Murphy v. Tomada Enterprises, Inc. , 112 N.M. 800 ( 1991 )

OPINION

HARTZ, Judge.

Defendant appeals from a money judgment. Our calendar notice proposed summary affirmance. Defendant has responded with a memorandum in opposition. Not being persuaded by defendant’s arguments, we affirm.

On November 13, 1987, Louise Bennett and Nancy Murphy, plaintiff’s decedent, became intoxicated at defendant’s tavern. At approximately 11:45 p.m. they left in a vehicle driven by Bennett. Shortly thereafter Murphy was fatally injured when Bennett drove into the rear of another vehicle. At a non-jury trial the court held defendant liable for twenty-five percent of the damages to Murphy’s estate for serving Bennett alcoholic beverages after she was apparently and actually intoxicated. The court found that defendant was negligent when it continued to serve alcohol to Bennett, but that defendant did not act in reckless disregard of Murphy’s safety.

The facts in this case are similar to those in Baxter v. Noce, 107 N.M. 48, 752 P.2d 240 (1988), in which our supreme court held that the tavernkeeper could be liable for an unlawful sale of alcohol to the driver when the sale was a proximate cause of the passenger’s death, even though the passenger had himself become intoxicated at the tavern. Defendant would distinguish Baxter on the ground that the cause of action in that case predated the effective date of NMSA 1978, Section 41-11-1(B) (Repl.Pamp.1989). That provision reads:

No person who was sold or served alcoholic beverages while intoxicated shall be entitled to collect any damages or obtain any other relief against the licensee who sold or served the alcoholic beverages unless the licensee is determined to have acted with gross negligence and reckless disregard for the safety of the person who purchased or was served the alcoholic beverages.

Defendant argues that this language requires denial of plaintiff's claim, because the court found that defendant did not act in reckless disregard of Murphy’s safety.

We disagree with defendant’s construction of the statute. Implicit in the language of subsection B is that the claim for damages be predicated on the intoxication of the patron. For example, if negligence by the licensee caused a portion of the tavern’s roof to fall on the patron, the section surely would not protect the licensee against liability even if the patron had been served alcoholic beverages while intoxicated and the licensee had not acted with gross negligence or reckless disregard of the patron’s safety in serving the beverages. We do not read Section B as restricting common-law causes of action not founded on the plaintiff’s own intoxication. Baxter states, “[I]n Subsection B, the legislature recognized and imposed a duty on tavernkeepers to exercise care in serving alcohol to their patrons that did not exist at common law and was not as broadly established in Lopez [v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982).]” Id. 107 N.M. at 50, 752 P.2d at 242. As we understand Baxter, subsection B was intended to expand upon common-law liability, not restrict it. This view comports with our statement in Trujillo v. Trujillo, 104 N.M. 379, 384, 721 P.2d 1310, 1315 (Ct.App.1986), that subsection B “creates a cause of action.” We conclude that subsection B does not limit the common-law liability recognized in Baxter.

Thus, we construe subsection B as relating only to injury to a patron to the extent that it is proximately caused by the patron’s own intoxication, not by the intoxication of another patron. Accordingly, we hold that a finding that defendant acted with gross negligence and reckless disregard for Murphy’s safety was not necessary to establish liability. Liability of defendant could be predicated on defendant’s serving liquor to Bennett. We affirm.

IT IS SO ORDERED.

CHAVEZ, J., concurs. BIVINS, J., dissents and files an opinion.