No. 85-586
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
SHARON L. JEVNING, individually and
as Personal Representative of the
Estate of R.ichard L. Jevning, Deceased,
Plaintiff and Appellant,
SKYLINE BAR, Its Agents, Serva.nts and
Employees,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John F. Iwen argued, Great Falls, Montana
For Respondent :
Alexander & Raucus; J. David Slovak argued, Great
Falls, Montana
- -
Submitted: September 16, 1986
Decided: October 10, 1986
Filed: 93 i.-
1 A , if6
gj
Clerk
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the
Court.
Plaintiff Jevning appeals the order of the District
Court, Eighth Judicial District, Cascade County granting
defendant's motion for judgment on the pleadings. We vacate
and remand.
There are two issues on appeal. First, is Ch. 1, 1986
Mont. Spec. Sess. 49th Leg. as approved and adopted on April
4, 1986 retroactively applicable to Jevning's cause of action
which occurred October 15, 1983? Second, do Nehring v.
LaCounte (Mont. 1986), 712 P.2d 1329, 43 St.Rep. 93, and
Bissett v. DMI, Inc. (Mont. 1986), 717 P.2d 545, 43 St.Rep
252, provide Jevning with a cognizable cause of action?
From 11:OO p.m. to 2:00 a.m., Richard Jevning purchased
and consumed alcoholic beverages at the Skyline Ba.r near
Great Falls. At a-bout 2:30 a.m., Richard Jevning's pickup
left the frontage road south of Grea.t Falls and rolled over,
throwing him from the vehicle. He died as a result of his
injuries.
His widow sued the Skyline Bar for negligence seeking
damages for the personal injuries and death of her husband.
The complaint alleged that Skyline Bar was negligent in
allowing Jevning to consume liquor on the premises and then
drive, and that Skyline Bar violated S 16-3-301 (2) (b), MCA,
and $ 16-6-304(1), MCA. The complaint alleged that the
negligence of the Skyline Bar was the proximate cause of
Jevning's injuries and death.
Skyline Bar answered the complaint and set forth two
affirmative defenses. First, the injuries were the direct
and proximate result of decedent's own negligence, thus the
judgment should be denied or proportionately reduced.
Second, the complaint should be dismissed for failure to
state a claim on which relief could be granted. Skyline Bar
also filed a motion for judgment on the pleadings alleging
Jevning had failed to state a claim on which relief could be
granted. The District Court granted. Skyline Bar's motion for
judgment on the pleadings, relying on Runge v. Watts (1979),
180 Mont. 91, 589 P.2d 145. The District Court stated, "The
current state of Montana law does not recognize common law
dram shop liability against an alcohol vendor."
Since that time, this Court has handed down the Nehring
v. LaCounte and Bissett v. DMI, Inc. opinions. Nehring v.
LaCounte, involved a tavern patron who, after drinking
heavily at a bar, attempted to drive back to North Dakota.
He drove the wrong way down a four-lane divided highway and
ran head on into another vehicle killing the driver of the
on-coming vehicle as well as two passengers in his car. The
widow of the man struck and killed sued the tavern owner for
negligence. The District Court granted summary judgment in
favor of the tavern owner. We vacated the summary judgment
and remanded for further proceedings. In Nehring, we allowed
the widow of the innocent third party to maintain a
negligence action against the tavern owner and the tavern
patron. We held the alcoholic beverage control statutes (SS
16-3-301 and 16-6-304, MCA) furnished a standard against
which negligence could be measured. We also held that
"consumption of the alcoholic beverages served, subsequent
driving, and the likelihood of an injury-producing accident
are foreseeable intervening acts which do not relieve the
tavern owner of liability for negligence." Nehrinq, 712 P.2d
at 1335, 43 St.Rep. at 99. In Bissett v. DMI, Inc., we held
that a tavern owner who serves an intoxicated minor could be
held liable for injuries sustained by that minor in a motor
vehicle accident, and that the minor's acts in drinking
alcoholic beverages served to her and then becoming involved
in an injury-producing accident were reasonably foreseeable
events that would no longer protect a defendant from
liability for negligence. Bissett v. DMI, Inc., 717 ~ . 2 dat
Since our decisions in Nehring and Bissett, the Montana
Legislature met in a special session and passed Ch. 1, 1986
Mont. Spec. Sess. 49th Leg., a 1-aw which creates civil
liability for injuries involving alcohol consumption. That
law states:
Section 1. Civil liability - injuries involving
for
alcohol consumption. (1) The purpose of this
section is to set statutory criteria governing the
liability of a person or entity that furnishes an
alcoholic beverage for injury or damage arising
from an event involving the person who consumed the
beverage.
(2) A person or entity furnishing an alcoholic
beverage may not be found liable for injury or
damage arising from an event involving the consumer
wholly or pa.rtially on the basis of a. provision or
a violation of a provision of Title 16 of the
Montana Code Annotated.
(3) Furnishing a. person with an alcoholic beverage
is not a cause of, or grounds for finding the
furnishing person or entity liable for, injury or
damage wholly or partly arising from an event
involving the person who consumed the beverage
unless:
(a) the consumer was under the legal drinking age
and the furnishing person knew that the consumer
was under age or did not make a reasonable attempt
to determine the consumer's age;
(b) the consumer was visibly intoxicated; or
(c) the furnishing person forced or coerced the
consumption or told the consumer that the beverage
contained no alcohol.
