Ohio Casualty Insurance Co. v. Todd , 813 P.2d 508 ( 1991 )

ORDER

Petition for rehearing filed in this cause is granted and this court’s opinion promulgated herein on November 13, 1990 and reported at 61 OBJ 3016 is withdrawn and replaced by the opinion filed this date.

OPALA, C.J., HODGES, V.C.J., and SIMMS, DOOLIN, HARGRAVE and SUMMERS, JJ., concur. LAVENDER and KAUGER, JJ., concur in part, dissent in part. ALMA WILSON, J., dissents.

SUMMERS, Justice:

The question certified for our resolution calls upon us to decide whether Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300 (Okla.1986), should be extended to create a common law cause of action against a tavern owner for an adult who voluntarily becomes intoxicated and is injured as a result of his own inability to drive a vehicle properly. We decline to extend Brigance to this situation, following the reasoning used by a majority of jurisdictions.

Pursuant to 20 O.S.1981, § 1601 et seq., the Uniform Certification of Questions of Law Act, the Honorable Fred Daugherty, District Judge for the United Stated District Court of the Western District of Oklahoma, certified the question to this Court as follows:

Does an intoxicated driver have a cause of action under Oklahoma law against a tavern owner if the intoxicated driver, after being served alcohol by the tavern owner or employee who knew or should have known that the driver was intoxicated, is involved in an automobile accident in which only the intoxicated driver himself is injured?

I. FACTS

On November 6, 1986, Rick Robertson was injured in a one-car accident after having been served alcohol in Todd’s Tavern. Ohio Casualty Insurance Company instituted this action in federal court, asking for a declaratory judgment as to its duty to defend and indemnify Todd for any lawsuits resulting from this occurrence.

Robertson filed a cross-claim against Todd, alleging that the employees of Todd’s Tavern served him alcoholic beverages when he was noticeably intoxicated in violation of 37 O.S.1981, § 537, and that for this reason Todd is.liable for his injuries. Todd moved to dismiss the cross-claim under Federal Rule 12(b)(6) because Oklahoma has not recognized such a cause of action. Thus the question has been certified here.

II. THE HOLDING OF BRIGANCE v. VELVET DOVE RESTAURANT INC.

All agree that the pertinent case is Brigance v. Velvet Dove Restaurant Inc., 725 P.2d 300 (Okla.1986). Robertson urges that Brigance should be extended to cover the situation at bar. Todd, however, asserts that Brigance creates a cause of action for innocent third parties, and should not be stretched to include a situation wherein the inebriate sues for his own injuries.

In Brigance we recognized for the first time a common law “dram shop” action; a third party who was injured in an intoxicated driver’s auto accident may now state a cause of action against the restaurant that served liquor to the driver. At common law, such an action was not possible. This rule of non-liability was based primarily on concept of proximate cause — that the consumption of the alcohol rather than its sale was the cause of the injury. In changing the common law rule and creating this cause of action, we acknowledged that legal duty and liability are matters of public policy and are therefore subject to the changing attitudes and needs of society. Id. at 303. We pointed out that protection must be afforded to the innocent bystander:

With today’s car of steel and speed it becomes a lethal weapon in the hands of a drunken imbiber. The frequency of accidents involving drunk drivers are commonplace. Its affliction of bodily injury to an unsuspecting public is also of common knowledge. Id. at 304. (Emphasis Added)

The creation of this cause of action, therein limited to third parties, served to protect the innocent by allowing liability to be placed not only on the intoxicated drivers but concurrently on those parties who continued to serve alcohol to their customers already noticeably intoxicated. Id. at 305.

Left open by Brigance was the question of whether the consumer-inebriate would have a cause of action against the vendor for on-premises consumption. Again, the question remained unanswered in McClelland v. Post No., 1201, VFW, 770 P.2d 569 (Okla.1989), wherein we determined that Brigance applied only to those events occurring after October 3, 1986. We are now called upon to address this question.

