Dennis O. WEGAN, Appellant, v. VILLAGE OF LEXINGTON, d.b.a. Village of Lexington Liquor Bar, Defendant and Third-Party Plaintiff, v. VILLAGE OF CIRCLE PINES, third-party defendant, Respondent, and James ROUNSVILLE and Bonnie R. Rounsville, individually, and as husband and wife, et al., Appellants, v. LEONS, INC., d.b.a. Leon‘s Supper Club, Respondent, Dennis R. Fredrickson, Defendant, and Leslie J. WOLFE, Appellant, v. CHINOOK, INC., Respondent, Timothy Gillaspie, Defendant, and Brian J. ECKER, Appellant, v. ARCADE BAR, INC., et al., Defendants, Mohawk Bar, Inc., et al., Respondents, Bram Corporation, et al., Defendants.
Nos. 51922, 51619, 51718, 51468 and 52074
Supreme Court of Minnesota
Aug. 14, 1981
Rehearing Denied Sept. 25, 1981
309 N.W.2d 273
A mere stakeholder or one whose duty it is simply to safeguard the funds of the estate has no interest in the decree of distribution other than to turn over to the beneficiaries named therein the funds in his hands and cannot, at the expense of the estate, take part in controversies arising between claimants.
Id. at 299, 260 N.W. at 206. This same principle is generally applicable to trustees. See 2 A. Scott, The Law of Trusts § 183, at 1473 (1967).
Therefore, I do not believe that the trustees should have petitioned for an order restraining distribution; they also should not participate in any future disputes between the beneficiaries.
YETKA, Justice (concurring specially).
I join in the special concurrence of Mr. Justice Todd.
Cloutier, Musech, Dobis & Johnston, Minneapolis, for Wolfe.
James G. Roban, St. Paul, for Ecker.
Michael C. Lindberg, Bloomington, for Village of Circle Pines.
Foster, Waldeck, Lind & Humphrey and Peter Lind, Minneapolis, for Leons, Inc., and Chinook, Inc.
Arthur, Chapman & Michaelson, Minneapolis, for Mohawk Bar, Inc., et al.
SCOTT, Justice.
This matter involves four actions which, for purposes of this appeal, have been con-
In Wegan plaintiff-appellant Dennis Wegan (Wegan) sustained serious personal injuries on September 8, 1974, as a result of a traffic accident involving his motorcycle and an automobile driven by Ronald Smith (Smith). On October 27, 1976, Wegan served a summons and complaint on Smith and the Village of Lexington, d.b.a. Village of Lexington Liquor Bar (Lexington Bar), alleging, inter alia, that the Lexington Bar served Smith intoxicating liquor in violation of the Dram Shop Act.1 At a hearing to determine whether the Lexington Bar had actual notice of Wegan‘s claim, it was discovered that Smith also had been drinking at the Village of Circle Pines (Circle Pines) municipal liquor establishment. The Lexington Bar then brought a third-party action for contribution or indemnity against Circle Pines.2
On May 29, 1980, Wegan asserted a dram shop claim against Circle Pines. After answering Wegan‘s claim, Circle Pines moved for judgment on the pleadings because Wegan failed to give proper notice of his claim and did not bring the action within the three-year statute of limitations. On October 17, 1980, the Anoka County District Court ordered that Circle Pines’ motion for judgment on the pleadings be granted. Wegan appeals to this court from the October 17, 1980, order.
In Rounsville, plaintiff James Rounsville was injured along with his wife, Bonnie, Franklin Rounsville and his wife, Louise, and Winnie Stanhope when, on January 11, 1978, the automobile in which they were riding was struck by a vehicle driven by defendant Dennis Fredrickson (Fredrickson). On March 9, 1978, appellants’ attorneys notified Leons, Inc., d/b/a Leon‘s Supper Club (Leons), of potential claims against it for illegally furnishing alcoholic beverages to Fredrickson. Leons’ insurance carrier acknowledged receipt of the notification letter on April 10, 1978. Thus, there is no
After answering the complaint, Leons brought a summary judgment motion, contending that appellants failed to assert their dram shop claims within the one-year statute of limitations. The Hennepin County District Court granted Leons’ motion in an order dated July 18, 1979. On August 16, 1979, appellants requested the district court to reconsider that order. Appellants appeal from a June 16, 1980, order denying their motion to reconsider and vacate the earlier order.
