F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
September 15, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JOHN M ILLER and JOAN M ILLER,
Plaintiffs - Appellants,
v. No. 05-4283
U N ITED STA TES O F A M ER ICA,
Defendant - Appellee.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF UTAH
(D . C t. No. 1:02-CV-37-TC)
Submitted on the Briefs: *
Edward P. M oriarity and Shandor S. Badaruddin, M oriarity, Badaruddin, &
Booke, LLC, M issoula, M ontana, for Appellants.
Stephen J. Sorenson, Acting United States Attorney, and Jeffrey E. Nelson,
Assistant United States Attorney, Office of the United States Attorney for the
District of Utah, Salt Lake City, Utah, for Appellee.
Before TA CH A, Chief Circuit Judge, HA RTZ, and TYM KOVICH, Circuit
Judges.
*
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
TA CH A, Chief Circuit Judge.
Plaintiffs-Appellants John and Joan M iller seek relief under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–2680, for injuries
resulting from a car accident that occurred in the State of Utah. The District
Court dismissed the action under Fed. R. Civ. P. 12(b)(6). W e take jurisdiction
under 28 U.S.C. § 1291 and AFFIRM .
I. BACKGROUND
John and Joan M iller were injured in a car accident caused by Arthur Valle,
an employee of the United States Air Force, who had been drinking at the Non-
Commissioned Officers’ Club at Hill Air Force Base prior to the accident. The
M illers assert that the Government is liable for damages under the FTCA for
negligently serving alcohol to M r. Valle in violation of Utah’s D ramshop Act,
Utah Code Ann. § 32A-14a-102. The Government moved to dismiss the action,
arguing that the Dramshop Act is a strict liability statute and therefore not within
the scope of the FTCA’s immunity waiver.
The District Court sua sponte certified the following question to the Utah
Supreme Court: “W hether a federal government em ployee, who ordinarily would
be immune from suit in cases of strict liability, may be liable under U tah’s
Dramshop Act if the Plaintiffs establish negligence.” M iller v. United States, 104
P.3d 1202, 1203 (Utah 2004). W ithout treading on the embedded federal
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question, the Utah Supreme Court held that Utah’s Dramshop Act is a strict
liability statute, see id., and that Utah does not recognize a common law
negligence claim for the commercial sale of liquor to an intoxicated person, see
id. at 1204. W ith respect to the latter point, the court explained that “the general
rule instructs that when a third party is injured by an intoxicated person, it is the
consumption of the alcohol, not the furnishing of it, which proximately causes the
injury.” Id.
Based on the foregoing, the D istrict Court granted the G overnment’s
motion to dismiss for failure to state a claim upon which relief may be granted.
See Fed. R. Civ. P. 12(b)(6). The M illers timely appealed.
II. D ISC USSIO N
A. Standard of Review
W e review de novo the district court’s grant of a m otion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6), applying the same standards as the district
court. M oore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006).
B. The Scope of the Federal Tort Claims Act Immunity W aiver
It is well-settled that no action lies against the U nited States unless
Congress has authorized it. Dalehite v. United States, 346 U.S. 15, 30 (1953).
The FTCA, enacted in 1946 after nearly thirty years of Congressional
consideration, see id. at 24, is one such waiver of immunity. It permits
individuals to sue the Government “for injury or loss of property, or personal
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injury or death caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the
act or omission occurred.” 28 U.S.C. § 1346(b)(1). This unequivocal waiver of
immunity must be construed narrowly and the “limitations and conditions upon
which the Government consents to be sued must be strictly observed and
exceptions thereto are not to be implied.” In re Franklin Savings Corp., 385 F.3d
1279, 1289–90 (10th Cir. 2004) (quoting Lehman v. Nakshian, 453 U.S. 156,
160–161 (1981)).
W e have previously explained that “[u]nder the FTCA, the Government is
liable ‘in the same manner and to the same extent as a private individual under
like circumstances,’ 28 U.S.C. § 2674, and ‘in accordance with the law of the
place where the act . . . occurred.’ [28 U.S.C.] § 1346(b)(1).” Cannon v. United
States, 338 F.3d 1183, 1192 (10th Cir. 2003). In other words, we look to state
law to resolve questions of substantive liability. Id.
