Langle v. Kurkul

510 A.2d 1301, 146 Vt. 513, 1986 Vt. LEXIS 347

• Court: Supreme Court of Vermont
• Decided: January 24, 1986
• Docket: 82-254
• Status: Published

Opinions

Billings, C.J.

In July of 1976, the plaintiff attended a party at the home of the defendant, Walter Kurkul, Sr. At the party, the plaintiff was served and consumed a quantity of intoxicating liquor and became inebriated. The plaintiff then went to defendant Gary Kurkul’s residence to swim in his pool. The plaintiff was preparing to dive from the railing of the pool when the railing broke and he fell headfirst into the pool. As a result of the accident, the plaintiff broke his neck and became a quadriplegic.

The plaintiff’s complaint alleged, inter alia, that the defendant negligently and unlawfully offered and served him intoxicating liquor; the plaintiff thereby became intoxicated, and as a direct and proximate result of this intoxication, he was injured in the swimming pool accident. The plaintiff’s claims against all the defendants, except Walter Kurkul, Sr., were settled out of court. The defendant moved, under V.R.C.P. 12(b)(6), to dismiss the plaintiff’s complaint, and the court granted the motion on the ground that the plaintiff had failed to state a cause of action under either a common law negligence doctrine or 7 V.S.A. § 501, Vermont’s civil damage act, popularly known as Vermont’s Dram Shop Act.

The plaintiff appeals the dismissal of his complaint for failure to state a cause of action. We affirm.

I.

The plaintiff contends that he has a cause of action under Vermont’s Dram Shop Act. The Act provides, in pertinent part, that:

A husband, wife, child, guardian, employer or other person who is injured in person, property or means of support by an intoxicated person, or in consequence of the intoxication of any person, shall have a right of action in his or her own name, jointly or severally, against a person or persons, who, by selling or furnishing intoxicating liquor unlawfully, have caused in whole or in part such intoxication. . . .

7 V.S.A. § 501.

We have held in numerous instances that where the meaning of a statute is clear and unambiguous, we must construe and enforce it according to its express meaning. See, e.g., Littlefield v. Department of Employment & Training, 145 Vt. 247, 253, 487 A.2d 507, 510 (1984). We also approve of the rule of statutory construction that when an enumerated list in a statute (such as “husband, wife, child, guardian, employer”) is followed by a general term, the general term must be construed to include only those terms which are similar in nature to the enumerated terms. Since those persons listed in the Dram Shop Act stand in some special relation to the intoxicated person, the use of the term “other person” in the Act must mean someone who is similarly situated. We cannot find that the intoxicated person occupies that same special relationship. If the legislature had intended the Act to apply to the intoxicated person, it could easily have listed the inebriate along with the other persons designated in § 501. See Grenafege v. Department of Employment Security, 134 Vt. 288, 292, 357 A.2d 118, 121 (1976) (“If the legislative intent were as [appellant] contends, it would then be clearly expressed.”).

We hold, therefore, that the Dram Shop Act gives a cause of action only to third persons who are injured by an intoxicated person. The Dram Shop Act provides no remedy to the imbiber, whether he be a customer of a commercial vendor or a guest of a social host, to recover for subsequent injuries to himself as the result of his consumption of too much alcohol. Consequently, we agree with the trial court that the plaintiff does not have a cause of action under the Dram Shop Act.

II.

We also reject the holding of some courts in other jurisdictions that their respective states’ dram shop acts preempt a remedy under the common law in situations such as the one presented in this case. See, e.g., Cunningham v. Brown, 22 Ill. 2d 23, 30, 174 N.E.2d 153, 157 (1961); Snyder v. Davenport, 323 N.W.2d 225, 228 (Iowa 1982); Browder v. International Fidelity Insurance Co., 413 Mich. 603, 615-16, 321 N.W.2d 668, 675 (1982) (dram shop act held to be the exclusive remedy). Vermont’s Dram Shop Act provides a cause of action in strict liability to injured third persons; it does not address a cause of action in negligence. Therefore, it cannot be said that the Act forecloses a cause of action in negligence, since all common law that is “not repugnant to the constitution or laws shall be laws” in Vermont. 1 V.S.A. § 271. The common law is changed by statute only if the statute overturns the common law in clear and unambiguous language, or if the statute is clearly inconsistent with the common law, or the statute attempts to cover the entire subject matter. See E.B. & A.C. Whiting Co. v. City of Burlington, 106 Vt. 446, 464, 175 A. 35, 44 (1934) (“rules of the common law are not to be changed by doubtful implication, nor overturned except by clear and unambiguous language”). In this case, the Dram Shop Act does not contain any unambiguous language foreclosing the possibility of a cause of action in negligence. Nor is the statute, which merely gives a cause of action in strict liability, inconsistent with a possible cause of action in negligence. Finally, the statute does not purport to cover all the possible rights and remedies flowing from such injuries.