In Wolfe the plaintiff-appellant Leslie Wolfe (Wolfe) sustained personal injuries on September 30, 1978 when she and four other pedestrians were struck by an automobile driven by Timothy Gillaspie (Gillaspie). On March 11, 1980, Wolfe served a summons and complaint on Gillaspie and Chinook, Inc. (Chinook) alleging inter alia that Chinook served Gillaspie intoxicating liquor in violation of the Dram Shop Act. In accordance with
In Ecker the plaintiff-appellant Brian Ecker (Ecker) sustained severe injuries on October 5, 1974, when he was struck by an automobile driven by George Radle.3 At the time of the accident, Ecker was involved in an altercation with David Morseth (Morseth).4
In September 1977,5 Ecker served a summons and complaint on Mohawk Bar, Inc., d.b.a. The West Sider (Mohawk). Also named as defendants were Arcade Bar, Inc., and Bram Corporation, d.b.a. Arcade Bar (Arcade). The complaint alleged two counts against Mohawk and Arcade: (1) that defendants served Morseth intoxicating liquor in violation of the Dram Shop Act, and (2) that defendants negligently served Morseth 3.2 beer. Mohawk denied the allegations of the complaint and affirmatively alleged lack of notice under the Dram Shop Act.
Ecker‘s claims against Arcade were settled. Mohawk, the remaining defendant, brought a motion for summary judgment on Count I of plaintiff‘s complaint, asserting that it had not received timely written or actual notice of plaintiff‘s dram shop claim as required by
Two issues are raised in the various appeals. First, whether any of the plaintiffs are estopped from challenging the constitutionality of the commencement-of-suit or notice-of-claim provisions contained in
1. The first issue results from the district court‘s holding in Ecker that “since plaintiff here invoked the provisions of
Whatever continued validity the doctrine of estoppel has in the area of tax benefits, neither Ecker nor any of the other plaintiffs should be estopped from attacking the notice-of-claim or commencement-of-suit provisions. To rule otherwise would be inconsistent with our recent holdings permitting plaintiffs to challenge the constitutionality of various statutes while seeking benefits under the same laws. See, e. g., Haugen v. Town of Waltham, 292 N.W.2d 737 (Minn.1980) (plaintiff successfully asserted unconstitutionality of portion of Minnesota No-Fault Act while obtaining benefits under that law); Werner v. Olmsted County, 290 N.W.2d 444 (Minn.1980) (claimant awarded workers’ compensation benefits after successful challenge to constitutionality of workers’ compensation provision).
2. Any examination of the constitutionality of the commencement-of-suit and notice-of-claim requirements must begin with our decision in Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618 (1973). In Trail, a liquor vendor sold 3.2 beer to the defendant, an intoxicated minor. The defendant drove his automobile into the rear of another automobile in which the plaintiff, an innocent third party, was a passenger. As a result of the collision the plaintiff suffered a severed spine, rendering her an invalid. Minnesota‘s Dram Shop Act does not impose liability for the unlawful sale of 3.2 beer. Consequently, the plaintiff in Trail argued that the common law should permit a negligence action against a vendor who made a negligent sale of 3.2 beer. In holding that a vendor of 3.2 beer could be liable in negligence, the Trail court found that the legislature did not, by its enactment of the Dram Shop Act, preempt all common law dram shop actions. The Trail court stated: “We will not promote legislative silence to legislative preemption. To do so would immunize a certain segment of the liquor industry, namely dispensers of 3.2 beer, from liability for negligent conduct which causes serious injury to innocent third persons.” Id. at 112, 213 N.W.2d at 625.
Because the cause of action in Trail is grounded in common-law negligence, the six-year tort statute of limitations contained in
Vendors of 3.2 beer liable in negligence have a six-year statute of limitations and no notice-of-claim requirement; - Minnesota vendors of intoxicating liquor whose liability is purely statutory are protected by a one-year statute of limitations and a 120-day notice-of-claim requirement.
