Wildeboer v. South Dakota Junior Chamber of Commerce, Inc.

1997 SD 33, 561 N.W.2d 666, 1997 S.D. LEXIS 33, 1997 WL 136412

• Court: South Dakota Supreme Court
• Decided: March 26, 1997
• Docket: 19461
• Status: Published

Opinions

SABERS, Justice.

[¶ 1] Justice Richard W. Sabers delivers the majority opinion of the Court on Issue 1, which affirms the trial court’s issuance of summary judgment in favor of appellee South Dakota Junior Chamber of Commerce, Inc.

[¶ 2] Justice David Gilbertson delivers the majority opinion of the Court on Issue 2, which affirms the trial court’s issuance of summary judgment in favor of appellee establishments licensed to sell alcoholic beverages.

[¶ 3] SABERS, Justice, writing the majority opinion on Issue 1, which affirms the trial court’s issuance of summary judgment in favor of appellee South Dakota Junior Chamber of Commerce, Inc.

[¶ 4] Wildeboers brought an action against the South Dakota Junior Chamber of Commerce (SDJCC) and five small town bars for negligence in causing the accident which left their fifteen-year-old son severely burned and disfigured. They argue the defendants worked together to organize, sponsor, and promote the “poker run” that led to the accident. Summary judgment was granted to all defendants and Wildeboers appeal.

FACTS

[¶ 5] On June 20, 1992, the Harrisburg chapter (Harrisburg chapter) of the SDJCC sponsored a charitable poker run with five scheduled stops at bars in Harrisburg, Canton, Hudson, Beresford, and Lennox.¹ Proceeds were to go to families in need in the Harrisburg area. To participate in a poker run, contestants visit each bar and receive a playing card, or in this case a token to later be exchanged for a playing card.² At the end of the run, individuals who have drawn the best poker hands win prizes. Primarily a social event for motorcycle enthusiasts, the majority of the participants were motorcyclists.

[¶ 6] Randy Borgheiinck and Linda Kiousis registered for the poker run in Harrisburg and proceeded to the next stop, Canton, on Borgheiinck’s 1978 Harley Davidson Lowri-der motorcycle. They continued on the established route, visiting the designated bars in Canton, Hudson, and Beresford. While the record does not reflect the precise amount of alcohol consumed by either, one witness observed them drinking wine coolers in Beresford before they left for the fifth stop in Lennox. Unfortunately, they never made it there.

[¶ 7] As they and three other motorcyclists raced north on Highway 17 at speeds estimated between 75 and 100 miles per hour, Jonathan Wildeboer was traveling south on the same highway, preparing to make a left turn onto Lincoln County Road # 128. He turned his pickup in front of the Borgheiinck motorcycle. The subsequent crash and explosion of the pickup’s gas tank claimed the lives of Borgheiinck and Kiousis. Wildeboer suffered severe and disfiguring second and third degree burns over his entire body.

[¶8] Jonathan Wildeboer’s parents sued the SDJCC and the five bars (Bars) for negligence in organizing, sponsoring, and promoting the poker run.³ They did not sue the Harrisburg chapter or its individual members. The Wildeboers claim the SDJCC and the Bars are at fault for “encouraging the consumption of alcohol and high speed operation of motorcycles.”

STANDARD OF REVIEW

[¶ 9] Our standard of review for summary judgment is well-established:

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The non-moving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Lamp v. First Nat’l Bank of Garretson, 496 N.W.2d 581, 583 (S.D.1993) (citation omitted).

[¶ 10] “The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” State Dep’t of Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989) (citation omitted). “Summary judgment is generally not feasible in negligence cases because the standard of the reasonable man must be applied to conflicting testimony.... It is only when the evidence is such that reasonable men can draw but one conclusion from facts and inferences that they become a matter of law and this occurs rarely.” Lamp, 496 N.W.2d at 583 (citing Trammell v. Prairie States Ins. Co., 473 N.W.2d 460, 462 (S.D.1991) (quoting Wilson v. Great N. R.R. Co., 83 S.D. 207, 212-13, 157 N.W.2d 19, 22 (1968) (citations omitted))). “Resolving negligence questions is an elemental jury function[.]” Robbins v. Buntrock, 1996 SD 84, ¶ 8, 550 N.W.2d 422, 425.