We also reject the argument that the legislature’s consideration of the problem of intoxication-related injuries (as evidenced by the Dram Shop Act), coupled with its failure to enact a statute covering a situation like the one in the present case, indicates that the legislature intended to immunize the social host from liability for negligently serving liquor to his or her guests. See Harrington v. Gaye, 124 Vt. 164, 166, 200 A.2d 262, 263 (1964) (court cannot ascribe legislative intent to a mere act of omission); Saund v. Saund, 100 Vt. 387, 393, 138 A. 867, 870 (1927) (statute cannot be enlarged by implication unless necessary to make it effective to accomplish its object).

III.

We next address the plaintiff’s argument that he has a cause of action in common law negligence. The elements required for a cause of action in common law negligence are: (1) the defendant must owe a legal duty to conform to a certain standard of conduct so as to protect the plaintiff from an unreasonable risk of harm; (2) the defendant must have committed a breach of this duty by failing to conform to the standard of conduct required; (3) the defendant’s conduct must be the proximate cause of the plaintiff’s injury; and (4) the plaintiff must have suffered actual loss or damage. W. Prosser and W. Keeton, The Law of Torts § 30, at 164-65 (5th ed. 1984).

The first issue we must confront is whether we should recognize a duty on the part of a social host toward an intoxicated adult guest under common law negligence. Because of our disposition of this issue and our determination that there is no legal duty owed, it is unnecessary for us to reach the other elements required for a cause of action under common law negligence.

To undertake such an expansion of the common law as this case requires, in the absence of compelling public policy reasons, would be improper judicial legislation. Wherever courts of other states have recognized the duty of a social host not to furnish intoxicating beverages to a guest where injury to a third party may be foreseeable, they have generally done so in one of two situations: (a) where the social host furnishes alcoholic beverages to one who is visibly intoxicated and it is foreseeable to the host that the guest will thereafter drive an automobile, or (b) where the social host furnishes alcoholic beverages to a minor.

Some courts have found a duty in cases involving negligence per se, where the defendant social host violated a particular safety statute. Some cases have involved statutes prohibiting the serving of alcohol to minors, see, e.g., Congini v. Portersville Valve Co., 504 Pa. 157, 161-63, 470 A.2d 515, 517-18 (1983) (citing 18 Pa. Cons. Stat. §§ 6308, 306 (1983)); Koback v. Crook, 123 Wis. 2d 259, 266, 366 N.W.2d 857, 860 (1985) (citing Wis. Stat. §§ 66.054(20)(a), 176.30(2)(a) (1979-80)); while others involved statutes prohibiting a social host from serving alcohol to an obviously intoxicated guest. Coulter v. Superior Court, 21 Cal. 3d 144, 150-52, 577 P.2d 669, 672-73, 145 Cal. Rptr. 534, 537-38 (1978) (citing Cal. Business and Professions Code § 25602 (West 1964), overruled by statute, Cal. Civ. Code § 1714(b), (c) (West 1985); Sutter v. Hutchings, 254 Ga. 194, 197, 327 S.E.2d 716, 718-19 (1985) (citing Ga. Code Ann. §§ 3-3-22, 3-3-23(a)(1) (1982)); Clark v. Mincks, 364 N.W.2d 226, 231 (Iowa 1985) (citing Iowa Code Ann. § 123.49(1) (West Cum. Supp. 1983)).

Although Vermont’s liquor control laws make it a misdemeanor punishable by fine or imprisonment for any person (whether a commercial vendor or a social host) to sell or furnish alcoholic beverages to a minor, 7 V.S.A. § 658, Vermont has no comparable statute making it a crime for any person (commercial vendor or social host) to sell or furnish alcoholic beverages to an adult who is visibly intoxicated. Therefore, there is no statutory basis in the present case for a finding of negligence per se.

The second ground for finding a duty on the part of a social host has been the recognition of a common law duty on the part of the social host to prevent an intoxicated guest from posing a foreseeable danger to a third party. To date, the recognition of such a duty has been limited to factual situations involving the operation of a motor vehicle on a public highway. See, e.g., Coulter, supra, 21 Cal. 3d at 152-54, 577 P.2d at 674-75, 145 Cal. Rptr. at 539-40; Sutter, supra, 254 Ga. at 197, 327 S.E.2d at 719; Kelly v. Gwinnell, 96 N.J. 538, 548, 476 A.2d 1219, 1230 (1984); Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 258 Or. 632, 643, 485 P.2d 18, 23 (1971). The outcome in the present case turns on whether this Court should recognize a new duty, running from a social host to an inebriated adult guest, in a factual situation not involving drunk driving.

