Bissett v. DMI, INC.

NO. 85-250
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

ZENA BISSETT,
Plzintiff and Appellant,

DMI, INC., d/b/a EMPIRE BAR, SEVER0
ROMERO, d/b/a ARCADE BAR, LINDA
OBLANDER, d/b/a THE SCOOP, a.nd R0BER.T
BRUST, d/b/a DRIFTER'S TAVERN,
Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert Holmstrom, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Kelleher Law Office; Robert L. Kelleher, Jr. argued,
Billings, Montana

For Respondent:
Herndon, Harper & Munro; Rodney T. Hartman argued,
Billings, Montana
English & Lee; H. Elwood English, Billings, Montana
Crowley Law Firm; Donald Harris, Billings, Montana

submitted: September 26, 1985
Decided: February 10, 1986

Filed:

&<&i
+*J

Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

Zena Bissett, plaintiff and appellant, appeals from a
summary judgment entered for defendants in the Yel-lowstone
County District Court. The District Court determined that
the plaintiff 's complaint did not state a claim because her
acts of drinking alcoholic beverages, rather than the
defendants' acts of serving them, proximately caused the
accident resulting in plaintiff's injuries. We vacate and
remand.
The plaintiff was born March 27, 1965, making her
eighteen years old on November 2, 1983, the date of the
accident giving rise to this litigation. That evening, after
drinking several beers at a friend's apartment and in a car,
she and the friend went to four bars in the City of Billings,
Montana. Beginning at about 5:30 p.m., they went to the
Empire Bar, then to the Arcade Bar, The Scoop and lastly to
the Drifter's Tavern, arriving there at about 8: 00 p.m. The
plaintiff and her friend consumed drinks at each
establishment. Her friend, not a minor, purchased all of the
drinks.
Plaintiff suffered a blackout while at the Drifter's
Tavern. Before the blackout, her friend purchased a pitcher
of beer with her standing next to him. He then left and,
apparently, returned later in the evening.
They left the Drifter's Tavern at about 11:30 p.m.
Plaintiff got into her car and proceeded to drive her friend
home. About one mile down the road, she drove the car off
the Sixth Street overpass, sustaining serious injuries. Her
blood alcohol content at the time she was admitted to the
hospital that evening was between .23 and .24 percent.
 Plaintiff's amended complaint, filed on June 25, 1984,
alleged that defendants, the four bars where she consumed
alcoholic beverages, unlawfully furnished those beverages to
her, thus proximately causing her injuries in the accident.
The District Court granted defendants' motions for summary
judgment and entered a final judgment dismissing plaintiff's
complaint.
Several facts are in dispute. For instance, the Empire
Bar specifically denies serving alcoholic beverages to
plaintiff and, on appeal, raises the issue of whether she is
in fact a minor. For the purpose of this appeal from the
granting of summary judgment to defendants, we view the
disputed facts in a light most favorable to plaintiff.
Therefore, we assume she was present in defendants' taverns
and that they served her alcoholic beverages.
Plaintiff raises one issue:
Is a tavern operator, which serves an intoxicated
minor, liable in damages for injuries later sustained by that
minor in a motor vehicle accident?
Defendant, D.M.I., Inc., d/b/a Empire Bar, raises an
additional issue:
Was plaintiff a minor protected by the statutes at
issue?
Plaintiff argues that the defendants are negligent per
se for serving an intoxicated minor in violation of
55 16-3-301, 16-6-304, and 16-6-305, MCA, of the Montana
Alcoholic Beverage Code. Section 16-3-301 ( 2 ) , MCA,
prohibits:
... any licensee, his or her employee
or employees, or any other person to
sell, deliver, or give away or cause or
permit to be sold, delivered, or given
awa.y 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, states:
(1) No store manager, retail licensee,
or any employee of a store ma-nager or
retail licensee ma17 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.
Section 16-6-305, MCA, provides, in part:
(1) Except in the case of an alcoholic
beverage given to a person under 19 years
of age by his parent or guardian for
beverage or medicinal purposes or
administered to him by his physician or
dentist for medicinal purposes or sold to
him by a vendor or druggist upon the
prescription of a physician, no person
shall sell, give, or otherwise supply an
alcoholic beverage to any person under 19
years of age or permit any person under
that age to consume an alcoholic
beverage.
In Nehring v. LaCounte (Mont. 1986) , P.2d I

