Alegria v. Payonk

McFADDEN, Justice,

dissenting.

In Meade v. Freeman, 93 Idaho 389 , 462 P.2d 54 (1969), this court recognized the common law rule that an injury to a third person caused by an intoxicated person is not actionable against the vendor who sold liquor to the intoxicated person because the sale was only a remote, and not a proximate, cause of the injury. We stated in Meade that the common law rule arises from the normal assumption that a person should not be able to relieve himself from responsibility for his own acts by becoming intoxicated, and from the further assumption that it is not a tort to sell liquor to an able-bodied person, since the liquor vending business is legitimate and the purchaser is deemed responsible. Id. at 395 , 462 P.2d at 60 .

The logical premises on which the common law rule is based have not changed since the Meade decision. Intoxicated per *626 sons are still legally responsible for their acts, liquor vending is still a legitimate business, and the consumption of liquor is still closer to the injury in terms of causation than the sale or dispensing of the liquor. What has changed is this court’s willingness to disregard the premises on which the common law rule is based, and replace them with an emphasis on policy considerations which arguably indicate a need for vendor liability.

The majority’s abrogation of the common law rule reflects an attempt to reallocate the burden of risk bearing from injured persons to vendors of liquor for damages resulting from certain alcohol related accidents. It also reflects a view that the vendor or dispenser has a special responsibility to protect the public from unreasonable risks of injury because he is profiting from the sale of a potentially dangerous product.

Whether one agrees or disagrees with the policy considerations relied on by the majority in casting aside the common law rule of non-liability, the simple fact remains that as a general proposition courts may not authorize actions unknown to the common law in the absence of legislative enactment or policy to the contrary. 15A C.J.S. Common Law § 12 (1967). This principle of judicial restraint is statutorily and judicially recognized in Idaho. I.C. § 73-116, provides:

“The common law of England, so far as it is not repugnant to, or inconsistent with, the constitution or laws of the United States, in all cases not provided for in these compiled laws, is the rule of decision in all courts of this state.”

And in the case of Moon v. Bullock, 65 Idaho 594, 607 , 151 P.2d 765, 771 (1944), we stated:

“[N]o legislative adoption is necessary to affirm the existence of the common law, but the statutory enactment is essential to repeal, abrogate or change the rules or doctrine of the common law. The rules of the common law are not to be changed by doubtful implication.”

Idaho has no dram shop act or civil damage statute imposing vicarious liability on the vendor or dispenser of liquor for injury inflicted on third persons by an intoxicated person or minor. Moreover, the argument raised by appellant that the Idaho legislature has inferentially modified the common law rule of non-liability in enacting statutory provisions forbidding the retail dispensing of liquor to persons who are visibly intoxicated or minors (I.C. §§ 23-603, 23-605, 23-929) is inapposite. It is true that in other contexts we have held that a violation of criminal statutes similar to the ones raised here give rise to cause of actions sounding in negligence per se. Bale v. Perryman, 85 Idaho 435 , 380 P.2d 501 (1963) (violation of statute prescribing rules of operation of motor vehicles constitutes negligence per se) Carron v. Guido, 54 Idaho 494 , 33 P.2d 345 (1934) (violation of statute against sale of firearms to a minor constitutes negligence per se); Curoe v. Spokane & Inland Empire R.R. Co., 32 Idaho 643 , 186 P. 1101 (1920), 37 A.L.R. 923 (1925) (violation of statute against accumulations of combustible material along railroad right-of-way constitutes negligence per se). However, all three of these cases involved cause of actions which were specifically recognized by the common law. Further, it has been held elsewhere that the purpose of statutes forbidding the sale of liquor to intoxicated persons or minors is to regulate the business of selling liquor, and not to enlarge civil remedies. Collier v. Stamatis, 162 P.2d 125 (Ariz.1945); Carr v. Turner, 385 S.W.2d 656 (Ark.1965); Holmes v. Circo, 244 N.W.2d 65 (Neb.1976). Finally, and most importantly, it is not dispositive that the statutes relied on by appellants may be viewed as establishing a cause of action sounding in negligence per se. The case of Keaton v. Kroger Co., 237 S.E.2d 443 (Ga. App.1977), presented the Georgia Court of Appeals with the question of whether a violation of a statute prohibiting the sale of alcoholic beverages to a minor was negligence per se for purposes of allowing an injured third person recovery from the vendor. In denying recovery, the court aptly observed:

*627 “[S]o long as the common — law rule is adhered to, it matters not whether the act of furnishing liquor may be considered as simple negligence or negligence per se in violation of the criminal statute-it cannot, alone, leap the common law’s chasm of causation. (Citing cases.) This is why the violation of liquor laws cannot be analogized to other types of negligence per se, and why legislation is required which directly imposes liability in derogation of the common law.” Id at 447.

