Slicer v. Quigley

429 A.2d 855, 180 Conn. 252, 1980 Conn. LEXIS 778

• Court: Supreme Court of Connecticut
• Decided: April 15, 1980
• Status: Published

Opinions

Loiselle, J.

The plaintiff, Linda Slicer, brought this action against the defendants David Quigley, Dennis Quigley and Reynold Burger, Jr., seeking damages for personal injuries allegedly caused by the negligence of the defendants. The jury returned a verdict in favor of the plaintiff against the Quigleys, but a defendant’s verdict in favor of Burger. The plaintiff appeals from the judgment rendered and assigns error in the court’s charge in several respects.

The defendants David Quigley and Reynold Burger, Jr., were minors, nineteen and twenty years old,¹ when the following events took place. The two met at Burger’s home on July 18, 1972, at approximately 5:30 p.m. The evidence was conflicting as to how much time was spent there but, admittedly, they left Burger’s home together at about 7 p.m. with Quigley operating the motor vehicle. They stopped at a package store where Burger purchased two six-packs of beer and gave five or six cans to Quigley. Both drank the beer as they drove around. They stopped at a restaurant where Quigley consumed more beer, then resumed drinking beer and driving around until the accident happened at 9:30 p.m. Burger was in the motor vehicle as a passenger at all times, and the beer Quigley drank that night was purchased by Burger who gave it to Quigley. A police toxicologist’s report showed Quigley’s blood alcohol level at .13 percent which is prima facie evidence that Quigley was driving under the influenee of intoxicating liqnor. General Statutes § 14-227a (c) (3). The plaintiff, a passenger on the motorcycle with which Quigley’s automobile collided, suffered severe injuries. A month later, as a result of the accident, her leg was amputated below the knee.

The plaintiff’s first claim of error is that the court refused to charge in accordance with the complaint’s allegation of negligence that Burger gave alcoholic beverages to the defendant David Quigley, when he knew Quigley had driven after drinking in the past and knew that Quigley was going to driye during and after drinking the beverages supplied. This allegation is one of common-law negligence. This court, on at least three occasions, has followed the common-law rule on the sale or furnishing of intoxicating liquor. Nelson v. Steffens, 170 Conn. 356, 365 A.2d 1174 (1976); Moore v. Bunk, 154 Conn. 644, 228 A.2d 510 (1967); Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967). See also Pierce v. Albanese, 144 Conn. 241, 249, 129 A.2d 606 (1957), appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957); London & Lancashire Indemnity Co. v. Duryea, 143 Conn. 53, 59-60, 119 A.2d 325 (1955). “At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, hut the consumption of it by the purchaser or donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it.” Nolan v. Morelli, supra, 436-37; see also 45 Am. Jur. 2d, Intoxicating Liquors §§ 553-55; 48 C.J.S., Intoxicating Liquors § 430; 75 A.L.R.2d 833. The court’s instructions followed the common-law rule approved by this court in charging the jury on this specification of negligence.

The complaint also alleged that Burger was negligent in that “he gave and/or delivered to the defendant David Quigley, a minor, alcoholic beverages in violation of Connecticut General Statutes § 30-86.”² The plaintiff assigns error to the court’s refusal to charge as requested and in accordance with this allegation that a violation of the statute was negligence per se and that proximate cause was for the jury to determine. In Moore v. Bunk, supra, this very issue was decided contrary to the claim of the plaintiff, again, based on the common-law rule. David Quigley was nineteen years old at the time of the accident. Since he was more than sixteen years old, he may be presumed, if he consumes liquor, to have done so voluntarily. Moore v. Bunk, supra, 648. Since Quigley’s consumption of beer is presumed to have been voluntary, under the common-law rule it is Quigley’s consumption, not Burger’s alleged violation of General Statutes § 30-86, which was the proximate cause of Quigley’s intoxication and the injuries claimed to have resulted therefrom. Id., 649. The common-law rule as to proximate cause applies in any common-law action of negligence, even though that action includes one or more alleged statutory violations, such as a violation of General Statutes § 30-86, which prohibits the furnishing of intoxicating liquor to minors. Id., 647. The court followed the law as stated by this court in charging on this element of negligence.

