Thompson v. Dewey's South Royalton, Inc.

Amestoy, C.J.,

dissenting. Because plaintiffs Ken Thompson, Annette Potwin, and Ashley Thompson purportedly satisfy the “more rigorous” standard urged by defendants, the majority declines to decide whether a legal relation of financial dependence is necessary to sue for loss of support under the Dram Shop Act (DSA), 7 V.S.A. § 501.1 am not persuaded that plaintiffs here satisfied this standard. Indeed, there is so little support for a finding of legal dependence in this case that it is difficult to conceive of any case where the necessary statutory predicate, however attenuated, could not be found. Accordingly, the warning sounded by this Court more than a century ago, on facts strikingly similar to the case at bar, becomes relevant once again: “There would seem to be no stopping-place short of including all possible cases of actual dependency, whatever the relation of the parties, and notwithstanding the absence of even a moral obligation to support. . . .” Good v. Towns, 56 Vt. 410, 415 (1883). So broad an expansion of the benefited class under the DSA ought to be left to the *285governmental branch principally responsible for its enactment and development, the Legislature. See Clymer v. Webster, 156 Vt. 614, 619, 596 A.2d 905, 908 (1991) (Legislature enacted DSA to create cause of action where none had previously been available under common law). Therefore, I respectfully dissent.

The operative language in the DSA provides: “A spouse, child, guardian, employer or other person who is injured in person, property or means of support by an intoxicated person, or in consequence of the intoxication of any person, shall have a right of action . ...” 7 V.S.A. § 501(a). In Langle v. Kurkul, 146 Vt. 513, 515-16, 510 A.2d 1301, 1302-03 (1986), this Court concluded that the general term “other persons” must be interpreted with reference to the specific list of persons that precedes it, i.e., “spouse, child, guardian, employer.” We held that the term “other person” includes only those “similar in nature” to the persons specifically listed. See Vermont Baptist Convention v. Burlington Zoning Bd., 159 Vt. 28, 30, 613 A.2d 710, 711 (1992) (under principle of ejusdem generis, general term must be construed to include only terms similar in nature to enumerated terms). As we explained: “Since those persons listed in the Dram Shop Act stand in some special relation to the intoxicated person, the use of the term ‘other person’ in the Act must mean someone who is similarly situated.” Langle, 146 Vt. at 515-16, 510 A.2d at 1303 (emphasis added).

In light of the Court’s holding in Langle, I cannot agree with the majority that the meaning of “other person” remains an open question to be reserved for another day. Although Langle did not explore the precise nature of the requisite “special relation” to which it referred, it did, at a minimum, foreclose the possibility that “other person” means any other person who can demonstrate a loss of support. While other state courts have, to be sure, construed their respective dram shop acts in this open-ended fashion, see, e.g., Lefto v. Hoggsbreath Enters., 581 N.W.2d 855, 857 (Minn. 1998), this Court, at least, is on record as favoring a more limited construction.

The actual meaning of the “special relation” referred to in Langle may be traced to the statutory precursor of the current DSA, which this Court definitively construed in Good. The version of the DSA at issue in that case provided, in case of the death or injury of a person in consequence of intoxication, a cause of action for any “person who is in any manner dependent on such injured person for means of support, or a person on whom such injured person is dependent.” Good, 56 Vt. at 413 n.* (emphasis added). The question in Good, as *286here, was whether a woman and her child who had lived with but were not legally related to the injured person could recover under the DSA.

The answer provided in Good was direct, clear, and compelling. “[W]e think it should be construed to mean a legal dependency only.” Id. at 415. In so holding, the Court noted that the alternative of allowing recovery to any person “in any manner dependent” upon the injured party could encompass a virtually unlimitable class. Id. Thus, the Court declined to read so “latitudinarian a construction” into the statute. Id.

Although the language of the DSA has since evolved into its current form, there is no evidence that the meaning ascribed to the statute in Good has changed. All of the persons currently enumerated in the statute enjoy an historically recognized legal relationship with the injured party involving a level of dependence that would be directly impaired as a result of the improper sale or furnishing of intoxicating liquor. See 15 V.S.A. §§ 202, 291 (duty of married persons to support spouse); 15 V.S.A. §§ 202, 293, 294, 301 (duty of parents and stepparents to support minor child); 14 V.S.A. § 2653 (guardian’s duty of care and maintenance of minor); see also Ford v. Wagner, 395 N.W.2d 72, 74 (Mich. Ct. App. 1986) (holding that “other person” under state dram shop act is limited to persons who, like those specifically listed, have legal relationship -with injured person). Although not a familial bond, the employer-employee relationship has similarly given rise to historically unique, reciprocal benefits and obligations. See Lefto, 581 N.W.2d at 858 n.1 (Stringer, J., dissenting).

The majority’s attempt to pigeon-hole the individual plaintiffs here (with the exception of the decedent’s biological daughter, Tessa) into the class of legal dependents is unpersuasive. The law imposes no civil obligation upon an adult child to support a parent, and 15 V.S.A. § 202 imposes criminal penalties for nonsupport only in the limited circumstances where the parent is destitute and unable to support himself or herself. Plaintiff Ken Thompson, decedent’s father, has not shown that he falls within this narrow exception. Accordingly, I would not accord him standing under the Act. Similarly, there is no general legal obligation to support an unmarried cohabitant or the children of an unmarried cohabitant. Cf. 15 Y.S.A. §§ 293, 296 (duty of stepparents to support stepchild). The “man in the house” statute on which the majority relies, 15 V.S.A. § 294, has never been held to create a legal duty of support for an unmarried cohabitant or that person’s child. Thus, it falls well short of the legal-dependency standard necessary for recovery under the DSA.

*287Although the majority purports to leave for another day the question of whether the DSA broadly extends to “other persons” who have no legally recognized right of support, its holding this day provides a troublesome answer. By significantly dimming the bright line of legal dependency, the predictability essential to orderly application of the DSA is eroded. Furthermore, far from benefitting the limited class of financial dependents for whom the statute was clearly intended, the Court’s ambiguous expansion of claimants may dilute the potential judgment pool, contrary to the interests of those the Legislature deemed most severely in need.

Absent a clear legislative mandate expanding the definition of “other persons” entitled to a cause of action under the DSA, I would — consistent with the precedent of this Court — limit the class of persons entitled to recover under the DSA for loss of means of support to.those who were legally dependent on the injured party. The plaintiffs Ken Thompson, Annette Potwin, and Ashley Thompson were not legally dependent on the decedent. Therefore, I would affirm the judgment granting defendants’ motion to dismiss.