The aforementioned provisions of the Idaho Liquor Act having no appositeness, in conjunction with the absence of a dram shop act or civil damages statute in this state, dictate that this court is constrained from modifying the common law in the instant case. As was stated in Meade, supra :

“If the courts are thereby commanded to create a remedy for a wrong where no remedy existed theretofore . .. they would in many instances be called upon to legislate; it would often require them to modify or entirely override positive and well-established rules and laws. The books are full of instances where the courts have had to admit that existing law-statutory or common-did not do exact justice, or did not meet with our revised ideas of justice, but that the remedy lay, not with the courts, but with the legislature.” 93 Idaho at 394 , 462 P.2d at 59 (quoting from Moon v. Bullock, 65 Idaho 594, 603 , 151 P.2d 765, 769 [1944]).

Additionally, the Idaho legislature is presumed to have knowledge of the Meade decision’s adherence to the common law rule disallowing recovery by injured third persons against vendors of liquor arising from the sale of liquor to intoxicated persons or minors. See 2A Sutherland, Statutory Construction, § 45.12 (C. Sands Editor, 1973). The legislature has taken no steps to overrule Meade’s adherence to the common law. Until the legislature so acts, this court should not presume to take it upon itself, as the majority of the court has done today, to abrogate the common law by making wide-sweeping policy decisions, which in my belief are reserved under our constitution for legislative consideration. Idaho Const. Art. II, § I-

The above conclusion is not without recent authority. See, e. g., Profitt v. Canez, 118 Ariz. 235 , 575 P.2d 1261 (Ariz.1978) (but see Lewis v. Wolf, 122 Ariz. 567 , 596 P.2d 705 [Ariz.App.1979]); Nelson v. Steffens, 170 Conn. 356 , 365 A.2d 1174 (1976); United Services Auto Ass’n. v. Butler, 359 So.2d 498 (Fla.App.1978); Keaton v. Kroger Co., supra ; Holmes v. Circo, supra; Marchiondo v. Roper, 90 N.M. 367 , 563 P.2d 1160 (N.M.1977); Ceriffin v. Sebek, 245 N.W.2d 481 (S.D.1976); Olsen v. Copeland, 90 Wis.2d 483 , 280 N.W.2d 178 (1979).

The recent case of Holmes v. Circo, 196 Neb. 496 , 244 N.W.2d 65 (1976), is illustrative in its analysis. The Nebraska Supreme Court in Holmes held that a violation of that state’s criminal statute forbidding the retail sale of liquor to visibly intoxicated persons did not create a civil remedy nor impose a duty on part of the vendor toward injured third persons. 244 N.W.2d at 68 . While the court acknowledged the recent trend of cases imposing such liability, it expressed the view that the issue was one of public policy best left to the province of the legislature. The court in Holmes stated:

“We are mindful of the misery caused by drunken drivers and the losses sustained by both individuals and society at the hands of drunken drivers, but the task of limiting and defining a new cause of action which could grow from a fact nucleus formed from any combination of numerous permutations of the fact situation before us is properly within the realm of the legislature.”

“The imposition of a common law duty of due care would create a situation rife with uncertainty and difficulty. If the commercial vendor is liable for negligence, does the host at a social gathering owe a duty to prospective victims of guests? The difficulties of recognizing intoxication and predicting conduct of an intoxicated patron without imposing *628 some duty of inquiry are evident. Problems could also arise in the apportionment or sorting out of liability among the owners of various bars visited on ‘bar hopping’ excursions. The correct standard of care to be used also presents a problem, as does the determination of whether all acts of the patron, including intentional torts, should be included within the liability of the tavern owner or operator.”

“We agree with the conclusion of the court in Hamm v. Carson City Nugget, Inc., 85 Nev. 99 , 450 P.2d 358 (1969), that, in the final analysis, the controlling considerations are public policy and whether the court or legislature should declare it. We believe that the decision should be left to the legislature. The legislature may hold hearings, debate the relevant policy considerations, weigh the testimony, and, in the event it determines a change in the law is necessary or desirable, it can then draft statutes which would most adequately meet the needs of the public in general, while balancing the interests of specific sectors.” Id 244 N.W.2d at 70 .

As the above reasoning from the Holmes case makes clear, the majority today is creating a cause of action unknown at common law with uncertain and potentially far reaching ramifications. The vice of the majority opinion is that this court cannot, short of a policy decision, create the legal position of vendor liability for injuries to third persons in the absence of a specific statutory scheme. There being no such statutory declaration in this state, the creation of vendor liability is a matter best left to the Idaho legislature.