Wildeboer v. South Dakota Junior Chamber of Commerce, Inc.

[¶ 33]

SABERS, Justice,

dissenting as to Issue 2.

[¶ 34] 2. The Bars

[¶ 35] I dissent on this issue for the reasons expressed in Baatz v. Arrow Bar, 426 N.W.2d 298 (S.D.1988). Baatz was decided on June 15, 1988. Baatz held that bars were subject to civil liability to those wrongfully injured by one served alcoholic beverages while intoxicated. It has been the law for eight and one-half years. Now Justice Gil-bertson’s writing on this issue would abandon or sidestep Baatz and provide immunity to bars until the pertinent statutes are declared unconstitutional again or changed by the Legislature.

[¶ 36] I would not postpone the inevitable. In this instance, justice delayed is justice denied. The statutes involved in Baatz have not been corrected or modified. They contain the same defects and deserve the same treatment they received in Baatz . 7

[¶ 37] Contrary to the lack of involvement of the SDJCC, the Bars played a significant role in the poker run; whether that role constituted negligence presents genuine issues of material fact. The Bars consented to take part in the poker run by serving as official stops. Most, if not all, were previously involved in poker runs and knew the participants in a poker run were predominately motorcyclists. They allowed posters soliciting entrants to be displayed in the bars. The tokens were dropped off at an earlier date, and the Bars played a part in dispensing them to participants. Some of the Bars engaged extra help that day to assist in serving alcohol and food. All of the Bars served alcohol to the riders that day.

[¶38] As noted above, duty may be imposed by common law, dependent upon whether an injury is foreseeable. Foreseeability must be analyzed in light of all the circumstances, and depends on the facts in each individual ease. Small v. McKennan Hosp., 437 N.W.2d 194, 199 (S.D.1989). It takes no extraordinary foresight to envision the potentially deadly effects of combining alcohol and motorcycles; nor does it take an extraordinary amount of research to find a reported case of a fatality on a poker run. See Glazier v. State, 843 P.2d 1200 (Wyo.1992) (upholding motorcyclist’s conviction for aggravated vehicular homicide for death occurring during poker run). 8

[¶ 39] There are genuine issues of material fact whether Borgheiinek was under the influence of alcohol. Tests conducted on Bor-gheiinck at the scene revealed a blood alcohol content (BAC) of 0.069, an amount which legally does not give rise to any presumption whether he was or was not under the influence of alcohol. See SDCL 32-23-7(2) (providing that amount is a fact which may be *673 considered with other evidence in determining the guilt or innocence of one prosecuted for “driving while under the influence”). Kiousis’ BAC was 0.106, an amount which gives rise to a presumption that the individual was under the influence of intoxicating liquor. Id. at subdivision (3). Both Borghei-inck and Kiousis were observed drinking wine coolers at Beresford, the stop immediately preceding the crash.

[¶ 40] The comment accompanying the State Health Laboratory report states, with respect to the test conducted on Borgheiinck: “ALCOHOL RESULT COULD BE AS MUCH AS 15% HIGH DUE TO LOW SAMPLE VOLUME LESS THAN 1 ML.” 9 This comment is apparently subject to an interpretation different from the seemingly literal translation. Corporal Kevin Grebin of the South Dakota Highway Patrol, an investigator in this case, interpreted the comment to mean the BAC “could have been as high as a .15.” The analyst who made the comment was not questioned in the record, and Grebin was the only witness to testify regarding the BAC tests. “If reasonable persons, upon examining the evidence, might reach different conclusions, a motion for summary judgment should be denied and the case tried on the merits.” Limpert v. Bail, 447 N.W.2d 48, 50 (S.D.1989) (citation omitted).

[¶41] The only person who testified regarding Borgheiinck’s alcohol consumption that day was his close Mend, Harry Lock-hart. He stated Borgheiinck was not “a big drinker,” but he also testified he saw him drinking an alcoholic beverage right before the crash. Lockhart may not be the most rehable source, in light of his admission to at least a beer at every stop: “I probably had more than anybody else[.]”

[¶ 42] The Bars argue that no evidence was presented to prove Borgheiinck was “obviously intoxicated.” “Summary judgment is also improper where defendant’s defenses involve questions of fact.” Id. Even if he was not “obviously intoxicated” (an unresolved issue), that would not eliminate questions surrounding the detrimental effect any amount of alcohol had upon his operation of his motorcycle. Nor would it eliminate questions regarding the culpability of promoting participation of an event sure to combine alcohol with motorcycle operation. The Bars did not offer any evidence that he acquired or consumed alcohol anywhere else that day. In this sense, they failed to show that there were no genuine issues of material fact entitling them to summary judgment. Thiewes, 448 N.W.2d at 2. The unanswered questions regarding the source and the amount of alcohol imbibed by Borgheiinck present genuine issues of material fact to be resolved by the trier of fact.