Whether there is a legal duty is primarily a question of law, dependent upon a variety of relevant factors and upon considerations of public policy. “ ‘[D]uty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” Dillon v. Legg, 68 Cal. 2d 728, 734, 441 P.2d 912, 916, 69 Cal. Rptr. 72, 76 (1968) (quoting W. Prosser, Law of Torts 332-33 (3d ed. 1964)).

In considering the recognition of a new duty involving a social host and an inebriated adult guest, the California Supreme Court stated: “The existence of a duty is primarily a question of law, and dependent upon a variety of relevant factors, of which ‘foreseeabilility of the risk is a primary consideration . . . .’ ” Coulter, supra, 21 Cal. 3d at 152, 577 P.2d at 674, 145 Cal. Rptr. at 539 (quoting Weirum v. RKO General, Inc., 15 Cal. 3d 40, 46, 539 P.2d 36, 39, 123 Cal. Rptr. 468, 471 (1975)). That court then went on to state:

We have previously identified certain factors other than foreseeability in determining the ultimate existence of a “duty” to third persons. These factors include: “. . . the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.”

Id. at 153, 577 P.2d at 674, 145 Cal. Rptr. at 539 (quoting Rowland v. Christian, 69 Cal. 2d 108, 113, 443 P.2d 561, 564, 70 Cal. Rptr. 97, 100 (1968)). The California Supreme Court concluded in Coulter that the “strong public policy to prevent future injuries [involving drunk driving]” warranted the recognition of a duty on the part of a social host not to increase the obvious intoxication of a guest when the host knew that the guest intended to drive a motor vehicle. Id. at 153, 577 P.2d at 674, 145 Cal. Rptr. at 539.

In considering the imposition of a similar duty, the New Jersey Supreme Court stated:

In most cases the justice of imposing such a duty is so clear that the cause of action in negligence is assumed to exist simply on the basis of the actor’s creation of an unreasonable risk of foreseeable harm resulting in injury. In fact, however, more is needed, “more” being the value judgment, based on an analysis of public policy, that the actor owed the injured party a duty of reasonable care. . . . “[W]hether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.”

Kelly, supra, 96 N.J. at 544, 476 A.2d at 1222 (quoting Goldberg v. Housing Authority of Newark, 38 N.J. 578, 583, 186 A.2d 291, 293 (1962) (emphasis in original)). The New Jersey Supreme Court stated, “[w]hen the court determines that a duty exists and liability will be extended, it draws judicial lines based on fairness and policy.” Id. at 544, 476 A.2d at 1222. Thus, that court recognized the societal goal of reducing the dangers associated with drunken driving in holding a social host:

liable for injuries inflicted on a third party as a result of the negligent operation of a motor vehicle by the adult guest when such negligence is caused by the intoxication. We impose this duty on the host to the third party because we believe that the policy considerations served by its imposition far outweigh those asserted in opposition.

Id. at 548, 476 A.2d at 1224.

Turning to the present case, one crucial element is missing; our imprimatur that a legal duty exists. Our Court should not recognize a new cause of action or enlarge an existing one without first determining whether there is a compelling public policy reason for the change.

In a recent decision by an intermediate New Jersey appellate court, the court declined to follow the lead of Kelly as “Kelly expressly limited the liability of a host to ‘injuries resulting from the guest’s drunken driving.’ ” Griesenbeck v. Walker, 199 N.J. Super. 132, 138, 488 A.2d 1038, 1041 (Super. Ct. App. Div.) (quoting Kelly, supra, 96 N.J. at 559, 476 A.2d at 1230), cert. denied, 101 N.J. 264, 501 A.2d 932 (1985). That case involved a suit against a social host for injuries allegedly resulting from the actions of an inebriated guest. The injuries were sustained in a house fire which was caused by a cigarette left smouldering in a sofa. On the facts of the case before it, the court in Griesenbeck declined to recognize a duty on the part of the social host.

[T]here is lacking the public interest which induced the [New Jersey] Supreme Court in Kelly to impose a duty upon a social host toward those injured as the result of the intoxicated guest’s operation of a motor vehicle. While it might be said that drunkenness, in itself, is a societal problem, we do not consider it necessary, as being supportive of a social goal, to extend a host’s liability for the serving of liquor to an intoxicated guest to harmful acts of the guest not related to the operation of a vehicle and otherwise unforeseeable.

Id. at 139, 488 A.2d at 1042.

No compelling social policy reasons have been pointed out for this Court to impose a legal duty of care on a social host, absent a situation where the social host furnishes alcoholic beverages to one who is visibly intoxicated and it is foreseeable to the host that the guest will thereafter drive an automobile, or, where the social host furnishes alcoholic beverages to a minor.

Affirmed.