St.Rep. , (No. 85-84, decided January 21, 1986),
decided after this plaintiff appealed the District Court's
ruling, this Court declined hold that violations
S S 16-3-301 and 16-6-304, MCA, constituted negligence per se.
Nehrinq concerned a tavern operator's liability to a third
party injured by a pa-tron of the bar who had been served
alcoholic beverages prior to the injury-producing accident.
After considering the legislative purpose of the alcoholic
beverage control statutes, this Court held that they
furnished a standard. with which to measure negligence or due
care and that a violation of those statutes is evidence of
negligence rather than negligence per se. Nehring, supra.
This holding in Nehring controls in the case at bar.
Accordingly, we hold that a violation of the alcoholic
beverage control statutes by these defendants would be
evidence of a failure to use due care.
The plaintiff in this case notes the presence of a
third applicable statute, 16-6-305, NCA. The same
reasoning applies to this statute that applies to those at
issue in Nehring, since it is part of the same alcoholic
beverage control code. A violation would be evidence of
negligence on the part of the tavern operator.
Defendants argue that plaintiff's actions of
voluntarily consuming alcoholic beverages, rather than their
serving of the beverages, proximately caused the resulting
damages. This Court addressed a similar argument involving
injury to the imbiber on two prior occasions. In Folda v.
City of Bozeman (1978), 177 Mont. 537, 582 P.2d 767, and
Swartzenberger v. Billings Labor Temple Ass'n (1978), 179
Mont. 145, 586 P.2d 712, we held that the voluntary
intoxication of the imbiber constituted contributory
negligence which barred recovery from those who furnished the
alcoholic beverages. These cases are distinguishable in that
they relied on contributory negligence which has been
replaced by comparative negligence. Under comparative
negligence, it is for the jury to determine the degree of
negligence attributable to the plaintiff and the defendants.
Reed v. Little (Mont. 1984), 680 P.2d 937, 41 St.Rep. 644.
Neither a plaintiff's nor a defendant's acts has to be the
sole proximate cause of the injuries. To the extent Folda,
177 Mont. 537, 582 P.2d 767, and Swartzenberqer, 179 Mont.
145, 586 P.2d 712, imply that the imbiber's act of drinking
is the sole proximate cause of any resulting injuries, they
are overruled.
In the discussion of contributory negligence, both
cases noted that the imbiber's act of drinking intervened and
became the proximate cause of the resulting injuries. An
intervening cause does not serve to relieve a defendant's
liability where that cause "is one which the defendant might
reasonably anticipate under the circumstances." Nehrinq,
supra, citing Deeds v. United States (D. Mont. 1969), 306
F.Supp. 348, 361. In the case at bar, we assume for summary
judgment purposes that the plaintiff was an intoxicated minor
at the time of the defendants' possible negligence. We hold,
in accord with Nehring, supra, that her acts of drinking
alcoholic beverages served to her and then becoming involved
in an i-njury-producing accident, may be reasonably
foreseeable events which may no longer protect a defendant
from liability for negligence.
Defendant Empire Bar raises an additional issue on
appeal; whether plaintiff, age eighteen years and seven
months on the evening of the accident, was a minor for the
purposes stated in the alcoholic beverage control statutes.
Art. 11, Sec. 14 of the Montana Constitution provides:
A person 18 years of age or older is an
adult for all purposes, except that the
legislature or the people by initiative
may establish an age of not more than 19
as the legal age for consuming or
possessing alcoholic beverages.
Sections 16-3-301, 16-6-304, and 16-6-305, MCA, placed the
legal age for consuming or possessing alcoholic beverages at
19 years of age. Plaintiff had not yet reached her
nineteenth birthday on. the date of the incident. We hold
that plaintiff was clearly a minor w i t h i n t h e meaning o f

these statutes.
W e t h e r e f o r e v a c a t e t h e judgment o f t h e D i s t r i c t C o u r t

and remand f o r f u r t h e r p r o c e e d i n g s .