The M iller’s complaint alleges negligent conduct on the part of the
Government. Utah, however, does not recognize a common law action in
negligence against persons who provide alcohol to intoxicated persons. M iller,
104 P.3d at 1204. The exclusive route of recovery against a distributor of alcohol
is via Utah’s Dramshop Act, Utah Code Ann. § 32A-14a-102. Under the act, a
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person who furnishes an alcoholic beverage to an individual whom he or she
“knew or should have known from the circumstances was under the influence of
intoxicating alcoholic beverages” becomes liable to third parties for injuries and
damages. Utah C ode A nn. § 32A-14a-102(1)(a), (b). Passed in 1981, the act’s
purpose was to “abrogate the common law rule precluding the liability of a party
who sells or otherwise provides alcohol to a person who is intoxicated and injures
another” and “to compensate innocent third parties by making dramshop owners
strictly liable without regard to the finding of fault, wrongful intent, or negligent
conduct on their part.” Adkins v. Uncle Bart’s, Inc., 1 P.3d 528, 532 (Utah 2000)
(quoting Reeves v. Gentile, 813 P.2d 111, 116 (U tah 1991)).
In Dalehite, the Supreme Court held that the waiver of immunity under the
FTCA, by its terms, requires a “negligent or wrongful” act, and therefore it does
not extend to liability without fault— namely, strict liability. Dalehite, 346 U.S.
at 45. Strict liability “arises irrespective of how the tortfeasor conducts
himself”— that is, “the degree of care used in performing the activity is irrelevant
to the application of that doctrine.” Id. at 44–45. Because the Dramshop Act is
the exclusive vehicle for bringing claims such as the M illers’, the fact that the
statute is one of strict liability would appear to settle this matter. See Gober v.
United States, 778 F.2d 1552, 1556–57 (11th Cir. 1986) (holding that when a
plaintiff need not prove the defendant’s negligence, or negligence is imputed to
the defendant under a strict liability statute, such suit is not cognizable under 28
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U.S.C. § 1346(b)). The M illers contend, however, that despite the Utah Supreme
Court’s characterization of the Dramshop Act as a strict liability statute, the act in
reality imposes liability only upon a finding of fault and therefore FTCA does not
preclude their suit.
As support for their contention that the Dramshop Act is a fault-based
statute, the M illers point to the fact that liability under the Act is subject to
Utah’s comparative fault statute. See Red Flame, Inc. v. M artinez, 996 P.2d 540,
543 (2000); Utah Code Ann. § 78-27-38. Specifically, in U tah liability is
apportioned according to the degree of “fault,” see Utah Code Ann. § 78-27-38,
which is defined as:
any actionable breach of legal duty, act, or omission proximately
causing or contributing to injury or damages sustained by a person
seeking recovery, including negligence in all its degrees, comparative
negligence, assumption of risk, strict liability, breach of express or
implied warranty of a product, products liability, and misuse,
modification, or abuse of a product.
Utah Code Ann. § 78-27-37(2) (emphasis added). According to the M illers, since
liability is apportioned according to fault this type of liability is more aptly called
“negligence.” W e disagree.
The imposition of strict liability does not preclude application of
comparative fault where another party’s negligence also contributed to the
plaintiff’s injury. As the Utah Supreme Court has explained in the context of a
strict liability dog bite statute, see Utah Code Ann. § 18-1-1, which is also subject
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to principles of comparative fault:
[A]lthough dog owners are strictly liable for damages arising out of
injuries committed by their dogs, the percentage of those damages
which the owner must pay is determined by the comparative fault
provisions of the Liability Reform Act. The fault of another party
may have contributed to the injury and may preclude finding a dog
owner responsible for 100% of the damages arising out of such
injuries.
S.H. v. Bistryski, 923 P.2d 1376, 1380 (Utah 1996). In other words, the defendant
remains strictly liable for injuries caused by their conduct except that the
plaintiff’s damages against that defendant are reduced in proportion to other
parties’ contribution to the plaintiff’s injury. See also Uniform Comparative
Fault Act § 1 (providing for the application of comparative fault to actions based
upon strict liability). Such a rule serves the purpose of the Dramshop Act, which,
as noted above, is “to compensate innocent third parties by making dramshop
owners strictly liable without regard to the finding of fault, wrongful intent, or
negligent conduct on their part.” Adkins, 1 P.3d at 532. If another party, such as
a plaintiff, contributed to his or her injury, then Utah precludes recovery of a
proportional amount of damages against a strictly liable defendant (i.e. one held
liable without regard to fault).
In sum, because the exclusive vehicle for recovery against a dramshop in
Utah is governed by a strict liability statute under which the plaintiff need not
establish negligence, such action is not within the scope of the FTCA’s immunity
waiver.
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III. C ON CLU SIO N
For the foregoing reasons, we AFFIRM the judgment of the District Court.
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