Nehring v. Lacounte

No. 85-84
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

BEATRICE T. NEHRING, widow and surviving
heir of Harold W. Nehring, deceased.; DONALD
D. NEHRING, Personal Representative of the
estate of Harold Nehring, deceased, and. TRI-
STATE INSURANCE COMPANY OF MINNESOTA, a Corp.,
Plaintiffs and Appellants,
-vs-
EARL 3;. 1,aCOUNTE and JANICE C. LaCOUNTE,
d/b/a LENNY'S BAR,
Defendants, Third-Party Plaintiffs
and Respondents,
and
MICHAEL J. BOTTENSEK,
Defendant,
-vs-
INSURANCE COMPANY OF NORTH AMERICA, a corp.;
SF,ITZ INSURANCE AGENCY, and RODNEY LEMIEUX,
individually and as agent for Seitz Insurance
Agency and Insurance Company of North America,
Third-Party Defendants.

APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant :
Jacque Rest; Habedenk, Cumming, Best & Maltese,
Sidney, Montana
Gene R. Jarussi argued; Keefer, Roybal, Hanson, Stacey
& Jarussi, Billings, Montana

For Respondent:
Donald L. Harris argued; Crowley Law Firm, Billings,
Montana
Francis J. McCarvel, Glasgow, Montana
Richard F. Cebull; Anderson, Brown Law Firm, Billings,
Montana
Thomas Monaghan; Lucas & Monaghan, Miles City, Montana
For Amicus Curiae:
Rodney T. Hartman; Herndon, Ha.rper & Munro; (Robert
Brust d/b/a Drifter's Tavern), Billings, Montana

Submitted: September 23, 1985
Decided: January 21, 1986

--
Clerk
Honorable Frank I. Haswell, Retired Chief Justice, delivered
the Opinion of the Court.

In a wrongful death and survival action against the
operators of a Montana tavern who allegedly wrongfully served
alcoholic beverages to a driver who later killed decedent in
an aut.omobile accident, the Roosevelt County District Court
granted summary judgment to the tavern operators. We vacate
and remand.
The accident occurred during the early morning hours of
September 20, 1980 in North Dakota, about three miles west of
Williston. Michael Bottensek drove the wrong way on a
four-lane divided highway and struck head-on an oncoming
west-bound vehicle driven by decedent Harold Nehring.
Nehring and two passengers in the Bottensek vehicle, Patty
Thoring and Jolene McGillis, were killed. Michael Bottensek
and his brother, the other passenger in his vehicle,
survived.
The events leading to this accident began on September
19, 1980. Bottensek, his brother, Patty and Jolene decided
to celebrate Jolene's nineteenth birthday by going to Lenny's
Bar in Bainville, Montana, about 35 miles from their homes in
Williston, North Dakota. LaCountes are the owners and
operators of this tavern. Bottensek had consumed four beers
and smoked a joint of marijuana between 2:00 p.m. and 9: 00
p.m., the time they left Williston. On their way to Lenny's
Bar, Bottensek drank two more beers. He drank four of these
six beers within the three hours prior to arriving at the
tavern at about 10:OO p.m..
At Lenny's Bar, Bottensek drank about eight more beers
during the next two or three hours. He stated in his
deposition that he was drunk when he ordered his last beer.
He recalled that his speech was slurred, that he spoke with a

