Formatting courtesy of the State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501
JOHN WILDEBOER and GLORIA WILDEBOER,
as conservators of Jonathan Wildeboer, a minor,
Plaintiffs and Appellants,
v.
THE SOUTH DAKOTA JUNIOR CHAMBER OF COMMERCE, INC.,
George R. Fink d/b/a The Bar; Bill Debondt d/b/a Billâs Bar;
Dennis Eliason d/b/a The Only One Lounge; Burtâs Lounge, Inc.;
and John Doe d/b/a The Wheel,
Defendants and Appellees.
South Dakota Supreme Court
Appeal from the First Judicial Circuit, Lincoln County, SD
Hon. Richard Bogue, Judge
#19461 â Affirmed
Steven M. Johnson, Chad W. Swenson
Johnson, Heidepriem, Miner & Marlow, Sioux Falls, SD
Attorneys for Plaintiffs and Appellants.
Michael L. Luce, Melissa Hinton
Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD
Attorneys for Appellee SD Junior Chamber of Commerce, Inc.
Gary P. Thimsen, Peter Sommervold
Woods, Fuller, Shultz & Smith, Sioux Falls, SD
Attorneys for Appellee Fink.
Kenneth D. Bertsch, Tracy Niemann
Ulmer, Hertz & Bertsch, Menno, SD
Attorneys for Appellee Debondt.
William C. Garry, Cadwell, Sanford, Deibert & Garry, Sioux Falls, SD
Attorneys for Appellee Eliason.
Richard L. Travis, John Billion
May, Johnson, Doyle & Becker, Sioux Falls, SD
Attorneys for Appellee Burtâs Lounge.
Gary J. Pashby, Lisa Hansen Marso
Boyce, Murphy, McDowell & Greenfield, Sioux Falls, SD
Attorneys for Appellee John Doe.
Argued Oct 22, 1996; Opinion Filed Mar 26, 1997
[¶1] Justice Richard W. Sabers delivers the majority opinion of the Court on Issue 1, which affirms the trial courtâs issuance of summary judgment in favor of appellee South Dakota Junior Chamber of Commerce, Inc.
[¶2] Justice David Gilbertson delivers the majority opinion of the Court on Issue 2, which affirms the trial courtâs issuance of summary judgment in favor of appellee establishments licensed to sell alcoholic beverages.
[¶3] SABERS, Justice, writing the majority opinion on Issue 1, which affirms the trial courtâs issuance of summary judgment in favor of appellee South Dakota Junior Chamber of Commerce, Inc.
SABERS, Justice.
[¶4]] Wildeboers brought an action against the South Dakota Junior Chamber of Commerce (SDJCC) and five small town bars for negligence in causing the accident which left their fifteen-year-old son severely burned and disfigured. They argue the defendants worked together to organize, sponsor, and promote the âpoker runâ that led to the accident. Summary judgment was granted to all defendants and Wildeboers appeal.
FACTS
[¶5] On June 20, 1992, the Harrisburg chapter (Harrisburg chapter) of the SDJCC sponsored a charitable poker run with five scheduled stops at bars in Harrisburg, Canton, Hudson, Beresford, and Lennox. [fn1] Proceeds were to go to families in need in the Harrisburg area. To participate in a poker run, contestants visit each bar and receive a playing card, or in this case a token to later be exchanged for a playing card. [fn2] At the end of the run, individuals who have drawn the best poker hands win prizes. Primarily a social event for motorcycle enthusiasts, the majority of the participants were motorcyclists.
[¶6] Randy Borgheiinck and Linda Kiousis registered for the poker run in Harrisburg and proceeded to the next stop, Canton, on Borgheiinckâs 1978 Harley Davidson Lowrider motorcycle. They continued on the established route, visiting the designated bars in Canton, Hudson, and Beresford. While the record does not reflect the precise amount of alcohol consumed by either, one witness observed them drinking wine coolers in Beresford before they left for the fifth stop in Lennox. Unfortunately, they never made it there.
[¶7] As they and three other motorcyclists raced north on Highway 17 at speeds estimated between 75 and 100 miles per hour, Jonathan Wildeboer was traveling south on the same highway, preparing to make a left turn onto Lincoln County Road #128. He turned his pickup in front of the Borgheiinck motorcycle. The subsequent crash and explosion of the pickupâs gas tank claimed the lives of Borgheiinck and Kiousis. Wildeboer suffered severe and disfiguring second and third degree burns over his entire body.