Appellants further argue that these classifications result in such unequal treatment that their right to equal protection under the law is violated.7
Respondents contend that even if such classifications exist, they do not result from legislative action and, therefore, do not constitute an equal protection violation. Respondents argue that any alleged disparity in treatment exists due to the Trail decision. We do not find respondents’ reasoning persuasive. An examination of the history of the Minnesota Dram Shop Act clearly indicates that only because of legislative action is there a distinction between “nonintoxicating” 3.2 beer and “intoxicating” liquor.
Prior to 1911 there was only one chapter in the laws of Minnesota that regulated intoxicating liquor. See Minn. Rev. Laws, ch. 16 (1905). In 1911, the Minnesota Legislature enacted the statutory predecessor to
shall include distilled, fermented, spirituous, vinous and malt liquor.” Id. (emphasis added). Malt liquor obviously includes 3.2 beer. Indeed, early decisions from this court indicate that all types of beer are intoxicating.8 Thus, when the Minnesota Dram Shop Act was originally enacted it included within its meaning a person intoxicated by 3.2 beer.
In 1919 Minnesota‘s law relating to prohibition was enacted. Act of Apr. 25, 1919, ch. 455, 1919 Minn. Laws 537. This law contained its own definition of what constituted intoxicating liquor.
Wherever used in this Act the terms “intoxicating liquor” and “liquor” shall include and mean ethyl alcohol and any distilled, fermented, spirituous, vinous, or malt liquor or liquid of any kind potable as a beverage, whenever any of said liquors or liquid contain one-half of one percent or more of alcohol by volume.
Id. § 1, 1919 Minn. Laws at 537. Under this definition 3.2 beer would certainly be an intoxicating beverage.
The liquor laws of Minnesota were not substantially amended until 1933 and 1934, when the State Beer Acts and Liquor Control Act were respectively passed. The State Beer Acts, Act of Mar. 27, 1933, ch. 115, 1933 Minn.Laws 119, and Act of Mar. 27, 1933, ch. 116, 1933 Minn.Laws 120, regulated the manufacture, sale and license to sell of any beverage containing more than 3.2 percent alcohol by weight. Chapter 115 of the 1933 State Beer Act specifically defined “intoxicating malt liquor” as containing in excess of 3.2 percent of alcohol by weight. Act of Mar. 27, 1933, ch. 115, 1933 Minn.Laws 119, 120. The Liquor Control Act regulated the manufacture, sale, and licensing of intoxicating liquor. Act of Jan. 6, 1934, ch. 46, 1934 Minn. Laws Ex.Sess. 50.
The State Beer Acts were enacted on March 27, 1933, when prohibition was still in effect. The Twenty-first Amendment to the United States Constitution, which repealed prohibition, did not take effect until nine months later.9 Thus, it is clear that the 1933 Minnesota Legislature passed the State Beer Acts so that vendors would be able to sell 3.2 beer without being exposed to punishment for violating prohibition. The only method available to solve this dilemma was for the 1933 Minnesota Legislature to define 3.2 beer as non-intoxicating. Although the reasons for defining 3.2 beer as non-intoxicating have long passed, this legislative classification continues to the present day. Moreover, the legislature‘s definition of 3.2 beer as “non-intoxicating” remains unchanged, although we stated in Trail that “we have judicially recognized the reality that a person can become intoxicated by consuming 3.2 beer.” 298 Minn. at 107, 213 N.W.2d at 621. The legislative classifications subject this statute to constitutional attack on its face, and as applied.
Resolution of the constitutional issue raised in this case is governed by well-established principles of constitutional construction. “There is, of course, a presumption in favor of the constitutionality of the statute * * *.” Guilliams v. Commissioner of Revenue, 299 N.W.2d 138, 142 (Minn.1980). Moreover, the power of this court to declare a statute unconstitutional “is to be exercised only when absolutely necessary, and then with extreme caution.” Schwartz v. Talmo, 295 Minn. 356, 363, 205 N.W.2d 318, 323 (1973), appeal dismissed, 414 U.S. 803, 94 S.Ct. 130, 38 L.Ed.2d 39 (1973). Further-
more, a statute will not be declared unconstitutional unless the party challenging it demonstrates beyond a reasonable doubt that the statute violates some constitutional provision. Head v. Special School District No. 1, 288 Minn. 496, 182 N.W.2d 887 (1970), cert. denied, Mpls. Federation of Teachers v. Spannaus, 404 U.S. 886, 92 S.Ct. 196, 30 L.Ed.2d 168 (1971).