III. NEGLIGENCE AND THE DUTY OF THE TAVERN OWNER

The elements of negligence are “(1) the existence of a duty on part of defendant to protect plaintiff from injury; (2) a violation of that duty; and (3) injury proximately resulting therefrom.” Brigance, 725 P.2d at 302, quoting Sloan v. Owen, 579 P.2d 812, 814 (Okla.1977). All three of these elements must exist before the plaintiff has a valid cause of action. Robertson, relying on 37 O.S.Supp.1985 § 537(A)(2), urges that a duty exists on the part of a tavern keeper to refrain from serving alcoholic beverages to an adult customer who is noticeably intoxicated. Section 537(A)(2) states in relevant part that no person shall “[s]ell, deliver or knowingly furnish alcoholic beverages to an intoxicated person.”

A. NEGLIGENCE PER SE

Robertson urges that Todd violated Section 537(A)(2) and that the violation amounted to negligence per se. In Hampton v. Hammons, 743 P.2d 1053, 1056 (Okla.1987), we explained the elements which must be found before the violation of a statute is negligence per se. Relying on Boyles v. Oklahoma Natural Gas Co., 619 P.2d 613, 618 (Okla.1980), we pointed out that (1) the injury must have been caused by the violation, (2) the injury must be of a type intended to be prevented by the ordinance, and (3) the injured party must be one of the class intended to be protected by the statute.

Because we find the third element to be missing, we do not address the first two. In Brigance, we stated that the purpose behind Section 537(A)(2) was to protect innocent third parties who were injured by intoxicated persons. In Cuevas v. Royal D’Iberville Hotel, 498 So.2d 346, 348 (Miss.1986), the Mississippi Supreme Court construed a statute similar to Section 537(A)(2), and found that the intoxicated person was excluded from the class of persons meant to be protected by the statute. In making this determination, the court pointed out the class to be protected was the general public, and that this class, while broad in range, could not be said to include “an adult individual ... who voluntarily consumes intoxicants and then, by reason of his inebriated condition, injures himself.” Id. We agree.

We find nothing in Section 537(A)(2), or in any of the statutes regulating the sale of alcohol, which indicate that the legislature intended to protect the intoxicated adult who, by his own actions, causes injury to himself.¹ Instead, it appears that the legislature intended to protect the “unsuspecting public” — in effect all of the populace except the willing imbiber. Brigance, at 304. See also Bertelmann v. Taas Assoc., 69 Haw. 95, 735 P.2d 930, 934 (1987). Thus, a violation of Section 537(A)(2) does not amount to negligence per se under the facts of this case.

B. THE DUTY OF THE TAVERN OWNER

Next is the question of whether a tavern owner has a common law duty to an intoxicated adult customer who injures himself. Because we find that the duty of the tavern owner does not extend to an adult customer who voluntarily consumes intoxicants and is injured, we need not address the question of proximate cause.²

Traditionally, no duty to the inebriated customer could be enforced for want of a recognized causal link. Great Central Ins. Co. v. Tobias, 37 Ohio St.3d 127, 524 N.E.2d 168, 171 (1988). In Brigance, however, we recognized that the concept of duty is one of public policy and is “subject to the changing attitudes and needs of society.” Id. at 303. Because accidents involving drunk drivers have become commonplace, we held:

"[W]e find the commercial vendor for on the premises consumption is under a duty, imposed both by statute and common law principles, to exercise reasonable care in selling or furnishing liquor to persons who by previous intoxication may lack full capacity of self-control to operate a motor vehicle and who may subsequently injure a third party.”

We must now decide whether public concerns and changing attitudes require this duty to be extended to the inebriated customer.

