’s own negligence; then the amount of settlement, $334,913, was deducted, leaving a net amount of $165,287. Judgment for that sum was entered jointly and severally as to all defendants (the Toyota group, Swift and the Boals). In addition, judgment in the amount of $750,300 was entered solely against Bruce Boal, Robert Boal and Lillian Boal. That sum was calculated by deducting the settlement figure and joint amount of $165,287 from the verdict. In total, judgment was entered against the Boals for $915,587.
The amended judgment in favor of Ripper was calculated in a similar fashion: From the $528,000 verdict, $290,400 (or 55 percent) was deducted for Ripper’s contributory negligence, leaving a balance of $237,600. Since the settlement sum of $334,913 exceeded that figure, a net judgment of zero was entered against the Toyota defendants and Swift. As to the Boals, the court entered a judgment of $193,087, calculated by deducting the amount of the settlement from the verdict. Finally, a judgment of zero dollars against all defendants was awarded to Schlauch inasmuch as his prior settlement of $1,525,173 exceeded the amount of the verdict awarded by the
Pursuant to stipulation, judgment on the cross-complaints arising from the Ripper and Sagadin actions was entered in accordance with the findings of the jury. The cross-complaints by Toyota and Swift against the Boals for the amounts paid to settle with Schlauch was later tried to the court. The court applied the same percentages of fault allocated to the defendants by the jury in the Sagadin case and entered judgment accordingly. Those judgments are considered in more detail in a later part of this opinion.
The Boals appeal, contending that the 1978 amendments retroactively barred plaintiffs’ social host cause of action. They further assert that, in any event, the trial court committed instructional error on that cause of action, that plaintiffs failed to prove that they furnished alcohol, and that there was no evidence that the furnished alcohol proximately caused the accident. The Boals next contend that the trial court committed reversible error by ruling that they were not entitled to the defense of contributory negligence. Finally, the Boals make a series of attacks on the various judgments. They contend that the judgment against them indemnifying Toyota and Swift was erroneous, and that the dismissal of their cross-complaints for indemnification from Toyota in the Schlauch case and from Sagadin and Ripper in all three cases was improper.
Sagadin filed a protective cross-appeal. Although claiming various errors occurred in his trial, Sagadin nevertheless represents to this court that “he would be willing to forego a new trial, and accept the amount of the judgment awarded to him.”
Discussion
I
Social Host Liability
In this case, the civil liability of the Boals was based on the theory that the Boals “furnished” plaintiffs Sagadin and Ripper with alcohol in violation of Business and Professions Code section 25658, subdivision (a). That statute provides: “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any person under
A
The Survival of the Cause of Action
During the 1970’s, a series of cases decided by the California Supreme Court abrogated the common law rule that the sale or furnishing of intoxicating liquor was not the proximate cause of an injury resulting from its use. (See Coulter v. Superior Court (1978)
In 1978 the Legislature enacted legislation which expressly abrogated the holdings in such cases as Vesely, Bernhard, and Coulter and generally reinstated the prior judicial interpretation that the consumption and not the serving of alcoholic beverages was the proximate cause of injuries resulting from the intoxication of the drinker. (Stats. 1978, ch. 929, § 2, p. 2904.)
Although the 1978 legislation was approved by the Governor on September 19, 1978 and filed with the Secretary of State on September 20, 1978, it was not effective until January 1, 1979. The date of the accident in ques
In looking at the express language of section 25602 and Civil Code section 1714, we note the obvious. Neither piece of legislation contains the word retroactive. Not unexpectedly, Sagadin contends “. . .if the legislature had intended the 1978 amendments to have retroactive effect it would have said so.” (See Civ. Code, § 3.) We agree. Every appellate court which has addressed the issue has unanimously agreed that the 1978 amеndments are not retroactive. (See Clendening v. Shipton (1983)
We signaled our agreement with the Fosgate analysis when we cited it with approval in Perry v. Heavenly Valley (1985)
B
Failure to Prove Elements of the Cause of Action
The Boals argue that the plaintiffs failed to prove section 25658 was violated. They claim that there was no showing that they “furnished” alcohol or that alcohol was furnished with the knowledge the plaintiffs would be driving. The Boals also argue there was no showing that the alcohol they made available was a proximate cause of the accident.
In order to violate section 25658, there must be some affirmative act of furnishing alcohol. “The word ‘furnish’ implies some type of affirmative action on the part of the furnisher . . . .” (Bennett v. Letterly (1977)
Given the requirement of an affirmative act, it is nonetheless clear that Bruce Boal furnished the beer. Unlike the absolved defendant in Ben
The liability of his parents is not so easily resolved. The facts show they assisted in preparing food and decorating for the party, provided a location with the knowledge that alcohol would be servеd to minors, and failed to prohibit use of their beer (remarking instead that any beer, if used, would have to be replaced). It is clear that assisting with food and decorations cannot conceivably be construed as acts of “furnishing” liquor, nor— according to Coulter and Weiner—can providing the room for the party, even with the knowledge that minors would be drinking.