In applying these well-established principles it is necessary first to determine the appropriate standard of constitutional review. Our recent decision in Kossak v. Stalling, 277 N.W.2d 30 (Minn.1979), noted in 6 Wm. Mitchell L.Rev. 490 (1980), is instructive on this issue. In Kossak, the constitutionality of the one-year statute of limitations applicable to negligence actions against municipal defendants was challenged as being violative of the equal protection clause. In that case, plaintiff brought suit against the City of Duluth and Stalling, a Duluth employee, for injuries plaintiff suffered in an automobile accident allegedly caused by Stalling‘s negligence. Plaintiff never filed a notice of claim with the city, and did not bring suit until four years after the accident. The Kossak court found that the one-year commencement-of-suit requirement created two distinct classes of tortfeasors and tort victims.10 See id. at 34. The court noted that the one-year requirement subjects private tortfeasors to the general six-year statute of limitations, but subjects municipal tortfeasors to an abbreviated one-year statute of limitations, thereby exposing the former to a greater risk of liability than the latter. See id. In determining that the commencement-of-suit requirement violated equal protection, the Kossak court applied the
Because a rational basis test is applicable, the three-factor test most recently enunciated in Guilliams v. Commissioner of Revenue must be satisfied. In Guilliams we stated that:
This court has listed three factors in measuring a statutory classification against the equal protection requirement: (1) The distinctions which separate those included within the classification from those excluded must not be manifestly arbitrary or fanciful but must be genuine and substantial, thereby providing a natural and reasonable basis to justify legislation adapted to peculiar conditions and needs; (2) the classification must be genuine or relevant to the purpose of the law; that is, there must be an evident connection between the distinctive needs peculiar to the class and the prescribed remedy; (3) the purpose of the statute must be one that the state can legitimately attempt to achieve.
299 N.W.2d at 142, quoting Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979).
Guilliams’ third factor is satisfied. The justifications for the commencement-of-suit and notice-of-claim provisions may be summarized as follows:
- To provide dramshops with an early opportunity to investigate claims;
- to facilitate negotiation and settlement without litigation;
- to correct any defects revealed by the occurrence before more people suffer injury;
- to protect against stale and fraudulent claims.
Certainly, these are legitimate purposes. The statute is fatally defective, however, because it cannot satisfy Guilliams’ first and second factors. The classifications (sale of 3.2 beer versus sale of intoxicating liquor) are not genuine or relevant to the purpose of the law. Moreover, the distinctions which separate those included within the classification from those excluded are manifestly arbitrary and fanciful. Because prohibition was repealed almost half a century ago, the legislative distinctions between 3.2 beer and intoxicating liquor are based, at best, upon historical anachronisms. There is no rational basis for distinguishing between persons injured by those intoxicated from drinking 3.2 beer and those intoxicated as a result of consuming stronger liquor. An injured person cares little whether the driver who causes his injuries became intoxicated as a result of consuming 3.2 beer or stronger liquor. Indeed, a lay person unable to obtain just compensation because of the peculiarities of Minnesota‘s Dram Shop Law could justifiably conclude that he was the victim of artificial legal word games.
Moreover, the continued reference to 3.2 beer as “non-intoxicating” results in a number of anomalies and absurdities that become apparent in the context of a lawsuit alleging both 3.2 negligence and
The classifications at issue in the cases at bar rest on a legal foundation less sound than those in Kossak and Pacific Indemnity. For all of the above reasons, we hold that the commencement-of-suit and notice-of-claim provisions at issue violate the equal protection clause of the United States and Minnesota Constitutions.14 Until the legislature enacts corrective legislation, all dram shop claims are controlled by the six-year statute of limitations in
Accordingly, we reverse and remand each of the orders appealed from for trial on the merits.
legislature reexamine Minnesota dram shop law and place 3.2 vendors on the same footing as
AMDAHL, Justice (concurring specially).