[¶8] Jonathan Wildeboerâs parents sued the SDJCC and the five bars (Bars) for negligence in organizing, sponsoring, and promoting the poker run. [fn3] They did not sue the Harrisburg chapter or its individual members. The Wildeboers claim the SDJCC and the Bars are at fault for âencouraging the consumption of alcohol and high speed operation of motorcycles.â
STANDARD OF REVIEW
[¶9] Our standard of review for summary judgment is well-established:
In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.
Lamp v. First Natâl Bank of Garretson,
[¶10] âThe burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.â State Depât of Revenue v. Thiewes,
[¶11] The trial court stated in its order granting summary judgment that âthere is no genuine issue of material fact that would sustain any theory of liability or recovery against Defendants[.]â âA surmise that a party will not prevail upon trial is not sufficient basis to grant the motion on issues which are not shown to be sham, frivolous or so unsubstantial that it is obvious it would be futile to try them.â Wilson,
[¶12] 1. The SDJCC
[¶13] Wildeboers claim the SDJCC failed to properly investigate the poker run prior to its occurrence and failed to prohibit or supervise alcohol-related charitable events. These omissions, they argue, constituted a breach of its duty of ordinary care. âDuty may be imposed by common law or by statute.â Poelstra v. Basin Elec. Power Coop.,
Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.
This statute is âa simple codification of the common law of negligence.â In re Certif. of Questions of Law (Knowles v. United States),
[¶14] Wildeboers do not claim any other statute imposes a duty on SDJCC to monitor and supervise the local chaptersâ activities. âWhether a common-law duty exists depends on the foreseeability of injury.â Id. at ¶16,
[¶15] The primary organizers of the poker run were the members of the Harrisburg chapter of the SDJCC; they are not named defendants in this suit. We affirm the dismissal of the suit against the SDJCC because that organization, a legal entity separate from the Harrisburg chapter, had no knowledge, input, or responsibility with respect to the poker run. The SDJCC gave local chapters advice and suggestions for projects designated as âpriority projects,â but those were primarily non-moneymaking ventures such as âPunt, Pass, and Kick.â
[¶16] Daron Bunger served twice as president for the Harrisburg chapter, and he testified: 1) All planning for charitable events was done strictly on the local level; 2) no rules, regulations, or guidelines regarding charitable endeavors were issued by the SDJCC; 3) approval from the SDJCC was neither sought nor required to undertake a charitable project; 4) the idea for the 1992 poker run came from a member of the Harrisburg chapter, not the SDJCC; 5) the SDJCC did not receive any proceeds from the poker run; 6) the program sponsored by the SDJCC where local chapters could vie for awards (âParade of Chaptersâ) was strictly optional, and involved chapters submitting reports to the SDJCC to detail past, not future events. Jim Aalbers, another former officer of the Harrisburg Chapter, basically corroborated Bungerâs testimony, and added that a poker run was not considered a âpriority project.â
[¶17] Marjean Gab, the secretary for the SDJCC at the time of the poker run, submitted an affidavit with the following statements: 1) The SDJCC did not plan, organize, sponsor, or promote charitable fundraising events undertaken by the local chapters; 2) the SDJCC was not asked to, nor did it, evaluate or approve the poker run.
[¶18] Under these circumstances, there was no duty to monitor and supervise events the occurrence of which the SDJCC was not required to be informed; it is not shown that the accident was foreseeable to the SDJCC. [fn4] âNo one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen.â Poelstra,
[¶19] MILLER, Chief Justice, and AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur as to Issue 1.
[¶20] GILBERTSON, Justice, writing the majority opinion on Issue 2, which affirms the trial courtâs issuance of summary judgment in favor of appellee establishments licensed to sell alcoholic beverages.
GILBERTSON, Justice.
[¶21] This case arises from a motor vehicle accident which resulted in the deaths of two persons and the sustaining of permanent injuries to a fifteen-year old boy. Clearly the accident was avoidable. The immediate cause was Borgheiinckâs driving his motorcycle at speeds of 75 mph to 100 mph. However alcohol, as well as speed, was also involved in Borgheiinckâs driving. Wildeboers seek compensation from those they claim to be the organizers of the poker run, that being the South Dakota Junior Chamber of Commerce (SDJCC) [fn5] and the bars that participated in the event.
