Thompson v. Dewey's South Royalton, Inc.

733 A.2d 65, 169 Vt. 274, 1999 Vt. LEXIS 93
CourtSupreme Court of Vermont
DecidedMay 21, 1999
Docket97-273
StatusPublished
Cited by18 cases

This text of 733 A.2d 65 (Thompson v. Dewey's South Royalton, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. Dewey's South Royalton, Inc., 733 A.2d 65, 169 Vt. 274, 1999 Vt. LEXIS 93 (Vt. 1999).

Opinions

Morse, J.

Plaintiffs instituted this action under the Dram Shop Act (DSA), 7 V.S.A. § 501, against two licensed vendors of alcoholic beverages, seeking damages resulting from an intoxicated person’s death. The trial court granted defendants’ motion to dismiss, see V.R.C.P 12(b)(6), ruling that plaintiffs, who were third persons injured as a consequence of an imbiber’s death, did not have a cause of action under the DSA. We reverse.

The salient facts pled in the complaint are as follows. See Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997) (allegations of nonmoving party must be accepted as true in reviewing motion to dismiss). Defendants are two South Royalton bars — Dewey’s South Royalton and South Royalton House — their owners, and some of their employees.1 In June 1995, after spending the evening drinking [276]*276excessively at both of defendants’ bars, Mickey Lee Thompson (decedent) was injured in a car accident. He died three weeks later from injuries sustained in the accident. Plaintiffs filed claims under the DSA to recover for the injuries they suffered to their “person [and] means of support” as a result of decedent’s death “in consequence of [his] intoxication.” 7 V.S.A. § 501(a).

Plaintiffs include Annette Potwin, Ashley Thompson, Tessa Thompson, and Ken Thompson. Decedent lived with his partner Annette Potwin (the two were not married), and her daughter, Ashley, for over seven years, until the time of his death. Although Ashley was not decedent’s biological daughter, she regarded decedent as her father and used his last name as her own. Decedent provided financial support to both Annette and Ashley. Tessa Thompson was born to decedent and Annette Potwin in February 1994. Decedent provided physical, moral, and intellectual support and training for both Tessa and Ashley. Ken Thompson is decedent’s father. Father and son planned to commence a woodworking business together later in the summer of 1995.

All of the plaintiffs sought damages for loss of decedent’s companionship and loss of means of support. Annette Potwin and her two children also sought damages for the loss of physical, moral, and intellectual training. In addition to the instant action, Annette Potwin, as the administrator of decedent’s estate, filed a common law negligence claim against the same defendants under the Wrongful Death Act. See 14 V.S.A. §§ 1491-1492.

In granting defendants’ motion to dismiss plaintiffs’ claims, the court concluded: “Just as [decedent] had no cause of action under the DSA, the DSA likewise does not provide his relatives a remedy for their derivative claim.” (Emphasis added.) This appeal followed.

The issues on appeal concern questions of law, and thus our “review is nondeferential and plenary.” Godino v. Cleanthes, 163 Vt. 237, 239, 656 A.2d 991, 992 (1995). First, we address whether the DSA provides an independent and direct right of recovery to third persons injured as a consequence of an imbiber’s death. Because we find that it does, we next address whether plaintiffs here are within the class of claimants entitled to recover under the DSA. Finally, we consider the range of damages available to third persons injured as a consequence of an imbiber’s death.

[277]*277I.

Relying on a plain meaning interpretation of the DSA, plaintiffs allege that the DSA provides them a direct cause of action against defendants. The DSA states in pertinent part:

A spouse, 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 any person or persons who have caused in whole or in part such intoxication by selling or furnishing intoxicating liquor:
. . . to a person apparently under the influence of intoxicating liquor; [or]
... to a person whom it would be reasonable to expect would be under the influence of intoxicating liquor as a result of the amount of liquor served by the defendant to that person.

7 V.S.A. § 501(a). Plaintiffs contend that they have been injured “in person [and] means of support... in consequence of the intoxication” of decedent.

Defendants, on the other hand, contend that only third persons injured by an intoxicated person may recover under the DSA. Their position is predicated on this Court’s holding in Langle v. Kurkul, 146 Vt. 513, 515-16, 510 A.2d 1301, 1303 (1986), where we held that an intoxicated person who caused injury to himself could not recover damages against the alcohol supplier under the DSA. In reaching this result, we further explained that “the [DSA] gives a cause of action only to third persons who are injured by an intoxicated person.” Id. at 516, 510 A.2d at 1303. Defendants conclude, therefore, that because plaintiffs here were not injured by Mickey Thompson, the intoxicated person, they are precluded from recovering under the DSA. In addition, they argue that plaintiffs’ cause of action is derivative of decedent’s, and because the decedent is barred from recovering under the DSA, plaintiffs also are precluded from recovering.

We find, however, that defendants’ argument does not square with the plain meaning of the statute or with precedent. The statute itself has two provisions, each providing a separate ground for relief. First, persons who are injured “by an intoxicated person” have a right of action. 7 V.S.A. § 501(a). Second, persons who are injured “in [278]*278consequence of the intoxication of any person” have a cause of action. Id. Plaintiffs in this case rest their claims on the latter provision; Langle concerned our interpretation of the former and thus is not controlling here.

In recent years, this Court has not had occasion to address head-on whether third parties related to an imbiber have a direct cause of action for their injuries sustained “in consequence of” the imbiber’s death. In construing the same language in an earlier version of the statute, however, we held that a wife could recover against a liquor vendor for the loss of her means of support where her husband died as a consequence of his intoxication. See Healey v. Cady, 104 Vt. 463, 466-67, 161 A. 151, 152 (1932) (interpreting 1917 G.L. § 6579).2 This Court recognized in Healey the two provisions of the statute — “one giving a right of action for injury caused by an intoxicated person, and . . . one giving the right of action for injury caused in consequence of the intoxication of any person” — and concluded that wife’s claim (like the claims in the instant case) stood on the latter provision. Id. at 468, 161 A. at 152.

Healey reflects a widely accepted policy that the relatives of an injured or deceased imbiber may recover under dram shop laws because they, unlike the imbiber, are considered innocent third parties who did nothing to contribute to the injury. See, e.g., Valicenti v. Valenze, 499 N.E.2d 870, 871 (N.Y.

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Thompson v. Dewey's South Royalton, Inc.
733 A.2d 65 (Supreme Court of Vermont, 1999)

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Bluebook (online)
733 A.2d 65, 169 Vt. 274, 1999 Vt. LEXIS 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-deweys-south-royalton-inc-vt-1999.