The plaintiff argues against the common-law rule, recognized and followed by this court, claiming that it should be rejected by this court as it has been by a substantial number of other jurisdictions. The plaintiff cites a string of cases to support her argument.³ In examining the cases cited by the plaintiff to support her claim that the common-law rule should be modified, it is interesting that the California Supreme Court in the leading case of Vesely v. Sager, 5 Cal. 3d 153, 157, 486 P.2d 151 (1971), concluded that where a plaintiff third party is injured, the furnishing or selling of liquor to the defendant tortfeasor may be the proximate cause of the injury, but that where the injured plaintiff is the intoxicated person, the drinking, and not the furnishing of liquor is the proximate cause. Cooper v. National R. R. Passenger Corporation, 45 Cal. App. 3d 389, 394, 119 Cal. Rptr. 541 (1975), citing Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967). The plaintiff’s argument was recently made in Nelson v. Steffens, supra, 360. There the court concluded that: “Por over one hundred years, except for those years when the eighteenth amendment to the federal constitution was in effect, this state has determined by its adherence to the common-law rule, as modified by the dram shop act, that the reasoning by both the courts and the legislature was best suited and was in the best interests of the citizens of this state.” Id., 360. It is also significant that since Nelson v. Steffens, supra, which was decided in 1976, the general assembly, which has enacted extensive legislation concerning alcoholic beverages, has seen fit not to expand liability any further than that allowed by the dram shop act; General Statutes § 30-102; which requires a sale.

The plaintiff further alleged negligence on the part of Burger in that “he knew or should have known that the conduct of David Quigley constituted a breach of duty to other persons like Linda [Slicer] Young, and gave substantial assistance or encouragement to David Quigley to so conduct himself.” A request to charge on this allegation was submitted to the court, but the court refused to charge as requested. To the extent that a portion of this request was contrary to the well-established common-law rule discussed above, the court did not err by refusing to charge as requested. State v. Holmquist, 173 Conn. 140, 142, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977); State v. Green, 172 Conn. 22, 25, 372 A.2d (1976). In addition to the facts previously stated concerning the alcoholic beverages, the plaintiff offered evidence to show that Burger’s behavior just prior to the collision may have encouraged Quigley’s tortious conduct. Quigley stopped at a traffic signal next to the motorcycle on which the plaintiff was a passenger. She saw both Burger and Quigley holding dark bottles. Quigley cut in front of the motorcycle and then jammed on his brakes. Quigley kept driving fast and then braking in front of the motorcycle. At the next traffic signal the motorcycle and Quigley again were side by side with Quigley and Burger in the right turn lane. The motorcycle driver made some remark to Quigley, then Burger said to Quigley, “Let’s get that - motorcycle.” Instead of turning right, Quigley immediately pulled to the left, into the same lane as the motorcycle, sped up and crashed into the motorcycle. There was also evidence that moments before the collision, Burger screamed to Quigley to watch out for the motorcycle.

In Carney v. DeWees, 136 Conn. 256, 70 A.2d 142 (1949), this court followed the principle expressed in Restatement, 4 Torts §876 that “[f]or harm resulting to a third person from the tortious conduct of another, a person is liable if he . . . (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.” The Restatement comment on this principle states “ [i]f the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other’s act.” Id., comment on clause (b), cited in Carney v. DeWees, supra, 262.