This leaves the fact that beer belonging to the parents was consumed at the party. The jury had before it Mr. Boals’ testimony that he told his son that if parental beer was used, it would have to be replaced. Although the inference is not compelled, the jury could reasonably have inferred this was authorization to use the beer. A permissible inference from this undisputed testimony was that Mr. Boal tacitly authorized his son to provide his beer to the plaintiff's. The jury drew that inference and we, like the Boals, are bound by it. (Estate of Bristol (1943)
The cases cited by the Boals are not controlling. It is true that in Brockett v. Kitchen Boyd Motor Co. (1972)
The Boals’ final argument is that even if they breached a duty of care to the plaintiffs by violating section 25658, the plaintiffs failed to prove this was the proximate cause of the accidеnt. Their argument is that the jury could not have determined how much beer the driver drank from which source. It is difficult to determine whether the Boals are arguing that their furnishing of beer was not a cause in fact of the accident, whether it was
At the risk of pontificating, once a duty and its breach have been established, the plaintiff must then show that the breach was a cause in fact of the injury. (4 Witkin, Summary of Cal. Law, supra, Torts, § 622, p. 2903; Prosser, The Law of Torts (4th ed. 1971) § 41, p. 237.) Thus, “as a general rule, the imposition of liability depends upon a showing by the plaintiff that his or her injuries were caused by the act of the defendant or by an instrumentality under the defendant’s control.” (Sindell v. Abbott Laboratories (1980)
Once it has been established the defendant’s conduct has been a cause in fact of the injury, there remains the question of whether it was also the proximate or legal cause. The Boals renew the claim of insufficient evidence, this time arguing that there was no evidence that the beer furnished by the Boals, as opposed to the later-consumed beer, was a proximate cause of the accident. If the Boals are arguing that the low level of blood alcohol their expert testified was attributable to their beer is insufficient to support a finding of proximate cause, they are mistaken. The jury was correctly instructed that there may be more than one negligent act which contributes concurrently as the proximate cause of an injury. (See BAJI No. 3.77 (6th ed. 1977); 4 Witkin, Summary of Cal. Law, supra, Torts, § 624, p. 2906.) Since reasonable minds can differ on a person’s ability to drive after even a few beers, it was for the jury to determine whether the Boals’ conduct
If they are contending that the later consumption of alcohol is, as a matter of law, a superseding cause terminating their liability, they are again mistaken. Whether the act of a third person is a superseding cause depends in part on whether it was reasonably foreseeable. (Powell v. Standard Brands Paint Co. (1985)
II
The Applicability of Contributory Negligence
We have established that the plaintiffs’ cause of action was available during the window of opportunity in 1978 and that Robert and Bruce Boal were properly held liable on it. Now we must turn to the Boals’ claim they were improperly denied the benefit of the principles of comparative fault announced in Li v. Yellow Cab Co. (1975)
Before trial, the plaintiffs moved to preclude the defense
The Boals contend that the statute in question was not intended to create a special class of minors in need of protection against their consumption of alcohol. Consequently, they argue, the court erred in ruling as a matter of law that plaintiffs’ contributory negligence could not reduce their recovery under the principles of comparative negligence. They further contend that, in any event, the development of the doctrine of comparative negligence has subsumed the now obsolete rule that the contributory negligence of a special class
The parties before us differ as to whether section 25658 was intended to protect minors or the public at large, whether section 25658 is sufficiently parallel to the statute governing the delivery of alcohol to obviously intoxicated persons to be analogous, whether the 1978 amendments are relevant (and which argument they support), and which of conflicting out-of-state decisions interpreting the effect of plaintiff violations of statutes we are to follow.
