DEBORAH STRANG, Plaintiff and Appellant, v. GEORGE J. CABROL et al., Defendants and Respondents.
S.F. No. 24762
Supreme Court of California
Dec. 27, 1984.
Appellant‘s petition for a rehearing ws denied February 14, 1985.
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Patrick R. Beasley for Plaintiff and Appellant.
Terrence J. Ford, Paula Tripp and Rodney A. Klein as Amici Curiae on behalf of Plaintiff and Appellant.
Moss & Enochian, Steven R. Enochian and Todd E. Slaughter for Defendants and Respondents.
Charles G. Miller, Susan M. Akram, Bartko, Welsh & Tarrant, James V. Jordan, Jonathan Solish and Solish, Jordan & Wiener as Amici Curiae on behalf of Defendants and Respondents.
OPINION
THE COURT.—We grantеd a hearing in this case to resolve a conflict among the Courts of Appeal regarding the question whether civil liability for personal injuries may be predicated on the sale or furnishing of alcoholic beverages to a minor who is not obviously intoxicated. We conclude that no liability exists in such a case, that the trial court properly sustained defendants’ general demurrer, and that we should adopt the well-rеasoned
In a personal injury suit, plaintiff Deborah Strang appeals from a judgment dismissing her third cause of action after the trial court sustained defendants’ demurrer thereto without leave to amend. [] We shall hold that defendants are immune from liability to plaintiff by force of the 1978 amendmеnts to
For purposes of this appeal, we treat as true all material facts properly pled in the complaint. (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 746 [167 Cal. Rptr. 70, 614 P.2d 728]; White v. Davis (1975) 13 Cal.3d 757, 765 [120 Cal.Rptr. 94, 533 P.2d 222].) George Cabrol and four other individuals are named as defendants in the third cause of action. Together they constitute a partnership doing business as Liquor For Less, also named as a defendant in the third cause of aсtion. It is alleged inferentially that Liquor For Less is licensed to sell alcoholic beverages (
Subdivision (a) of
“(c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages.” (Stats. 1978, ch. 929, § 2, p. 2904.)
Subdivision (a) of
The single statutory exception to the broad immunity created by the 1978 amendments is found in
The 1978 amendments expressly abrogate the holdings of Vesely, Bernhard, and Coulter. Departing from the then existing common law rule, Vesely held that a commercial vendor of alcoholic beverages was subject to liability for injuries to third persons resulting from the vendor‘s sale of alcоhol to an obviously intoxicated person in violation of
Guided by settled principles of statutory construction we conclude that the sweeping civil immunity now provided by
The maxim expressio unius est exclusio alterius applies here. Under this familiar rule of construction, an express exclusion from the operation of a statute indicates the Legislature intended no other exceptions are to be implied. (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195 [132 Cal.Rptr. 377, 553 P.2d 537]; see also 2A Sutherland, Statutory Construction, supra, § 47.23, p. 123; 58 Cal.Jur.3d, supra, § 115.) The “single еxception” to the “sweeping immunity” afforded by the 1978 amendments (Cory v. Shierloh, supra, at p. 436) is in cases of sale by a licensee to an obviously intoxicated minor (
The Vesely, Bernhard and Coulter decisions all involve the furnishing of alcoholic beverages to an obviously intoxicated person. We are sаtisfied that explicit reference to these cases in the 1978 amendments was not intended to restrict the scope of the immunity only to cases involving that narrow factual pattern. The reference in the 1978 amendments to the holdings “in cases such as” Vesely, Bernhard, and Coulter is simply descriptive generally of evolving common law on the subject of the liability of the provider of alcoholic beverages (see Cory v. Shierloh, supra, 29 Cal.3d at p. 437). Were the referencе interpreted as limiting, then the 1978 amendments (except as provided by
Subdivision (b) of
Cole was a wrongful death action in which plaintiffs sought to recover damages against defendants for furnishing intoxicating beverages to the deceased, who was killed thereafter in a fist fight. (Supra, 45 Cal.2d at p. 347.) Plaintiffs alleged that defendants knew the deceased became belligerent, pugnacious, and quarrelsome when intoxicatеd (ibid.), but did not allege the deceased was incompetent or incapable of voluntary action (at p. 354). Concluding that no cause of action had been pled, the Cole court stated that the general common law rule as to tort liability arising out of the sale of intoxicating beverages “‘gives no remedy for injury or death following the mere sale of liquor to the ordinary man, either on the theory that it is a direct wrong or on the ground that it is negligence, which imposes a legal liability on the seller for damages resulting from the intoxication.’” (Id., at p. 348, quoting from 30 Am.Jur. 573, § 607; see also Cantor v. Anderson, supra, 126 Cal.App.3d at p. 130.) Cole explained further “that as to a competent person it is the voluntary consumption, not the sale or gift, of intoxicating liquor which is the proximate cause of injury from its use; . . .” (Cole v. Rush, supra, at p. 356; Cantor v. Anderson, supra, at p. 130.)
