Gilger v. Hernandez , 387 Utah Adv. Rep. 65 ( 2000 )

DURHAM, Associate Chief Justice,

dissenting:

1Í25 I respectfully dissent. Although I agree that the Dramshop Act, Utah Code Ann. §§ 32A-14-101 to -102 (1999), does not apply to social hosts serving beer to minors as long as such beer is not provided at a location allowing consumption on the premises, I do not agree with the majority’s preemption analysis for much the same reasons set out in my dissent in Red Flame, Inc. v. Martinez, 2000 UT 22, 996 P.2d 540 (Durham, J., dissenting).

¶ 26 In four simultaneously decided cases, including the instant case, this court has been presented with an opportunity to construct a coherent body of jurisprudence concerning the Dramshop Act. See Red Flame, 2000 UT 22, 996 P.2d 540; Mackay v. 7-Eleven Sales Corp., 2000 UT 15, 995 P.2d 1233; Adkins v. Uncle Bart’s Inc., 2000 UT 14. Numerous issues have been raised and decided in these cases, but I address here only the following four core questions regarding the Dramshop Act:

1. Is there, or should there be, a third-party common law cause of action against commercial vendors who provide alcohol? See Adkins, ¶¶ 13-18; Mackay, ¶¶ 7-13.

2. Is there, or should there be, a third-party common law cause of action against social hosts who provide alcohol? See Maj. Op., ¶ 8.

3. Provided there is a third-party common law cause of action against either commercial vendors or social hosts, does the Dramshop Act preempt such causes of action? See Maj. Op., ¶¶ 5-13.

4. Do the comparative fault principles of the Liability Reform Act, Utah Code Ann. §§ 78-27-37 to -43 (1996 & Supp. 1999), apply to causes of action brought under the Dramshop Act? See Red Flame, ¶ 9.

Because of the simultaneous issuance of the opinions in these four cases, and their partial overlap, I offer a summary of the court’s responses to these questions and my position thereon.

I. THIRD-PARTY COMMON LAW CAUSE OF ACTION AGAINST COMMERCIAL VENDORS

¶ 27 The question of whether a third-party common law cause of action against commercial vendors of alcohol exists was addressed in Adkins. See Adkins, ¶¶ 13-18. There, the majority concluded that such cause of action did not exist. See id. at ¶ 18. However, as delineated in my dissenting opinion, I do not agree because I believe two cases decided before the legislature enacted the Dramshop Act indicate that a third-party common law cause of action against commercial vendors may exist. See id. at ¶¶ 49-54 (Durham, J., dissenting). Specifically, in Rees v. Albertson’s, Inc., this court reversed a trial court’s grant of summary judgment denying an intoxicated minor’s contribution claim against the defendant Albertson’s who was alleged to have illegally sold alcohol to the minor. See Rees, 587 P.2d 130, 133 (Utah 1978). Moreover, in Yost v. State, this court affirmed an allocation of liability running from the liquor provider to a third party injured by an intoxicated minor, subject to a reduction for the plaintiffs own liability. See Yost, 640 P.2d 1044, 1048 (Utah 1981). Although neither ruling explicitly recognized a third-party common law cause of action against commercial vendors, neither ruling could stand unless the illegal provision of alcohol by commercial vendors could give rise to a claim of liability by third parties. Stated differently, a defendant cannot be required to contribute, as suggested in Rees, or assigned liability, as recognized in Yost, unless the defendant is liable in the first place to the injured third party. Therefore, these cases strongly imply that a third-party common law cause of action against commercial vendors of alcohol exists, and this court recognized this fact in Mackay where it allowed a third-party cause of action against 7-Eleven to proceed. See Mackay, ¶¶ 9,12-13.

II. THIRD-PARTY COMMON LAW CAUSE OF ACTION AGAINST SOCIAL HOSTS

¶ 28 Before the instant case, this court has never had the opportunity to decide whether there is or should be a third-party common law cause of action against social hosts who provide alcohol to persons who injure a third party. Unfortunately, even though presented with such an opportunity in the instant case, the majority declines to undertake the analysis and decides that, even if such a cause of action exists, it is preempted by the Dramshop Act. See Maj. Op., ¶ 8. As I indicated in my dissent in Adkins, I do not believe there is any indication in the Dram-shop Act that it was intended to be a comprehensive ordering of all the liability questions arising from the provision of alcohol and resulting injuries. See Adkins, ¶ 56 (Durham, J., dissenting). I believe it was a discrete, free-standing attempt to achieve some very specific goals, see Red Flame, ¶ 16 (Durham, J., dissenting), and not an effort to preempt the judicial development of the common law in this arena. Therefore, I believe the majority’s preemption conclusion is wrong, and that this court should engage in an independent analysis of whether such a common law cause of action “ought, as a matter of policy and law development, to coexist in the era ushered in by our Dramshop Act.” Adkins, ¶ 56 (Durham, J., dissenting).¹ Such an analysis would of course have to include close consideration of the important policy differences between imposing dram-shop liability on commercial vendors and imposing such liability on social hosts, and I take no position today on what the results of such an analysis would be.