As we have recounted, the claimed negligence of the Boals was predicated solely upon the violation of section 25658, a penal statute. As Prosser noted nearly 40 years ago, “[t]here has been much discussion of the theoretical problem of why the violation of a purely criminal statute which says nothing about tort liability should ever give rise to it. The reason usually given by the courts is that the legislature intended to provide such liability, or that such an intent is to be ‘presumed.’ Ordinarily this is the barest fiction, since the obvious conclusion to be drawn from the silence of the statute as to any civil remedy is that the legislators intended not to provide it, or at least that they did not have the question in mind and had no intentions at all.” (Prosser, Contributory Negligence as Defense to Violation of Statute (1948) 32 Minn. L.Rev. 105, 107, fn. omitted. See also Leonard, The Application of Criminal Legislation to Negligence Cases: A Reexamination (1983) 23 Santa Clara L.Rev. 427.) Prosser found that “the most tenable explanation is that the court finds in the statute an expression of a policy for the protection of a particular class of people against the forbidden conduct, and that in furtherance of that policy it is proceeding by a species of judicial legislation well grounded in precedent, to afford an additional remedy of its own.” (Prosser, op. cit. supra, at p. 108.) Before the enactment of the Evidence Code, the California Supreme Court confirmed that explanation when it noted that “[t]he significance of the statute in a civil suit for negligence lies in its formulation of a standard of conduct that the court adopts in the determination of such liability. The decision as to what the civil standard should be still rests with the court, and the standard formulated by a legislative body in a police regulation or criminal statute becomes the standard to determine civil liability only because the court accepts it. . . . When a legislative body has generalized a standard from the experience of the community and prohibits conduct that is likely to cause harm, the court accepts the formulated standards and applies them, except where they would serve to impose liability without fault.” (Clinkscales v. Carver (1943)
But not every violation of a statute gave rise to a common law presumption of negligence. In order to recover on a theory of negligence plaintiff also had to prove he was one of the class of persons for whose benefit the statute was enacted, the accident was of the nature which the statute was
Once such a statutory standard had been invoked as a test for civil liability, the next question was whether the violation constituted mere evidence of negligence, engendered a rebuttable presumption of negligence or established negligence per se. The California Supreme Court adopted the view that the violation of a statute raised a rebuttable presumption of negligence which could be overcome by evidence of justification or excuse. (Alarid v. Vanier (1958)
This common law presumption of negligence was codified with the enactment of the Evidence Code. (See Cal. Law Revision Com. com. to Evid. Code, § 669, 29B West’s Ann. Evid. Code (1966 ed.) (1985 pocket supp.) p. 155; Deering’s Ann. Evid. Code § 669 (1986 pocket supp.) p. 71.) Evidence Code section 669, subdivision (a) provides: “The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. ” This statutory presumption is, by its own terms, a rebuttable one. “This presumption may be rebutted by proof that: (1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; or (2) The person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, intelligence, and capacity under similar circumstances, but the presumption may not be rebutted by such proof if the violation occurred in the course of an activity normally engaged in only by adults and requiring adult qualifications.” (Evid. Code, § 669, subd. (b).) As the commentary to that section notes, once “it is established that a person violated a statute under the conditions specified in subdivision (a), the opponent of the presumption is required to prove to the trier of fact that it is more probable than not that the violation of the statute was reasonable and justifiable under the circumstances. . . . Since the ultimate question is whether the opponent of the presumption was negligent rather than whether he violated the statute, proof of justification or excuse under subdivision (b) negates the existence
We turn now to contributory negligence and the speciál class exception. Prior to the adoption of comparative negligence, the contributory negligence of the plaintiff, with only a few exceptions, barred his recovery against a negligent defendant. “This rule,” the Li court noted, “rooted in the long standing principle that one should not recover from another for damages brought upon oneself, has been the law of this state from its beginning.” (Li v. Yellow Cab Co., supra,
Under the former “all-or-nothing” system of contributory negligence, the “special class” exception was applied in this fashion: A court dealing with a defendant who had violated a statutory duty was to consider the legislative purpose it found in the statute; if the court found the statute merely established a standard of ordinary care, the contributory negligence of a plaintiff with respect to the risk with which the statute was concerned was a complete bár. This was the same result as if both parties had demonstrated common law negligence. However, if the statute was intended to place the entire responsibility for the risk upon the defendant in order to protect potential plaintiffs from their own negligence, contributory negligence was not available as a defense because barring the plaintiff’s action would thwart the
Thus a series of California cases held that plaintiff’s contributory negligence was a bar in injury actions based on defendant’s violation of safety statutes or orders, presumably because the statutes only established a standard of ordinary care and were not intended to place the entire responsibility upon the defendant. (See e.g., Mason v. Case (1963)
The rub, of course, was in determining whether the effect of the statutе at issue was to place the entire responsibility upon the defendant. Courts have not provided precise principles for determining whether a statute has this effect, and the cases display “surprising diversity.” (Schwartz, Comparative Negligence (1974) § 6.2 at pp. 119, 120.) Part of the reason for that diversity, as we have noted, is that the legislature frequently does not have the question of tort liability in mind when enacting criminal statutes, much less whether that liability should be shared according to fault or borne only by the violator.
First of all, such a rule is in keeping with the broad pronouncements of the Supreme Court that “a comprehensive system of comparative negligence should allow for the apportionment of damages in all cases involving misconduct which falls short of being intentional” and that “the fundamental purpose of [comparative negligence] shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties.” (Li, supra, 13 Cal.3d at pp. 826, 829; italics added.)
Indeed, since comparative negligence applies to cases of strict liability (Daly v. General Motors Corp. (1978)
We also draw solid support by analogy to the cases which abolished the doctrine that willful misconduct by a defendant precluded the defense of contributory negligence as a bar; once the latter was abrogated by comparative negligence, there was no further need for the former. (Zavala v. Regents of University of California (1981)
We hold therefore that unless the legislature expressly states to the contrary, plaintiff’s contributory negligence should be assessed under comparative negligence principles in all cases where defendant’s liability for negligence is predicated upon a violation of statute.
