MacKay v. 7-Eleven Sales Corp.

2000 UT 15, 995 P.2d 1233, 387 Utah Adv. Rep. 9, 2000 Utah LEXIS 14, 2000 WL 29583
CourtUtah Supreme Court
DecidedJanuary 18, 2000
Docket980265
StatusPublished
Cited by10 cases

This text of 2000 UT 15 (MacKay v. 7-Eleven Sales Corp.) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacKay v. 7-Eleven Sales Corp., 2000 UT 15, 995 P.2d 1233, 387 Utah Adv. Rep. 9, 2000 Utah LEXIS 14, 2000 WL 29583 (Utah 2000).

Opinions

HOWE, Chief Justice:

¶ 1 Plaintiffs Larry T. Mackay, individually and as guardian ad litem of Shawna Mackay, and Mary Emma Mackay, individually, appeal from the trial court’s grant of summary judgment dismissing their action against defendants 7-Eleven Sales Corp. and South-land Corp. (jointly “7-Eleven”) to recover damages for injuries sustained by their minor daughter, Shawna Mackay, in a one car roll-over accident.

FACTS

¶2 On June 21, 1991, nineteen-year-olds Kyle Peacock and Douglas Hoyne planned an outing in Big Cottonwood Canyon in Salt Lake County, Utah. In separate trucks, they picked up girlfriends Aleda Peacock and Shawna Mackay and then met at a nearby 7-Eleven convenience store. Peacock exited his truck, walked over to Hoyne’s truck, and collected money from Mackay and Trista Marquez, another young woman who had joined them, before entering the store.

¶ 3 In the store, Peacock pulled two twelve-packs of beer from the store’s cooler and took them to the cashier. The cashier asked him for identification, and he presented her with an eight and one-half by eleven [1234]*1234inch sheet of paper containing his name, social security number, address, and an inaccurate date of birth, all of which were typewritten on the paper along with the following: “The Above Said is Awaiting a Copy of Driver’s License. Please Allow This as a Form of I.D.” The cashier read the unsigned paper and then sold him the beer in violation of 7-Eleven’s internal policies and its employee training program. Peacock made no representation that the information on the paper had been issued or approved by a governmental agency, and the cashier did not ask for any further identification.

¶4 Peacock placed the beer in Hoyne’s truck, and the two drivers headed for Big Cottonwood Canyon. Peacock drove his truck with Aleda as a passenger. Hoyne drove his truck with plaintiffs’ daughter, sixteen-year-old Mackay, and Marquez as passengers. Once in the canyon, the teenagers stopped at a picnic area where some of them smoked marijuana. They then went on a short hike, placed the beer in a stream to keep it cool, and later drank it. In approximately one hour, Hoyne consumed five beers.

¶ 5 At approximately 5 p.m., the teens returned to the trucks and drove down the canyon. Mackay and Marquez were again passengers in the truck driven by Hoyne. He attempted to pass a bicyclist and lost control of his vehicle, causing it to roll. Mac-kay was ejected from the truck. She sustained massive head injuries and trauma and will require life-long assistance. Two hours after the accident, Hoyne’s blood alcohol content tested at .10%, which is .02% over the legal limit. See Utah Code Ann. § 41-6-44(1)(a)(i) (1991).

¶ 6 Plaintiffs, Mackay and her parents, brought this action against 7-Eleven alleging that it was negligent per se in selling alcohol to Peacock in violation of Utah Code Ann. § 32A-12-203 (1991) which prohibits selling alcohol to any person under the age of twenty-one.1 Defendant 7-Eleven moved for summary judgment, contending that plaintiff has no cause of action at common law. The trial court granted the motion for summary judgment and dismissed the case with prejudice, ruling as a matter of law that it was the consumption of alcohol by Hoyne, not the sale to Peacock, which proximately caused Mackay’s injuries. Plaintiffs appeal from that judgment.

ANALYSIS

¶ 7 When reviewing a grant of summary judgment, we accord no deference to the trial court’s conclusions of law but review them for correctness. See Krantz v. Holt, 819 P.2d 352, 353 (Utah 1991). The trial court correctly concluded that the common law of the state does not, as a general rale, recognize a right of action by a third party against a seller of alcoholic beverages when the third party has suffered an injury at the hands of an intoxicated person who obtained the alcohol from the seller. See Adkins v. Unde Bart’s Club, 2000 UT 14, — P.2d -, 2000 WL 29572. However, as an exception to that general rale, this court has on two occasions recognized a right of action where the seller has negligently sold alcohol to an underage drinker in violation of Utah’s statutory prohibition. In the first such case, Rees v. Albertson’s, Inc., 587 P.2d 130 (Utah 1978), the plaintiff sought contribution from the defendant seller of alcohol toward amounts paid by the plaintiff in satisfaction of claims against him arising from an automobile accident in which two of his passengers were killed and another seriously injured. The suit for contribution was based on the fact that defendant had unlawfully and negligently sold beer to the underage plaintiff, which caused him to become intoxicated and was thus a contributing factor to the accident. We reversed a summary judgment granted to the defendant and remanded the ease for trial, holding that reasonable minds could believe that in selling beer to the underage plaintiff, the seller reasonably should have foreseen the likelihood that the underage purchaser might become intoxicated and [1235]*1235then become involved in an automobile accident, such as the accident which in fact occurred. We held that there were fact questions to be resolved, including foreseeability and proximate cause, which made summary judgment improper.

¶ 8 In the second case, Yost v. State, 640 P.2d 1044 (Utah 1981), alcohol was again sold to an underage purchaser in violation of our statutory law. Some of the alcohol was consumed by the plaintiff who was also under age. The plaintiff was seriously injured when he was thrown out of the truck in which he was a passenger and which was driven by the underage purchaser. We affirmed a judgment in favor of the plaintiff against the vendors who unlawfully sold alcohol to the underage driver.

¶ 9 These two cases recognize a cause of action in favor of a third person against a vendor of alcohol who sells the same negligently and in violation of a statute to an underage purchaser, who becomes intoxicated and causes injury to the third person. The defendant, 7-Eleven, however, attempts to distinguish this case from Rees and Yost by noting the injuiy sustained by Mac-kay was not inflicted by Peacock, who was the underage purchaser of the alcohol, but by Hoyne, who was Peacock’s friend and to whom Peacock had given some of the beer. Defendant 7-Eleven, relying on Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 633 P.2d 1220 (1981), argues that “providing alcohol to one person who in turn provides it to a third person who becomes intoxicated and causes injury to yet a fourth individual is too remote to constitute proximate cause regardless of the circumstances under which the alcohol was originally provided.” In that ease, the defendant sold alcohol to Bill, an underage purchaser, who in turn supplied' some of it to Newman, who in turn provided some of it to Thayer, who injured the plaintiff.

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Bluebook (online)
2000 UT 15, 995 P.2d 1233, 387 Utah Adv. Rep. 9, 2000 Utah LEXIS 14, 2000 WL 29583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mackay-v-7-eleven-sales-corp-utah-2000.