[¶22] The subject of liability for the furnishing of alcohol to tort-feasors has been before this Court on numerous occasions. See Griffen v. Sebek,
[¶23] In this case, Wildeboers seek to have this court recognize a cause of action for common law negligence, codified as SDCL 20-9-1. As far as the common law aspect, SDCL 1-1-24 provides that â[i]n this state the rules of the common law ... are in force, except where they conflict with the will of the sovereign power, expressed in the manner stated in § 1-1-23.â The sovereign will in SDCL 1-1-23 is found in part in our state statutes. Walz, supra.
[¶24] It has been a long standing rule of statutory construction that general statutes must yield to specific statutes if they are not consistent. US Lumber, Inc. v. Fisher,
The Legislature finds that the consumption of alcoholic beverages, rather than the serving of alcoholic beverages, is the proximate cause of any injury inflicted upon another by an intoxicated person. Therefore, the rule in Walz v. City of Hudson,
327 NW2d 120 (SD 1982) is hereby abrogated.
SDCL 35-4-78 provides:
No licensee may sell any alcoholic beverage:
(1) To any person under the age of twenty-one years; or
(2) To any person who is obviously intoxicated at the time.
A violation of this section is a Class 1 misdemeanor.
However, no licensee is civilly liable to any injured person or his estate for any injury suffered, including any action for wrongful death, or property damage suffered because of the intoxication of any person due to the sale of any alcoholic beverage in violation of the provision of this section. (emphasis added).
[¶25] In Baatz, an attack on the constitutionality of these two statutes was presented to this Court. A majority of the justices in Baatz failed to find the statutes unconstitutional. No constitutional issues are brought by Wildeboers and thus the statutes are valid enactments which must be applied to the facts of this case regardless of our personal distaste for their effect. Baatz,
[¶26] The statutes clearly preclude recovery against a bar for the serving of the alcohol. SDCL 35-11-1 provides that it is not the serving of the alcoholic beverage which is the proximate cause of the injury inflicted by an intoxicated person. While it may be argued that this result is factually and legally questionable, it simply reflects the Legislatureâs interpretation of one of its own statutes, SDCL 20-9-1. If the Legislature can validly enact, repeal and amend statutes, we know of no constitutional doctrine that precludes it from interpreting a statute by the enactment of another statute. Our cases are legion where we seek to interpret the intent of the Legislature. Klinker v. Beach,
[¶27] The text of SDCL 35-4-78 makes it clear that there is no civil liability to sellers of alcoholic beverages for the furnishing of alcoholic beverages to persons who are âobviously intoxicated.â
[¶28] Our departure from the analysis of the dissent on this issue is two-fold, one factual and one legal. First, there is absolutely no evidence in the record that any of the Defendant Bars, save one, furnished any alcohol to Borgheiinck. It is only Burtâs Lounge of Beresford that the record shows furnished a wine cooler to Borgheiinck. While Borgheiinck obviously got additional liquor from somewhere, Wildeboers cannot tie it to the remaining Defendant Bars. There was no prize or incentive offered by the poker run sponsors concerning speed of the motorcycles. This was a not a timed race. It was the quality of the poker hand that determined which participants won prizes.
[¶29] Second, SDCL 35-4-78, at a minimum, makes it clear that there is no civil liability for furnishing alcohol to an âobviously intoxicatedâ patron. [fn6] The first sentence of SDCL 35-11-1 goes farther and expands this immunity to the furnishing of alcoholic beverages by a bar regardless of the condition of the consumer. Yet the dissent on this issue would somehow hold the Bars liable for ordinary negligence.
[¶30] We conclude that the scope of SDCL 35-4-78 and 35-1-11 is the Legislatureâs policy decision that no civil liability will attach to a bar for the furnishing of alcoholic beverages to a person who subsequently causes an injury to a third party. As we stated in Walz, [i]f the Legislature does not concur with our application of SDCL 35-4-78(2) as now announced, it is the prerogative of the Legislature to so assert.â
[¶31] As such, we affirm the circuit court in its dismissal of the action against the bars. In so doing, we respectfully suggest to the Legislature that it re-examine this issue.
