Barrie v. Pennsylvania Liquor Control Board

5 Pa. D. & C.4th 174, 1990 Pa. Dist. & Cnty. Dec. LEXIS 335
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedMarch 13, 1990
Docketno. GD 86-8214
StatusPublished

This text of 5 Pa. D. & C.4th 174 (Barrie v. Pennsylvania Liquor Control Board) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrie v. Pennsylvania Liquor Control Board, 5 Pa. D. & C.4th 174, 1990 Pa. Dist. & Cnty. Dec. LEXIS 335 (Pa. Super. Ct. 1990).

Opinion

ZELEZNIK, J.,

This case was argued on plaintiffs motion for post-trial relief after the court molded answers to written interrogatories by the jury into a verdict in favor of all defendants. Plaintiff requests a judgment n.o.v. and new trial limited to damages or alternatively, a new trial.

Rebecca Barrie, in her capacity as administratrix of the estate of her son, Bryan Barrie, deceased, filed this wrongful death and survival action, against the Pennsylvania Liquor Control Board and its employee Dennis Hoag for negligence in selling alcohol to a minor, and also against William D. Green for negligence in purchasing and furnishing alcohol to a minor, which resulted in his drowning. The LCB joined the plaintiff/administratrix and her ex-husband, Richard Barrie, on the theory of negligent parental supervision, and Kenneth Krisovenski for his negligence in encouraging and participating in [175]*175the “drinking party” which preceded Bryan Barrie’s death. Subsequently, Kenneth Krisovenski joined Mary Beth Dawson for her participation1 as the third member of this drinking party.

The evidence revealed that plaintiffs decedent, at the time 16 years old, and Kenneth Krisovenski, also age 16, each contributed $10 to purchase a half-gallon of vodka and a fifth of giri. They approached defendant William D. Green, then age 20, who entered the liquor store and made the purchase.2 After the alcohol was purchased William Green gave possession to plaintiffs decedent who then made arrangements to meet with Kenneth Krisovenski and Mary Beth Dawson at a designated drinking site. This site was located on a hill next to a railroad track and in close proximity to the Chartiers Creek. The three minors began drinking around eight o’clock on the evening of November 15, 1985 and ultimately consumed the entire half gallon of vodka with Bryan Barrie and Kenneth Krisovenski alternating shots, while Mary Beth Dawson drank screwdrivers. Mary Beth Dawson testified that before she left the site Kenneth Krisovenski had passed out and that she had called out to Bryan Barrie, who was out of her view but still in the vicinity, to help her take him home to which he responded: “I can’t.” She further testified that she had returned home that night around 11 o’clock. Kenneth Krisovenski testified that after awakening he staggered home around 2:30 the next morning. Bryan Barrie never returned home. Approximately three weeks later his body was [176]*176found in the Chartiers Creek downstream from the site of the drinking party.

At the close of all the evidence a directed verdict was entered in favor of additional defendant Rebecca Barrie as a parent. Next, the jury returned answers to written interrogatories finding that: (1) the LCB and Dennis Hoag did sell alcoholic beverages to William Green under circumstances by which Hoag knew or should have known the alcohol would be given to minors and that such sale was a substantial factor in bringing about the death of Bryan Barrie; (2) that the additional defendant and father of the decedent, Richard Barrie, was not negligent; (3) that the conduct of William Green in purchasing and furnishing alcohol to minors was negligent, and was a substantial factor in bringing harm to the decedent; (4) that the conduct of additional defendants Krisovenski and Dawson was negligent, but was not a substantial factor; and (5) that the conduct of plaintiffs decedent in purchasing and consuming alcohol while underage was negligent, and was a substantial factor in bringing about his own death. The jury apportioned liability and attributed 10 percent causal negligence to the LCB, 20 percent to defendant William Green and 70 percent to plaintiffs decedent. The court molded these answers into a verdict in favor of all defendants.