Since we conclude that the amount awarded to Sagadin cannot stand, we turn to his cross-appeal. We consider Sagadin’s arguments in the unpublished portion of this opinion in order to assess whether we must order a new trial or can rescue the verdict from the confusion growing out of the consolidation of these cases. Sagadin’s arguments may be classified in three categories: the verdict is a product of bias and prejudice on the part of the jury; the jury’s assessment of percentages of liability was a product of reversible error; and the trial court committed reversible error in various instructions and related evidentiary rulings. He also contends that a nonsuit against him on a cause of action of fraud against Swift was erroneously granted. We do not find any of these sufficient, either individually or collectively, to reverse the judgment and order a new trial.
Ill
Sagadin’s Cross-appeal
Reversal or Modification
Having concluded that Sagadin’s cross-appeal does not justify reversal, our way is clear to decide whether a new trial is necessary because of the erroneous contributory negligence ruling or if the verdict may be saved.
Whenever an appellate court may make a final determination of the rights of the parties from the record on appeal, it may, in order to avoid subjecting the parties to any further delay or expense, modify the judgment and affirm it, rather than remand for a new determination. (Fox v. Hale & Norcross S. M. Co. (1898)
Before making that allocation, we must first deal with issues of settlement credits raised by the parties. The Boals claim they are entitled to credit for the settlements by Sagadin and Ripper (in their role as defendant in each other’s suit) in proportion to the fault of Sagadin and Ripper, rather than the amount paid. Thus on the $1,250,500 Sagadin verdict, they claim they are entitled to credit based upon Ripper’s percentage of fault (55 percent) or $687,775, rather than credit for the $15,000 Ripper actually paid Sagadin in settlement. The argument asks us to disregard the statement in American Motorcycle Assn. v. Superior Court (1978)
At long last reaching the bottom line, we are provided a perfect vehicle in the record to serve as a basis for modifying the judgment. The jury itself in its special verdict assessed the percentages of fault of the parties in the Sagadin and Ripper actions. The error, simply enough, was in failing to give the Boals the benefit of these assessments. We will give the Boals that benefit by modifying the judgment to reflect the proportionate fault of Sa-gadin and Ripper. Thus the total damages of plaintiff Sagadin ($1,250,500) will be reduced 60 percent to reflect his contributory negligence as found by the jury, for a modified award of $500,200. From this figure, the settlements amounting to $334,913.33 are to be deducted, resulting in a net amount of $165,286.67 as the judgment against Swift, Toyota, and Robert and Bruce Boals.
The total damages of plaintiff Ripper ($528,000) will be reduced 55 percent to reflect his contributory negligence as found by the jury, for a resulting total of $237,000. From this figure, the settlements amounting to $334,913 are to be deducted, resulting in a net judgment in favor of Ripper of zero dollars.
V
Indemnity
Having resolved the merits of the main actions, we now turn to the squabble among the defendants (who include Messrs. Ripper and Sagadin in their roles as defendants in the three actions) over who is to foot the bill.
We first consider the cross-complaints by Toyota and Swift against the Boals for indemnification for the Schlauch settlement.
Wisely abandoning an argument that the settling defendants had no right to seek indemnity, the Boals focus their energy on maintaining that it is not in keeping with the principles of Li and American Motorcycle for them to be held liable for a sum which far exceeds their percentage of fault. Toyota and Swift—also citing Li and American Motorcycle—claim this is the only fair and equitable procedure. They assert that precluding them from recovering the full amount of their payments (less only an amount of the payment reflecting their own percentage of fault) would thwart a hierarchy of public policy which gives primacy to encouraging settlements. (See Hemmelgarn v. Boeing Co. (1980)
The equitable indemnity rule announced in American Motorcycle permits “a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis.” (
The question then is how the shortfall caused by the settlement of one or more joint tortfeasor is to be shared by the remaining tortfeasors in an equitable indemnity proceeding. The trial court’s answer was that the shortfall was to be borne entirely by the Boals. That answer was wrong. The issue is “how to divvy up in dollars the percentage of responsibility attributable to joint tortfeasors who have settled and thus are judgment proof.” (Lyly & Sons Trucking Co. v. State of California, supra, 147
Thus in determining the correlative rights of the concurrent tortfeasors in the indemnity actions, the apportionment of plaintiff Schlauch’s loss must be made as though the immune good faith settlors had not been involved in the accident. In Toyota’s indemnity action against the Boals, both Sagadin (60 percent at fault) and Swift (15 percent at fault) are immune as good faith settlors. Thus, only 25 percent of fault remains to be apportioned on a ratio of 15 percent for Toyota and 10 perсent for the Boals. Schlauch’s loss was fixed by the jury at $1,249,136 and Toyota’s share of that loss, on an adjusted basis, is 15/25 or 60 percent. Toyota’s adjusted share then is $749,481.60. Since Toyota only paid $200,000 in settlement, it did not pay more than its proportionate share, as adjusted, and consequently has no indemnity rights against the Boals.