I agree with the majority that the notice of claim and statute of limitations provisions of the Civil Damages Act,
We have never directly confronted an equal protection challenge to the Civil Damages Act. We are now faced with that issue and I believe we should address it squarely.
The majority examines the history of the Civil Damages Act in detail and concludes that 3.2 beer was defined as “non-intoxicating” by the 1933 Minnesota Legislature so that vendors could sell 3.2 beer without violating prohibition. Notwithstanding the validity of the majority opinion‘s historical analysis, I respectfully believe that this discussion does not help us resolve the issue at bar.
The crux of the problem before us is that the statute on its face creates a classification between two types of liquor vendors; vendors of “intoxicating liquor” and vendors of 3.2 beer. “Intoxicating liquor” vendors are subject to liability under the Act while 3.2 beer vendors who engage in the
Moreover, respondents overstate the difference between the two causes of action. Under either cause of action a plaintiff must prove that the vendor knew or should have known that the patron was “obviously intoxicated.” In a dram shop action this burden of proof is mandated by
The majority correctly sets forth the appropriate standard of review but does not go far enough in applying it. Legislative classifications must apply uniformly to all similarly situated persons and the distinctions which separate those who are included within a classification and those who are not must be natural and reasonable. Schwartz v. Talmo, 295 Minn. 356, 362, 205 N.W.2d 318, 322, appeal dismissed, 414 U.S. 803 (1973); See Guilliams v. Commissioner of Revenue, 299 N.W.2d 138, 142 (Minn.1980). The majority concludes that the statute does not meet this test, noting that “[t]he classifications (sale of 3.2 beer versus sale of intoxicating liquor) are not genuine or relevant to the purpose of the law“, that “the distinctions which separate those included within the classification from those excluded are manifestly arbitrary and fanciful“, and that “there is no rational basis for distinguishing between persons injured by those intoxicated from drinking 3.2 beer and those intoxicated as a result of consuming stronger liquor.” It is further recognized that “the legislative distinctions between 3.2 beer and intoxicating liquor are based, at best, upon historical anachronisms.” In the face of these statements, the majority proposes to leave the Act intact and selectively strikes only the notice-of-claim and statute of limitations provisions.
The majority forcefully asserts that “the classifications at issue * * * rest on a legal foundation less sound than those in Kossak and Pacific Indemnity,” where disparate statutes of limitations favoring certain persons were declared violative of equal protection. In my opinion, the majority reads these cases too narrowly, overlooking the underlying rationale for striking the statutes there at issue. The statutes in Kossak and Pacific Indemnity were declared uncon-
stitutional because the legislative classifications were without a rational basis.
I submit that if the legislative classifications created between liquor vendors and their respective victims have no rational basis, the Civil Damages Act as a whole is repugnant to the equal protection clause.
Respondents argue that the disparity in treatment accorded the two types of liquor vendors exists by virtue of our decision in Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618 (1973). The fact that a Trail negligence cause of action is available against a 3.2 beer vendor is, in my view, irrelevant to the resolution of the constitutional issue. The Civil Damages Act is nevertheless defective on its face, because no statutory liability is imposed upon vendors of 3.2 beer.
The availability of a common law action in situations in which the Civil Damages Act is inapplicable does, however, accentuate the need to strike the Act in its entirety. Both the majority and the dissent note a number of “anomalies and absurdities” inherent in continued recognition of two separate causes of action against liquor vendors who should, in my opinion, be subject to the same liability. Of these, the cap on damages of $250,000 in dramshop actions while damages are not so limited in Trail actions is the most blatant. Confusing problems are also evident with regard to the defenses available to a negligent 3.2 beer vendor and those which may be asserted by a dramshop vendor.1 As recognized by the majority, further problems in proof and evidence may arise in an action alleging both negligence and dramshop liability. These differences raise perplexing constitutional problems which are best solved by declaring that actions against all liquor vendors are to be governed by common principles and procedural requirements. Nullifying only the disparate statute of limitations and notice of claim requirement of the Civil Damages Act begs the issue and merely
tion is brought by a dependent of an intoxicated person. Act of June 2, 1977, ch. 390, § 2, 1977 Minn. Laws 888 (current version at
I agree with the dissent that the solution lies in an amendment to the Civil Damages Act to include 3.2 beer in the Act‘s definition of intoxicating liquor. However, I disagree that this court should sit in silence and await legislative action to remedy the problems inherent in that Act for a number of reasons. First, as Mr. Chief Justice Marshall noted in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), when an act is repugnant to the constitution it is the court‘s duty to invalidate that law immediately. Any other result “would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory.” Id. at 177, 2 L.Ed. 60. Second, our oath of office compels us to strike down unconstitutional laws. Once we determine that a law is unconstitutional we would be remiss in our duty to merely request the Legislature to enact corrective legislation.