[¶ 11] The trial court stated in its order granting summary judgment that “there is no genuine issue of material fact that would sustain any theory of liability or recovery against Defendants[.]” “A surmise that a party will not prevail upon trial is not sufficient basis to grant the motion on issues which are not shown to be sham, frivolous or so unsubstantial that it is obvious it would be futile to try them.” Wilson, 83 S.D. at 212, 157 N.W.2d at 21 (footnote & citation omitted).

[¶ 12] 1. The SDJCC

[¶ 13] Wildeboers claim the SDJCC failed to properly investigate the poker run prior to its occurrence and failed to prohibit or supervise alcohol-related charitable events. These omissions, they argue, constituted a breach of its duty of ordinary care. “Duty may be imposed by common law or by statute.” Poelstra v. Basin Elec. Power Coop., 1996 SD 36, ¶ 11, 545 N.W.2d 823, 826 (citation omitted). SDCL 20-9-1 provides:

Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.

This statute is “a simple codification of the common law of negligence.” In re Certif. of Questions of Law (Knowles v. United States), 1996 SD 10, ¶ 21, 544 N.W.2d 183, 188 (citing Baatz v. Arrow Bar, 426 N.W.2d 298, 304 (S.D.1988)) (other citations omitted). In Poelstra, we noted this statute does not define the circumstances under which the law imposes a duty on an alleged tortfeasor, but “simply recognizes the right of injured persons to recover from wrongdoers who fail to exercise ordinary care.” 1996 SD 36 at ¶ 13, 545 N.W.2d at 826.

[¶ 14] Wildeboers do not claim any other statute imposes a duty on SDJCC to monitor and supervise the local chapters’ activities. “Whether a common-law duty exists depends on the foreseeability of injury.” Id. at ¶ 16, 545 N.W.2d at 826-27 (citations omitted).

[¶ 15] The primary organizers of the poker run were the members of the Harrisburg chapter of the SDJCC; they are not named defendants in this suit. We affirm the dismissal of the suit against the SDJCC because that organization, a legal entity separate from the Harrisburg chapter, had no knowledge, input, or responsibility with respect to the poker run. The SDJCC gave local chapters advice and suggestions for projects designated as “priority projects,” but those were primarily non-moneymaking ventures such as “Punt, Pass, and Kick.”

[¶ 16] Daron Bunger served twice as president for the Harrisburg chapter, and he testified: 1) All planning for charitable events was done strictly on the local level; 2) no rules, regulations, or guidelines regarding charitable endeavors were issued by the SDJCC; 3) approval from the SDJCC was neither sought nor required to undertake a charitable project; 4) the idea for the 1992 poker run came from a member of the Harrisburg chapter, not the SDJCC; 5) the SDJCC did not receive any proceeds from the poker run; 6) the program sponsored by the SDJCC where local chapters could vie for awards (“Parade of Chapters”) was strictly optional, and involved chapters submitting reports to the SDJCC to detail past, not future events. Jim Aalbers, another former officer of the Harrisburg Chapter, basically corroborated Bunger’s testimony, and added that a poker run was not considered a “priority project.”

[¶ 17] Marjean Gab, the secretary for the SDJCC at the time of the poker run, submitted an affidavit with the following statements: 1) The SDJCC did not plan, organize, sponsor, or promote charitable fundraising events undertaken by the local chapters; 2) the SDJCC was not asked to, nor did it, evaluate or approve the poker run.

