Baatz v. Arrow Bar

426 N.W.2d 298, 1988 S.D. LEXIS 88, 1988 WL 60072

• Court: South Dakota Supreme Court
• Decided: June 15, 1988
• Docket: 15875
• Status: Published

Opinions

SABERS, Justice.

Facts

Kenny Baatz claims he and his wife, Peggy, were seriously injured when a vehicle operated by a drunk driver, Roland McBride, crossed the center line of a Sioux Falls street and struck and crushed them. Baatz also claims the Arrow Bar served alcoholic beverages to McBride while he was intoxicated prior to the accident. Therefore, Baatz claims that the Arrow Bar’s negligence in serving alcoholic beverages to an already intoxicated person contributed further to McBride’s intoxication and to their injuries.¹

The trial court granted summary judgment to the Arrow Bar based on acts passed by the legislature in 1985 which are as follows:

SDCL 35-11-1: 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 N.W.2d 120 (S.D.1982) is hereby abrogated.

Amendment to SDCL 35-4-78: ... 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 provisions of this section.

Baatz appeals, claiming that the state legislature cannot constitutionally, by statute, abrogate a cause of action recognized by the state Supreme Court.

History

In Griffin v. Sebek, 90 S.D. 692, 245 N.W.2d 481 (1976),² we refused to recognize a common law cause of action against persons selling or furnishing liquor by persons injured as a result of acts of intoxicated persons. Six years later, in Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982), we held that a cause of action for injured persons against liquor licensees existed under SDCL 35-4-78 (the unlawful sale of liquor to a minor or an intoxicated person). Walz held that violation of SDCL 35-4-78 was negligence as a matter of law.

The majority opinion, authored by Chief Justice Fosheim and joined by Justices Dunn and Henderson, was persuaded by the view of the minority in Griffin, as expressed by then Chief Justice Dunn’s dissent:

I would respectfully submit that the time has come for this court to recognize a common law cause of action by an injured party against a seller of alcoholic beverages to an intoxicated person who causes injury by his intoxication. While it is true that this right of recovery was not recognized originally, there is a great difference between an intoxicated person driving a horse and buggy on a dirt road in 1889 and an intoxicated teenager hurtling down the highway at great speed in a five-thousand-pound automobile in 1972.

Griffin, supra, 245 N.W.2d at 486-87. Justice Wollman’s special concurrence in Walz was joined by Justice Morgan and stated:

I would go further and hold that there is now in this state a common law right of action to recover such damages. I would reach this result because I believe that those of us who were in the majority in Griffin v. Sebek took too narrow[³] a view of the responsibility of the judiciary to fill a void by common law adjudication in the face of legislative in action.

Walz, supra at 123.

1. RETROSPECTIVE OR PROSPECTIVE APPLICATION OF SDCL 35-4-78(2) AND WALZ

A. Prospective Effect of SDCL 35-4-78(2)

The majority in Walz noted that the court in Griffin had “declined to expand the common law to afford a remedy” and “also did not extend SDCL 35-4-78(2) to impose a civil liability duty.” Walz, supra at 122. However, the court went on to state that “[sjince Griffin essentially turned on a reluctance to impose a common law duty⁴ in the absence of express civil liability legislation, we did not fully reach Justice Dunn’s interpretation of SDCL 35-4-78(2). We do now.” Id. The court then discussed SDCL 35-4-78(2) and concluded that the statute had established “a standard of care or conduct, a breach of which is negligence os a matter of law.” (emphasis added) Id. at 123. Clearly, the Walz decision is based upon a cause of action existent under SDCL 35-4-78(2), (which should control the date of application).

It can be argued that Walz should not be applied retroactively because: (1) the Walz majority did not address the application issue, (2) caselaw holds that where prior settled law is overturned, the decision should be prospectively applied, and (3) to apply Walz retroactively would be inequitable.

