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Brannigan v. Raybuck

Supreme Court of Arizona

July 5, 1983

Phyllis BRANNIGAN, Mother of Michael William Brannigan, Deceased, and Vertis Roberts, Sr. and Pauline Roberts, father and mother of Michael J. Roberts, Deceased, Plaintiffs-Appellants,
v.
Lee David Harry RAYBUCK and Rose Marie Raybuck, his wife, dba Good Time Inn, Defendants-Appellees. Emery JORDAN and Joyce Jordan, father and mother of Danny Jordan, Deceased, Plaintiffs-Appellants,
v.
Lee David Harry RAYBUCK and Rose Marie Raybuck, his wife, dba Good Time Inn, Defendants-Appellees.

In Banc.

Page 214

[136 Ariz. 514] Goldman & Kaplan by Alan Goldman, Vern E. Gasser, Phoenix, for plaintiffs-appellants Brannigan and Roberts.

Mark E. Meltzer, Phoenix, for plaintiff-appellant Brannigan.

Michael R. Sullivan, Phoenix, for plaintiffs-appellants Jordan.

Renaud, Cook & Videan by Joseph B. Swan, Jr., Kathleen A. Kelly, Phoenix, for defendants-appellees.

Langerman, Begam, Lewis & Marks by Stanley J. Marks, Phoenix, for amicus curiae Mothers Against Drunk Drivers (MADD).

William B. Revis, Phoenix, and Haralson, Kinerk & Morey by Burton J. Kinerk and Wallace R. Hoggatt, Tucson, for amicus curiae Arizona Trial Lawyers Ass'n.

Rawlins, Burrus & Lewkowitz by Joseph H. Garagiola, Jr., Phoenix, for amicus curiae Circle K. Corp.

FELDMAN, Justice.

Plaintiffs are the surviving parents of three boys, Michael William Brannigan, Michael J. Roberts and Danny Jordan, who were killed in a motor vehicle accident which occurred on October 8, 1978. The parents of all three filed wrongful death actions against the Raybucks (defendants), who operated a business under the style of "Good Time Inn." The parents alleged that the defendants had breached a duty of care by furnishing liquor to the boys and that this had been the cause of the accident in which all three were killed.

Defendants moved for summary judgment in each of the cases, claiming that under the common law of Arizona a tavern owner was not liable for negligence in furnishing[136 Ariz. 515]

Page 215

intoxicants to patrons who were underage or already intoxicated. The two trial judges who considered the cases in the superior court quite properly agreed that this was the law of Arizona and granted the motions for summary judgment. The cases were consolidated on appeal and in a memorandum decision (Nos. 1 CA-CIV 5536 and 1 CA-CIV 5736) the court of appeals held that prior case law required it to apply the common law rule that a tavern owner is not liable for negligence in furnishing intoxicants to an underage or intoxicated patron who, as a result, subsequently injures either himself or some third person. The court of appeals therefore affirmed the summary judgments granted the defendants.

All three plaintiffs joined in a petition for review to this court. We accepted review of this case and the transfer of the companion case of Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (decided this date) in order to reconsider the common law rule of tavern owners' nonliability and to determine whether that rule should be retained as the common law of this state. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and Ariz.R.Civ.App.P. 23, 17A A.R.S.

The facts are set out in the opinion of the court of appeals; we borrow their language: Roberts and Brannigan were passengers in a pickup truck driven by Jordan when the truck was involved in a one-car accident in which all three young men died. Roberts and Brannigan were both sixteen years of age and Jordan was seventeen years of age at the time of the accident. Viewing the evidence in a light most favorable to the plaintiffs, it is established that Jordan went to the Good Time Inn with his girlfriend on the evening of October 7, 1978, where he consumed several drinks of intoxicating liquor. He took his girlfriend home around midnight and returned to the bar, where he started drinking with Brannigan, Roberts and other friends. Several pitchers of beer and numerous drinks of tequila were consumed by the boys. By the time they all left the bar at 1:00 a.m. on Sunday they were all intoxicated. The Maricopa County Medical Examiner's report indicates that Jordan, the driver of the pickup, had a blood-alcohol level of .23. Within minutes of leaving the parking lot, Jordan crashed the pickup into a wall. There is testimony that the employees of the bar did not check for age cards and that the Good Time Inn, owned by Mr. and Mrs. Raybuck, was patronized by Jordan and other teenagers because they were not checked for proof of their ages.

The grant of summary judgment by the trial court and affirmance by the court of appeals was predicated upon the principle that it is not the act of selling but, rather, the act of consuming liquor that is the proximate cause of the injury sustained by either the intoxicated customer or some third person, so that the tavern owner is therefore not liable for negligence in selling the liquor. This is the common law rule which has obtained in Arizona. Ontiveros, supra. We have today abolished that rule, holding that it is unsuitable to present society and is based on reasoning repugnant to modern tort theory. We held that causation in dram shop cases "should ordinarily be a question of fact for the jury under usual principles of Arizona tort law."

