Loeb v. Rasmussen

MOORE, J.,

dissenting, (MATTHEWS, J., joins in part one of this opinion).

I.

Because there is nothing in either the language or history of AS 04.16.051 and AS 04.21.050 evincing any legislative intent that liquor licensees should, under all circumstances, bear full responsibility for all damages resulting from the licensee’s violation of those acts, I cannot agree with the majority’s decision in section III. A. In Kaatz v. State, 540 P.2d 1037 (Alaska 1975), this court abolished the contributory negligence rule in favor of instituting the more equitable comparative negligence principle in Alaska. We then stated that the new comparative negligence rule would “apply to any case in which the trial com-*922menees” after the date of Kaatz. Id. at 1050 (emphasis added). However, in section III. A. of its opinion, the majority clings to a special exception developed under the former contributory negligence rule to mitigate the particular harshness of that principle. When this state abolished that principle, the need for the special exception also vanished; it therefore should not be applied today. For this reason, I respectfully dissent.

In Kaatz, we quoted Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975), in recognizing that the contributory negligence rule often yielded inequitable and unjustified results due to its “all-or-nothing” nature. 540 P.2d at 1048. Indeed, it was in response to this specific problem that certain special exceptions such as the “exceptional statute” rule and the doctrine of “last clear chance” arose. See Sagadin v. Ripper, 175 Cal.App.3d 1141, 221 Cal.Rptr. 675, 690 (1985). The Kaatz decision, however, remedied the specific weaknesses of the former rule by adopting the principle of pure comparative negligence. This principle’s “allocation of proportionate fault approaches reality more closely than the total loss or victory represented by the contributory negligence rule.” 540 P.2d at 1048. This court then acknowledged that certain judicially-created doctrines developed under the contributory negligence rule were no longer useful and should be abolished along with the former rule. The “last clear chance” rule is one such doctrine specifically abrogated by Kaatz. We stated, “[wjithout the contributory negligence rule there [is] no need for the palliative doctrine of last clear chance. To give continued life to that principle would defeat the very purpose of the comparative negligence rule — the apportionment of damages according to the degree of mutual fault.” Id. at 1050.

The “exceptional statute” rule used by the majority to explain its holding today is clearly another doctrine whose purpose vanished with the abolition of the former rule. Under the contributory negligence scheme, the “exceptional statute” principle served to ensure that plaintiffs within the protected class of a certain statute could bring an action against a defendant who violated that statute despite the plaintiffs own conduct which may have contributed to the defendant’s violation. When the comparative negligence principle did away with the harsh all-or-nothing quality of the former rule, however, the particular need for which this special exception was created also disappeared.

It seems beyond dispute that an exception loses its validity once its purpose is exhausted. This approach has been espoused by California in the case of Sagadin v. Ripper, 175 Cal.App.3d 1141, 221 Cal.Rptr. 675 (1985). There, the court of appeals correctly reasoned that

there is no compelling reason why an exception to the rule ought to survive when the rule itself has been abrogated. As enshrined in a maxim of jurisprudence, ‘[w]hen the reason for a rule ceases, so should the rule itself.’ A corollary to that maxim is that when the rule falls, so should its exceptions.

Id. 221 Cal.Rptr. at 692 (citation omitted).

Therefore, the Sagadin court held that, under the comparative negligence rule, a plaintiff’s fault in causing his or her harm should be considered by the fact finder even though the defendant may have violated a statute designed to protect the plaintiff from his or her own inadvertence, unless the legislature has explicitly stated to the contrary. Id. at 691-92.

Under this approach, the fact finder will continue to give due regard to the fact that the defendant violated a statute designed to protect the plaintiff. In addition to considering this offense, however, the fact finder should be allowed to consider the plaintiff's own contribution to the resulting harm. In this manner, minors who certainly are or should be aware of the perils of drinking and driving, or who negligently operate a vehicle while impaired, may be held accountable for their conduct in proportion to their degree of fault in causing their harm.

I see no justification for a rule which completely insulates capable minors from responsibility for the consequences of their *923actions merely because alcohol is involved. The Alaska Legislature did not intend such a result, nor did it intend that liquor licensees bear full liability for all consequences flowing from their violations of AS 04.16.-051 and AS 04.21.050.

II.

We have routinely applied comparative negligence principles to actions after Kaatz. Indeed, we even apply such principles to strict liability cases where the purpose of the law is similarly to shift the burden of loss away from injured persons who are deemed relatively incapable of protecting themselves. See Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42, 46 (Alaska 1976) (“The defendant is strictly liable for the harm caused from his defective product, except that the award of damages shall be reduced in proportion to the plaintiff’s contribution to his injury.”).

In a pre-Kaatz case, we allowed the contributory negligence defense where a defendant-employer violated provisions of the state General Safety Code designed to protect workers, thus injuring the plaintiff-employee. Bachner v. Rich, 554 P.2d 430 (Alaska 1976). In Bachner, we rejected the same arguments that the court accepts today: that the defendant was better able to prevent the harm; that it was better able to bear risks and to distribute losses; and that the legislative intent behind the Code would be frustrated if the contributory negligence defense were allowed. Id. at 438-39. It is impossible to reconcile Bachner with the majority’s finding today, especially since the case of the injured worker is far more compelling than that of the minor. Employees in unsafe working conditions are faced with the difficult choice of either accepting certain risks or losing their jobs. Minors, on the other hand, can simply choose to abide by the law and refrain from purchasing alcohol.