We believe the Walz majority opinion, read in its entirety, clearly demonstrates that the court determined that “[sjince this decision applies existing statutory law,” it was unnecessary to state that the decision was both prospective and retrospective. SDCL 35-4-78(2) was a statute within the Codified Laws of South Dakota before any of the actions in this case or Walz occurred. As such, it provided a standard of care or conduct from the moment it became law. There has been criticism of the negligence per se rule, see Prosser, Law of Torts § 36 (4th ed. 1971); 3 Cooley on Torts § 481 (4th ed. 1932); 5 The Law of Torts § 17.6 (1988), however, it is clear that this rule has been adhered to by this court for some time. “The violation of a statute enacted to promote safety constitutes negligence per se.” Engel v. Stock, 88 S.D. 579, 581, 225 N.W.2d 872, 873 (1975); Bothern v. Peterson, 83 S.D. 84, 155 N.W.2d 308 (1967); Blakey v. Boos, 83 S.D. 1, 153 N.W.2d 305 (1967). It is inconceivable that violation of a statute may be negligence per se on one day, but cannot be the day before.

Walz did not overrule prior settled law. Griffin dealt with the common law cause of action and there was no “prior settled law” construing civil liability under SDCL 35-4-78(2).

Finally, it is no more inequitable to apply Walz retrospectively than it is, in any case, to acknowledge that violation of a criminal statute may result in a finding of civil liability. Generally, bar owners were aware of SDCL 35-4-78(2) and the acts it prohibited and cannot assert ignorance. The negligence per se rule has never been restricted to only those laws which facially provide both civil and criminal remedies and the wisdom of so doing is not a question before this court.

Therefore, based upon a clear reading of Walz and the application of the well-settled rule of negligence per se, we hold that the decision in Walz was intended to apply both retrospectively and prospectively.

B. Retrospective Application of Walz

Even if it were conceded that Walz impliedly overrules the precedent established in Griffin, Walz can and should be applied retroactively.

The general rule in civil cases seems to be that unless the overruling decision declares that it shall have only prospective effect, which the court overruling its prior decision generally has the power to do, the judicial overruling of a precedent has both prospective and retroactive effect.

20 Am.Jur.2d Courts § 233 (1965). This general rule has been denominated the “Blackstonian Doctrine,” Fitzgerald v. Meissner & Hicks, Inc., 38 Wis. 571, 157 N.W.2d 595, 596 (1968), and appears to have evolved from a traditional view of the judiciary as the interpreters of law. “As a matter of constitutional law, retroactive operation of an overruling decision is neither required nor prohibited.” Comment, “Prospective or Retroactive Operation of Overruling Decision,” 10 A.L.R.3d 1371 § 2; Annotation, “United States Supreme Court’s Views as to Retroactive Effect of Its Own Decisions Announcing New Rules,” 22 L.Ed.2d 821, 830 (hereinafter S.Ct. Annotation). The United States Supreme Court has developed criteria for determining retroactivity of new rules which are substantially the same as those enunciated by this court in State v. One 1966 Pontiac Auto., 270 N.W.2d 362, 365 (S.D.1978). These criteria are: “(1) the purpose to be served by the particular new rule; (2) the extent of reliance which had been placed upon the old rule; and (3) the effect on the administration of justice of a retroactive application of the new rule.” S.Ct. Annotation, supra at 832.

The first criteria is the purpose to be served by the new rule. Clearly, one general purpose of the rule in Walz was to recognize an implied civil cause of action under a criminal statute. If retroactive application is necessary to effectuate the purpose of the new rule, then this is a significant factor in giving the new rule retroactive effect. S.Ct. Annotation § 4[b] at 832. The court in Walz believed that SDCL 35-4-78(2) was enacted to protect citizens “from the risk of being killed or injured ‘as a result of the drunkenness to which the particular sale of alcoholic liquor contributes.’ ” Walz, 327 N.W.2d at 122-123. Thus, to effectuate the interpreted intent and purpose of the statute, it was and is necessary to give the decision retroactive application.