Third, I do not find relevant Spanel v. Mounds View School Dist. No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962), in which we refused to abrogate governmental tort immunity until after the next legislative session ended. That case involved a rule of substantive tort law created by this court, not the constitutionality of a state law. Additionally, while courts traditionally follow a general rule of retroactive ruling, see e. g., Hoven v. McCarthy Brothers Co., 163 Minn. 339, 341, 204 N.W. 29, 30 (1925), Spanel fell within an exception to that rule. See Note, The Retroactivity of Minnesota Supreme Court Personal Injury Decisions, 6 Wm. Mitchell L.Rev. 179, 185-88 (1980).
When the abolition of a tort immunity is involved, courts usually apply their rulings prospectively because litigants have justifiably relied on prior case law. Id. In Spanel, abrogating the doctrine of tort immunity allowed governmental entities sufficient time to procure insurance.
No similar inequity exists in the instant cases to justify a prospective or tentative invalidation of the Civil Damages Act. Liquor vendors are not, by virtue of the proposed result, deprived of a substantive defense upon which they previously relied. This is not a case in which there has been a longstanding rule of immunity from suit; both types of liquor vendors are now liable to innocent third persons and commonly procure appropriate insurance.
Fourth, by prospectively declaring the unconstitutionality of the Civil Damages Act, the dissent ignores the policy of providing incentives for challenging unconstitutional laws and outmoded legal doctrines. Courts and commentators have long recognized that public policy should encourage litigants to challenge unconstitutional law and obsolete legal rules. See e. g., Li v. Yellow Cab Co., 13 Cal.3d 804, 829-830, 532 P.2d 1226, 1244, 119 Cal.Rptr. 858, 876 (1975) (doctrine of contributory negligence abrogated and new rule of comparative negligence given retroactive application); Mishkin, Foreward: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56, 60-62 (1965).
Finally, the dissent in effect would have this court issue advisory opinions. This court has long had a policy of refusing to provide legal opinions in advisory form.
Although I recognize that the Legislature “may implement [its] program step by step * * * adopting regulations that only partially ameliorate a perceived evil and referring complete elimination of the evil to future regulations,” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 457, 470, 101 S.Ct. 715, 725, 66 L.Ed.2d 659 (1981), quoting New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-2517, 49 L.Ed.2d 511 (1976), the Civil Damages Act has been in force since 1911 and has been amended numerous times since its enactment. The Legislature has
Where the Civil Damages Act was applicable, we have consistently declined to find a common law action against a liquor vendor because of legislative pre-emption in the area. Blamey v. Brown, 270 N.W.2d 884, 890 (Minn.1978); Fitzer v. Bloom, 253 N.W.2d 395, 403 (Minn.1977). Striking the statute would obviate that impediment. I would hold that actions against both 3.2 beer vendors and “intoxicating liquor” vendors are to be governed by the common law principles established by Trail and its progeny until such time as the Legislature enacts a statute which passes constitutional muster.
PETERSON, Justice (concurring).
I agree with the opinion of Justice Amdahl.
WAHL, Justice (concurring).
I agree with the opinion of Justice Amdahl.
SIMONETT, Justice (dissenting).
The majority says the legislature is responsible for the inequality of treatment between victims of 3.2 beer sales and victims of sales of more potent intoxicating liquor. This is because the legislature excluded 3.2 beer from the definition of intoxicating liquor in the Civil Damages Act.