III. PREEMPTION BY DRAMSHOP ACT

¶ 29 As mentioned previously, the majority concludes in the instant case that the Dram-shop Act preempts a third-party common law cause of action against social hosts. See Maj. Op., ¶¶ 12-13. In reaching its conclusion, the majority notes that social hosts who provide beer are not regulated by the Dramshop Act, as long as they do not serve the beer at a location allowing consumption on the premises, and states that the Dramshop Act “evidences an overall scheme of regulation of liability for liquor providers.” See Maj. Op., ¶ 12. In combination, these statements suggest that, unless the Dramshop Act provides a statutory cause of action to an injured third party, such party is without recourse because the comprehensive nature of the Dramshop Act preempts all third-party common law causes of action against alcohol providers. I cannot agree. As I stated in Red Flame, the Dramshop Act focuses on the limited goals of punishment and regulation, and secondarily, compensation. See Red Flame, ¶¶ 16-17 (Durham, J., dissenting). To achieve these specific goals, the Dramshop Act provides limited statutory remedies to third parties injured by intoxicated persons who purchased or received alcohol from the defendant. - In light of these limited goals and narrow statutory remedies, it seems unlikely that the legislature intended the Dramshop Act to provide the sole remedy against alcohol providers for third parties injured by intoxicated persons receiving alcohol from the provider.

¶30 This conclusion is bolstered by the fact that if the majority’s conclusion that there can be no cause of action against an alcohol provider unless provided for by the Dramshop Act is applied to the present version of the Dramshop Act, injured third parties would have no recourse against general food stores selling beer at retail for off-premise consumption, who are specifically excluded from the Dramshop Act’s coverage. See Utah Code Ann. § 32A-14-101(10) (1999); Stephens v. Bonneville Travel, Inc., 935 P.2d 518, 522-23 (Utah 1997) (Zimmerman, C.J., concurring) (criticizing exclusion from Dramshop Act of profiting sellers of beer not consumed on premises). Exempting such major providers of alcohol from any type of liability is entirely inconsistent with the public policy of this state to ensure that alcohol providers responsibly provide alcohol to their customers. It reflects a serious gap in the so-called “comprehensive nature” of the Dramshop Act, one which the courts could and should address as a matter of common law. Morever, this result directly contradicts this court’s holding in Mackay permitting a third-party common law cause of action to proceed against 7-Eleven, a store selling beer for off-premise consumption. See Mackay, ¶¶ 12-13.

IV. APPLICATION OF LIABILITY REFORM ACT TO DRAMSHOP ACT

¶ 31 In Red Flame, the majority ultimately concluded that the comparative fault principles of the Liability Reform Act apply to Dramshop Act cases. See Red Flame, ¶ 9. Again, I did not join the majority. Briefly summarized, I concluded in Red Flame that, because the Dramshop Act does not seek to accomplish the same purposes that the Liability Reform Act does, “no cause of action for contribution or indemnity should lie on behalf of a dramshop against an intoxicated person who causes injuries for which the dramshop is liable under the Dramshop Act.” Id. at ¶ 15 (Durham, J., dissenting). As further evidence that the Liability Reform Act’s comparative fault principles do not apply to the Dramshop Act, I noted that such application would severely undermine the penal and regulatory goals of the Dramshop Act, a result the legislature could not have intended when it enacted the Liability Reform Act. See id. at ¶ 18 (Durham, J., dissenting).

V. CONCLUSION

¶ 32 With respect to the instant case, I do not agree that the Dramshop Act preempts third-party common law causes of action against social hosts who provide alcohol to persons who injure the third party, and I would undertake the necessary common law analysis. Moreover, for the sake of clarity, I have reiterated my conclusions in Adkins that a third-party common law cause of action exists against commercial vendors of alcohol, and in Red Flame that the comparative fault principles of the Liability Reform Act should not apply to Dramshop Act cases.

1 . The majority opinion seems to say (in footnote 5) that my view presumes to tell the legislature what it "should” do about liability in this arena. I hope it is clear from this opinion that I address only this court's common law responsibility. Because I reject the majority's view of preemption, I have mentioned policy considerations that I believe belong still within the judicial common law development sphere. I, of course, agree that "what the legislature 'should' do is not the question.” Maj. Op., fn. 5.