The error claimed by the plaintiff is that the court’s instructions restricted the jury’s consideration of those events that occurred in the moments just prior to the collision, and did not include comment on the evidence which showed that Burger was drinking beer and driving with Quigley for two hours prior to the accident. Aside from the evidence commented upon by the court, which included what the plaintiff claimed Burger said and his comment just prior to the collision, there was no evidence other than Burger’s purchase and furnishing of beer to Quigley and the fact that he rode with Quigley that evening which would show that Burger had given substantial assistance or encouragement to Quigley to drive while intoxicated. The only facts to which the plaintiff points to substantiate this allegation of negligence, other than the events commented on by the court, are that Burger and Quigley’s other friends knew that Quigley, at times, drove after drinking; that Burger gave bottles of beer to Quigley at Burger’s home; that they took more bottles of beer from Burger’s home to the car when they left; that Quigley had never bought anything at a package store even though he had consumed alcoholic beverages in Connecticut before; that the cans of beer bought at the package store by Burger were bought by him rather than by Quigley because Burger was the older looking of the two; that the cans were given by Burger to Quigley and drunk by them; and that Burger said nothing to Quigley at any time during the evening to discourage Quigley’s driving while drinking. Under the common-law rule, Burger’s furnishing beer to Quigley in and of itself cannot be considered the proximate cause of Quigley’s intoxication. The remaining facts do not show that Burger’s conduct constituted a “substantial factor in causing the resulting tort.” Restatement, 4 Torts § 876, comment on clause (b). The court did not err in its charge on this allegation of negligence.

The plaintiff also alleged that Burger was negligent in that “he failed to discourage, protest and/or object to the manner in which the said David Quigley, a minor, was operating said vehicle.” The court instructed the jury that this allegation was difficult to prove because it required proof of a negative. The court discussed the evidence regarding Burger’s warnings to Quigley moments before the collision, then said “it would not appear that the plaintiff has sustained the burden of proving that particular allegation.” The court continued its charge, however, by saying: “That is the testimony as I recall it. If your recollection is different from mine and you feel that there were facts that would sustain that allegation, then I will leave it to your determination. I don’t recall any, but, again, it is a question of fact. It is up to you to recall the testimony.” No exception to this portion of the charge appears in the briefs or in the transcript. There is no error in the court’s charge on this allegation of negligence.

The final claim of error is that the court failed to instruct the jury on the credibility of the witnesses whose testimony was obtained by deposition. No useful purpose would be served by a detailed discussion of this claim. The charge on this issue was adequate.

There is no error.

In this opinion Cotter, C. J., and Healey, J., concurred.

1 At the time of the accident, General Statutes § 1-1d established the age of majority at twenty-one.

2 “[General Statutes] Sec. 30-86. sales to minors, intoxicated persons and drunkards. Any permittee who, by himself, his servant or agent, sells or delivers alcoholic liquor to any minor, or to any intoxicated person, or to any habitual drunkard, knowing him to be such an habitual drunkard, and any person, except the parent or guardian of a minor, who delivers or gives any such liquors to such minor, except on the order of a practicing physician, shall be subject to the penalties of section 30-113.”

3 The plaintiff cites cases from other jurisdictions to show that “at least in some circumstances, the furnishing of alcoholic beverages to another can be actionable as the proximate cause of injury to a third person.” New such eases involve the liability of a person furnishing, not selling, intoxicating liquor to a minor who then, under the influence of intoxicating liquor, injures a third party. Giardina v. Solomon, 360 F. Sup. 262 (M.D. Pa. 1973) (applying Pennsylvania law); King v. Ladyman, 81 Cal. App. 3d 837, 146 Cal. Rptr. 782 (1978); Bennett v. Letterly, 74 Cal. App. 3d 901, 141 Cal. Rptr. 682 (1977); Brockett v. Kitchen Boyd Motor Co., 24 Cal. App. 3d 87, 100 Cal. Rptr. 752 (1972); Brattain v. Herron, 159 Ind. App. 663, 309 N.E.2d 150 (1974); Thaut v. Finley, 50 Mich. App. 611, 213 N.W.2d 820 (1973); Linn v. Rand, 140 N.J. Super. 212, 356 A.2d 15 (1976); Wiener v. Gamma Phi, ATO Frat., 258 Or. 632, 485 P.2d 18 (1971); Hulse v. Driver, 11 Wash. App. 509, 524 P.2d 255 (1974). These cases do not uniformly uphold such liability, particularly where the person furnishing the liquor is a minor and where he did nothing more than give it to the minor defendant whose acts were the direct cause of the injury. Bennett v. Letterly, supra; Hulse v. Driver, supra.