"thick" tongue, and that he staggered when he left the bar.
He also stated that he ha-d no difficulty ordering or paying
for drinks, he did not vomit or spit-up, and that he did not
fall down, knock chairs over or bump into other people.
According to the LaCountes and one of their employees,
Bottensek did not appear drunk, could pay for drinks, did not
slur or stagger and did not cause problems with other
patrons. However, LaCountes also stated that Bottensek
threatened to shoot Earl LaCounte and was ejected from the
bar between 10:OO and 1 1 : O O p.m.
Bottensek denied this act and stated that he left the
tavern at about 1 : 0 0 a.m. because he was drunk, that his
brother left about the same time, that they waited in the car
until Patty and Jolene left at closing time an hour later,
and that all four were drunk. Just before leaving, Patty and
Jolene bought a fifth of lime vodka and a case of Budweiser
beer.
When they left the parking lot, Bottensek drove east
toward Williston. He had blank spots in his memory, but
remembered having trouble driving. Apparently he stopped on
the highway at one point because he recalled Patty getting
into the driver's seat and telling him if he hurt Jolene's
baby he would be in trouble. Jolene was pregnant at this
time. He also recalled Patty saying she drove as badly as he
did. After stopping in a rest area, Bottensek again got
behind the wheel. The accident occurred about an hour after
they left the tavern when, in a thick fog, Bottensek's
vehicle crossed over into a west-bound lane and collided
head-on with the Nehring vehicle. At the time of the
accident, Bottensek's blood alcohol level was .20.
 On February 19, 1982, the plaintiffs filed an action
seeking damages (1) for the wrongful death of Harold Nehring
and (2) for Nehring's damages which accrued prior to his
death and survived in favor of his estate. Plaintiffs are
his surviving widow and heir, the personal representative of
his estate and his automobile insurer. Defendants are
Michael Bottensek and the owners and operators of Lenny's
Bar, the LaCountes.
The amended complaint contains three claims for relief:
(I) The tavern operators or their agents sold
alcoholic beverages to Michael Bottensek when he was
actually, apparently or obviously intoxicated in violation of

S 16-3-301, MCA;

