# Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell

> Kentucky Supreme Court · September 24, 1987 · 736 S.W.2d 328

URL: https://www.frixlaw.com/law-library/cases/9660053

## Case

- **Full name:** GRAYSON FRATERNAL ORDER OF EAGLES, AERIE NO. 3738, INC., Appellant, v. Patricia CLAYWELL, Individually and as Administratrix of the Estate of Jack D. Claywell; And Rick May and Larry Whitt, Appellees
- **Court:** Kentucky Supreme Court
- **Decided:** September 24, 1987
- **Citations:** 736 S.W.2d 328; 1987 Ky. LEXIS 246
- **Precedential status:** Published
- **Opinion:** Dissent by Vance
- **Judges:** Leibson, Stephens, Gant, Lambert, Wintersheimer, Vance, Stephenson
- **Cited by:** 92 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by DeStock 14, Inc. v. Logsdon, 1999 Ky. LEXIS 81 (1999).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9660053

## Opinion text

VANCE, Justice,
dissenting.
Respectfully, I dissent. I do so not because of any feeling on my part that a business establishment, or a social host for that matter, should be exempt from liability when alcoholic beverages furnished by them to another are shown to be a substantial factor in causing injuries to a third person, but because I believe that a substantial change in the law which imposes such liability involves major public policy questions which are properly the prerogative of the General Assembly rather than the courts. The legislative bodies of many states have enacted dram shop laws, but ours has not.
The General Assembly is the representative of the people, and it is the proper body to pronounce the public policy of this state. The function of the court is to interpret the law, not to enact it. The majority opinion does not interpret any existing law; it changes the law. Under common law, the vendor of alcoholic beverages did not have liability such as is imposed here. Under *338 the previous case law of Kentucky, no such liability existed.
Pike v. George, Ky., 434 S.W.2d 626 (1968), is not authority for the imposition of “dram shop” liability. Factually, that case involved the sale of alcoholic beverages by a retail licensee to a minor in contravention of a statute which prohibited such a sale. This case does not involve either a licensed retailer or a minor.
Beyond that, the opinion in Pike v. George, supra, refers to the previous Kentucky decisions which held no liability in cases such as this without overruling them, and it was stated, “The general rule is that ‘ordinarily a vendor of intoxicating liquors is not at common law accountable to a third person for injury or damage sustained by the latter as a result of the intoxication of the purchaser of the liquor.”' Pike v. George, supra, went on to recite the many constitutional, statutory, and case law reflections of the policy of this state offering special protections to minors, and the decision was obviously predicated upon such considerations. It did not establish “dram shop” liability in Kentucky, but held only that the court, as then composed, was unwilling to say that there could never be any circumstance so bad but that liability could be imposed upon a licensee who sells alcoholic beverages to a minor in violation of the statute.
By this opinion we have judicially enacted a “dram shop” law when the General Assembly has declined to do so. The majority opinion limits this to the imposition of liability upon a business establishment. The basis of the majority opinion, however, is that there is a general duty upon every person to exercise ordinary care in his activities to prevent foreseeable injury. This is a generality which pertains equally to a social host as to a business establishment. The majority opinion, therefore, is inexca-pably the forerunner of a judicially enacted dram shop law in Kentucky which will impose liability upon a social host as well as a business establishment. The majority opinion reflects the view of the majority of the seven members of this court as to what the public policy of this state should be. The problem is that the determination of policy is not a judicial function but a legislative one.
STEPHENSON, J., joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9660053. Public record. Not legal advice.