DUTY

In Ontiveros, supra, we held today that the tavern owner was under a duty, imposed both by common law principles and statute, to exercise care in serving intoxicants to a patron who later injured a third party. The facts of the case at bench present a different question, since here one of the persons served, Jordan, inflicted the harm on himself as well as third persons. The third persons involved were not completely innocent participants, as in Ontiveros, but had participated with Jordan at the same "party."

Thus, these cases present the question of whether the tavern owner has a duty to the patron to withhold intoxicants in order to prevent the patron from injuring himself. While this question is of particular significance in the Jordan case, it also exists in the other cases since one might well argue [136 Ariz. 516]

Page 216

that Brannigan and Roberts contributed to their own demise by drinking with Jordan and getting in the truck with him. There was evidence that Jordan's state of intoxication was easily recognizable by both the barkeep and passengers. In fact, the evidence indicates that Jordan "staggered" from the saloon to the parking lot and a witness testified on deposition that as Jordan drove away, Mrs. Raybuck mentioned that "those boys will be lucky if they make it home alive tonight." While we have indicated above and in Ontiveros, supra, that we consider the act of furnishing liquor to be part of the chain of cause and effect leading to the accident, it is certainly to be acknowledged that the voluntary consumption is also part of that cause and effect. Therefore, we examine the question of duty in the context that the act of consumption by all three boys contributed to the occurrence of the accident.

There are cases holding that the seller of liquor is not liable for the mere sale of liquor to an intoxicated person who subsequently causes injury to himself as the result of intoxication. Noonan v. Galick, 19 Conn.Supp. 308, 310, 112 A.2d 892, 894 (1955); see 48A C.J.S. Intoxicating Liquors § 428 at 134 (1981). A growing number of cases, however, have recognized that one of the very hazards that makes it negligent to furnish liquor to a minor or intoxicated patron is the foreseeable prospect that the patron will become drunk and injure himself or others. See Vesely v. Sager, 5 Cal.3d 153, 164, 486 P.2d 151, 159, 95 Cal.Rptr. 623, 631 (1971). Accordingly, modern authority has increasingly recognized that one who furnishes liquor to a minor or intoxicated patron breaches a common law duty owed both to innocent third parties who may be injured and to the patron himself. See Nazareno v. Urie, Alaska, 638 P.2d 671 (1981); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959); Jardine v. Upper Darby Lodge No. 1973, Inc., 413 Pa. 626, 198 A.2d 550 (1964). These cases are but an example of the general rule that one who furnishes a dangerous instrumentality to a person not competent to use it is liable when that person misuses the item furnished and injures himself or another. See Bernethy v. Walt Failor's, Inc., 97 Wash.2d 929, 653 P.2d 280 (1982) (firearm given to intoxicated person who killed his wife). Restatement (Second) of Torts § 390 (1965) states:

One who supplies ... a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience or otherwise to use it in a manner involving unreasonable risk of physical harm to himself and others ... is subject to liability for physical harm resulting to them.

(Emphasis supplied.)

We believe, therefore, that a supplier of liquor is under a common law duty of reasonable care in furnishing liquor to those who, by reason of immaturity or previous over-indulgence, may lack full capacity of self-control and may therefore injure themselves, as well as others.

Most courts have, however, relied on statutes to find the existence of duty upon which to base a cause of action. See Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963); Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847 (1966); Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 218 A.2d 630 (1966); Smith v. Evans, 421 Pa. 247, 219 A.2d 310 (1966); Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965). In Elder v. Fisher, supra, for instance, the court found that the statute which prohibited the sale of alcohol to minors was the type of "prohibitory statute" which established duty and the violation of which constituted negligence. Id. at 602, 217 N.E.2d at 850. The court held that one of the reasons the statute had been enacted was to protect minors from the consequences of their own conduct and to prevent the very type of injury which we consider in the case at bench; the court stated that "it seems probable that the legislature intended to protect against the possible harm resulting from the use of intoxicating liquor by those to whom it was not to be sold." Id. at 603, 217 N.E.2d at 851. Likewise, the Florida Supreme Court in Davis v. Shiappacossee, supra, recognized that the Florida statute making it a crime to sell [136 Ariz. 517]

Page 217

intoxicants to a minor was intended "to preclude the harm that can come to one of immaturity by imbibing such liquors." Id. at 367. The court compared the application of a statutory duty in that case to the situation presented in Tamiami Gunshop v. Klein, 116 So.2d 421 (Fla.1959), which held that sale of a gun to a minor in violation of a city ordinance breached a duty and made the seller liable for injuries which the minor had inflicted upon himself. In Tamiami, the court had recognized that the

almost universal American and English attitude is that where legislation prescribes a standard of conduct for the purpose of protecting life, limb, or property from a certain type of risk, and the harm to the interest sought to be protected comes about through breach of the standard from the risk sought to be obviated, then the statutory prescription ...


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