The Cole definition of an “ordinary man” who voluntarily consumes liquor embraces a minor engaging in the same conduct, absent some additional showing that the minor is incompetent, incapable of voluntary action, or otherwise suffers from some peculiar mental disability (see, e.g., Cantor v. Anderson, supra, 126 Cal.App.3d 124). Although the facts in Cole concerned an adult who became intoxicated, the court relied on an Arizona decision holding that no cause of action was stated against a “tavernkeeper who unlawfully sold intoxicating liquor to a child of the age of 15, upon which she became intoxicated, because ‘It cannot be said as a matter of law that a child of fifteen has neither will nor choice nor discretion whatever’. . . .” (Cole, supra, 45 Cal.2d at p. 353, quoting Collier v. Stamatis (1945) 63 Ariz. 285 [162 P.2d 125, 126-127].) Indeed,
The Cole court also cited with approval Fleckner v. Dionne (1949) 94 Cal.App.2d 246 [210 P.2d 530]. (See Cole, supra, at pp. 350-351.) The
As a “prior judicial interpretation” (
We read Cory v. Shierloh, supra, 29 Cal.3d 430, as supporting if not compelling the conclusion that the defendants here are not civilly liable by reason of violating
The allegations of the Cory complaint included more than the furnishing of alcoholic beverage by a nonlicensee to an obviously intoxicated minor. Stated separately wаs the unlicensed furnishing or sale of alcoholic beverage to a person under 21 years of age. (See Burke v. Superior Court, supra, 129 Cal.App.3d at pp. 586-587.) The Cory court assumed for purposes of its analysis that Shierloh was not a “social host” within the meaning of
The majority opinion in Burke v. Superior Court, supra, 129 Cal.App.3d 570, stands alone as contrary authority. Finding no blanket immunity in statutory or common law, Burke held that a licensee who sells alcoholic beverage to a sober person under 21 years of age, in violation of
In Burke, the Court of Appeal found foreseeability to be the test of liability. (Id., at p. 577.) This foreseeability standard was rejected, however, by the 1978 amendments, discussed above. The holdings in Vesely, supra, 5 Cal.3d at page 165, Bernhard, supra, 16 Cal.3d at page 325, and Coulter, supra, 21 Cal.3d at pages 152-153, which likewise employed a foreseeability standard on which to base liability, were expressly abrogated. The Burke decision also stated that furnishing alcohol to sober minors was outside the scope of the immunity provided by the 1978 amendments. (129 Cal.App.3d at p. 579.) As previously discussed, the Legislature abolished tort liability against thе furnisher of alcoholic beverages except in only one situation, namely, providing alcohol to an obviously intoxicated minor. No other exceptions to this immunity exist. Therefore, no civil liability may be imposed on one who furnishes alcoholic beverages to a minor who is not obviously intoxicated. Burke is disapproved to the extent it is inconsistent with this opinion.
The judgment is affirmed.
KAUS, J.—I respectfully dissent.
When we, in Vesely v. Sager (1971) 5 Cal.3d 153, 167 [95 Cal.Rptr. 623, 486 P.2d 151], overruled such cases as Cole v. Rush (1955) 45 Cal.2d 345 [289 P.2d 450] and Lammers v. Pacific Railway Company (1921) 186 Cal. 379 [199 P. 523], we simply brought this area of the law into conformity with modern notions of proximate cause. (Id., at pp. 163-164.) Of course it was only to be expected that those who were adversely affected by Vesely and its spawn would attempt to undo legislatively what we had done judicially. Nothing wrong with that. The issue is, however, just how far they succeeded.
The efforts to bury Vesely culminated in the 1978 legislation which was embodied in chapters 929 and 930 of that year‘s statutes. The five relevant provisions of these two chapters fall into three groups: (1) Two create true immunities from liability: these are subdivision (c) of
One obvious conclusion from this parsing of the 1978 legislation is that the two anti-Vesely declarations did not purport to state a new insight into the nature of proximate cause. Were that the case,
What all this means is simply this: the revival of the pre-Vesely rule concerning proximate cause was limited to the situations covered by the two specific immunities: the social host and the person who serves common drunkards and obviously intoxicated persons. (
Sincе it is not disputed that but for that legislation plaintiff has stated a cause of action, I would reverse.
Bird, C. J., and Reynoso, J., concurred.
Appellant‘s petition for a rehearing ws denied February 14, 1985. Bird, C. J., and Reynoso, J., were of the opinion that the petition should be granted.