Justices
Mr. Justice Frank B. Morrison, Jr., specially concurring and
dissenting:
I would affirm the granting of summary judgment in favor
of defendant but for different reasons than those given by
the District Court. By way of special concurrence, this
Opinion comments on the general subject of the liability of
one who sells alcoholic beverages.
Much misinformation has been publicly disseminated with
respect to this Court's holding in Nehring v. LaCount (Mont.
19861, P.2d -1 - St.Rep. (No. 85-84, decided
January 21, 1986) . Inadequate reporting, poorly informed
editorial comments, and propaganda dispensed by lobbyists for
the Montana Tavern Association have led to the confusion.
Perhaps the Court's opinion in Nehrinq inadequately explained
the basis of liability but appellate opinions are necessarily
written for those trained in the law and they assume a cer-
tain amount of legal understanding. I believe it in the
public interest to provide a basic discussion of the legal
premise rendering a tavern operator liable for an automobile
accident.
The majority opinion in this case sets forth the statu-
tory provisions making it unlawful for a retail licensee to
sell alcoholic beverages to any intoxicated person. The duty
to refrain from selling to intoxicated persons was created by
the legislature, not by the courts. If a tavern operator
sells to an intoxicated person, that tavern operator violates
the law. Under well-established legal principles, which have
been with us since we became a. State, one who acts unlawfully
(negligently) and causes injury to another is liable for that
harm. The only remaining question is whether the negligence
in selling to an intoxicated person is one of the causes of
injury to some person.
 Prior to the decision in the Nehrinq case, the Montana
court system had insulated taverns from liability by holding
that the act of the drunk driver in causing the accident was
an intervening act which protected the tavern owner. No real
explanation for the holding was given. In fact, such a
holding was contrary to basic well-established legal princi-
ples governing causation.
Where a tavern is sued by a person injured in an automo-
bile accident, the first determination that must be made is
whether the tavern violated the law by serving an intoxicated
person. If the injured person can show that the tavern
operator served an intoxicated person and was therefore
negligent, the next question that must be answered is whether
that negligence was - cause of the accident.
a The contention
put forth on behalf of the tavern is always that the act of
the drunk driver in crossing the center line (or whatever
other action may have caused the accident) was an intervening
act terminating the causal connection between the tavern's
negligence and the injury to the plaintiff. In determining
whether the act of the drunk driver in fact cut the chain of
causation thereby terminating any liability of the tavern,
the courts must look to the Montana law governing whether
intervening acts supersede original negligence.
The law which applies to making such a determination is
well established in Montana although an exception had
previously been made for tavern owners. If the intervening
act (the act of the drunk driver in causing the accident) was
an act which was foreseeable on the part of the one selling
drinks in violation of the law then the liability of the
seller would continue. If the act of the drunk driver was
not foreseeable by the seller the liability for negligence in
making the sale would be terminated by the intervening act of
the drunk driver.
The tavern, therefore, remains liable for the original
negligence in making the sale to the intoxicated person when
the tavern operator, at the time of the sale, can foresee
that sale of the alcoholic beverage to the intoxicated person
may well result in an automobile accident. Only when the
injured person can sustain this very difficult burden of
proof will the tavern be liable.
The drunk driver remains liable for the plaintiff's
injuries. The drunk driver can also be prosecuted for aggra-
vated assault or, in the event of death, for homicide.
Responsibility of the driver for his or her act is -
not
lessened under our holding in the Nehring case.
It is true that the tavern, if found to be some part of
the cause, can be held liable for damages. Under the laws of
contribution, the tavern owner's insurance company can
apportion the injured person's loss between the tavern
owner's insurance company and the insurance company covering
the drunk driver. This is accomplished by determining the
amount of negligence each contributed, by percentage, to the
plaintiff's injuries. Therefore, if the tavern was found to
be 10 percent of the cause and the drunk driver 90 percent of
the cause, the loss would be apportioned between the two
insurance companies on that basis. However, the injured
person can, if he wishes, collect 100 percent of his loss
against the drunk driver, or, for that matter, against the
tavern. The apportionment of the loss between the two is
handled separately and, under the law of joint and several
liability, has no effect upon the plaintiff. If the drunk
driver is uninsured, and is without personal assets, appor-
tionment is made between the injured person's uninsured
motorist's coverage and the tavern owner's liability
insurance policy.
I wish to emphasize that the Supreme Court created no
new duties for tavern owners in the Nehrinq case. The duty
was created by the legislature. This Court refused to impose
immunity for tavern owners and determined that their unlawful
acts would be judged on the same basis as the unlawful acts
of all other citizens.
I dissent to the holding in this case and would affirm
the granting summary judgment by the trial court. the
Nehring case we allowed the case to go forward and be tried
to a jury because there was evidence that the acts of the
tavern in serving an intoxicated person may have concurred
with the acts of the drunk driver in causing the accident
there in question. In the Nehring case an innocent third
person was killed and the lawsuit was brought by the survi-
vors of that innocent third person. In this case, action is
being instituted by the drunk driver seeking to recover for
her injuries brought about as a result of the negligence of
the tavern in violating the law. While there is evidence
that the tavern served. the plaintiff in an intoxicated condi-
tion and that negligence may have been a contributing cause
of the accident, I would find the primary cause of the
accident to be the act of the drunk driver, in this case the
plaintiff herself.
Under Montana law, the plaintiff cannot recover against
the defendant if the plaintiff's negligence is more than the
negligence of the defendant. In this case, I would find that
the injured plaintiff was, as a matter of law, more
responsible for her own injuries than was the tavern which
served her the alcoholic beverages.
 I think this same result should follow in nearly every
case where the injured person is the intoxicated driver. It
is difficult for me to contemplate a fact situation where the
drunk driver plaintiff would not be more responsible for his
or her own injuries than the tavern that served the
intoxicating beverages. Perhaps if an intoxicated person
were in a totally helpless state and the tavern owner helped
them to their car, turned the ignition key, and pushed them
down the road, a different result would follow. Barring such
an extreme fact situation, I believe the Court should find as
a matter of law that the negligence of the drunk driver
exceeds that of the tavern and deny recovery to the drunk
driver for his or her own injuries.

Mr. Justice John C. Harrison concurs ' n the foregoing
i
dissent of Mr. Justice Frank B. Mrrison, Jr.