(2) the tavern operators or their agents violated
North Dakota's dram shop act which applies to this action;
(3) the tavern operators or their agents negligently
sold alcoholic beverages to Michael Bottensek causing him to
become intoxicated to such an extent that he was unable to
operate or control his motor vehicle.
Each of the three claims alleges proximate cause and
resulting damages.
On October 2, 1984, the District Court granted the
tavern operators' motion for summary judgment on all three
claims. The court held that under Montana law, the tavern
operator was liable only if he served the customer while he
was in a helpless condition, of which there were no
supporting facts, citing Runge v. Watts (1979), 180 Mont. 91,
580 P. 2d 145. The court held the North Dakota dram shop act
inapplicable, citing a recent decision of North Dakota ' s
Supreme Court that this act had no extraterritorial effect,
Thoring v. Bottensek (N.D. 1984), 350 N.W.2d 586. Finally,
the court found no corrlmon law liability of a tavern operator
and refused to "legislate" on the matter.
Final judgment b a entered in favor of the LaCountes
rs
and against plaintiffs pursuant to a Rule 54 (b), M. R.Civ. P.
certification. Plaintiffs appeal from the final judgment.
We rephrase the issues:
(1) Can a person injured off-premises by a patron of a
licensee recover from the licensee who served the patron
alcoholic beverages?
(2) Does a genuine issue of material fact preclude
summary judgment?
Traditionally, at common law, no right of action
existed against a seller of alcoholic beverages in favor of
those injured by the intoxication of the purchaser. The
reason usually given for this rule is that the consumption,
rather than the furnishing, of the a-lcoholic beverages
proximately caused the injury. This Court acknowledged a.nd
followed this rule in Nevin v. Carla-sco (1961), 139 Mont.
512, 365 P.2d 637, which concerned a tavern operator's
liability to protect patrons from other patrons. We stated
there that:
... The rule followed by most courts is
that when damage arises from voluntary
intoxication, the seller of the
intoxicant is not liable in tort for the
reason that his act is not the efficient
cause of the damage. The proximate cause
is the act of him who imbibes the liquor.
[Plaintiff] was obliged to prove a set of
circumstances which created a duty to the
injured patron and facts that would prove
a breach of that duty. (Citation
omitted. )
139 Mont. at 515, 365 P.2d at 639.
In later cases, this Court acknowledged that Montana
statutorily prohibits the sale of alcoholic beverages to
minors and intoxicated persons. We declined to use the
statutes as a basis for liability under the circumstances
presented in those cases. In Folda v. City of Bozeman
(1978), 177 Mont. 537, 582 P.2d 767, we held that the
victim's voluntary intoxication prevented her from recovering
because it was the proximate cause of her death and she had
disregarded her duty to use due care. Swartzenberger v.
Billings Labor Temple Assn. (1978), 179 Mont. 145, 586 P.2d
712, discusses both the lack of a Montana dram shop act and
the cases mentioned above. We denied recovery to the
plaintiff because of his contributory negligence in violating
statutory law and drinking. We distinguished Deeds v. United
States (D. Mont. 1969), 306 F.Supp. 348, as presenting a
claim of an injured third party rather than a claim by the
imbiber. The most recent Montana case, Runge v. Watts
(1979), 180 Mont. 91, 589 P.2d 145, concerned the liability
of a social host furnishing liquor to a minor who then caused
an accident injuring a third party. We held that the
proximate cause of plaintiff's injuries was the driver s
drinking, rather than d.efendantlsserving of alcohol. Of
these cases, only Deeds, supra, addresses a tavern operator's
liability for off-premises injuries to a third party injured
by a patron of the tavern.
Section 16-3-301(2), MCA, originally enacted as part of
the Montana Beer Act in 1933, provides:
It shall be unlawful for any licensee,
his or her employee or employees, or any
other persons to sell, deliver, or give
away or cause or permit to be sold,
delivered, or given away any alcoholic
beverage to:
(a) any person under 19 years of age;
 (b) any intoxicated person or any person
actually, apparently, or obviously
intoxicated.
Section 16-6-304, MCA, originally enacted as part of the
