FOSHEIM, Chief Justice.
Lela Walz (appellant), as special administrator of the estate of Guy William Ludwig, sued the City of Hudson, South Dakota (appellee), doing business as the Hudson Municipal Liquor Store, for the wrongful death of Mr. Ludwig. Appellant’s complaint alleged that appellee sold Larry Van-Egdom intoxicating beverages when ap-pellee knew or could have ascertained by observation that Mr. VanEgdom was intoxicated; that immediately thereafter Mr. Van-Egdom, while driving a car, collided with Mr. Ludwig who was stopped on his motorcycle at a stop sign; and that Mr. Ludwig’s resulting death was caused by appellee’s negligence in selling alcholic beverages to Mr. VanEgdom. Appellee moved to dismiss the complaint on the grounds that it failed to state a cause of action upon which relief could be granted and that appellant failed to comply with SDCL 9-24-21 by notifying it of her claim within sixty days of Mr. Ludwig’s death. The trial court granted the motion based on failure to state a claim, appellant appeals. The trial court denied the motion based on noncompliance with SDCL 9-24-2, appellee filed a notice of review on that issue. We reverse that part of the order granting appellee’s motion and affirm that part of the order denying the motion.
Appellant urges that we overrule our decision in Griffin v. Sebek, 90 S.D. 692, 245 N.W.2d 481 (1976), thus affording her a cause of action against appellee.
In Griffin the plaintiffs brought a negligence action against defendants, licensea tavernkeepers, seeking damages for personal injury resulting from defendants’ unlawful sale of alcoholic beverages. Our decision, affirming the trial court’s order granting defendants’ motion to dismiss for fail[122]*122ure to state a claim, said the issue was whether, in the absence of a dram shop act, “the common law now authorizes or should be liberalized to afford a remedy.” Id. at 482. We determined that no such cause of action exists in South Dakota and declined to expand the common law to afford a remedy. We also did not extend SDCL 35-4-78(2)2 to impose a civil liability duty. We take judicial notice that since Griffin was decided, alcohol has been involved in 50.8% of this state’s traffic fatalities from 1976 to 1981; in 1981 alone, 62% of South Dakota’s traffic fatalities were alcohol related.3 State v. Larson, 81 S.D. 540, 138 N.W.2d 1 (1965); SDCL 19-10-2(2). This tragic waste of life prompts us to review our conclusions in Griffin. If the Legislature does not concur with our application of SDCL 35-4-78(2), as now announced, it is the prerogative of the Legislature to so assert. We fully realize this decision, while hopefully helpful, certainly cannot resolve the problems of alcohol-related deaths or injuries.
Negligence is the breach of a legal duty imposed by statute or common law. Cowan v. Dean, 81 S.D. 486, 137 N.W.2d 337 (1965); Albers v. Ottenbacher, 79 S.D. 637, 116 N.W.2d 529 (1962). Griffin recognized that a liquor licensee is not liable at common law for damages resulting from a patron’s intoxication. The common law is in force in South Dakota except where it conflicts with federal or state constitutions and laws. SDCL 1-1-24.4 SDCL 35-4-78(2) makes it a crime to sell intoxicating beverages to one in Mr. VanEgdom’s inebriated state and violation of a statute is negligence as a matter of law if the statute “was intended to protect the class of persons in which plaintiffs are included against risk of the type of harm which has in fact occurred.” Weeks v. Prostrollo Sons, Inc., 84 S.D. 243, 169 N.W.2d 725, 729 (1969); Martino v. Park Jefferson Racing Ass’n, 315 N.W.2d 309 (S.D.1982); Alley v. Siepman, 87 S.D. 670, 214 N.W.2d 7 (1974); McCleod v. TriState Milling Co., 71 S.D. 362, 24 N.W.2d 485 (1946).
The reason for this rule is that the statute or ordinance becomes the standard of care or conduct to which the reasonably prudent person is held. Failure to follow the statute involved constitutes a breach of the legal duty imposed and fixed by such statute. Since negligence is a breach of a legal duty, the violator of a statute is then negligent as a matter of law. (citation omitted)
Alley, 214 at 9.
Justice Dunn dissented in Griffin. He argued that SDCL 35-4-78(2) was passed for the protection of the plaintiffs. Since Griffin essentially turned on a reluctance to impose a common law duty in the absence of express civil liability legislation, we did not fully reach Justice Dunn’s interpretation of SDCL 35—4-78(2). We do now. We believe that statute was enacted to include the protection of the class of people in Mr. Ludwig’s position from the risk of being killed or injured “as a result of the [123]*123drunkenness to which the particular sale of alcoholic liquor contributes.” Id. at 488 (Dunn, J., dissenting), quoting from Waynick v. Chicago’s Last Department Store, 269 F.2d 322 (7th Cir.1959); Martino, supra; Alley, supra; Weeks, supra; McCleod, supra. Since SDCL 35-4-78(2) must be liberally construed “with a view to effect its objects and to promote justice,” SDCL 2-14-12;5 State v. Hirsch, 309 N.W.2d 832 (S.D.1981); Rapid City v. First National Bank of the Black Hills, 79 S.D. 38, 107 N.W.2d 693 (1961); McCleod, supra,
Free access — add to your briefcase to read the full text and ask questions with AI
FOSHEIM, Chief Justice.
