recognizing that a majority of jurisdictions have rejected finding commercial vendors have a duty to intoxicated patrons under common law
How later courts described this case
- recognizing that a majority of jurisdictions have rejected finding commercial vendors have a duty to intoxicated patrons under common law
- concluding “the tavern owner has no liability to the intoxicated adult who voluntarily consumes alcoholic beverages to excess and sustains injuries as a result of his intoxication”
- answering certified questions of Oklahoma law where 8 insurer pressed for relief declaring that it had no duty to defend the insured
- finding a violation of 37 O.S. 1981 § 537(A)(2) did not amount to negligence per se under the facts
Written by the judges who cited it.
The opinion
ALMA WILSON, Justice,
dissenting on rehearing:
The Constitution of the State of Oklahoma expressly forbids a holder of a license issued by the Alcohol Beverage Law Enforcement Commission (ABLE Commission) to sell or furnish an alcoholic beverage to an intoxicated person. Okla. Const., art. 28, § 5. Without reference to our constitution, today, the Court holds that in the absence of harm to a third party, the act of serving an alcoholic beverage to an intoxicated adult does not constitute a breach of duty which is actionable in common law negligence. The expressed underpinning of the majority holding is “societal considerations aimed at deterring drunken driving. ...” Focus on deterence of harm to third persons caused by drunken driving ignores the constitutionally imposed duty of care owed by a liquor licensee to an intoxicated person. That constitutional duty is to refrain from selling or furnishing an alcoholic beverage to any intoxicated person. A violation of the constitutionally imposed duty of care obtains legal significance. Accordingly, I respectfully dissent.
The selling of alcoholic beverages to an intoxicated person by a liquor licensee is unlawful conduct and a violation of the Oklahoma Constitution, Article 28, § 5, which states, in part:
§ 5. Prohibition of sales to certain persons — Limitation on advertising— Penalties
It shall be unlawful for any licensee to sell or furnish any alcoholic beverage to:
A person under twenty-one (21) years of age; or
*525 A person who has been adjudged insane or mentally deficient; or
A person who is intoxicated.
A plain reading of this constitutional provision is that persons under the age of twenty-one years, persons adjudged mentally incompetent and persons intoxicated are to be protected by the liquor licensee. That is, the liquor licensee had a duty not to sell or furnish alcoholic beverages to persons in those three specified groups of persons.
A violation of this constitutional provision has legal significance at least equal to that of a violation of a statute or an ordinance. Violation of a statute and causal connection to injury are sufficient to present a prima facie case of negligence. For instance, violation of a statute in the operation of a motor vehicle constitutes negligence per se, proof of which makes out a prima facie case of negligence liability and shifts the burden to the defendant to present evidence to make it appear the violation of the statute did not cause the injury. Garner v. Myers, 318 P.2d 410, 413 (Okla.1957). Driving an automobile on the wrong side of the road in violation of the rules of the road is prima facie evidence of negligence. Shoopman v. Travelers Insurance Company, 518 P.2d 1108, 1110 (Okla.1974).
It is undisputed in Oklahoma that violation of a statute or an ordinance is deemed negligence per se if the other elements of actionable negligence are present. Hampton v. Hammons, 743 P.2d 1053, 1056 (Okla.1987). Those elements are: 1) the injury is caused by the violation; 2) the injury is the type intended to be prevented by the statute or ordinance; and, 3) the injured party is within the class of persons protected by the statute or ordinance. Hampton v. Hammons, supra, at 1053, and Boyles v. Oklahoma Natural Gas Co., 619 P.2d 613, 618 (Okla.1980). In denying the intoxicated person a tort claim against a liquor licensee, the majority opinion erroneously finds that the intoxicated person is not within the class of persons protected by 37 O.S.Supp.1986, § 537, 1 and therefore a violation of § 537 is not negligence per se.
The purpose or intent of Article 28, § 5 is not limited to the protection of sober third persons nor is it limited to the prevention of injury to third persons caused by drunken driving. A reasonable intent to be gleaned from Article 28, § 5 is the protection of minor persons and adjudged mentally deficient persons and intoxicated persons. 2 An intoxicated person should have a judicial forum to prove the liquor licensee violated Article 28, § 5 and that violation caused injury to the intoxicated person. In the absence of any constitutional or statutory provision excluding an intoxicated person from a civil remedy for injury causally connected to a breach of the liquor licensee’s duty of care imposed by Article 28, § 5, the common law principles of negligence serve to protect those groups of persons specifically identified in Article 28, § 5. The legal authorities and reasoning in Justice Lavender’s dissent in part requires this Court to recognize the duty of care of a liquor licensee expressed in Article 28, § 5 within the realm of our common law of torts. Accordingly, I respectfully dissent *526 and join in Justice Lavender’s dissent in part.
I am authorized to state that Justice KAUGER joins in the views expressed herein.
. In 1984, the voters amended our constitution for the purpose of allowing open saloons at the option of the county voters. State Question No. 563, Initiative Petition No. 319, adopted Sept. 18, 1984, repealed Okla. Const., art. 27, and adopted Okla. Const., art. 28. Much of the language in repealed Article 27 is reiterated in Article 28. The legislature amended the intoxicating liquor laws to conform with the new Article 28. 1985 Okla.Sess.Laws, ch. 6. The legislature reenacted the language in 37 O.S. 1981 , § 537(A)(2) which states, "No person shall ... sell, deliver or knowingly furnish alcoholic beverages to an intoxicated person....” It is this statutory language which the majority opinion finds not to protect intoxicated persons.
. The concurring opinion would recognize actionable claims by persons who imbibe because of duress, coercion, or other wilful or grossly negligent misconduct and by persons under legal disability, those who are under twenty-one years of age or who have been adjudged mentally deficient. These exceptions to the majority opinion would present fact questions to be decided by the trial court in pretrial motions or by the jury. Article 28, § 5 protects the intoxicated, underage and mentally deficient persons the same. Sale of alcoholic beverages to any such persons is unlawful. Exclusion of the intoxicated person from those entitled to maintain an action against a liquor licensee is inconsistent with Article 28, § 5.