Several states have considered the question. See Annot., 98 A.L.R.3d 1230 (1980). A majority of them have refused to create a cause of action for an adult who voluntarily drinks to the point of intoxication and is thereby injured.³ These jurisdictions have generally concluded that as a matter of public policy drunken persons who harm themselves are responsible for their condition, and should not prevail either under a common law or statutory basis. Bertelmann, 735 P.2d at 933; see also Wright v. Moffitt, 437 A.2d 554, 557 (Del.1981). Focusing on the “duty” concept, these courts hold the view that no duty should be imposed “upon the tavernkeeper, and protection should not be extended, because the adult voluntarily created the vulnerability that is the problem.” Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310, 1313 (Ct.App. 1986).

“To allow recovery in favor of one who has voluntarily procured a quantity of liquor for his or her own consumption with full knowledge of its possible or probable results ‘would savor too much of allowing ... [the] person to benefit by his or her own wrongful act.’ ” [Allen v. County of Westchester, 109 A.D.2d 475, 492 N.Y.S.2d 772, 776 (N.Y.1985)] ... We cannot allow such a result. Id.

If this Court were to create a cause of action against the tavern owner, the inebriate could be rewarded for his own immo-deration. Such was not the intent of Bri-gance, nor will we allow such a reward. Rather, we concur in the view enunciated in Kindt v. Kauffman, 57 Cal.App.3d 845, 129 Cal.Rptr. 603, 610 (1976):

The inestimable gift of reason and self-control cries out for preservation in every person, and the duty of its preservation devolves upon each member of the public. When the restraint of reason and the ability to care for one’s self are perverted by a conscious, self-indulgent act of voluntary intoxication which temporarily casts off those powers, no societal or personal wrong, nor violation of public or social policy is accomplished or violated if the actor is alone held answerable for his injury_ Governmental pater-alism protecting people from their own conscious folly fosters individual irresponsibility and is normally to be discouraged.... To go yet another step and allow monetary recovery to one who knowingly becomes intoxicated and thereby injures himself is in our view morally indefensible.

The opinion concurring in part and dissenting in part argues that the creation of a new cause of action would be consistent with Brigance. In so urging, it is claimed that no logical reason exists for distinguishing between the intoxicated passenger and the intoxicated driver. We disagree. The difference is obvious and dis-positive. One individual got behind the steering wheel of an automobile and drove it in a drunken condition; the other one didn’t. Societal considerations aimed at deterring drunken driving forbid the driver’s recovery of damages; no such policy need preclude a non-driver’s claim.

In no other situation called to our attention does the law so excuse one’s failure to act responsibly. A defendant in a criminal trial, for example, is held accountable for his criminal behavior committed while in a state of voluntary intoxication. Grayson v. State, 687 P.2d 747 (Okla.Crim.App. 1984); 21 O.S.1981 § 153. A worker’s injury resulting directly from the intoxication of the injured employee while on duty is not compensable under Workers’ Compensation law. 22 O.S.1981 § 11.

Then there are the practical consequences of recognizing such suits. “Pause, if you will and contemplate the vast number of claims that may be urged by drunks, if they were entitled to every expense and injury that are natural concomitants of their intoxication.” Sager v. McClenden, 296 Or. 33, 672 P.2d 697, 701 (1983). In a world where alcohol is readily available for consumption by adults the ultimate accountability should rest on the adult consumer, absent unusual circumstances or injury to an innocent third party. A court that creates, as in Brigance, a cause of action based on public policy has a burden to responsibly chart the boundaries beyond which the new cause of action does not serve the public, and should not be the law. By that standard we see no public policy that would demand extension of the traditional tort law.

Here, the question is simply whether the intoxicated adult must bear the responsibility for his own injury which occurred due to his voluntary consumption of an excessive amount of alcohol. In the absence of harm to a third party, the act of serving an alcoholic beverage to an intoxicated adult customer and allowing the customer to exit the establishment does not constitute a breach of duty which is actionable in common law negligence. The public policy of protecting the innocent from the intoxicated would not be furthered by such an extension of Brigance. This holding does not ignore the conduct of the tavern owner, as the opinion concurring in part and dissenting in part fears. If a third party is injured, the rule of Brigance provides a cause of action against the tavern owner as well as the driver. Furthermore, the tavern owner who disregards the condition of his customers does so at the risk of criminal prosecution as well as forfeiture of his liquor license.