Plaintiff now contends that the court erred: in charging the jury on the minor decedent’s contributory negligence; in allowing evidence of the minor decedent’s prior drinking episodes to be introduced; and, in permitting evidence to be introduced that William Green appeared to be of legal age when he purchased the alcoholic beverage for plaintiffs minor decedent.

Plaintiff argues that minor decedent’s contributory or comparative negligence is irrelevant when a [177]*177defendant licensee has violated section 4-493(1) of the Liquor Code, first raising that issue by a motion in limine, to prevent the LCB from using contributory negligence as a defense. Plaintiff argued that section 4-493(1) created a special class of minors in need of protection from the effects of alcohol, and that by applying section 483 of the Restatement (Second) of Torts a minor cannot as a matter of law be contributorily' negligent by violating a statute enacted for the minor’s benefit. This motion was denied and at the conclusion of the evidence a charge. on comparative negligence was given to which plaintiffs counsel timely objected.

Section 4-493(1) provides in pertinent part that it shall be unlawful:

“For any licensee or the board, or any employee, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.” 47 P.S. §4-493(1).

The applicable Restatement section is as follows:

“§483. Defense to Violation of Statute
“The plaintiffs contributory negligence bars his recovery for the negligence of the defendant consisting of the violation of a statute, unless the effect of the statute is to place the entire responsibility for such harm as has occurred upon the defendant.” Restatement (Second) of Torts §483.

In support of her argument plaintiff relies primarily upon the case of Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965). In Majors, the jury found that the defendant licensee served alcohol to plaintiff while visibly intoxicated in violation of [178]*178§4-493(1) and that plaintiff’s intoxication resulted in his injuries. The Pennsylvania Supreme Court, adopting the Superior Court’s reasoning in Schelin v. Goldberg, 188 Pa. Super. 341, 146 A.2d 648 (1958), held that the trial court was correct in refusing to instruct the jury on contributory negligence, and also determined that section 483 of the Restatement (Second) of Torts was applicable to a violation of section 4-493(1) thereby preventing plaintiff’s contributory negligence from barring recovery. Plaintiff now argues that Majors and Schelin control this case and plaintiff’s contributory negligence should not have been presented to the jury.

The LCB argues in opposition that plaintiff’s reliance on Majors and Schelin is misplaced in that those cases were decided prior to the enactment of the Comparative Negligence Act. The LCB further argues that application of section 483 was necessary when the law was such that even slight contributory negligence on the part of a minor plaintiff would be a complete bar to recovery, but that today, with the advent of comparative negligence, the harshness of the prior rule is alleviated and the need to apply section 483 removed.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Congini by Congini v. PORTERSVILLE ETC.
470 A.2d 515 (Supreme Court of Pennsylvania, 1983)
Fischer v. Anderson
96 A.2d 168 (Superior Court of Pennsylvania, 1953)
Bialek v. Pittsburgh Brewing Co.
242 A.2d 231 (Supreme Court of Pennsylvania, 1968)
Thomas v. Duquesne Light Co.
545 A.2d 289 (Supreme Court of Pennsylvania, 1988)
Berman v. Radnor Rolls, Inc.
542 A.2d 525 (Supreme Court of Pennsylvania, 1988)
Matthews v. Konieczny
527 A.2d 508 (Supreme Court of Pennsylvania, 1987)
Majors v. Brodhead Hotel
205 A.2d 873 (Supreme Court of Pennsylvania, 1965)
Schelin v. Goldberg
146 A.2d 648 (Superior Court of Pennsylvania, 1958)
Morse Boulger Destructor Co. v. Arnoni
101 A.2d 705 (Supreme Court of Pennsylvania, 1954)
Commonwealth v. Johnson
327 A.2d 632 (Supreme Court of Pennsylvania, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
5 Pa. D. & C.4th 174, 1990 Pa. Dist. & Cnty. Dec. LEXIS 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrie-v-pennsylvania-liquor-control-board-pactcomplallegh-1990.