In Swift’s indemnity suit against the Boals, both Sagadin and Toyota are immune and once again only 25 percent of fault remains to be apportioned. The ratio remains at 15/25 or 60 percent. Swift’s adjusted share therefore is also $749,481.60. Since Swift paid $955,000 in settlement, it is entitled to recover the difference, $205,518.40, from the Boals.
Any adjustment of indemnity rights is inherently skewed when there are immune tortfeasors and this case reflects that distortion. Nonetheless, the imperfect adjustment here strikes a rough balance of the rights of the parties. Toyota recovers nothing in its indemnity suit but still pays less overall than the Boals even though more at fault. Toyota consequently reaps the benefits of a prudent settlement. Swift pays the most but that is a consequence of its disportionately high, and hence imprudent, settlement. Finally, the Boals pay more than their share of fault but that is the risk they assumed by not settling.
The Boals also complain that the trial court improperly awarded prejudgment interest to Toyota and Swift. The court ordered that prejudgment interest should run from the dates that Toyota and Swift made the settlement payments, December 22, 1980, and January 1, 1981, respectively. The
“Subdivision (a) of section 3287 does not authorize prejudgment interest as a matter of law where the amount of damage, as opposed to only the determination of liability, depends upon a judicial determination based upon conflicting evidence . . . (Esgro Central, Inc. v. General Ins. Co. (1971)
B
We now change our point of view to a perspective of the Boals as cross-complainants for indemnification from Toyota in the Schlauch case and from Ripper and Sagadin in all three cases. As we have recited, Toyota paid $200,000 to settle Schlauch’s claim and Ripper and Sagadin each paid $15,000 to settle Schlauch’s claim and paid $15,000 to each other to settle their reciprocal claims.
With rеspect to Ripper and Sagadin, the trial court found that the fact that they settled at their policy limits, coupled with the absence of any evidence of collusion and supplemented by the evidence they had no other available assets at the time of the settlements, proved that the settlements were made in good faith. With respect to Toyota, the trial court found good faith based on the absence of any collusion (a point conceded even by the Boals’ counsel) and testimony that the settlement exceeded the figure suggested by the judge to whom the case had been referred for settlement negotiations.
The numerous briefs before us on the question of good faith in these settlements have centered on the holding of Dompeling v. Superior Court
Even under the Tech-Bilt formulation, the lower court’s rulings in the present case must be upheld. Since Tech-Bilt merely adds to the list of factors to be considered by the trial judge, the factors actually considered by the lower court still constitute substantial evidence for its rulings. In addition, the undisputed facts show that a question of proportionality will not affect this case. With Toyota, the amount of the settlement was within the range of liability as found by the settlement judge and fairly approximated the actual liability established at trial (which does not enter our review of the decision, but simply goes to show that this was in fact a reasonable settlement). As for Ripper and Sagadin, it is true that the amounts in which they settled in no way reflects their culpability in the accident, and the fact of their settlement effectively concealed the truth as to who was actually driving that night. However, balanced against these considerations is the overriding fact that the trial judge found that the defendants were insolvent but for the insurance policies, a relevant factor. Given these factors, we cannot say that the trial court abused its discretion.
VI
Conclusion
In summation, we have found that the 1978 amendments were not retroactive, in accordance with the solid body of precedent. The jury was prop
On Sagadin’s cross-appeal, there was no error in admission of evidence or in instructions such that he is entitled to a new trial. Finally, with respect to indemnity, the Boals were incorrectly assessed an amount greater than their proportionate share and were improperly charged with prejudgment interest. Both of these errors we are able to correct on appeal. Otherwise, the indemnity rulings were correct.
As modified in the disposition portion of this opinion, the judgments under review are affirmed.
VII
Disposition
Notes
Neither Toyota nor Swift filed a notice of appeal and they appear here only as respondents to the Boal appeal. The Boals did not appeal from the judgment in favor of Schlauch and he is not a party to this appeal.
The jury was instructed: “Section 25658(a) of the Business and Professions Code of the State of California provides in relevant [part] as follows: No person shall sell, furnish, give away or cause to be sold, furnished or given away any alcoholic beverage to any person under the age of 21 years. If you find that defendants Robert Boal, Lillian Boal or Bruce Boal or any of them violated Business and Professions Code Section 25658(a), the statute just read to you, and thus—and that such violation was a proximate cause of injury to a plaintiff, you will find that such violation was negligence. In this case against Robert Boal, Lillian Boal or Bruce Boal or any of them, the sole basis for establishing liability is a violation of this statute.” (Italics added.)