Section 2. Effective date. This act is effective
on passage and approval.
The law was approved on April 4, 1986. The first issue we
face is whether Ch. 1, 1986 Mont. Spec. Sess. 49th Leg.
applies retroactively to Jevning's cause of action which
accrued October 15, 1983.
The Montana rule concerning retroactivity is set forth
in § 1-2-109, MCA, as follows: "No law contained in any of
the statutes of Montana is retroactive unless expressly so
declared." We have held that this statute means the intent
of the legislature to make a statute retroactive must be
determined from the statute and no other source. Penrod v.
Hoskinson, MD (1976), 170 Mont. 277, 281, 552 P.2d 325, 327;
Dunham v. Southside National Bank of Missoula (1976), 169
Mont. 466, 475, 548 P.2d 1383, 1386. We find nothing in Ch.
1, 1986 Mont. Spec. Sess. 49th Leg. which indicates an intent
that the law be applied retroactively. Indeed, the statute
is declared to be effective on passage and approval. The
statute was approved on April 4, 1986. We hold that Ch. 1,
1986 Mont. Spec. Sess. 49th Leg. is not to be applied
retroactively.
Next, Jevning raises the issue of whether she has a
cognizable claim for relief against the tavern owners.
Jevning contends she should be allowed to go forward with her
claim for relief under Nehri-nq and Bissett on the grounds
that a violation of 5 16-3-301(2) (b), MCA, is evidence of
negligence regardless of whether the intoxicated person is a
minor, as in Bissett, or an adult, as here. She argues that
under Bissett, whether an intoxicated person is a minor or an
adult, their negligence as compared to the tavern owner's
negligence is a question the jury should determine. Further,
she asserts that under the new law passed by the 1986 Special
Session, the negligence of the adult patron as compared to
the negligence of the tavern owner is a jury question. She
argues it would. be unfair to refuse to allow the adult patron
in this case the opportunity to present and meet his burden
of proof.
Skyline Bar, on the other hand claims this case is
distinguishable from Nehring, which involved an innocent
third party injured by the bar patron, and Bissett, which
involved a minor. Skyline further contends that the actions
of Jevning in consuming alcoholic beverages, then driving a
motor vehicle while intoxicated should be construed by this
Court as willful and wanton conduct which, as a matter of
law, must be the primary cause of the subsequent car
accident. We decline to so rule for two reasons.
The issue of willful and wanton conduct is not properly
before this Court. The District Court granted Skyline's Rule
12 (c) motion for judgment on the pleadings. The only record
before this Court is the complaint and the answer. For
purposes of a Rule 12(c) motion for judgment on the
pleadings, we must accept the allega.tions in the complaint as
true and we cannot look to matters outside the pleadings. 2A
Moore's Federal Practice S 12.15; Kinion v. Design Systems,
Inc. (1982), 197 Mont. 177, 641 P.2d 472; Mathews v. Glacier
General Assurance Co. (1979), 184 Mont. 368, 603 P.2d 232.
In this case, Skyline pled two affirmative defenses: One,
that the damages were a direct and proximate result of
decedent's own negligence and thus any judgment should be
denied or proportionately reduced; and two, that Jevning's
complaint failed to state a claim for relief on which relief
can be granted. Thus the issue of willful and wanton conduct
by Jevning is not before us on the pleadings and cannot be
considered in a motion for judgment on the pleadings.
Even if willful and wanton conduct had been alleged. in
the pleadings, we could not rule as a matter of law that
driving a motor vehicle while intoxicated is willful and
wanton conduct absent any factual allegations as to the cause
of the accident.
We hold, therefore, that the District Court erred in
granting Skyline's motion for judgment on the pleadings.
Jevning's complaint alleging negligence against Skyline for
violation of 5 16-3-301(2) (b), MCA, and 5 16-6-304(1), MCA,
states a claim for relief.
We vacate the decision of the District Court and remand
for further proceedings.
We Concur: A
Mr. Justice Frank B. Morrison specially concurs with the
majority opinion as follows:
I concur in the result. In Bissett v. D.M.1, Inc.
(Mont. 1 9 8 6 ) , 717 P.2d 545, 43 St.Rep. 252, I filed a dissent
stating that I thought an intoxicated driver should be barred
in a suit against the tavern based upon the fact the driver
would necessarily be more than fifty percent responsible for
his or her injuries.
I still adhere to the concept I espoused in Bissett but
I join in this result because the legislature, after we
rendered the Bissett decision, enacted a statute governing
liability which did not exempt the driver from its purview.
In other words, the statute enacted by the legislature
permits the driver or any other person to proceed with
litigation against the tavern upon showing that the defendant
knew that the person was intoxicated at the time that person
was served alcoholic beverages. Since the legislature has
spoken since our Bissett decision, and has not exempted the
intoxicated person from those persons who are permitted to
recover, I find myself in a position where I must concur in
allowing this case to go forward although I feel it to be
poor public policy.