[¶ 18] Under these circumstances, there was no duty to monitor and supervise events the occurrence of which the SDJCC was not required to be informed; it is not shown that the accident was foreseeable to the SDJCC.⁴ “No one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen.” Poelstra, 1996 SD 36 at ¶ 16, 545 N.W.2d at 826-27 (citation omitted). The SDJCC met its burden as movant “to show clearly that there is no genuine issue of material fact and that [it] is entitled to judgment as a matter of law.” Thiewes, 448 N.W.2d at 2.

[¶ 19] MILLER, C.J., and AMUNDSON, KONENKAMP and GILBERTSON, JJ., concur as to Issue 1.

[¶ 20] GILBERTSON, Justice, writing the majority opinion on Issue 2, which affirms the trial court’s issuance of summary judgment in favor of appellee establishments licensed to sell alcoholic beverages.

[¶ 21] This ease arises from a motor vehicle accident which resulted in the deaths of two persons and the sustaining of permanent injuries to a fifteen-year old boy. Clearly the accident was avoidable. The immediate cause was Borgheiinck’s driving his motorcycle at speeds of 75 mph to 100 mph. However alcohol, as well as speed, was also involved in Borgheiinck’s driving. Wildeboers seek compensation from those they claim to be the organizers of the poker run, that being the South Dakota Junior Chamber of Commerce (SDJCC)⁵ and the bars that participated in the event.

[¶ 22] The subject of liability for the furnishing of alcohol to tort-feasors has been before this Court on numerous occasions. See Griffin v. Sebek, 90 S.D. 692, 245 N.W.2d 481 (1976); Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982); and Baatz v. Arrow Bar, 426 N.W.2d 298 (S.D.1988). The carnage caused by this problem is appalling. See Walz, 327 N.W.2d at 123, n*.

[¶ 23] In this case, Wildeboers seek to have this court recognize a cause of action for common law negligence, codified as SDCL 20-9-1. As far as the common law aspect, SDCL 1-1-24 provides that “[i]n this state the rules of the common law ... are in force, except where they conflict with the will of the sovereign power, expressed in the manner stated in § 1-1-23.” The sovereign will in SDCL 1-1-23 is found in part in our state statutes. Walz, supra.

[¶24] It has been a long standing rule of statutory construction that general statutes must yield to specific statutes if they are not consistent. U.S. Lumber, Inc. v. Fisher, 523 N.W.2d 87, 91 (S.D.1994); Nelson v. School Bd. of Hill City, 459 N.W.2d 451, 454 (S.D.1990). Thus the question becomes whether SDCL 20-9-1 is consistent with the statutes specifically dealing with the sale of alcohol where injury subsequently occurs.

SDCL 35-11-1 provides:

The Legislature finds that the consumption of alcoholic beverages, rather than the serving of alcoholic beverages, is the proximate cause of any injury inflicted upon another by an intoxicated person. Therefore, the rule in Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982) is hereby abrogated.

SDCL 35-4-78 provides:

No licensee may sell any alcoholic beverage:

(1) To any person under the age of twenty-one years; or

(2) To any person who is obviously intoxicated at the time.

A violation of this section is a Class 1 misdemeanor.

However, no licensee is civilly liable to any injured person or his estate for any injury suffered, including any action for wrongful death, or property damage suffered because of the intoxication of any person due to the sale of any alcoholic beverage in violation of the provision of this section, (emphasis added).

[¶ 25] In Baatz, an attack on the constitutionality of these two statutes was presented to this Court. A majority of the justices in Baatz failed to find the statutes unconstitutional. No constitutional issues are brought by Wildeboers and thus the statutes are valid enactments which must be applied to the facts of this case regardless of our personal distaste for their effect. Baatz, 426 N.W.2d at 307 (Miller, J., dissenting).

