Baatz v. Arrow Bar

452 N.W.2d 138, 1990 S.D. LEXIS 22, 1990 WL 17901
CourtSouth Dakota Supreme Court
DecidedFebruary 28, 1990
Docket16597
StatusPublished
Cited by34 cases

This text of 452 N.W.2d 138 (Baatz v. Arrow Bar) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baatz v. Arrow Bar, 452 N.W.2d 138, 1990 S.D. LEXIS 22, 1990 WL 17901 (S.D. 1990).

Opinions

SABERS, Justice.

Kenny and Peggy Baatz (Baatz), appeal from summary judgment dismissing Edmond, LaVella, and Jacquette Neuroth, as individual defendants in this action.

[140]*140 Facts

Kenny and Peggy were seriously injured in 1982 when Roland McBride crossed the center line of a Sioux Falls street with his automobile and struck them while they were riding on a motorcycle. McBride was uninsured at the time of the accident and apparently is judgment proof.

Baatz alleges that Arrow Bar served alcoholic beverages to McBride prior to the accident while he was already intoxicated. Baatz commenced this action in 1984, claiming that Arrow Bar’s negligence in serving alcoholic beverages to McBride contributed to the injuries they sustained in the accident. Baatz supports his claim against Arrow Bar with the affidavit of Jimmy Larson. Larson says he knew McBride and observed him being served alcoholic beverages in the Arrow Bar during the afternoon prior to the accident, while McBride was intoxicated. See Baatz v. Arrow Bar, 426 N.W.2d 298 (S.D.1988), for a more complete statement of the facts.

Edmond and LaVella Neuroth formed the Arrow Bar, Inc. in May 1980. During the next two years they contributed $50,-000 to the corporation pursuant to a stock subscription agreement. The corporation purchased the Arrow Bar business in June 1980 for $155,000 with a $5,000 down payment. Edmond and LaVella executed a promissory note personally guaranteeing payment of the $150,000 balance. In 1983 the corporation obtained bank financing in the amount of $145,000 to pay off the purchase agreement. Edmond and LaVella again personally guaranteed payment of the corporate debt. Edmond is the president of the corporation, and Jacquette Neu-roth serves as the manager of the business. Based on the enactment of SDCL 35-4-78 and 35-11-1 and advice of counsel, the corporation did not maintain dram shop liability insurance at the time of the injuries to Kenny and Peggy.

In 1987 the trial court entered summary judgment in favor of Arrow Bar and the individual defendants. Baatz appealed that judgment and we reversed and remanded to the trial court for trial. Baatz, supra. Shortly before the trial date, Edmond, La-Vella, and Jacquette moved for and obtained summary judgment dismissing them as individual defendants. Baatz appeals. We affirm.

Summary Judgment

A trial court may grant summary judgment only when there are no genuine issues of material fact. SDCL 15-6—56(c); Bego v. Gordon, 407 N.W.2d 801 (S.D.1987). The moving party bears the burden of showing the absence of genuine issues of material fact. Id. In resisting the motion, the non-moving party must present specific facts that show a genuine issue of fact does exist. Ruane v. Murray, 380 N.W.2d 362 (S.D.1986). Mere allegations that are devoid of specific facts will not prevent the issuance of summary judgment. Western Cas. & Sur. Co. v. Gridley, 362 N.W.2d 100 (S.D.1985). If no issue of material fact exists, then any legal questions may be decided by summary judgment. Bego, supra. When determining whether a genuine issue of material fact exists, the evidence must be viewed most favorably to the non-moving party and reasonable doubts are to be resolved against the moving party. Groseth Int’l, Inc. v. Tenneco, Inc., 410 N.W.2d 159 (S.D.1987).

1. Individual liability as employees.

SDCL 35-4-78 protects persons from the risk of injury or death resulting from intoxication enhanced by the particular sale of alcoholic beverages. Baatz, supra; Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982). Accordingly, the statute “establishes a standard of care or conduct, a breach of which is negligence as a matter of law.” Walz, supra at 123. That standard of care may be breached either by the liquor licensee or an employee of the licensee. Selchert v. Lien, 371 N.W.2d 791 (S.D.1985).

Neuroths claim there is no evidence that they individually violated the standard of care created by SDCL 35-4-78. They claim the licensee is the corporation, Arrow Bar, Inc., leaving them liable only if one of them, as an employee, served alcoholic beverages to McBride while he was intoxicated. They claim the record is void of any [141]*141evidence indicating that any one of them served McBride on the day of the accident.

Baatz argues that this court’s decision in Selchert, supra, allowed a cause of action against both the liquor licensee and the licensee’s employees. Baatz claims that each of the Neuroths admitted in deposition to being an employee of the corporation. Consequently, under his reasoning, a cause of action may be brought against the Neu-roths in their individual capacities. However, Baatz reads the decision in Selchert too broadly. That decision was never intended to allow a cause of action against any employee of a liquor licensee when the licensee had violated SDCL 35-4-78. While a cause of action may be brought against a licensee’s employee, it must be established that that employee violated the standard of care established by the statute. Employee status alone is insufficient to sustain a cause of action. Baatz failed to offer evidence that any of the Neuroths personally served McBride on the day of the accident.

Baatz also argues that Jacquette Neuroth, as manager of the bar, is liable under the doctrine of respondeat superior. Under this doctrine, an employer may be liable for the conduct of an employee. Bucholz v. City of Sioux Falls, 77 S.D. 322, 91 N.W.2d 606 (1958). However, in this case, Jacquette Neuroth is not the employer. The employer of the individuals who may have served McBride is the corporation, Arrow Bar, Inc. Therefore, Baatz’ argument misapplies the doctrine of re-spondeat superior.

2. Individual liability by piercing the corporate veil.

Baatz claims that even if Arrow Bar, Inc. is the licensee, the corporate veil should be pierced, leaving the Neuroths, as the shareholders of the corporation, individually liable. A corporation shall be considered a separate legal entity until there is sufficient reason to the contrary. Mobridge Community Indus., Inc. v. Toure, Ltd., 273 N.W.2d 128

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Bluebook (online)
452 N.W.2d 138, 1990 S.D. LEXIS 22, 1990 WL 17901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baatz-v-arrow-bar-sd-1990.