[¶32] MILLER, Chief Justice, and AMUNDSON and KONENKAMP, Justices, concur.
[¶33] SABERS, Justice, dissents as to Issue 2.
SABERS, Justice.
[¶34] 2. The Bars
[¶35] I dissent on this issue for the reasons expressed in Baatz v. Arrow Bar,
[¶36] I would not postpone the inevitable. In this instance, justice delayed is justice denied. The statutes involved in Baatz have not been corrected or modified. They contain the same defects and deserve the same treatment they received in Baatz. [fn7]
[¶37] Contrary to the lack of involvement of the SDJCC, the Bars played a significant role in the poker run; whether that role constituted negligence presents genuine issues of material fact. The Bars consented to take part in the poker run by serving as official stops. Most, if not all, were previously involved in poker runs and knew the participants in a poker run were predominately motorcyclists. They allowed posters soliciting entrants to be displayed in the bars. The tokens were dropped off at an earlier date, and the Bars played a part in dispensing them to participants. Some of the Bars engaged extra help that day to assist in serving alcohol and food. All of the Bars served alcohol to the riders that day.
[¶38] As noted above, duty may be imposed by common law, dependent upon whether an injury is foreseeable. Foreseeability must be analyzed in light of all the circumstances, and depends on the facts in each individual case. Small v. McKennan Hosp.,
[¶39] There are genuine issues of material fact whether Borgheiinck was under the influence of alcohol. Tests conducted on Borgheiinck at the scene revealed a blood alcohol content (BAC) of 0.069, an amount which legally does not give rise to any presumption whether he was or was not under the influence of alcohol. See SDCL 32-23-7(2) (providing that amount is a fact which may be considered with other evidence in determining the guilt or innocence of one prosecuted for âdriving while under the influenceâ). Kiousisâ BAC was 0.106, an amount which gives rise to a presumption that the individual was under the influence of intoxicating liquor. Id. at subdivision (3). Both Borgheiinck and Kiousis were observed drinking wine coolers at Beresford, the stop immediately preceding the crash.
[¶40] The comment accompanying the State Health Laboratory report states, with respect to the test conducted on Borgheiinck: âALCOHOL RESULT COULD BE AS MUCH AS 15% HIGH DUE TO LOW SAMPLE VOLUME LESS THAN 1 ML.â [fn9] This comment is apparently subject to an interpretation different from the seemingly literal translation. Corporal Kevin Grebin of the South Dakota Highway Patrol, an investigator in this case, interpreted the comment to mean the BAC âcould have been as high as a .15.â The analyst who made the comment was not questioned in the record, and Grebin was the only witness to testify regarding the BAC tests. âIf reasonable persons, upon examining the evidence, might reach different conclusions, a motion for summary judgment should be denied and the case tried on the merits.â Limpert v. Bail,
[¶41] The only person who testified regarding Borgheiinckâs alcohol consumption that day was his close friend, Harry Lockhart. He stated Borgheiinck was not âa big drinker,â but he also testified he saw him drinking an alcoholic beverage right before the crash. Lockhart may not be the most reliable source, in light of his admission to at least a beer at every stop: âI probably had more than anybody else[.]â
[¶42] The Bars argue that no evidence was presented to prove Borgheiinck was âobviously intoxicated.â âSummary judgment is also improper where defendant's defenses involve questions of fact.â Id. Even if he was not âobviously intoxicatedâ (an unresolved issue), that would not eliminate questions surrounding the detrimental effect any amount of alcohol had upon his operation of his motorcycle. Nor would it eliminate questions regarding the culpability of promoting participation of an event sure to combine alcohol with motorcycle operation. The Bars did not offer any evidence that he acquired or consumed alcohol anywhere else that day. In this sense, they failed to show that there were no genuine issues of material fact entitling them to summary judgment. Thiewes,
[¶43] Wildeboers offered the affidavit of Rick Kiley, program director of motorcycle rider education with the South Dakota Safety Council. Kiley provides statistics, compiled by The Motorcycle Safety Foundation, which report that almost 50% of riders killed in motorcycle accidents had been drinking. Of those killed, only about one-third were legally impaired, while the other two-thirds had consumed less than enough to put them legally âunder the influence.â Kiley attributes the high number of âlow-impairedâ motorcycle fatalities to the difference between operating an automobile and operating a motorcycle:
Operating a motorcycle differs greatly from operating an automobile. The most critical differences between operating a motorcycle and operating an automobile are stability and vulnerability. Given the greater instability experienced in operating a motorcycle, the consumption of a small amount of alcohol impairs the riderâs ability to operate a motorcycle safely. Consequently, it requires significantly less quantities of alcohol to effectively impair motorcycle riding skills than to impair the skills necessary to safely drive an automobile.
