OPINION
NEAL, Judge.Is a tavern keeper liable when he knowingly sells alcohol to minors and, as a result of the sale, the minors are killed or injured?
Elizabeth Porter, 16, was killed when her car overturned. Anna Marie Flores and Frances Flores, minor passengers in the car, were injured. Another minor passenger, Julie Roybal, was not injured. Elizabeth Porter is represented by her father, Daniel Porter, Sr., and the Flores sisters are represented by their father, Ceferino Flores.
The plaintiffs filed their complaint against Ortiz on April 3, 1981. They alleged that Ortiz, owner of the El Alto Bar in Pecos, New Mexico, willfully or negligently provided alcohol to the girls, knowing that they were minors. The defendant moved to dismiss the complaint for failure to state a claim, or in the alternative for summary judgment. After hearing, the trial court ruled that there were genuine issues of material fact, but that as a matter of law plaintiffs did not state a claim against Ortiz. The plaintiffs appeal the dismissal of their complaint.
We reverse.
Since the trial court’s ruling our Supreme Court, in Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982) and MRC Properties, Inc. v. Gries, 98 N.M. 710, 652 P.2d 732 (1982), has held that tavern keepers may be liable under certain circumstances. Lopez and MRC overruled Marchiondo v. Roper, 90 N.M. 367, 563 P.2d 1160 (1977); Hall v. Budagher, 76 N.M. 591, 417 P.2d 71 (1966).
We reiterate generally what was said in Lopez and MRC. Those cases provide for tavern keeper liability when the plaintiff can show that the tavern keeper owes him a duty of care, and that the breach of that duty is the proximate cause of his injury. Lopez recognized that a duty may be established by statute.
We must view the evidence in the light most favorable to the plaintiffs, and assume that all of their well-pleaded allegations are true. Davis & Carruth v. Valley Mercantile, etc., Co., 33 N.M. 295, 265 P. 35 (1928); Hall, supra. We must assume that Ortiz knowingly sold alcohol not only to Elizabeth Porter, but to all of the minor girls, all of whom he knew were minors and could see out of the front windows of the bar.
Both § 60-7B-1 and § 60-7B-1.1, N.M.S.A.1978 (1981 RepLPamph.) make it a violation of the Liquor Control Act to “sell” or “deliver” alcohol to a minor, or to “aid or assist” a minor in procuring alcohol. In MRC, the predecessor statute to § 60-7B-1(A), supra, which was substantially the same as the new statute, created a duty to a third party who was injured by a minor who had been served alcohol contrary to the Liquor Control Act. Here, the minors, and not a third party, were injured. This supports our conclusion that Ortiz owed a duty of care to the minor girls.
Consistent with Lopez and MRC we conclude that, under the facts in the plaintiffs’ complaint, Ortiz may be liable for the death of Elizabeth Porter and the injuries to the Flores sisters.
The breach of that duty must be shown to be the proximate cause of the accident. The plaintiffs alleged this in their complaint, and for purposes of this appeal, we assume that the breach of duty was the proximate cause of the accident.
We have no difficulty concluding that under Lopez and MRC, the complaint states a claim against Ortiz. A more difficult issue, and the critical issue, is whether these cases apply to the present case. We hold that they do. In MRC the Supreme Court stated: “The present case and Lopez v. Maez were on appeal in our Court at the same time; therefore, we will allow the application of the common law negligence principle set forth in Lopez v. Maez to apply to the present case.”
The present case was pending on appeal at the same time as Lopez and MRC and, therefore, we hold that those cases apply to this case. The fact that this case was pending in the Court of Appeals, and not the Supreme Court, does not alter our conclusion. The balancing of different policies used in Lopez and in MRC is no different when the case is pending in the Court of Appeals.
The case is remanded to the district court for trial.
IT IS SO ORDERED.
HENDLEY, J., concurs. BIVINS, J. (concurring in part, dissenting in part).