Burke v. Superior Court

129 Cal. App. 3d 570, 181 Cal. Rptr. 149, 1982 Cal. App. LEXIS 1352

Opinions

Opinion

BROWN (Gerald), P. J .

Petitioner, Doris Burke, defendant in an automobile personal injury action, seeks a writ of mandate to compel the trial court to sustain a demurrer to real parties’ complaint. The issue is whether a licensed liquor seller such as petitioner, who sells liquor to a sober person under 21 years of age, may be liable to injured third parties when the buyer becomes intoxicated and injures them by his drunk driving. We conclude the newly enacted statutes limiting liability for the furnishing of alcoholic beverages do not exempt persons in petitioner’s position from liability as a matter of law, hence we deny the petition for a writ of mandate.

The alleged facts are: On March 15, 1981, defendant Mark James Wyatt, then aged 19, bought alcoholic beverages from Doris Burke, owner of San Marcos Liquor Store, a licensed seller of such wares. Wyatt went to the beach with four other young persons and became drunk. He drove from the beach at La Jolla Shores in a reckless manner at speeds ranging from 60 to 80 miles per hour and lost control of the vehicle, which flew into the air and crashed upside down. Passenger Ramer was killed. Three other passengers, Holly Higgins, Carol Hoopingarner and Kevin Voeltner were personally injured and have brought this lawsuit against Wyatt for negligence and against Burke, dba San Marcos Liquor Store, for intentionally or negligently selling alcohol to an underage person. The trial court has refused to sustain Burke’s demurrer to the fourth and fifth causes of action of the complaint which allege liability of Burke for the injuries based on illegal sale of alcohol in violation of Business and Professions Code section 25658, proximately resulting in the automobile crash and ensuing injuries. The fourth cause of action states Burke was negligent in selling to the underage person, and the fifth cause states she knew or should have known he was less than 21 and he would drink, become intoxicated, and drive, and the sale to him was with conscious disregard for the safety of the plaintiffs and of members of the public.

Burke’s demurrer is based on the following recent laws affecting liability for furnishing alcoholic beverages: first Business and Professions Code section 25602 states it is a misdemeanor to sell or furnish liquor to a habitual or common drunkard or obviously intoxicated person, but such furnishing is not a basis of civil liability for injuries resulting from that intoxication. The statute expressly declares a legislative intent to abrogate the judicial decisions in Vesely v. Sager (1971) 5 Cal.3d 153 [95 Cal.Rptr. 623, 486 P.2d 151]; Bernhard v. Harrah’s Club (1976) 16 Cal.3d 313 [128 Cal.Rptr. 215, 546 P.2d 719]; and Coulter v. Superior Court (1978) 21 Cal.3d 144 [145 Cal.Rptr. 534, 577 P.2d 669]. Those cases stated various bases for liability for third party injuries proximately resulting from, furnishing alcoholic beverages.

Next, Business and Professions Code section 25602.1 states one exception to the latter statute (§ 25602): licensed sellers of liquor to “any obviously intoxicated minor” remain civilly liable to injured third parties where the furnishing is the proximate cause of injury.

Finally, Civil Code section 1714 now provides, as a qualification to its statement of general negligence liability, that Vesely, Bernhard, and Coulter, supra, are abrogated, and the earlier judicial theory is reinstated which held furnishing alcoholic beverages is not the proximate cause of injuries resulting from the intoxication. Consumption is the cause. Further, subdivision (c) of section 1714 says no social host who furnishes alcoholic beverages to any person is legally accountable to the person or any third party, for damages resulting from the consumption.

The California Supreme Court in Cory v. Shierloh (1981) 29 Cal.3d 430 [174 Cal.Rptr. 500, 629 P.2d 8], held these statutes are constitutional. The facts there dealt with furnishing liquor by a nonlicensed person to an obviously intoxicated “minor” (age not specified); the court found immunity from liability under the new statutes.

Also relevant is a statute predating this controversy, Business and Professions Code section 25658, which says persons selling liquor to anyone under 21 years old are guilty of misdemeanors. The statute enforces California Constitution, article XX, section 22 prohibiting the sale or furnishing of any alcoholic beverage to any person under the age of 21 years.