It is argued that there was good-faith reliance on the old rule (i.e., Griffin) and, therefore, Walz should not be applied retroactively. Specifically, it is argued that it is inequitable to apply the new rule because many bar owners did not have liability insurance coverage for these situations prior to Walz and thus could suffer severe monetary losses, and that the state of the law was and is unclear. Although we agree that the imposition of liability, where proven, may be financially harsh for bar owners who were not covered by insurance, this must be balanced against the harsh effect non-retroactivity would have upon those wrongfully injured whose economic and physical losses may be more severe. Additionally, as mentioned above, there is no question that SDCL 35-4-78(2) prohibited bar owners from serving intoxicated persons or minors. The conduct in question was prohibited and proven violation of the statute was punishable by criminal sanctions. We do not believe good-faith reliance means that violators of SDCL 35-4-78(2) relied upon violation only costing them a one thousand dollar fine, one year of imprisonment, or both. See SDCL 22-6-2. Additionally, the retroactive application of Walz is unlikely to have a significant effect on the administration of justice.

C. Prospective Application of Walz

Even if the decision in Walz were given only prospective application, it would not bar the suit by these plaintiffs under this court’s prior interpretation of prospective application.

The court in City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331 (1975) determined that the holding therein would have only prospective application. The court stated that the Meidinger decision “does not apply to cases handled by the ... courts previous to the date of this decision.” (emphasis added) Id., 233 N.W.2d at 334. A review of prior cases involving both prospective and retroactive application make it clear that prospective application means the overruling decision is not applied to cases commenced before the decision was announced.⁵ Therefore, the overruling decision is applied to cases commenced after the decision is announced. The Walz decision was announced in 1982 and Baatz commenced this action in 1984. Therefore, the Walz decision applies to the Baatz action.

Although it can be argued that prospective application should mean the decision is applied only to transactions or events occurring after the announcement of the decision, this is not what our prior caselaw indicates and for obvious sound reason.

2. CAN THE LEGISLATURE ABROGATE RIGHTS THAT PLOW FROM LEGISLATIVE ACTS OR STATUTES?

In 1985, the legislature enacted SDCL 35-11-1 and amended SDCL 35-4-78 as indicated above. Shortly thereafter, this court held in Selchert v. Lien, 371 N.W.2d 791 (S.D.1985), that a surviving wife had a cause of action for wrongful death against a liquor licensee and his employees where they continued to serve the intoxicated husband in violation of SDCL 35-4-78(2) resulting in his death.⁶ The court acknowledged the legislative abrogation of Walz but noted that the statute became effective July 1, 1985, thereby impliedly refusing to give it retroactive application.

Obviously, the legislature can abrogate the rights that flow from legislative acts and statutes. They can do so simply by repealing the statute from which the rights flow. In this case, all they had to do was repeal SDCL 35-4-78. But they did not repeal the statute, they simply amended it as indicated above and enacted a separate statute — SDCL 35-11-1.

First, the legislative finding in SDCL 35-11-1 that consumption rather than serving of alcoholic beverages is the proximate cause of any injury inflicted upon another by an intoxicated person, may or may not be the fact depending upon the circumstances. In many cases, there are more than one, if not several factors contributing to an injury. The negligent acts or omissions of several wrongdoers can contribute to and be the proximate cause of resulting injuries. In addition, the task of determining the proximate cause of injuries in individual cases is the duty of the courts and juries, not the legislature.⁷ In view of these uncertainties, the legislative finding in SDCL 35-11-1 is not effective to abrogate the rule in Walz.

The amendment to SDCL 35-4-78 presents a closer question. It clearly appears that the legislature’s intent was to destroy the cause of action which the South Dakota Supreme Court recognized under SDCL 35-4-78. The question is whether they accomplished their intention. In this context, it is necessary to examine the basis of the rule in Walz, which was that SDCL 35-4-78 was a safety statute, passed for the protection of the injured. As stated in Walz, supra at 122:

The reason for this rule is that the statute or ordinance becomes the standard of care or conduct to which the reasonably prudent person is held. Failure to follow the statute involved constitutes a breach of the legal duty imposed and fixed by such statute. Since negligence is a breach of a legal duty, the violator of a statute is then negligent as a matter of law. (citation omitted)

Alley v. Siepman, 87 S.D. 670, 674, 214 N.W.2d 7, 9 (1974).

SDCL 35-4-78 continues to provide in part that

“No licensee may sell any alcoholic beverage:

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(1) To any person under the age of twenty-one years; or

(2) To any person who is obviously intoxicated at the time, or who is known to the seller to be an habitual drunkard.”

