*1 (2) equi ultimately prevail and ment in that the otherwise exists jurisdiction
ty WALZ, Special Administrator of Lela that he otherwise shows would taxpayer Guy Ludwig, William Estate injury. Shapiro, 424 U.S. irreparable suffer Appellant, deceased, Plaintiff 1070, 627, at at 290. L.Ed.2d at 96 S.Ct. held that the could not further IRS Shapiro alleged drug an dealer’s on or seize levy HUDSON, Dakota, a CITY OF opportunity had an to liti until he assets Municipal Corporation, Defendant since liability, to do so
gate his tax Appellee. administra exhaust opportunity bar his 13578, tive remedies. Nos. dispute the set does not test Appellee Supreme Court of South Dakota. However, appellee asserts Shapiro.
forth in action is barred appellant’s that 12, 1982. Oct. Argued Statute, appellant Anti-Injunction because 15, Dec. Decided Shapiro test. Amicus con- cannot meet Shapiro and appellant that misreads tends v. American Friends
that United States 13, Committee, 7, U.S. S.Ct.
Service (American Friends), is
42 L.Ed.2d pointed out point.
on American Friends Anti-Injunction Act,
that, “The 26 U.S.C. no 7421(a), pur- for the provides suit
pose restraining assessment or collec- any tax shall maintained
tion whether or not such by any person,
court tax
person against whom such Friends, American 419 U.S.
was assessed.” (em- at L.Ed.2d at 12
at 95 S.Ct.
phasis Shapiro The test in supplied). Anti-Injunction Act.
exception to
Therefore, this issue can be resolved with- Shapiro exception. to the
out resort
However, appellant’s Shapiro based irreparable injury would be
contention remedy on his behalf because his
suffered inadequate, the in American
at law is Court withholding out pointed
Friends suits, fail arguments employ because such “ opportunity litigate’ ‘full
ees have liability in a refund suit.” Ameri
their tax Friends, 419 U.S. 95 S.Ct. at
can also,
“Americans United”
416 U.S.
(1974). Appel
S.Ct. failed to least one
lant has thus meet at Shapiro
requirement exception.
The order of the trial court is affirmed. concur.
All the Justices *2 Canton,
Blaine 0. Rudolph, for defendant appellee. FOSHEIM, Chief Justice.
Lela Walz (appellant), special adminis- trator of the estate Guy of William Ludwig, Hudson, City sued the South Dakota (appellee), doing business as the Hudson Store, Municipal Liquor for the wrongful death of Ludwig. Appellant’s Mr. com- Van- plaint alleged appellee Larry sold ap- when Egdom intoxicating beverages pellee knew or could have ascertained VanEgdom observation that Mr. was intoxi- cated; immediately thereafter Mr. Van- Egdom, car, while driving a collided with Ludwig Mr. who stopped was on his motor- cycle stop at a sign; and that Mr. Ludwig’s resulting death was caused appellee’s negligence in selling alcholic beverages to Mr. VanEgdom. Appellee moved to dismiss complaint on grounds that it failed a upon state cause of action which relief granted could be appellant and that failed comply 9-24-21 by notifying sixty of her claim within days of Mr. Ludwig’s death. The trial granted court claim, the motion based on failure to appellant appeals. The trial court denied the motion based on noncompliance with 9-24-2, appellee filed a notice of review on that issue. We reverse part of the order granting appellee’s motion part affirm that denying the order motion.
Appellant urges that we overrule our de- cision in (1976), affording thus her a against
cause of action appellee. In plaintiffs brought Griffin the a negli- defendants, action gence against licensea tavernkeepers, seeking damages for person- al injury resulting from defendants’ unlaw- Vrooman, Falls, David V. beverages. Sioux and Lee ful sale of alcoholic Our deci- McCahren, M. Vermillion, plaintiff sion, for affirming the trial order grant- court’s appellant. ing defendants’ motion to dismiss for fail- time, place, 1. SDCL 9-24-2 injury reads: No action for the recov- and cause of the ery damages personal injury given injured, days or death to the auditor or clerk negligence attorney, agent, sixty its shall be maintained his or within against any municipality injury. unless written notice after the inebriated state and VanEgdom’s Mr. claim, said issue to state ure act, negligence as a of a statute shop of a dram violation whether, absence or should the statute “was intended now authorizes of law if matter “the common remedy.” persons Id. at which to afford the class protect liberalized that no such cause of against risk of 482. We determined are included plaintiffs Dakota and declined action exists has in fact occurred.” harm which type of *3 to afford a 243, common law expand Sons, Inc., the to 84 S.D. v. Prostrollo Weeks did not extend SDCL We also remedy. 725, (1969); Martino v. 729 169 N.W.2d liability duty. a civil 35-4-78(2)2 impose Ass’n, 315 N.W.2d Racing Park Jefferson notice that since Griffin judicial We take Siepman, v. 87 S.D. (S.D.1982); Alley 309 decided, been involved in alcohol has (1974); v. Tri 670, N.W.2d 7 McCleod 214 from traffic fatalities of this state’s 50.8% Co., 24 Milling 71 N.W.2d S.D. State 1981; alone, 62% of in 1981 South 1976 (1946). 