State Liquor Control Act of Montana in 1933, provides:
(I) No store manager, retail licensee,
or any employee of a store manager or
retail licensee may sell any alcoholic
beverage or permit any alcoholic beverage
to be sold to any person apparently under
the influence of an alcoholic beverage.
(2) No person may give an alcoholic
beverage to a person apparently under the
influence of alcohol.
Both sections remained in the Code when the Legislature
edited and amended portions of Title 16 and then re-enacted
it in 1975. As we noted in Fletcher v. ~ a i g e (1950)~124
Mont. 114, 220 P.2d 484, the Montana Beer Act and the State
Liquor Control Act were companion bills. "These statutes are
in pari materia and must be construed together ... [as] one
homogenous and consistent body of law." (Citations omitted.)
(Emphasis in original.) 124 Mont. at 116-117, 220 P.2d at
485. This Court has a duty to reconcile such statutes,
consistent with legislative intent, where possible.
Fletcher, 124 Mont. at 119, 220 P.2d at 487. Thus, we
consider both sections in this appeal.
We recognize that the Legislature did not enact these
alcoholic beverage control statutes to provide a civil remedy
to persons injured as the result of a violation of those
laws. The violation of statutes is negligence as a matter of
law when the purpose of the statute is to protect a class of
persons, the plaintiff is a member of that class, and the
defendant is a person against whom a duty is imposed. Azure
v. City of Billings (1979), 182 Mont. 234, 240-241, 596 ~ . 2 d
460, 464. The purpose of the statute also must he to protect
against the kind of injury received by the plaintiff. Rauh
v. Jensen (19731, 161 Mont. 443, 507 P.2d 520. Here, the
stated purposes of the statutes are "the protection of the
welfare, health, peace, morals, and safety of the people of
the state." Section 16-1-101, MCA; see also 5 16-1-103, MCA.
The Supreme Court of Arizona characterized a similar
enactment as having the legislative purpose "to regulate the
business [of selling alcoholic beverages]
rather than enlarge civil remedies." (Bracketed phrase
added. ) (Emphasis in original. ) Collier v. Stamatis (Ariz .
1945), 162 P.2d 125, 127, cited in Ontiveros v. Borak (Ariz.
1.983), 667 P.2d 200, 210. Sections 16-3-301 (2) a.nd 16-6-304,
MCA, are part of two acts enacted to regulate the business of
selling liquor and beer. Nonetheless, they were intended to
protect the people of the state generally and the interests
of the state rather than to protect against any particular
kind of injury or provide a civil remedy. Accordingly, we
will not hold a violation of the alcoholic beverage control
statutes to be negligence as a matter of law.
The violation of a statute, although not negligence per
se, nevertheless may be relevant in determining whether a
defendant's conduct was negligent, i.e. in fixing a standard
against which negligence can be measured. Where the statute
does not provide for civil liability, the decision to adopt
the statute as defining a standard is a judicial one.
Restatement (Second) of Torts 5286 comment d, cited in
Onti.veros, 667 P.2d at 210; also McClellan v. Tottenhoff
(Wyo. 1983), 666 P.2d 408, 413. In the seminal case allowing
recovery by an injured third party from a tavern keeper,
Rappaport v. Nichols (N.J. 1959), 156 A.2d 1, the New Jersey
Supreme Court held that a violation of an enactment similar
to §§ 16-3-301 and 16-6-304, MCA, was evidence of negligence.
That court noted the restrictions were intended for the
protection of members of the general public, not just for the
protection of the minors and intoxicated persons listed in
the enactments. Rappaport, 156 A.2d at 8. In Rappaport, the
court stated:
The negligence may consist in the
creation of a situation which involves
unreasonable risk because of the
expectable action of another ... Where
a tavern keeper sells alcoholic beverages
to a person who is visibly intoxicated or
to a person he knows or should know from
the circumstances to be a minor, he ought
to recognize and foresee the unreasonable
risk of harm to others through action of
the intoxicated person or the minor.
(Citations omitted.)
Rappaport, 156 A.2d at 8. Such is the case here.
An unreasonable risk of harm is more likely under
present day conditions than in the past, when the common law
bar to recovery was a majority position. ". .. [TIhis j-s

