Walz v. City of Hudson

WOLLMAN, Justice

(concurring specialty)-

Although I agree with Chief Justice Fosheim that liability for damages caused by an intoxicated customer may be imposed upon a vendor of alcoholic beverages on the basis of a violation of the statutory prohibition set forth in SDCL 35 — 4—78(2), I would go further and hold that there is now in this state a common law right of action to recover such damages. I would reach this result because I believe that those of us who were in the majority in Griffin v. Sebek took too narrow a view of the responsibility of the judiciary to fill a void by common law adjudication in the face of legislative in action. Although certainly deference must be shown by succeeding generations of judges to the considered pronouncements of their predecessors, the common law would long ago have stultified had those succeeding generations not been responsive to the contemporaneous societal needs. What may not have been perceived of as a remedial void requiring judicial action at the time Paulson v. Langness, 16 S.D. 471 , 93 N.W. 655 (1903) and Kennedy v. Garrigan, 23 S.D. 265 , 121 N.W. 783 (1909), were decided has mushroomed into a societal problem of deadly, both in the literal and figurative senses of that word, proportions, as is well documented in the majority opinion. * In this regard, I can do no better than to quote the words of then Chief Justice Dunn’s dissent in Griffin v. Sebek:

I would respectfully submit that the time has come for this court to recognize a common law cause of action by an injured party against a seller of alcoholic *124 beverages to an intoxicated person who causes injury by his intoxication. While it is true that this right of recovery was not recognized originally, there is a great difference between an intoxicated person driving a horse and buggy on a dirt road in 1889 and an intoxicated teenager hurtling down the highway at great speed in a five-thousand-pound automobile in 1972.

245 N.W.2d, 481 at 486-87 . In so holding, I would join with those courts that have in recent years abrogated the common law rule of nonliability and have held that a vendor of alcoholic beverages may be held civilly liable for injuries proximately caused by an intoxicated customer. See, e.g., Nazareno v. Urie, 638 P.2d 671 (Alaska 1981), and the cases cited in footnote 3 therein. To those who might question why I have reversed my position since the decision in Griffin v. Sebek, I can only quote Justice Frankfurter’s aphorism that “[wjisdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 600 , 69 S.Ct. 290, 293 , 93 L.Ed. 259 , 264 (1949) (Frankfurter, J., dissenting).

Inasmuch as the imposition of common law liability would mark an abrupt departure from our prior holding in Griffin v. Sebek, supra, I would apply the benefit of such a decision only to plaintiff herein and to those causes of action accruing on and after the date of the remittitur in this case. Lewis v. State, 256 N.W.2d 181 (Iowa 1977).

I agree with the majority opinion that SDCL 9-24-2 is not applicable in this case.

We watched with deep emotion: — sadness and pride intermixed — the television coverage during recent days of the dedication of the Vietnam Veteran’s Memorial in Washington, D.C. See “Honoring Vietnam Veterans — At Last,” Newsweek, November 22, 1982, at 80. Suppose that instead of a memorial engraved with the names of 57,939 war dead, we erected each year in our nation’s capítol a memorial bearing the names of the 25,000 or so Americans who each year are killed in alcohol-related motor vehicle accidents. Would not they loom as puzzling two millennia hence as Stonhenge does to us today — megaliths in memory of the victims of our unconcern.