485 re- fatalities were alcohol Dakota’s traffic is that the stat- The reason for this rule Larson, 81 138 lated.3 v. S.D. State standard of becomes the ute or ordinance 19-10-2(2). This (1965); 1 SDCL N.W.2d reasonably which the care or conduct to prompts life us to review waste of tragic to follow is held. Failure prudent person Legisla- If the in Griffin. our conclusions constitutes a breach the statute involved application with our of does not concur ture imposed by and fixed legal duty of the announced, 35-4-78(2), as now it is SDCL a negligence is such statute. Since Legislature of the to so prerogative the duty, the violator of a legal breach of decision, realize this while fullyWe assert. matter negligent is then as a of statute certainly cannot resolve helpful, hopefully omitted) (citation law. alcohol-related deaths or problems of the Alley, 214 at 9. injuries. in Dunn dissented Griffin. Justice legal duty of a Negligence is the breach 35-4-78(2) was argued that SDCL He common law. by statute or Cowan imposed plaintiffs. of the passed protection for the 486, 137 (1965); N.W.2d 337 Dean, 81 S.D. essentially turned on a reluc Griffin Since Ottenbacher, 116 Albers v. S.D. duty a common law in the impose tance to recognized (1962). N.W.2d liability legislation, civil express absence of law licensee is liable common liquor reach Justice Dunn’s inter fully we did not in damages resulting patron’s for from 4-78(2). We do now. pretation of SDCL in in toxication. The common law is force 35 — was enacted to We believe that statute except Dakota where it conflicts people the class of protection the of include or state constitutions and laws. federal the risk of Ludwig’s position from 35-4-78(2) in Mr. 1-1-24.4 SDCL makes SDCL of the injured killed or “as a result intoxicating beverages being a crime to sell to one 35-4-78(2) will the 1-1-23 reads: The sover- 2. reads: No licensee shall SDCL SDCL any expressed: beverage, except low-point eign power is sell alcoholic States; (1) By of the United beer ... who is intoxicated at Constitution [t]o time, authority (2) By or who is known to the seller to be an made under the treaties States; habitual drunkard. A violation of this section United by Congress (3) By is a Class 1 misdemeanor. statutes enacted States; the United Memorandum, Department state; (4) By 3. South Dakota the Constitution of this Safety, (5) By Legislature; Public June enacted statutes (6) By enacted vote of the statutes electors; 1-1-24 reads: The evidence of the SDCL law, merchant, including common (7) By the ordinances of authorized subordi- in the bodies; found decisions of the tribunals. nate law, practice procedure pre- Rules of In this state the rules of the common by departments, merchant, adopted including scribed courts or the rules of the law are commissions, boards, force, except they the state or officers of in where conflict with the authority pursuant sovereign power, expressed so to will its of the subdivisions manner do. stated 1-1-23. WOLLMAN, sale of Justice particular (concurring special- drunkenness to which ty)- contributes.” Id. at 488 liquor alcoholic J., (Dunn, quoting Wayn from dissenting), I Although agree with Chief Justice Store, 269 Chicago’s Department ick v. Last liability damages Fosheim that Martino, (7th Cir.1959); supra; F.2d 322 may intoxicated customer be imposed Weeks, McCleod, su Alley, supra; supra; upon a vendor of alcoholic beverages on the
pra.
35-4-78(2) must be liber
Since SDCL
basis of a violation of the statutory prohibi
ally construed “with a view to effect
its
4—78(2),
tion set forth
I
SDCL
35—
objects
promote justice,”
and to
2-
go further and hold that
there
now this
14-12;5
Hirsch,
State
a common law right
of action to re
(S.D.1981); Rapid City v. First National
damages.
such
cover
would reach this
Hills,
Bank of the Black
result because
believe that
those of us
McCleod,
(1961);
supra,
N.W .2d 693
we con
majority
who were in the
in Griffin v. Se
35-4-78(2)
establishes a
took too narrow a view
responsi
clude
bek
*4
conduct,
bility
judiciary
of the
fill a
by
standard of care or
a breach
to
void
adjudication
common law
in the face of
negligence
which is
as a matter of law.
Although certainly
in action.
legislative
negli
It
that such
Alley, supra.
follows
by succeeding
deference must be shown
gence
proximate
must be a
cause of
judges
to the considered
generations
'defenses,'
resulting injury and
such as con
pronouncements
predecessors,
of their
ap
are available when
tributory negligence,
long ago
common law would
have stul
propriate.
succeeding generations
those
tified had
We therefore
reverse the trial
contempora
responsive
not been
to the
dismissing appellant’s
court’s order
com
may
What
not have
neous societal needs.
plaint
upon
for failure to state a claim
perceived
been
requir
of as a remedial void
may
granted.
which relief
be
We affirm ing judicial action at the time Paulson v.
denying appellee’s
the trial court’s order
Langness,
16 S.D.
Frankfurter’s comes, ought not to and so one
often never late.” because it comes
reject merely Bank Planters National &
Henslee v. Union Co., 595, 600, 69 S.Ct.
Trust 335 U.S. (1949) (Frankfurter, L.Ed. AGENCY, INC., MIDWEST RISK J., dissenting). Appellant, Plaintiff and imposition of common Inasmuch as the abrupt depar- mark an liability holding in Griffin v. prior ture from our TYLER, Individually, Donald A. apply the benefit of supra, would Appellee, Defendant and plaintiff herein and only such a decision accruing on and to those causes of action Individually; Tyler, Jr., in this case. Donald A. the date of the remittitur after Tyler Agency, Inc., Dakota State, (Iowa 1977). South 256 N.W.2d Lewis Corporation, Defendants. majority opinion with the agree in this case. applicable 9-24-2 is not Nos. Dakota. Court Supreme MORGAN, (concurring specially). Justice 28, 1982. April Argued to overrule Griffin v. I read this decision adopting effect the dis- We are in Sebeck. Dec. Decided senting applicability view therein on 35-4-78(2), it to these applying in the world can the author facts. How fully “we reach Justice say
then did 35-4- interpretation
Dunn’s of SDCL
78(2)”? Granted, while that view was not Griffin, its men- majority
adopted by implies
tion it was considered.