[¶44] There are simply too many unanswered questions of material fact, including the amount and the effect of the alcohol consumed, the speed of the vehicles, causation, and foreseeability. Therefore, the suit against the Bars should not have been disposed of by summary judgment and we should reverse and remand this issue to resolve these genuine issues of material fact. [fn10] Therefore, this writing constitutes my dissent in relation to Issue 2, the Bars.
Footnotes
fn1 . The five bars designated as stops on the poker run were âThe Barâ (Harrisburg), âThe Wheelâ (Canton), âBillâs Barâ (Hudson), âBurtâs Loungeâ (Beresford), and âThe Only One Loungeâ (Lennox).
fn2 . For this event, entrants were given a bolt in Harrisburg. Each of the five bars then distributed colored nuts which were placed on the bolt and later exchanged for playing cards. Players were to return to Harrisburg to make the exchange.
fn3 . Wildeboers also argue that 1) a new cause of action, âaiding and abetting the commission of a tort,â be adopted; and 2) defendants be held jointly liable under a âmarket enterpriseâ theory. For discussion of these issues, see note 10, infra.
fn4 . This conclusion is limited to the facts of this case; there may be circumstances under which a statewide organization, such as the SDJCC, may be liable for the consequences of actions of a local chapter.
fn5 . Although the poker run was organized by the Harrisburg Chapter of the JCâs, it was not sued nor were any of its members. We were informed at oral argument by Wildeboers that the Harrisburg JCâs is an unincorporated association and that the only way to sue it would be to sue its approximately 35 members individually. The Wildeboers opted not to do so and instead sued the State Chapter and the participating bars.
fn6 . It is very unlikely that the Legislature attempted to provide immunity for those bars who sell to âobviously intoxicatedâ patrons and yet would hold them liable for the sale of liquor to those patrons who are not âobviously intoxicated.â
fn7 . Compare SDCL 35-11-1 (â[C]onsumption of alcoholic beverages, rather than the serving of alcoholic beverages, is the proximate cause of any injury inflicted upon another by an intoxicated person ... .â) and SDCL 35-4-78 (classifying as a misdemeanor the sale of alcoholic beverages to an obviously intoxicated person, yet attempting to shield a licensee-violator from civil liability) with Baatz v. Arrow Bar,
In addition, even when providing private landowners, the State, and its political subdivisions broad based immunity for ordinary negligence under the Recreational Use Statutes, the South Dakota Legislature excepts out violations of county or municipal ordinances or state law which violation is a proximate cause of the injury. See SDCL 20-9-16 (landowner); 20-9-22 (political subdivision) (Supp. 1996); 20-9-27 (State) (Supp. 1996).
fn8 . In Glazier, a passenger on a motorcycle was killed shortly after the second stop of a poker run. She and the driver spent approximately 45 minutes at each of the first two bars, drinking alcohol at both stops. Neither wore a helmet, and she died of severe head injuries. The defendant driver, whose blood alcohol concentration was .17 at the scene of the accident, survived with severe injuries.
fn9 . The sample volume was low due to the difficulty of drawing blood from Borgheiinckâs severely burned body.
fn10 . As stated above in note 3, Wildeboers argue that the defendants be held jointly liable under a âmarket enterpriseâ theory. This issue is not addressed in their complaint or amended complaint, and the trial court did not mention this theory in the order granting summary judgment. We were not provided with a transcript of the hearing, so we do not know if it was presented at that time.
They also argue the adoption of a new cause of action, âaiding and abetting the commission of a tort.â They rely upon the Restatement (Second) of Torts §876, which provides the general rules for attributing liability to one who gives âsubstantial assistance or encouragementâ to another when the otherâs conduct is known to constitute a breach of duty. Recognition of a new tort is not necessary to simply instruct the jury in accordance with the guidance of §876. The concept of joint liability is already established. See, e.g., State v. Two Bulls,