In liquor furnishing situations, early cases assumed the proximate cause of injuries was the drinking, not the furnishing, hence no civil liability could be based on the furnishing (Cole v. Rush (1955) 45 Cal.2d 345 [289 P.2d 450, 54 A.L.R.2d 1137]; Fleckner v. Dionne (1949) 94 Cal.App.2d 246 [210 P.2d 530]). Then the California Supreme Court “applied common sense to a segment of the California tort law where this commodity was noticeably lacking” (Brockett v. Kitchen Boyd Motor Co. (1972) 24 Cal.App.3d 87, 93 [100 Cal.Rptr. 752]) and held the furnishing could be the proximate cause (Vesely v. Sager, supra, 5 Cal.3d 153; Coulter v. Superior Court, supra, 21 Cal.3d 144). That new reasoning was applied to find liability when an employer furnished liquor to “an intoxicated minor of the age of 19 years” in Brockett v. Kitchen Boyd Motor Co., supra, 24 Cal.App.3d 87, 88. The last chapter of the history is the recent statutes quoted above removing the “applied common sense” and abrogating the proximate cause basis for liability in furnishing alcoholic beverages, except in the situation of licensed furnishing to an obviously intoxicated “minor.”

Furnishing to a sober underage person was not specifically addressed at all.

The recent decision in Cantor v. Anderson (1981) 126 Cal.App.3d 124 [178 Cal.Rptr. 540], found liability could be based on furnishing liquor to a developmentally disabled person with knowledge of his condition. The court regarded the host’s knowledge of the peculiar disabilities as a basis for liability to an injured third party not precluded by the host immunity provisions of Civil Code section 1714, supra. The case used the same reasoning found in the “special relationship” tort cases where liability for failure to warn or exercise special protective measures is premised on a particular relationship between plaintiff and defendant causing dependence of the plaintiff on defendant and raising a corresponding quasi-fiduciary obligation. (E.g., Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 436 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166]; Ellis v. D’Angelo (1953) 116 Cal.App.2d 310 [253 P.2d 675]; Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352]; Clemente v. State of California (1980) 101 Cal.App.3d 374 [161 Cal.Rptr. 799].) The court pointed out the doctrine of Cole v. Rush, supra, (45 Cal.2d 345) precluded liability only for providing liquor to a competent person (Cantor v. Anderson, supra, 126 Cal.App.3d 124, 130).

We are unpersuaded by the argument when the Legislature expressly overruled Vesely v. Sager, supra, 5 Cal.3d 153, Bernhard v. Harrah’s Club, supra, 16 Cal.3d 313, and Coulter v. Superior Court, supra, 21 Cal.3d 144, it intended to restore a state of common law precluding any liability to third parties when liquor was furnished to an underage person. No such clearcut state of common law precedent has ever existed. None of the three expressly overruled cases involved furnishing or sales to underage persons. Such “common law,” meaning prestatutory, precedent as does exist differs regarding liability when a person under 21 is furnished liquor, drinks, and injures third parties. (See Annot. (1980) 97 A.L.R.3d 528.) Cases finding no third party liability include Alsup v. Garvin-Wienke, Inc. (8th Cir. 1978) 579 F.2d 461 (Missouri law); Parsons v. Jow (Wyo. 1971) 480 P.2d 396; Stanage v. Bilbo (Fla. 1980) 382 So.2d 423 [drunk “minor” got friend drunk who stumbled and shot third friend]; see also Collier v. Stamatis (1945) 63 Ariz. 285 [162 P.2d 125]. On the other hand, liability to injured third parties was found, without any necessary statutory basis, in the California decision in Brockett v. Kitchen Boyd Motor Co. (1968) 264 Cal.App.2d 69 [70 Cal.Rptr. 136] [special relationship of employer to 19 year old employee and foreseeability employee would drive after drinking]; Davis v. Shiappacossee (Fla. 1963) 155 So.2d 365; Elder v. Fisher (1966) 247 Ind. 598 [217 N.E.2d 847]; Rappaport v. Nichols (1959) 31 N.J. 188 [156 A.2d 1, 75 A.L.R.2d 821]; Wiener v. Gamma Phi Chap. of Alpha Tau Omega Fraternity (1971) 258 Ore. 632 [485 P.2d 18, 53 A.L.R.3d 1276] [host furnishing to “minor” at party, foreseeable he would drive after drinking]; and see allegations in Waynick v. Chicago’s Last Department Store (7th Cir. 1959) 269 F.2d 322.) Cole v. Rush, supra, 45 Cal.2d 345, the very case establishing nonliability in most instances, pointed out the common law immunity applied to sales to an “ordinary” or “able bodied” man, and exceptions had always existed based on particular vulnerability of the person to whom the liquor was sold (45 Cal.2d at pp. 353-354). The rationale of Cole v. Rush—lack of proximate cause because of the independent, intervening voluntary act of consumption—presumes the wholly voluntary nature of the drinking of the liquor, and is ipso facto inapplicable when that act is less voluntary and therefore more foreseeable because of the drinker’s mental or physical condition. Youth and inexperience make misuse of alcohol more likely when the drinker is under 21; hence the statute making it a misdemeanor to sell to such people, and hence the common law exceptions. Thus, in his dissent in Cole v. Rush, supra, 45 Cal.2d 345, Justice Carter justifiably pointed out “the rule of the common law with respect to intoxicating beverages is not quite so clearly defined in favor of non-liability as would appear ...” (45 Cal.2d at p. 362.)