To accomplish this sweeping reform, the Legislature added new subdivisions to Business and Professions Code section 25602 and Civil Code section 1714. The original sections remained unchanged, but were renumbered as subdivisions (a) of each section. The sections now read:
Business and Professions Code section 25602: “[¶] (a) Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor. [¶] (b) No person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage pursuant to subdivision (a) of this section shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage. fl] (c) The Legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Vesely v. Sager (
Civil Code section 1714: “[¶] (a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief. [¶] (b) It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager (
Business and Professions Code section 25658 (making it a crime to sell, furnish or give away alcoholic beverages to a minor) was not amended, but, as we hаve noted, a new section 25602.1 was added relating to obviously intoxicated minors. It reads: “Notwithstanding subdivision (b) of Section 25602, a cause of action may be brought by or on behalf of any person who has suffered injury or death against any [licensed purveyor of alcoholic beverages] who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage to any obviously intoxicated minor where the furnishing, sale or giving of such beverage to the minor is the proximate cause of the personal injury or death sustained by such person.” (Stats. 1978, ch. 930, § 1, p. 2905.)
Because Business and Professions Code section 25658 contains no express language of civil immunity comparable to that contained in section 25602, it was contended in Strang v. Cabrol, supra,
Hereafter all references to section 25658 are to the Business and Professions Code.
The Fosgate court also concluded that the amendments were not retroactive because “the cause of action for negligent service of alcohol is grounded in the common law rather than being solely a statutory remedy. . . . Thus, the applicable rule is that the 1978 amendments did not divest [plaintiff] of her accrued common law cause of action.” (107 Cal.App.3d at pp. 960-961, citations omitted.)
The Boals also complain that the court erroneously rejected their proposed instructions informing the jury that some affirmative conduct was required to violate the statute. Nevertheless, the court did instruct the jury that “inaction in and of itself is not sufficient ... to violate that section or to amount to a cause, but inaction at the time of the event if preceded by some affirmative conduct of any kind at any time would be sufficient.” That instruction adequately informed the jury that some affirmative conduct was required.
This is not undue speculation on the part of the jury. They had evidence of the plaintiffs’ blood alcohol level at the time of the accident, evidence of the quantity of beer consumed after the party, evidence of the estimated number of beers consumed at the party, and toxicologist evidence of the effect of the beers on the final blood alcohol levels.
We use the term “defense” for the sake of convenience; we refer, of course, to the measure of the plaintiff’s comparative fault, not the complete bar to a plaintiff’s action. Under the landmark decision in Li v. Yellow Cab Co. (1975)
By special class we mean the class established by a statute construed as intended to place the entire responsibility for the risk upon the defendant in order to protect an exceptional group from their own negligence. As we recount, all negligence predicated upon a statutory violation involves by definition “the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Evid. Code, § 669.) But not all members belong to such a special class, for that depends upon whether the statute was designed to shift the entire responsibility to the defendant or whether it was merely intended to protect the ordinary class by raising a presumption of negligence.
The quest for out-of-state precedent is an effort of “little profit” because the California system of comparative negligence is a judicial creation shaped from our case law. Consequently, the effect of different jurisdictions’ comparative negligence statutes on the doctrine of contributory negligence in the violation of statutes different from the one at bench “shed[s] little light.” (Sorensen v. Allred (1980)
Prior to the 1971 decision in Vesely, California courts did not have occasion to consider whether a statute prohibiting the delivery of alcohol to minors was intended to shift the responsibility to the offending defendant because the consumption, and not the furnishing, of alcohol was deemed to be the proximate cause of injury from its use. (See Cole v. Rush (1955)
This case illustrates the chimerical quest for such an unexpressed legislative intent. The Boals cite the 1978 amendments as illustrative of the Legislature’s earlier intent and further argue that the alcoholic beverage statutes were adopted for the purpose of protecting members of the general public, and not the drinker, from injuries arising from the excessive use of alcohol. Indeed, the Vesely court held that one of the purposes of the statute prohibiting sale of alcohol to obviously intoxicated persons was to “protect the safety of the people of this state.” (Id., at p. 165.) The court found support for this interpretation “in the decisions of those jurisdictions in which similar statutes, and statutes prohibiting the sale of alcoholic beverages to minors, have been found to have been enacted for the purpose of protecting members of the general public against injuries resulting from intoxication.” (Ibid., citations omitted.) On the other hand, plaintiffs rely upon the language in Brockett v. Kitchen Boyd Motor Co., supra,
The Legislature occasionally has expressly set forth the civil consequences of a violation of a penal statute. As we have seen, Civil Code section 1714, subdivision (c) now provides that no social host shall be civilly liable for furnishing alcoholic beverages to minors in violation of section 25658. In other instances, the Legislature has exempted the violation of a criminal statute from the statutory presumption under Evidence Code section 669. For example, Vehicle Code section 40831 provides: “In any civil action proof of speed in excess of any prima facie limit declared in Section 22352 at a particular time and place does not establish negligence as a matter of law but in all such actions it shall be necessary to establish as a fact that the operation of a vehicle at the excess speed constituted negligence.”
Cоntrary to counsel’s fatuous suggestion, the Boals did not invite this error. Declining a stipulation after the close of evidence to argue only the contributory negligence of the passenger plaintiff (Schlauch) can hardly be said to waive the right to appeal the improper preclusion of the issue from the Boals’ case.
We reserve discussion on his settlement credits argument for part IV, infra.