[¶43] Wildeboers offered the affidavit of Rick Kiley, program director of motorcycle rider education with the South Dakota Safety Council. Kiley provides statistics, compiled by The Motorcycle Safety Foundation, which report that almost 50% of riders killed in motorcycle accidents had been drinking. Of those killed, only about one-third were legally impaired, while the other two-thirds had consumed less than enough to put them legally “under the influence.” Kiley attributes the high number of “low-impaired” motorcycle fatalities to the difference between operating an automobile and operating a motorcycle:

Operating a motorcycle differs greatly from operating an automobile. The most critical differences between operating a motorcycle and operating an automobile are stability and vulnerability. Given the greater instability experienced in operating a motorcycle, the consumption of a small amount of alcohol impairs the rider’s ability to operate a motorcycle safely. Consequently, it requires significantly less quantities of alcohol to effectively impair motorcycle riding skills than to impair the skills necessary to safely drive an automobile.

[¶ 44] There are simply too many unanswered questions of material fact, including the amount and the effect of the alcohol consumed, the speed of the vehicles, causation, and foreseeability. Therefore, the suit against the Bars should not have been disposed of by summary judgment and we *674 should reverse and remand this issue to resolve these genuine issues of material fact. 10 Therefore, this writing constitutes my dissent in relation to Issue 2, the Bars.

. Compare SDCL 35-11-1 ("[C]onsumption of alcoholic beverages, rather than the serving of alcoholic beverages, is the proximate cause of any injury inflicted upon another by an intoxicated person and SDCL 35-4-78 (classifying as a misdemeanor the sale of alcoholic beverages to an obviously intoxicated person, yet attempting to shield a licensee-violator from civil liability) with Baatz v. Arrow Bar, 426 N.W.2d 298, 303 (S.D.1988) (construing the two statutes and stating that "the task of determining proximate cause (and civil liability for wrongdoing) belongs to the courts, not the legislature” and "[t]o say that civil liability for such wrongdoing shall rest solely with the consumer, to the exclusion of all other wrongdoers, is questionable in fact and in theory. In fact, the words of the amendment [to SDCL 35-4 — 78] acknowledge serving of alcoholic beverages as a cause of injuries contrary to the legislative finding in SDCL 35-11-1”).

In addition, even when providing private landowners, the State, and its political subdivisions broad based immunity for ordinary negligence under the Recreational Use Statutes, the South Dakota Legislature excepts out violations of county or municipal ordinances or state law which violation is a proximate cause of the injury. See SDCL 20-9-16 (landowner); 20-9-22 (political subdivision) (Supp.1996); 20-9-27 (State) (Supp.1996).

. In Glazier , a passenger on a motorcycle was killed shortly after the second stop of a poker run. She and the driver spent approximately 45 minutes at each of the first two bars, drinking alcohol at both stops. Neither wore a helmet, and she died of severe head injuries. The defendant driver, whose blood alcohol concentration was .17 at the scene of the accident, survived with severe injuries.

. The sample volume was low due to the difficulty of drawing blood from Borgheiinck’s severely burned body.

. As stated above in note 3, Wildeboers argue that the defendants be held jointly liable under a "market enterprise” theory. This issue is not addressed in their complaint or amended complaint, and the trial court did not mention this theory in the order granting summary judgment. We were not provided with a transcript of the hearing, so we do not know if it was presented at that time.

They also argue the adoption of a new cause of action, "aiding and abetting the commission of a tort.” They rely upon the Restatement (Second) of Torts § 876, which provides the general rules for attributing liability to one who gives “substantial assistance or encouragement” to another when the other's conduct is known to constitute a breach of duty. Recognition of a new tort is not necessary to simply instruct the jury in accordance with the guidance of § 876. The concept of joint liability is already established. See, e.g., State v. Two Bulls, 1996 SD 53, ¶ 13 , 547 N.W.2d 764, 766 ("Tort law has long recognized that the negligence of two or more individuals may combine to cause injuries to another and that each may be held legally responsible for the resulting injuries.”) (citations omitted); SDCL 15-8-11 (defining the term “joint tort-feasor”). The comments to § 876 suggest that the determination of liability is made by applying the same factors used in determining the existence of legal causation when there has been negligence or recklessness. The Restatements are simply secondary authority which "tell what the law in a general area is.” Black’s Law Dictionary 1313 (6th ed. 1990); see also J. Myron Jacobstein & Roy M. Mersky, Fundamentals of Legal Research 365 (5th ed. 1990) (stating that the goal of the American Law Institute in publishing the Restatements was to "produce a clear and precise restatement of the existing common law”) (emphasis added). This court frequently consults and employs the Restatements. See, e.g., Petersen v. Dacy, 1996 SD 72 , 550 N.W.2d 91 ; Mack v. Kranz Farms, Inc., 1996 SD 63 , 548 N.W.2d 812 ; Gregory’s, Inc. v. Haan, 1996 SD 35 , 545 N.W.2d 488 ; Wallahan v. Black Hills Elec. Coop., Inc., 523 N.W.2d 417 (S.D.1994).