We further point out the cases cited in the dissent which found immunity from liability for injuries resulting from furnishing or selling liquor—Cole v. Rush, supra; Hitson v. Dwyer (1943) 61 Cal.App.2d 803 [143 P.2d 952]; Lammers v. Pacific Electric Ry. Co. (1921) 186 Cal. 379 [199 P. 523]; Mann v. Chase (1940) 41 Cal.App.2d 701 [107 P.2d 498]; and Fleckner v. Dionne, supra, 94 Cal.App.2d 246 [210 P.2d 530]—with the exception of only Fleckner v. Dionne, did not involve both furnishing to an underage person and third party liability. Both Lammers and Hitson involved a plaintiff seeking to recover for his own injuries as a result of the drinking, recovery which would then have been barred by contributory negligence theories in any event. (Mann v. Chase, supra, 41 Cal.App.2d 701, is similarly distinguishable.) Cole similarly was a wrongful death action by the heirs of the decedent who had been furnished the liquor and died in a drunken brawl. Again, recovery was sought for the drinker’s own damage (death). Only Fleckner v. Dionne is squarely in point. That case was a two-to-one decision with no analysis or stated reasons at all, which blindly accepted the parties’ virtual concession common law provided blanket immunity for all furnishing of liquor. That premise was faulty then and is faulty still.

The second Brockett decision (24. Cal.App.3d 87) was willing to premise liability for furnishing liquor to a person under 21 squarely on the policy underlying Business and Professions Code section 25658 forbidding sales to such persons. That decision interpreted the statute as reflecting a legislative (and constitutional) finding that people under 21 are not ready to handle the consumption of liquor, and knowing furnishing of liquor to them therefore breaches a public duty, where the furnishing is with knowledge the underage person will drive a vehicle upon the public highways (24 Cal.App.3d at p. 94).¹ The court there said law and common sense demand no less than accountability for the consequences of that statutory breach. Even if, however, that case be regarded as unpersuasive because it follows the legislatively rejected decision in Vesely v. Sager, supra, 5 Cal.3d 153, nevertheless its conception of the purpose of section 25658 was not involved in any of the legislatively abrogated decisions. Furthermore, the first Brockett decision (264 Cal.App.2d 69) had already on common law principles .overruled a demurrer to allegations an employer knowingly plied a 19-year-old employee with liquor at a party and then put him in a car and told him to drive home. That case turned on a combination of the special responsibility of the employer for his young employee and the obvious foreseeability the intoxicated employee would drive. Those considerations have not been specifically abrogated by the Legislature and in fact the particular vulnerability of people under 21 is likely the very reason the Legislature preserved liability for furnishing liquor to obviously intoxicated “minors” (§ 25602.1) despite the immunity to third parties for furnishing liquor to obviously intoxicated adults. No other reason appears to warrant disparate treatment of the two classes. As to sober persons under 21, the Legislature made no special exception because none was necessary, there being no blanket immunity at common law or in any statute where illegally furnishing liquor to a sober underage person results in foreseeable injury to a third party.

The cases referred to above finding a common law basis for third party liability resulting from furnishing liquor to underage persons generally rest wholly or partly on the foreseeable nature of the injuries. Foreseeability is the key to liability. In fact, some of the cases denying liability appear to rest more on lack of foreseeability than on any perceived wholesale immunity for liability from furnishing liquor. (That would particularly appear to be true in Stanage v. Bilbo, supra, 382 So.2d 423, involving the intoxicated friend of the intoxicated “minor” who bought the liquor, the former shooting a third party.) Foreseeability is generally a factual issue which should not be raised on a demurrer. (Thus Cantor, supra, 126 Cal.App.3d 124, emphasized liability must now turn on foreseeability of injury from the furnishing, relying on the causal analysis used in Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal.Rptr. 468, 539 P.2d 36].) Here we note there is a good possibility of showing foreseeability, in a state where public transportation is the exception and driving the rule, and where keeping drunk drivers off the roads is a major social concern.