[¶ 26] The statutes clearly preclude recovery against a bar for the serving of the alcohol. SDCL 35-11-1 provides that it is not the serving of the alcoholic beverage which is the proximate cause of the injury inflicted by an intoxicated person. While it may be argued that this result is factually and legally questionable, it simply reflects the Legislature’s interpretation of one of its own statutes, SDCL 20-9-1. If the Legislature can validly enact, repeal and amend statutes, we know of no constitutional doctrine that precludes it from interpreting a statute by the enactment of another statute. Our cases are legion where we seek to interpret the intent of the Legislature. Klinker v. Beach, 1996 SD 56, ¶ 10, 547 N.W.2d 572, 575; Delano v. Petteys, 520 N.W.2d 606, 609 (S.D.1994); Sander v. Geib, Elston, Frost Prof'l Ass’n, 506 N.W.2d 107 (S.D.1993). Here the Legislature has chosen to make its intent explicit by the enactment of two subsequent statutes, SDCL 35-11-1 and 35-4-78.

[¶ 27] The text of SDCL 35-4-78 makes it clear that there is no civil liability to sellers of alcoholic beverages for the furnishing of alcoholic beverages to persons who are “obviously intoxicated.”

[¶ 28] Our departure from the analysis of the dissent on this issue is two-fold, one factual and one legal. First, there is absolutely no evidence in the record that any of the Defendant Bars, save one, furnished any alcohol to Borgheiinck. It is only Burt’s Lounge of Beresford that the record shows furnished a wine cooler to Borgheiinck. While Borgheiinck obviously got additional liquor from somewhere, Wildeboers cannot tie it to the remaining Defendant Bars. There was no prize or incentive offered by the poker run sponsors concerning speed of the motorcycles. This was a not a timed race. It was the quality of the poker hand that determined which participants won prizes.

[¶29] Second, SDCL 35-4-78, at a minimum, makes it clear that there is no civil liability for furnishing alcohol to an “obviously intoxicated” patron.⁶ The first sentence of SDCL 35-11-1 goes farther and expands this immunity to the furnishing of alcoholic beverages by a bar regardless of the condition of the consumer. Yet the dissent on this issue would somehow hold the Bars hable for ordinary negligence.

[¶ 30] We conclude that the scope of SDCL 35-4-78 and 35-1-11 is the Legislature’s policy decision that no civil liability will attach to a bar for the furnishing of alcoholic beverages to a person who subsequently causes an injury to a third party. As we stated in Walz, “[i]f 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.” 327 N.W.2d at 122. Unfortunately for Wildeboers, the Legislature chose to exercise its prerogative by amending SDCL 35-4-78 and enacting SDCL 35-11-1 to preclude recovery in this case.

[¶ 31] As such, we affirm the circuit court in its dismissal of the action against the bars. In so doing, we respectfully suggest to the Legislature that it re-examine this issue.

[¶ 32] MILLER, C.J., and AMUNDSON and KONENKAMP, JJ., concur.

1 . The five bars designated as stops on the poker run were "The Bar” (Harrisburg), "The Wheel" (Canton), "Bill's Bar” (Hudson), "Burl’s Lounge” (Beresford), and "The Only One Lounge” (Lennox).

2 . For this event, entrants were given a bolt in Harrisburg. Each of the five bars then distributed colored nuts which were placed on the bolt and later exchanged for playing cards. Players were to return to Harrisburg to make the exchange.

3 .Wildeboers also argue that 1) a new cause of action, “aiding and abetting the commission of a tort,” be adopted; and 2) defendants be held jointly liable under a "market enterprise” theory. For discussion of these issues, see note 10, infra.

4 . This conclusion is limited to the facts of this case; there may be circumstances under which a statewide organization, such as the SDJCC, may be liable for the consequences of actions of a local chapter.

5 . Although the poker run was organized by the Harrisburg Chapter of the JC’s, it was not sued nor were any of its members. We were informed at oral argument by Wildeboers that the Harrisburg JC’s is an unincorporated association and that the only way to sue it would be to sue its approximately 35 members individually. The Wildeboers opted not to do so and instead sued the State Chapter and the participating bars.

6 . It is very unlikely that the Legislature attempted to provide immunity for those bars who sell to "obviously intoxicated” patrons and yet would hold them liable for the sale of liquor to those patrons who are not “obviously intoxicated."