Lela Walz (appellant), as special administrator of the estate of Guy William Ludwig, sued the City of Hudson, South Dakota (appellee), doing business as the Hudson Municipal Liquor Store, for the wrongful death of Mr. Ludwig. Appellant’s complaint alleged that appellee sold Larry Van-Egdom intoxicating beverages when ap-pellee knew or could have ascertained by observation that Mr. VanEgdom was intoxicated; that immediately thereafter Mr. Van-Egdom, while driving a car, collided with Mr. Ludwig who was stopped on his motorcycle at a stop sign; and that Mr. Ludwig’s resulting death was caused by appellee’s negligence in selling alcholic beverages to Mr. VanEgdom. Appellee moved to dismiss the complaint on the grounds that it failed to state a cause of action upon which relief could be granted and that appellant failed to comply with SDCL 9-24-21 by notifying it of her claim within sixty days of Mr. Ludwig’s death. The trial court granted the motion based on failure to state a claim, appellant appeals. The trial court denied the motion based on noncompliance with SDCL 9-24-2, appellee filed a notice of review on that issue. We reverse that part of the order granting appellee’s motion and affirm that part of the order denying the motion.
Appellant urges that we overrule our decision in Griffin v. Sebek, 90 S.D. 692, 245 N.W.2d 481 (1976), thus affording her a cause of action against appellee.
In Griffin the plaintiffs brought a negligence action against defendants, licensea tavernkeepers, seeking damages for personal injury resulting from defendants’ unlawful sale of alcoholic beverages. Our decision, affirming the trial court’s order granting defendants’ motion to dismiss for fail[122]*122ure to state a claim, said the issue was whether, in the absence of a dram shop act, “the common law now authorizes or should be liberalized to afford a remedy.” Id. at 482. We determined that no such cause of action exists in South Dakota and declined to expand the common law to afford a remedy. We also did not extend SDCL 35-4-78(2)2 to impose a civil liability duty. We take judicial notice that since Griffin was decided, alcohol has been involved in 50.8% of this state’s traffic fatalities from 1976 to 1981; in 1981 alone, 62% of South Dakota’s traffic fatalities were alcohol related.3 State v. Larson, 81 S.D. 540, 138 N.W.2d 1 (1965); SDCL 19-10-2(2). This tragic waste of life prompts us to review our conclusions in Griffin. If the Legislature does not concur with our application of SDCL 35-4-78(2), as now announced, it is the prerogative of the Legislature to so assert. We fully realize this decision, while hopefully helpful, certainly cannot resolve the problems of alcohol-related deaths or injuries.
Negligence is the breach of a legal duty imposed by statute or common law. Cowan v. Dean, 81 S.D. 486, 137 N.W.2d 337 (1965); Albers v. Ottenbacher, 79 S.D. 637, 116 N.W.2d 529 (1962). Griffin recognized that a liquor licensee is not liable at common law for damages resulting from a patron’s intoxication. The common law is in force in South Dakota except where it conflicts with federal or state constitutions and laws. SDCL 1-1-24.4 SDCL 35-4-78(2) makes it a crime to sell intoxicating beverages to one in Mr. VanEgdom’s inebriated state and violation of a statute is negligence as a matter of law if the statute “was intended to protect the class of persons in which plaintiffs are included against risk of the type of harm which has in fact occurred.” Weeks v. Prostrollo Sons, Inc., 84 S.D. 243, 169 N.W.2d 725, 729 (1969); Martino v. Park Jefferson Racing Ass’n, 315 N.W.2d 309 (S.D.1982); Alley v. Siepman, 87 S.D. 670, 214 N.W.2d 7 (1974); McCleod v. TriState Milling Co., 71 S.D. 362, 24 N.W.2d 485 (1946).
The reason for this rule is that the statute or ordinance becomes the standard of care or conduct to which the reasonably prudent person is held. Failure to follow the statute involved constitutes a breach of the legal duty imposed and fixed by such statute. Since negligence is a breach of a legal duty, the violator of a statute is then negligent as a matter of law. (citation omitted)
Alley, 214 at 9.
Justice Dunn dissented in Griffin. He argued that SDCL 35-4-78(2) was passed for the protection of the plaintiffs. Since Griffin essentially turned on a reluctance to impose a common law duty in the absence of express civil liability legislation, we did not fully reach Justice Dunn’s interpretation of SDCL 35—4-78(2). We do now. We believe that statute was enacted to include the protection of the class of people in Mr. Ludwig’s position from the risk of being killed or injured “as a result of the [123]*123drunkenness to which the particular sale of alcoholic liquor contributes.” Id. at 488 (Dunn, J., dissenting), quoting from Waynick v. Chicago’s Last Department Store, 269 F.2d 322 (7th Cir.1959); Martino, supra; Alley, supra; Weeks, supra; McCleod, supra. Since SDCL 35-4-78(2) must be liberally construed “with a view to effect its objects and to promote justice,” SDCL 2-14-12;5 State v. Hirsch, 309 N.W.2d 832 (S.D.1981); Rapid City v. First National Bank of the Black Hills, 79 S.D. 38, 107 N.W.2d 693 (1961); McCleod, supra, we conclude that SDCL 35-4-78(2) establishes a standard of care or conduct, a breach of which is negligence as a matter of law. Alley, supra. It follows that such negligence must be a proximate cause of any resulting injury and 'defenses,' such as contributory negligence, are available when appropriate.
We therefore reverse the trial court’s order dismissing appellant’s complaint for failure to state a claim upon which relief may be granted. We affirm the trial court’s order denying appellee’s motion to dismiss based on appellant’s failure to comply with SDCL 9-24-2’s sixty day notice provision. SDCL 9-24-2 does not apply to wrongful death actions. Stormo v. City of Dell Rapids, 75 S.D. 582, 70 N.W.2d 831 (1955).
Since this decision applies existing statutory law, prospective or retroactive application is not addressed.
DUNN, and HENDERSON, JJ., concur.
WOLLMAN and MORGAN, JJ., concur specially.