Other jurisdictions have held that the comparative negligence system can effectively achieve a balance between liquor licensees’ duty not to serve minors and minors’ individual responsibility for any harm resulting from their contribution to a licensee’s violation of the law. See, e.g., Lyons v. Nasby, 770 P.2d 1250, 1259 (Colo.1989) (to prohibit defendant tavern owner from asserting the comparative negligence defense runs counter to the traditional tort principle that there be fault on the defendant’s part and that this fault contribute to a plaintiff’s harm); Sagadin v. Ripper, 175 Cal.App.3d 1141, 221 Cal.Rptr. 675 (1985).1

The majority relies on Vance v. United States, 355 F.Supp. 756 (D.Alaska 1973), and Morris v. Farley Enters., 661 P.2d 167 (Alaska 1983), for the general proposition that we have been unwilling to consider a minor’s contributory negligence or complicity in an illegal liquor transaction as an impediment to the minor’s action against a liquor licensee who violated AS 04.16.051. This is undoubtedly true.2 I do not agree, however, that this general proposition also grants absolute immunity to minors for the consequences of their willful conduct in unlawfully procuring and consuming alcohol, and then engaging in conduct such as driving a car, in knowing disregard of the risks associated with drinking and driving. *924In arriving at its conclusion to the contrary, the majority not only exaggerates Morris and Vance, but it ignores the policy unambiguously set forth in Kaatz. The Morris and Vance cases therefore do little to persuade me that the judiciary should preserve the “special statute” exception to the contributory negligence rule in the absence of any legislative encouragement to do so.

Indeed, the Alaska Legislature’s recent codification of the comparative negligence rule would seem to be evidence of its intent to apply comparative negligence principles to all actions, including those brought under AS 04.16.051. Alaska Statute 09.17.060 states the policy adopting the comparative negligence rule, and AS 09.17.080 instructs the judiciary to apply that rule “[i]n all actions involving fault of more than one party to the action_” AS 09.17.080(a). (Emphasis added). Neither section, however, contains any limiting language to indicate the legislature’s intent that actions brought under AS 04.16.051 be treated under some other rule.3

The majority’s concern that minors would not be deterred from negligent action even if the comparative negligence defense was available to liquor licensees does not make its decision today any more persuasive. In my opinion, a rule allowing the comparative negligence defense would, in fact, have a deterrent effect on the actions of minors. However, I do not see the issue in this case as one of deterrence; it is instead whether individuals who negligently contribute to their own injuries should be held legally accountable for their conduct. I fail to see why minors should not be deemed capable of accepting some responsibility for their actions where alcohol is concerned when we routinely expect minors to act responsibly in other areas of the law. For example, we often determine that minors well under the age of twenty-one may be criminally tried as adults because we deem them capable of conducting themselves according to the same standards expected of adults.

Similarly, we expect all persons operating motor vehicles to conform to an adult standard of care. See Prosser and Keeton, Prosser and Keeton on Torts 181 (5th ed. 1984); Krieger v. Howell, 109 Idaho 704, 710 P.2d 614 (1985). Although I agree that a minor’s willful conduct in driving while intoxicated does not constitute an intervening act sufficient to completely bar the minor’s recovery against the liquor licensee, it strikes me as beyond question that such negligent operation of a vehicle should be considered by the fact finder in assessing the degree of fault attributable to each party.

As for deterring liquor licensees, the comparative negligence rule does not allow licensees to escape responsibility for their unlawful conduct. Vendors continue to have a decided interest in checking the identification of young-looking purchasers. What the defense does allow, however, is for fact finders to achieve just and equitable outcomes based on the overall circumstances of each case while also fulfilling the purpose of AS 04.16.051. A jury can be instructed to make some apportionment of fault under the specific facts of each case to account for the gravity of the licensee’s violation of Alaska law by selling alcohol to a member of a protected class. Thus, the vendor who violates the law will be civilly liable for its action. The comparative negligence mechanism only ensures that the licensee will not bear a disproportionate amount of fault solely because it is deemed the “deep pocket” of the lawsuit. To the extent the majority’s rule today precludes such equitable tailoring to reflect the individual merits of each case, I cannot join its decision.

. Many jurisdictions allow the comparative negligence of a minor to be considered in actions against social hosts who serve alcohol to minors in violation of statutes. See, e.g., Longstreth v. Gensel, 423 Mich. 675, 377 N.W.2d 804 (1985) (minor’s action against social host who violated statute is subject to comparative negligence statute since, although minors are not considered competent to handle the effects of alcohol, the law presumes they are competent to operate automobiles nonnegligently); Sage v. Johnson, 437 N.W.2d 582 (Iowa 1989) (agreeing with court’s reasoning in Longstreth)-, Batten v. Bobo, 218 N.J.Super. 589, 528 A.2d 572 (Law Div.1986) (although statute’s intent is to protect minors from own lack of maturity, minors’ comparative negligence may be considered by the jury in action against social host); Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983) (because they may be held liable as adults for certain offenses and are presumptively capable of negligence, minors’ comparative negligence should be considered in action against social host even though minors are legislatively determined incompetent to handle effects of alcohol).

. However, I note that Vance predates the Kaatz decision and is therefore of little precedential value to this court.

. The majority reasons that because we have never "charged” a minor plaintiff with any contributory fault in these circumstances, none will be charged under AS 09.17.060. This lacks a logical foundation. After Kaatz, and more recently AS 09.17.080, comparative fault should be chargeable to minors absent some clear legislative expression to the contrary.