Griffin v. Sebek

DUNN, Chief Justice

(dissenting).

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 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.

“It is understandable that early cases did not recognize any duty of an innkeeper to the traveling public because a serious hazard did not exist. Through lack of necessity, this phase of negligence liability did not develop. However, there did exist General Common Law Rules of negligence liability based on foreseeability and proximate cause. It is a well established, sound principle of legal philosophy that the common law is not static. Under the skillful interpretation of our Courts, it had been adapted to changing times and conditions of our civilization.” Berkeley v. Park, 1965, 47 Misc.2d 381 , 262 N.W.S.2d 290, 293.

Other jurisdictions have already recognized a common law right of action. The New Jersey Supreme Court did so in 1959 in the case of Rappaport v. Nichols, 31 N.J. 188 , 156 A.2d 1 . As part of its opinion the court in that case stated:

“When alcoholic beverages are sold by a tavern keeper to a minor or to an intoxicated person, the *703 unreasonable risk of harm not only to the minor or the intoxicated person but also to members of the traveling public may readily be recognized and foreseen; this is particularly evident in current times when traveling by car to and from the tavern is so commonplace and accidents resulting from drinking are so frequent. (Citations and references omitted.) If the patron is a minor or is intoxicated when served, the tavern keeper’s sale to him is unlawful; and if the circumstances are such that the tavern keeper knows or should know that the patron is a minor or is intoxicated, his service to him may also constitute common law negligence.” 156 A.2d at 8-9 .

The United States Court of Appeals for the Fourth Circuit also recognized a common law cause of action in 1959 in a diversity of citizenship suit. The case was Waynick v. Chicago’s Last Department Store, 7 Cir., 269 F.2d 322 . At page 326 of that opinion the court held:

“In applying the common law to the situation presented in this case, we must consider the law of tort liability, even though the chain of events, which started when the defendant tavern keepers unlawfully sold intoxicating liquor to two drunken men, crossed state boundary lines and culminated in the tragic collision in Michigan. We hold that, under the facts appearing in the complaint, the tavern keepers are liable in tort for the damages and injuries sustained by plaintiffs, as a proximate result of the unlawful acts of the former.”

While it is true that South Dakota presently does not have a Dram Shop Act, the legislature has expressly made the conduct of these defendants unlawful. SDCL 35-6-27 provides:

“No licensee under this chapter shall sell or give any low-point beer to any person who is less than eighteen years old or to any person to whom the sale of other alcoholic beverages is prohibited under the provisions of subdivision (2) of § 35-4-78.”

*704 Subdivision (2) of SDCL 35-4-78 covers “ * * * any person who is intoxicated at the time, or who is known to the seller to be an habitual drunkard.” If the allegations in plaintiffs’ complaint are true, there is no question that the defendants violated these provisions by selling low-point beer to David Hager when they knew or should have known that he was intoxicated. This being so, negligence can be predicated on this criminal act. This court held in Zakrzewski v. Hyronimus, 1965, 81 S.D. 428 , 136 N.W.2d 572 , that “violation, without legal excuse, of a statute enacted for reasons of safety constitutes negligence per se and not merely prima facie evidence of negligence.” 81 S.D. at 432 , 136 N.W.2d at 574 . The only question which then remains is whether SDCL 35-6-27 and 35-4-78 were enacted for reasons of safety. I am convinced that they were and agree fully with the statement of the court in Waynick v. Chicago’s Last Department Store, supra, at pages 325-326:

“The Illinois act making unlawful the sale of alcoholic liquor to any intoxicated person is for the protection of any member of the public who might be injured or damaged as a result of the drunkenness to which the particular sale of alcoholic liquor contributes. Obviously the plaintiffs in the case at bar are entitled to the protection given by § 131 of the Illinois Act.”

I would hold that a cause of action was created by the very presence of §§ 35-6-27 and 35-4-78 in the South Dakota Codified Laws. *

Had this cause of action not been dismissed, pláintiffs would still face substantial factual and legal obstacles before any monetary recovery could be had. It appears that there are very grave questions presented concerning causation and contributory negligence. However, these are questions which are not for consideration at this time. It is my belief that plaintiffs state a cause of action in their pleadings and they should be allowed to *705 “have their day in court.” I would reverse the order of the circuit court dismissing this case.

I am authorized to state that Justice W-INANS joins in this dissent.

For a good statement covering all of the issues, I would suggest reading the dissent by Chief Justice Hallows in Garcia v. Hargrove, 46 Wis.2d 724 , 176 N.W.2d 566 , at page 572, which was joined in by Justices Wilkie and Heffernan.