See footnote, ante, at page 1141.
Having found the contributory negligence ruling to be error, the Boals’ argument that they were improperly assessed the entire amount of plaintiffs’ contributory negligence in the Sagadin and Ripper cases is mooted.
As we noted earlier, the Boals did not appeal from the judgment in favor of Schlauch. Consequently, all three of them, including Lillian, are precluded from denying their liability to him.
The only finding concerning Schlauch’s damages was that made by the jury when it rendered its verdict for $1,249,136 in his favor in the action against the Boals. Both the court and all the parties to the indemnity actions implicitly accepted that figure and no contrary contention concerning those damages is made here.
Code of Civil Procedure section 877 provides: “Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort—[¶] (a) it shall not discharge any other such tortfeasor from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is greater; and [¶] (b) It shall discharge the tortfeasor to whom it is given from all liability for any contribution to any other tortfeasors.”
As the Supreme Court recently noted, “the language of section 877 is significant—its drafters did not use the narrow term ‘joint tortfeasors,’ they used the broad term ‘tortfeasors claimed to be liable for the same tort.’ This language was meant to eliminate the distinction bеtween joint tortfeasors and concurrent or successive tortfeasors, and to permit broad application of the statute.” (Mesler v. Bragg Management Co. (1985)
The Boals concede that Swift’s settlement of $955,000 to Schlauch was made in good faith and raise no issue on appeal concerning that settlement.
See footnote, ante, at page 1141.
Dissenting Opinion
I dissent. I believe the 1978 legislative amendments give defendants Robert, Lillian and Bruce Boal absolute immunity from any liability to plaintiffs premised on the Boals’ “furnishing” of alcoholic beverages as social hosts. I believe this is so because the amendments apply retroactively to immunize social hosts from the kind of liability asserted in this case. In this regard, it is particularly the “social host” liability which is without effect at the time of the incident here, as I believe the doctrine defining this liability in Coulter v. Superior Court (1978)
First, it is fundamental that a statute be interpreted to effectuate the legislative intent. (Mannheim v. Superior Court (1970)
“In determining the legislative intent, the court turns first to the words used in the statute. [Citations.] The words, however, must be read in context, keeping in mind the nature and obvious purpose of the statute where they appear [citations], and the statutory language applied must be given such interpretation as will promote rather than defeat the objective of the law [citations].” (Pennisi v. Department of Fish & Game (1979)
While the instant legislation obviously does not use the word “retroactive,” I note that both Business and Professions Code section 25602 and Civil Code section 1714 contain express language which could be construed as giving the legislation retroactive effect. Specifically, Civil Code section 1714 states: “It is the intent of the legislature to abrogate the holdings [of Vesely v. Sager (1971)
If the Legislature never intended such liability in the 'first place, it is logically absurd to deny a retroactive application of the amendments. Courts must avoid an interpretation which attributes a logical absurdity to the legislation being construed. (Dempsey v. Market Street Ry. Co. (1943)
This interpretation means the Legislature is in effect telling us what its intent was when it first passed Business and Professions Code section 25602 and what its intent is now. Although the authority to interpret preexisting legislation is a power belonging exclusively to the judiciary (Matter of Coburn (1913)
It is true that a plausible interpretation of the 1978 amendments might be that the Legislature initially intended Business and Professions Code section 25602 to be interpreted to establish civil liability and only later changed its collective mind in 1978 following the public outcry over Vesely. However, both the history surrounding that section and its express language lead me to conclude the Legislature never intended it to be used as a basis for civil liability, particularly for social hosts. I assume the mandate in Business and Professions Code section 25602 “that this section shall be interpreted so that the holdings in \Vesely and its progeny] be abrogated in favor of prior judicial interpretation . . . .” directs us to look at the common law as it existed under Tammers v. Pacific Electric Ry. (1921)
In Cole, the California Supreme Court stated: “A number of jurisdictions have adopted statutes creating a right of aсtion, . . . California, however, has enacted no such statute notwithstanding the fact that, as hereinafter shown, its Legislature has repeatedly dealt with problems concerning alcoholic beverages and concerning tort liability.” (45 Cal.2d at pp. 348-349.) “[T]he Legislature . . . has at no time seen fit to adopt a statute inconsistent with the common law so far as concerns a remedy for injury or death following the furnishing of liquor . . . .” (Id., at p. 355.)
In addition, the fact that the Legislature could have reacted to the statutory interpretation contained in Cole, but didn’t, indicates the Cole court correctly interpreted the legislative intent at that time. I view this legislative inaction as extrinsic evidence that the Legislature either never intended the Alcoholic Beverage Control Act to impose dram shop liability, or that it acquiesced in the Cole interpretation. “. . . [I]f the Legislature does not see
By reinstating prior judicial interpretation and expressly eliminating social host liability for the furnishing of alcoholic beverages, the Legislature is telling us that it never intended Business and Professions Code section 25602 to be used to establish civil liability and that it is satisfied with the old law under Cole. I read this as an implicit, if not explicit, statement that the Legislature intends Business and Professions Code section 25602 and Civil Code section 1714 to be given retroactive effect.