particularly evident in current times when traveling by car
to and from the tavern is so commonplace and accidents
resulting from drinking are so frequent" Rappaport, 156 A.2d
at 8-9, cited in Deeds, 306 F.Supp. 348, 355. Current
conditions in Montana are such that the literal application
of the common law rule has become unjust. "When the reasons
of a rule ceases, so should the rule itself." Section
1-3-201, MCA. Therefore we judicially adopt the alcoholic
beverage control statutes as furnishing a standard against
which negligence or due care can be measured. A.ccordingly,a
violation thereof is evidence of negligence.
In any negligence case, the plaintiff
must establish certain elements:
(1) that the defendant owed a duty
recognized in law to the plaintiff,
(2) that she breached the duty,
(3) that the breach was the cause of the
 plaintiff's injury, and 14) that the
plaintiff was damaged.
46 Mont.I,.Rev. 381, 382 (1985), Bender, Tort Liability tor
Serving Alcohol: An Expanding Doctrine. Both Deeds, 306
F.Supp. 348, and Johnson v. United States (D. Mont. 1980),
496 F.Supp. 597, considered Montana law on negligence and
held the seller of alcoholic beverages liable to third
parties injured by an intoxicated patron. After establishing
the seller's duty to the injured party, Deeds discussed the
element of causation and held that the operators who served
alcoholic beverages
... could reasonably foresee or
anticipate some accident or injury as a
reasonable and natural consequence of
their illegal and negligent acts,
particularly in view of the ever
increasing incidence of serious
automobile accidents resulting from
drunken driving.
306 E'.Supp. at 361. Deeds applied the common law negligence
rule that if an intervening cause is one which might be
reasonably foreseen as probable or is one which the defendant
might reasonably anticipate under the circumstances, that
cause will not cut off the defendant's liability. We
discussed this rule of foreseeability in Reino v. Montana
Mineral Land Development Co. (1909), 38 M0n.t. 291, 296, 99 P .
853, 855, and stated that:
It is sufficient if the facts and
circumstances are such that the
consequences attributable to the wrongful
conduct charged are within the field of
reasonable anticipation; that such
consequences might be the natural and
probable results thereof, though they may
not have been specifical-ly contemplated
or anticipated by the person so causing
them. (Citations omitted.)
WE! adopt this approach in the case at bar and hold tha.t
consumption of the alcoholic beverages served, subsequent
driving, and the likelihood of an injury-producing accident
are foreseeable intervening acts wh,ich do not relieve the
tavern operator of liability for negligence.
The earlier Montana cases, Folda, 177 Mont. 537, 582
P.2d 767, and Swartzenberqer, 179 Mont. 145, 586 P.2d 712,
are not controlling authority for the case at bar. Those
cases both concerned injury to the imbiber rather than a
third person and found no liability on the basis of the
imbiber's contributory negligence. Runge, 180 Mont. 91, 589
P.2d 145, also is distinguishable as it concerns the absence
of liability of a social host who furnished alcoholic
beverages to a minor.
F.espondents argue that if this Court overrules Runge,
180 Mont. 91, 589 P.2d 145, any new law should be applied
prospectively only. They rely on the statement in Runge that
no cause of action existed unless the imbiber was furnished
alcoholic beverages while "in such a state of
helplessness ... as to be deprived of his willpower or
responsibility for his behavior." (Citation omitted.) 180
Mont. at 93, 589 P.2d at 146-147. The term "helplessness"
implies a far stricter requirement than the language of the
alcoholic beverage control statutes. As discussed above, the
language in the statutes defines the standard of care to be
used. In addition, the language from Runge, quoted above,
was dicta. In Runge we declined to impose liability on a
social host who furnished alcoholic beverages to a minor in
favor of those injured as a consequence of the minor's
intoxication. The reasoning behind this holding was that the
minor's drinking rather than the social host's serving of
beer proximately caused plaintiff's injuries. The mention of
"helplessness" was unnecessary to this holding. We are not
required to give precedential value to dicta. Montana Human
Rights Division v. City of Billings (Mont. 1982) , 649 P. 2d
1283, 1287, 39 St.Rep. 1504, 1508. This judicial language
was not intended to change the meaning of the statutory
language and does not refer to or change Montana law
regarding the principles of causation or duty owed in
negligence. Nonetheless, Runge is bottomed on a statement of
law that must be addressed, viz. that the drinking of the
intoxicating beverage, not the furnishing thereof, is the
proximate cause of any subsequent injury (subject to the
"helplessness" exception). This Neanderthal approach to
causation exempts the purveyor of alcoholic beverages from
liability without regard to his own negligence or fault. To
the extent Runge may be read to so hold, we expressly
overrule it.
This Court set forth three factors to consider before
adopting a rule of nonretroactive application in XaRoque v.
State (1978), 178 Mont. 315, 583 P.2d 1059.
First, the decision to be applied
nonretroactively must establish a new
principle of law either by overruling
established precedent on which litigants
have relied or by deciding an issue of
first impression whose resolution was not
clearly foreshadowed. Second, the merits
of each case must be weighed by looking
to the history, purpose and effect of the
rule in uuestion and whether retroactive
applicati^on will further or retard its
operation. Finally, the inequity of
retroactive application must be
considered, for where substantial
inequity will result by such application,
a ruling of nonretroactivity is proper.
LaRoque, 178 Mont. at 319, 583 P.2d at 1061, citing Chevron
Oil v. Huson (1971), 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d
296. We applied this three part test in Jensen v. State
Dept. of Labor and Industry (Mont. 1984), 689 P.2d 1231, 41
St.Rep. 1971, and Sorum v. Rieder and Co. (Mont. 1983), 666
P.2d 1221, 40 St.Rep. 1120.
With respect to the first factor, respondents argue
that they relied on the statement in Runge, 180 Mont. 91, 589
P.2d 145, that a bar owner is liable only if the patron was
served while helplessly intoxicated. However, respondents
had an obligation to comply with the stricter requirements of
the alcoholic beverage control statutes as well. Thus, the
reliance argument is not persuasive. In the second factor, a
prospective a.pplication would condone disregard for these
alcoholic beverage control statutes rather than further their
purpose or operation. Jensen, 689 P.2d at 1233, 41 St.Rep.
at 1974. Finally, respondents carry the burden of showing
the substantial inequity of retroactive application.
LaRoque, 178 Mont. at 320, 583 P.2d at 1061. This case only
permits certain unlawful conduct by respondents to be used as
evidence of their negligence. This is not the kind of
significant hardship that supports a ruling of
nonretroactivity. Accordingly, we will not limit the holding
of this case to a prospective application as urged by the
respondents on appeal.
The second issue concerns whether genuine issues of
material fact exist precluding summary judgment. Generally,
issues of negligence are not susceptible to summary judgment
and are better determined at trial. Brown v. Merrill Lynch,
Pierce, Fenner and Smith, Inc. (1982), 197 Mont. 1, 10, 640
P. 2d 453, 458. In this case there are a number of questions
of material fact that remain unanswered, for example, Michael
Bottensek's degree of actual, apparent or obvious
intoxication, when and how much alcoholic beverages LaCountes
served to Michael Bottensek, and the time that Michael

E o t t e n s e k l e f t t h e b a r , t o name a few.

W e t h e r e f o r e v a c a t e t h e summary judgment and t h e f i n a l

judgment e n t e r e d t h e r e o n by t h e D i s t r i c t C o u r t . W e remand t o

t h e D i s t r i c t Court f o r f u r t h e r proceedings.

&A&M
= 3 ~ ~ 4 , .
Honorable Frank I. Haswell,
Retired Chief J u s t i c e ,
S i t t i n g i n Place of M r . J u s t i c e
L . C. G u l b r a n d s o n
W e concur: ../