Accordingly, under the facts as presented to us we find that the tavern owner has no liability to the intoxicated adult who voluntarily consumes alcoholic beverages to excess and sustains injuries as a result of his intoxication. The question certified to us by Judge Daugherty must be answered in the negative. CERTIFIED QUESTION ANSWERED.

OPALA, C.J., HODGES, Y.C.J., and SIMMS, DOOLIN and HARGRAVE, JJ., concur.

LAVENDER and KAUGER, JJ., concur in part, dissent in part.

ALMA WILSON, J., dissents.

1 . The dissenting opinion urges that the Oklahoma Constitution, Art. 28 § 5 shows an intent to provide a cause of action against the tavernowner. Art. 28 provides the constitutional underpinnings for the regulation of the alcoholic beverage industry in Oklahoma. Section 5 criminalizes its sale by licensees to minors, the insane, and the intoxicated. Nowhere therein do we perceive any design to alter the common law so as to provide a civil remedy in tort for the adult imbiber against his barkeeper.

2 . Brigance required us to reconsider the common law concepts of causation which had theretofore precluded recovery. We held that there was no distinction between "voluntary consumption of alcoholic beverages and the sale of beverages_” Id. at 305.

3 . Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629, 543 N.Y.S.2d 18, 541 N.E.2d 18 (1989); Gregor v. Constitution State Ins., 534 So.2d 1340 (La.Ct.App.1988); Coudriet v. South-land Corp., 198 Cal.App.3d 849, 244 Cal.Rptr. 69 (1988) (cause of action barred by willful and wanton conduct of intoxicated minor); Great Central Ins. v. Tobias, 37 Ohio St.3d 127, 524 N.E.2d 168 (1988); Jackson v. PKM Corp., 430 Mich. 262, 422 N.W.2d 657 (1988); Davis v. Stinson, 508 N.E.2d 65 (Ind.Ct.App.1987); Ber-telmann v. Taas Assoc., 69 Haw. 95, 735 P.2d 930 (1987); Martin v. Palazzolo Produce Co., 146 Ill.App.3d 1084, 100 Ill.Dec. 703, 497 N.E.2d 881 (1986); Cuevas v. Royal D’Iberville Hotel, 498 So.2d 346 (Miss.1986); Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310 (Ct.App.1986); Langle v. Kurkul, 146 Vt. 513, 510 A.2d 1301 (1986); Riverside Enter., Inc. v. Rahn, 171 Ga.App. 674, 320 S.E.2d 595 (1984); Sager v. McClenden, 296 Or. 33, 672 P.2d 697 (1983); Fisher v. O'Con-nor’s, Inc., 53 Md.App. 338, 452 A.2d 1313 (1982); Wright v. Moffitt, 437 A.2d 554 (Del. 1981); Webb v. Regua Ltd. Partnership, 624 F.Supp. 471 (E.D.Va.1985) (applying Virginia law).

Only a small minority of jurisdictions have extended the liability of the seller of the intoxicants to allow a cause of action in favor of the intoxicated adult. McDonald v. Marriott Corp., 388 Pa.Super. 121, 564 A.2d 1296 (1989); Lyons v. Nasby, 770 P.2d 1250 (Colo.1989); Sommerness v. Quadna Resort Serv., 416 N.W.2d 178 (1987); Boehn v. Kish, 201 Conn. 385, 517 A.2d 624 (1986) (allows a cause of action only for reckless and wanton conduct by the tavern owner); Jevning v. Skyline Bar, 223 Mont. 422, 726 P.2d 326 (1986); Klingerman v. SOL Corp., 505 A.2d 474 (Me. 1986); Christiansen v. Campbell, 285 S.C. 164, 328 S.E.2d 351 (Ct.App.1985).