Sagadin is not persuaded by this argument and queries if the Legislature went to such pains to express its intent, why did it fail to include an urgency clause in either Business and Professions Code section 25602 or Civil Code section 1714?
Article IV, section 1 of the California Constitution authorizes the Legislature to pass urgency legislation or emergency legislation on a two-thirds vote, following a finding that the legislation is necessary for the “ ‘immediate preservation of the public peace, health or safety ....’” (Davis v. County of Los Angeles (1938)
However, given that the authority for urgency legislation is dependent on finding the legislation is necessary for the “immediate preservation of the public peace, health and safety” (ibid.), I find the absence of an urgency clause to be less than significant. Amending civil procedure to immunize social hosts from civil liability is not per se a question of public peace, health or safety, except perhaps inasmuch as it supports the welfare of trial attorneys.
In light of the fact the Legislature (1) may have been operating under the assumption the language of the legislation implicitly contained expressions of intent to apply retroactively, and (2) is aware that “urgency” clauses are only used in cases where the legislation is necessary for the preservation of public peace, health and safety, I am unable to conclude the absence of an urgency clause is controlling.
Since Marriage of Bouquet directs us to “impute weight to expressions of intent in accord with their probative value” (
Furthermore, as I noted at the outset, Bouquet requires us to look at “all pertinent factors” (italics added) which may aid in ascertaining the legislative intent. Therefore, I turn to the “public policy” behind the amendments. (Id., at p. 587.) “Public policy considerations include the purpose to be served by the new rule, and the effect on the administration of justice of retroactive application.” (Peterson v. Superior Court (1982)
As I noted earlier, the express intent of the Legislature is to “reinstate prior judicial interpretation.” (Civ. Code, § 1714.) If we reinstate prior judicial interpretation and apply it prospectively (i.e., only to causes of action arising after Jan. 1, 1979), we create an anomaly. A statutory cause of action which arose on December 31, 1978, would be decided under Vesely, supra, 5 Cal.3d 153 and Coulter, supra,
As I see it, the purpose of the legislation is to provide a broad immunity to social hosts from suits arising as a result of injuries caused by intoxicated guests. A similarly sweeping immunity is granted to licensed servers under Business and Professions Code section 25602, with one narrow exception pertaining to “obviously intoxicated minorfs].” (See Cory v. Shierloh (1981)
However, this case does not involve the effect of the entire Vesely line of decisions, but only the doctrine set forth in Coulter v. Superior Court, supra,
The majority points to the decision in Fosgate v. Gonzales (1980)
Because Sagadin’s cause of action is based solely on Business and Professions Code section 25658 and Evidence Code section 669,
Finally, I turn to Sagadin’s argument that the Legislature may not validly repeal statutory remedies when to do so would deprive a person of a vested right or impair the obligation of contract. “Where a statute operates immediately to cut off an existing remedy and by retroactive application deprives a person of a vested right, it is ordinarily invalid because it conflicts with the due process clause of the federal and state constitutions. [Citations omitted.]” (California Emp. etc. Com. v. Payne (1947)
However, it is equally well-settled that when a pending cause of action is founded on a statute, a repeal of the statute before final judgment destroys the right of action. (People v. Bank of San Luis Obispo (1910)
Sagadin’s right to a statutory cause of action under Business and Professions Code section 25628 was inchoate because it had not been reduced to a final judgment prior to the 1978 amendments. Therefore, he cannot claim the application of the 1978 amendments to his pending cause of action cut off any vested rights.
I would reverse the judgment against the Boals.
Petitions for a rehearing were denied January 9, 1986, and the petitions of appellant Sagadin, respondents Ripper and Chuck Swift Dodge-Chrysler for review by the Supreme Court were denied March 19, 1986.
For analyses of what constitutes the prior judicial interpretation, see generally Comment, Civil Liability for Furnishing Liquor in California (1974) 5 Pacific L.J. 186; Comment, Social Host Liability for Furnishing Alcohol (1979) 10 Pacific L.J. 95; Liquor Law Liability in California (1973) 14 Santa Clara Law. 46; Dram Shop Liability (1969) 57 Cal.L.Rev. 995.
Although the court in Cole did not specifically consider the question of the defendant’s alleged violations of the Alcoholic Beverage Control Act and instead prevented the plaintiff’s recovery under common law notions of proximate cause, Cole contains broad language which indicates the Legislature did not intend the Alcoholic Beverage Control Act to be used as a basis for statutory dram shop liability.
It would be equally illogical to assert that liability based on Coulter could extend retroactively before the date of decision in Coulter, especially in light of the 1978 legislative amendments abrogating Coulter and reinstating prior judicial interpretation, i.e., such as existed before the date of decision in Coulter.
Evidence Code section 669 provides in part; “(a) The failure of a person to exercise due