Priest v. Black Cat, Inc.

BUCKINGHAM, Judge,

CONCURS:

I concur with the majority but desire to state my views separately. Until our Supreme Court’s opinion in the Isaacs case in 1999, Kentucky appellate courts had frequently held that juries should determine whether injuries which occurred after the consumption of alcoholic beverages was a foreseeable result of an establishment, licensed to sell alcoholic beverages, selling such beverages in violation of KRS 244.080. See Pike v. George, Grayson Frat. Order of Eagles, Aerie No. 8738, Inc., v. Claywell, Watts v. K, S & H, supra. However, with the Isaacs case, our Supreme Court, in a four-three decision, held that a nightclub’s continued sale of alcoholic beverages to an intoxicated patron who had been involved in an altercation with other customers requiring the intervention of club security and who then shot one of those customers was not, as a matter of law, a foreseeable cause of the injured patron’s injuries. Id. at 503. The Court noted that the injured person would not have been injured “but for Isaacs’ intervening act.” Id.

I think it is important to note that our Supreme Court in the Isaacs case relied on the precedent of Waller’s Adm’r. v. Collinsworth, 144 Ky. 3, 137 S.W. 766 (1911). Isaacs at 502. In Waller’s Adm’r., the Court held that an injury or death caused by a shooting was not a natural or probable consequence of an illegal sale of alcohol. Id. The Court therein noted that “[s]o many elements may enter into a homicide that it is impossible to say it is the natural result of intoxication.” Id. Clearly, the accidental drowning of a minor after the consumption of alcoholic beverages as in the case sub judice differs from the intentional act of homicide.

The Grayson case speaks of “a universal duty owed by all to all.” Id. at 330. It notes that “the rule is that every person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury.” Id. at 332. The question in statutory violation cases is *777“whether the evidence shows that the results of misconduct are reasonably foreseeable.” Grayson at 334. I believe these questions are generally best left to the common sense of juries. Undoubtedly, a court should from time-to-time step in and award a summary judgment where it was clearly unforeseeable that the violation could have led to the injury. However, my faith in the jury system leads me to believe that reasonable jurors will draw the line in an appropriate place when they decide what was reasonably foreseeable and what was not.

In the case sub judice, I concur with the majority and would leave it to the jury to determine whether it was reasonably foreseeable that the sale of alcoholic beverages to a minor, who then shared them with another minor who drowned in a pond later that evening, could lead to the tragic circumstances which resulted herein.