Undeniably, a person can get just as intoxicated on 3.2 beer as on more potent liquor. The majority opinion traces the history of how 3.2 beer came to be regulated differently, but this does not fully explain why the legislature still did not choose to include 3.2 vendors in the Civil Damages Act after 1933. Since the Civil Damages Act was considered to be in derogation of the common law, which afforded no remedy against any liquor vendor, and since the Act was deemed to be penal in nature, the legislature may have felt it would limit the penalty to vendors of more potent intoxicating liquor, where it felt the potential for abuse was greater. This would be consist-
ent with the rationale then prevalent that dramshop liability “is only a means of punishment for having violated the law and is not based on a wrong done to the plaintiffs.” Beck v. Groe, 245 Minn. 28, 35, 70 N.W.2d 886, 892 (1955). The legislature‘s discretion to deal selectively with conduct which it deems to pose the most significant societal problems is especially broad in the penal area. State v. Witt, 310 Minn. 211, 217, 245 N.W.2d 612, 615 (1976).
The common law, however, is not static. In recent years, this court, in construing the Civil Damages Act, has focused more on the wrong done to the injured, innocent third party, i. e., on the remedial aspects of the Act rather than its penal side. For example, in Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972), after observing the Act was both penal and remedial, we construed the Act to apply to social hosts; the legislature, then, by a 1977 legislative amendment curtailed this construction of the statute by deleting the phrase “giving” from the Act‘s prohibitions.
Not until 1973, with Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618 (1973), did we modify the longstanding common-law rule that no cause of action existed against the liquor vendor. In Trail we held a common-law negligence action existed against a 3.2 beer vendor outside the Civil Damages Act. With the advent of Trail, an equal-protection claim plainly surfaced. A person injured by an intoxicated person should not have his or her remedy measured by delicate distinction as to whether the intoxicated person had been drinking 3.2 or strong beer. But to say the two situations should not be treated differently does not offer much insight into which way the two situations should be treated.
Since 1973 we have had an anomalous situation, as illustrated by this case. A Trail cause of action expires after 6 years; a dramshop action after 1 year. The majority here opts for 6 years and declares the shorter limitation period unconstitutional. A Trail cause of action has no notice of claim as a condition precedent to suit; a
I think the solution is for the legislature to amend the Civil Damages Act to include 3.2 beer in the Act‘s definition of intoxicating liquor. The amendment in 1977 to make dramshop actions subject to the comparative fault statute is indicative of the legislature‘s awareness of the nonpenal aspects of the Act.
I would prefer we not disturb the Act until the legislature has had an opportunity to enact its own corrective measures. This seems preferable to piecemeal judicial legislation. The difficulty in attacking the problem piecemeal is illustrated here by the striking down of the 120-day notice provision. It would seem the legislature had reasonable grounds for the notice requirement. Unlike other tort actions, a dramshop action has some unique features. The accident in which the third party is injured frequently occurs off the vendor‘s premises, at a distant time and place, so that the vendor may be unaware of the potential claim against him or her and consequently unaware of the need to make a prompt investigation.
There is authority for the solution proposed here. In Spanel v. Mounds View School Dist. No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962), we refused to abrogate governmental tort immunity in that case but stated we would do so with respect to tort claims arising after the next legislature adjourned. More recently, in State by Powderly v. Erickson, 301 N.W.2d 324, 327 (Minn.1981), we extended an injunction against demolition of row houses “until such time as the present Minnesota legislature has had an opportunity to address the problems surfaced by this litigation.
We are dealing here, of course, with constitutional infirmities which should be corrected promptly. It is not clear, however, that the legislature was fully aware of the constitutional implications of Trail; at least those implications were not alluded to in that decision. Moreover, the legislature “may implement [its] program step by step * * * adopting regulations that only partially ameliorate a perceived evil and referring complete elimination of the evil to future regulations.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 457, 470, 101 S.Ct. 715, 725, 66 L.Ed.2d 659 (1981), quoting New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-2517, 49 L.Ed.2d 511 (1976). In view of the history of the Civil Damages Act and the complexity of the problems and conflicting interests involved, I would, for now, defer to legislative action.
SHERAN, Chief Justice (dissenting).
I agree with the opinion of Justice Simonett.
OTIS, Justice (dissenting).
I join in the dissent of Justice Simonett.
TODD, Justice (dissenting).
I join in the dissent of Justice Simonett.
GEORGE M. SCOTT
JUSTICE OF THE MINNESOTA SUPREME COURT