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It is obvious that despite the amendment, the statute continues to provide a standard of care or duty, the breach of which continues to give rise to an action for injuries against a wrongdoer, or wrongdoers as the case may be. “As the legislature cannot set aside the construction of the law already applied by the courts to actual cases, neither can it compel the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force.” Cooley’s Constitutional Limitations 191 (8th ed. 1927). To say that civil liability for such wrongdoing shall rest solely with the consumer, to the exclusion of all other wrongdoers, is questionable in fact and in theory. In fact, the words of the amendment acknowledge serving of alcoholic beverages as a cause of injuries contrary to the legislative finding in SDCL 35-11-1. The amendment is inconsistent with the statute. That is, the amendment contradicts the legislative finding; it simply purports to absolve civil liability therefor. This can be done, by eliminating the statute, but it was not done here. In addition, as indicated above, the task of determining proximate cause (and civil liability for wrongdoing) belongs to the courts, not the legislature. “The judicial power ‘is the power to hear and determine those matters which affect the life, liberty, or property of the citizens of the State.’ ” Cooley’s Constitutional Limitations, supra at 184 n. 3, citing City of Sapulpa v. Land, 101 Okl. 22, 223 P. 640 (1924). Therefore, the amendment to SDCL 35-4-78 also fails to accomplish its purpose.

3. EFFECTIVE DATE OF SDCL 35-11-1 AND AMENDED SDCL 35-4-78 AND RETROACTIVE APPLICATION

The attempted abrogation of the rule in Wait did not bar Baatz’ cause of action for another reason. The statute and the amendment were enacted into law during the 1985 legislative session and became effective on July 1, 1985. Baatz started their action against the Arrow Bar in 1984.

It is settled law in this state that a statute will not operate retroactively unless the legislative act clearly expresses an intent that it so operate. Matter of Adams, 329 N.W.2d 882 (S.D.1983); State ex rel. Van Emmerik v. Janklow, 304 N.W.2d 700 (S.D.1981); First Nat. Bank of Minneapolis v. Kehn Ranch, 394 N.W.2d 709, 716 (S.D.1986). See also SDCL 2-14-21. “Also, under SDCL 2-14-24, no civil action commenced before the present code of laws took effect is affected by its provisions.” First Nat. Bank, supra at 716. Accordingly, we conclude that the Baatz lawsuit filed against Arrow Bar in 1984 is not affected by a statute subsequently enacted in 1985.

4. COMMON LAW, STATUTORY, AND CONSTITUTIONAL RIGHTS

The attempt to legislate in this area fails for an even more basic reason — the Constitution of the State of South Dakota and other South Dakota law in existence on July 1, 1985.

South Dakota Constitution, art. VI § 20 provides:

“All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.”

SDCL 20-9-1 provides in part:

“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[.]”

As indicated above, these constitutional and statutory provisions were in full force and effect on July 1, 1985. They continue in existence as of this date. In Bego v. Gordon, 407 N.W.2d 801, 806 (S.D.1987), after noting the state’s immunity from suit without legislative consent, we stated:

[T]he liability of a state employee for his own negligent or intentional acts is another matter. “Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or ... want of ordinary care[.]” SDCL 20-9-1. The remedy provided by common law and by this statute is supported not only by the “open courts” provision but by other substantial constitutional provisions.[⁸]

SDCL 20-9-1 is a simple codification of the common law of negligence. In essence, then, the South Dakota Constitution and existing statutory law provide that an injured person has a right to a remedy against a wrongdoer. Zacher v. Budd Co., 396 N.W.2d 122 (S.D.1986); Oien v. City of Sioux Falls, 393 N.W.2d 286 (S.D.1986); Daugaard v. Baltic Co-op Bldg. Supply Ass’n, 349 N.W.2d 419 (S.D.1984). This is so whether the wrongdoer acts alone or with another wrongdoer. Bego, supra.

The legislature can impose reasonable restrictions upon available remedies and even upon these rights in accordance with the constitution, as long as they do not violate the constitution; but they cannot destroy these rights in violation of the constitution.