The dissenting opinion points, out a supposed anomaly in a shopkeeper being liable for selling to a sober 19-year-old while he is legislatively exempt from liability if the 19-year-old is drunk. First, there is no authority the use of the term “minor” in section 25602.1 means persons less than 18. The statute appears in the part of the Business and Professions Code forbidding liquor transactions to persons less than 21 years of age. For purposes of these statutes “minor” may mean being under 21; section 25602.1 may refer to persons under 21 when it preserves liability for sales to intoxicated “minors.” Persons under 21 are the legislatively protected class we deal with here. There is additional evidence, in the form of an uncodified enactment, showing the term “minor” in Business and Professions Code section 25602.1 may have been intended to refer to persons under 21, rather than under 18. The enactment is section 1 of Statutes 1971 chapter 1748, the bill, which among other things, changed the age of minority from 21 to 18 for most legal purposes in this state. That section 1 states: “Except for the provisions relating to the minimum voting age, the provisions relating to minimum age for the sale, purchase or consumption of alcoholic beverages, the provisions relating to the sentencing and commitment of persons to the Department of the Youth Authority, or the provisions relating to veterans’ benefits, whenever, in any provision of law, the term ‘21 years of age’ or any similar phrase regarding such age appears, it shall be deemed to mean ‘18 years of age.’” (Stats. 1971, ch. 1748, p. 3736.) Thus the legislative intent then was to transmute the concept of legal minority from 21 to 18 years of age except in the specific area of alcoholic beverage sales (and other specified exceptions not here relevant). One would infer from this enactment the use of the term “minor” in the statutory provisions regulating alcoholic beverage sales would continue to refer to persons under 21, rather than under 18. Accordingly, both Civil Code section 25 and the later Civil Code section 25.1 (1973), setting the age of minority at 18, should logically be read in light of the original intent of the Legislature to except the alcoholic beverage regulations from the sweep of the new definition of minority. Otherwise, presumably, the statutes (and the Constitution) affecting alcoholic beverage sales would have been amended to refer everywhere to persons under 18. Interpreting the term “minor” in Business and Professions Code section 25602.1 to refer to persons under 18 is inconsistent with the regulatory scheme as a whole, a disfavored statutory construction result. (See, e.g., Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230-231 [110 Cal.Rptr. 144, 514 P.2d 1224].)

Second, even if “minor” does mean persons under 18, we have not created the anomaly; rather it is of legislative creation. In overruling such cases as Vesely and Coulter the Legislature gave no indication it was necessarily familiar with the exceptions for young persons and other vulnerable individuals regarding intoxicating beverage furnishing. It overruled specific cases not involving the issue at all and thereby restored a status quo ante far more complex than it probably realized.

The first Brockett decision, supra, stated the defendant there may have been guilty of the crime of procuring drunk driving upon the highway (264 Cal.App.2d 69, 73) and should accordingly be held liable for the consequences. “The defendant activated the tort, and anyone hurt as a consequence should be entitled to recover from it.” (Id.) Similarly here, assuming proximate cause can be proven, the plaintiff is entitled to recover. As stated above, cause is a factual issue which is not properly resolved on demurrer, as the court below perceived.

Real parties also argue they will prove a habitual course of liquor violations and regular sales to people under 21 by Burke, making it not just a proximate but an inevitable result, that some of these young people would become drunk, drive, and injure members of the public. However, these facts as such are not within the record presently before us. The allegations of the complaint state negligent or deliberate furnishing of liquor to the 19-year-old Wyatt was a proximate cause of his drinking, driving, and injuring.

In general tort law, violation of a statutory duty is negligence per se resulting in civil liability if proximate cause can be proved (Evid. Code, § 669). Such a violation occurs when a licensed seller sells liquor to a person under 21 (Bus. & Prof. Code, § 25658). Proximate cause is alleged here between the sale and the injuries. Although the Legislature has abrogated such liability in certain specific situations, namely selling or furnishing to obviously intoxicated persons (other than “minors”) and social host furnishing to anyone, it has not specifically eliminated liability in the situation we have, licensed sale to a sober underage person. No sound reason occurs to us to warrant extending the legislative exception beyond its necessary compass. Further, the very existence of section 25602.1, the “drunk minor” exception shows the Legislature did not eradicate proximate cause as a basis for liability in all liquor furnishing cases. This is a case where such specific immunity has not been provided, hence does not exist.

The trial court did not err in overruling the demurrer to the complaint alleging petitioner, a licensed seller, sold alcohol to a 19 year old, which act proximately caused him to become intoxicated and precipitate an injury-causing accident.

The petition for a writ of mandate is denied.

Staniforth, J., concurred.

1 "Section 25658 is directed to a special class; it pertains to young people who because of their tender years and inexperience are unable to cope with the imbibing of alcoholic beverages.” (24 Cal.App.3d at p. 94.)