We reverse and remand for trial.

HENDERSON, J., concurs. WUEST, C.J., concurs in part. MORGAN and MILLER, JJ., dissent.

1 . The injuries resulted in leg amputations, medical expenses exceeding $30,000, disabilities, and total loss of income from the date of injuries. Baatz also claims McBride is judgment proof.

2 . For prior history of this area of South Dakota law, see Justice Coler’s opinion beginning at 245 N.W.2d 482. For a statement covering all of these issues, Justice Dunn's dissent suggested reading the dissent by Hallows, C.J., in Garcia v. Hargrove, 46 Wis.2d 724, 736-38, 176 N.W.2d 566, 572 (1970).

3 . Justice Wollman’s explanation for the change from his prior view is noteworthy:

To those who might question why I have reversed my position since the decision in Griffin v. Sebek, I can only quote Justice Frankfurter’s aphorism that ”[w]isdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259, 264 (1949) (Frankfurter, J., dissenting).

Walz, supra at 124.

4 .The dissent is incorrect in its assertion that the Walz decision recognized a common law cause of action. The Walz majority recognized only that a statutorily-based cause of action existed. Justice Wollman, in his special concurrence urged the adoption of common law liability (an unnecessary act if the majority had already done so), and within that context said: ‘Inasmuch as the imposition of common law liability would [if adopted] mark an abrupt departure from our prior holding in Griffin, ... I would apply the benefit of such a decision ... [prospectively].” (emphasis added) Id. at 124. Webster’s New International Dictionary, 2d ed. (1937) defines "would" as "an expression of desire or wish" or "what might be expected.” Neither of these definitions comports with an interpretation suggesting that Justice Wollman was stating that the majority had adopted the common law liability basis.

5 . City of Sioux Falls v. Mini-Kota Art Theatres, 247 N.W.2d 676, 677 (S.D.1977) ("Since this case was tried prior to our decision in ... Meidinger, supra, defendant cannot avail itself of that holding.”); Vogt v. Billion, 405 N.W.2d 635, 637 (S.D.1987) (Shamburger v. Behrens, 418 N.W.2d 299 (S.D.1988), given limited retroactive application: "We conclude that the Shamburger decision is applicable to all cases pending on direct appeal to this court at the time of its announcement.”); State v. Connors, 82 S.D. 489, 494, 149 N.W.2d 65, 67 (1967) (Escobedo and Miranda decisions "apply only to trials commenced after the date on which each decision was announced.’’); One 1966 Pontiac Auto., supra (appellant had default judgment entered against him one year before operative statute declared unconstitutional); State v. Hoffman, 409 N.W.2d 373, 376 (S.D.1987) (decision is prospective only but retrospective in that it covers appellants and appeals filed prior to entry of decision).

6 . Decedent-husband drove home from the bar, parked his car in the garage, closed the garage door by remote control, stayed in the vehicle, and died of carbon monoxide poisoning.

7 . "Where, however, the facts out of which a moral or legal obligation is claimed to arise are disputed, the contention falls within the province of the courts, under the distribution of governmental powers prescribed by our constitution.”

Board of Education v. State ex rel. Lindsay, 38 N.E. 614, 618 (Ohio 1894).

”[T]he Legislature may not declare the weight to be given to evidence or what evidence shall be conclusive proof of an issue of fact, ... whether evidence is of probative value is a legal question, and the Legislature cannot impair judicial analysis and resolution of such questions.”

State v. Burling, 224 Neb. 725, 730, 400 N.W.2d 872, 876 (1987).

8 . These other substantial constitutional provisions relied upon in Bego, supra at 806, were from art. VI of the South Dakota Constitution as follows:

§ 1. Inherent rights. All men have certain inherent rights including enjoying and defending life and liberty, acquiring and protecting property and the pursuit of happiness.

§ 2. Due Process. No person shall be deprived of life, liberty, or property without due process of law.

§ 12. Privilege or immunity laws. No law granting an irrevocable privilege, franchise or immunity shall be passed.

§ 18. Equal privileges or immunities. "No law shall be passed granting to any citizen, class of citizens or corporation, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations."