Gonzales v. Krueger

*1319OPINION

MATTHEWS, Chief Justice.

This case involves a single-vehicle accident which occurred near Wasilla on August 3, 1986. Present in the vehicle at the time of the accident were Steven Krueger, Clifford M. Gagnon and David R. Gonzales. Gonzales suffered serious injuries. Shortly before the accident Gagnon, while visibly intoxicated, purchased schnapps at the Safeway liquor store in Wasilla.

Gonzales sued, among other defendants, Safeway for knowingly providing alcohol to an intoxicated person who was an occupant of a motor vehicle and who would foresee-ably make the alcohol available to others in the vehicle, including the driver. Safeway answered and, after considerable discovery, moved for summary judgment. The trial court granted the motion and dismissed all claims against Safeway. A partial final judgment was entered pursuant to Civil Rule 54(b). Gonzales appeals.

FACTUAL BACKGROUND

On appeal from a grant of summary judgment, we are constrained to take that view of the facts which is most favorable to the non-moving party. Carter v. Hoblit, 755 P.2d 1084, 1085 n. 1 (Alaska 1988). It is from this perspective that this statement of facts is made.

At about 5:20 p.m. Gagnon entered the Safeway liquor store, selected a quart bottle of schnapps and approached the checkout counter. The clerk, Ramona Van Cleve, was concerned that Gagnon was drunk and told him she would not sell the alcohol to him. Gagnon then said he wasn’t driving.

Van Cleve called her supervisor, Connie Schmidt, for advice. Schmidt asked Gag-non if he had been drinking. When he said yes, she said that she was not “allowed to sell liquor to anyone who had been drinking and let them go out and get in a car and drive away.” Gagnon repeated that he was not driving and added that his friend would drive. Schmidt then went outside the store as Krueger walked up. Krueger confirmed to Schmidt, and perhaps to Van Cleve, that Gagnon would not be driving. According to Schmidt, Krueger appeared to be sober. His speech and gait appeared normal and he did not have alcohol on his breath. Schmidt approved the sale of schnapps to Gagnon. Schmidt then watched Gagnon approach the passenger side of the vehicle and Krueger approach the driver side.

Inside the truck Gagnon opened the bottle and shared it with Krueger who was driving.1 The accident occurred at about 6:00 p.m.

Following the accident, Krueger was taken to the emergency room of Valley Hospital where he reported to a physician that he had six beers on the evening of the accident. A blood alcohol test was taken at 8:30 p.m. which showed that Krueger had a blood alcohol level of 0.16% at the time of the accident.2 The legal limit is 0.10%. AS 28.35.030(a)(2).

DISCUSSION

Under the dram shop statute, a person who provides alcoholic beverages to another person is immune from civil liability for damages caused by the intoxication of that person unless the provider is licensed to dispense such beverages and the person to whom the beverages are provided is a “drunken person.”3 A “drunken per*1320son” is a person whose conduct is substantially and visibly impaired as a result of alcohol ingestion.4

Safeway offers two related arguments as to why it cannot, as a matter of law, be civilly liable for Gonzales’ injuries. First, Safeway contends that even if Gagnon was visibly intoxicated when Safeway sold him the liquor, Safeway cannot be held liable because Krueger, the driver, was not visibly intoxicated and therefore was not a “drunken person”-under the statute. Second, Safeway argues that because it sold alcohol to the passenger rather than the driver of the vehicle, Gonzales’ injuries were not proximately caused by the transaction.

We reject both arguments. That Krueger may not have been a drunken person when Safeway sold liquor to Gag-non does not immunize Safeway from liability. Under AS 04.21.020, a licensed provider of alcoholic beverages is entitled to immunity from civil liability only if he does not sell to a drunken person. Safeway is thus not entitled to immunity on summary judgment in this case because it sold the liquor to Gagnon, who was a drunken person. The statute was given this construction in Williford v. L.J. Carr Investments, 783 P.2d 235, 239 (Alaska 1989), where we stated:

The intent of the legislature in enacting AS 04.21.020 was to limit vendor liability in cases where the vendor has provided alcohol in a statutorily permissible manner. We hold that AS 04.21.020 does not immunize vendors who violate AS 04.16.-030.

Regarding Safeway’s second argument, it cannot be said that as a matter of law the sale of liquor to Gagnon did not proximately cause the accident. Instead, this is a question for the jury. In Morris v. Farley Enterprises, Inc., 661 P.2d 167 (Alaska 1983), we held that a jury question as to proximate cause was presented in an analogous fact situation. In Morris, the defendant liquor store sold liquor to a minor who was a passenger in a vehicle. The minor evidently shared the liquor with the driver of the vehicle. Subsequently, the driver made an illegal turn and collided with another vehicle. We stated the elements of proximate cause:

[njegligent conduct may be found to be the “legal cause” of harm if the negligent act “was more likely than not a substantial factor in bringing about [the] injury”....
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Normally, in order to satisfy the substantial factor test it must be shown both that the accident would not have happened “but for” the defendant’s negligence and that the negligent act was so important in bringing about the injury that reasonable men would regard it as a cause and attach responsibility to it.

Id. at 169 (quoting State v. Abbott, 498 P.2d 712, 727 (Alaska 1972)). In concluding *1321that the facts presented a question of proximate cause for the jury, we stated:

It is clear that reasonable persons could conclude that the deaths would not have occurred but for the sale. But for the sale [the driver] would have had no liquor to drink. No evidence has been presented that liquor was acquired from another source. Since [his] blood alcohol level was measured at .134% approximately ninety minutes after the accident, a reasonable person could conclude that but for his consumption of alcohol he would not have made an illegal turn and collided with another automobile.
Reasonable persons could also conclude that the sale was so important in bringing about the deaths that they would regard it as a responsible cause. To meet this test, it is of course not necessary that the sale be the sole or even the predominant cause of the harm. “The wrongful conduct of a number of third persons may also be a cause of that harm, so that such third persons may be liable for it, concurrently with the actor.” Restatement (Second) of Torts § 430 comment d (1965), cited with approval in Sharp [v. Fairbanks North Star Borough], 569 P.2d [178] at 181 n. 6 [(Alaska 1977)]....
We further conclude that the wrongful conduct of [the purchaser] in providing [the driver] with the means of becoming intoxicated did not amount to a superseding cause as a matter of law and therefore did not operate to relieve [the liquor store] of liability.... [Intervening causes which lie within the scope of the foreseeable risk, or have a reasonable connection to it are not superseding causes which relieve the initial tortfeasor from liability.... It was neither unforeseeable nor extraordinary that the youth who purchased liquor would share it with his companions and that an automobile accident caused by the companion’s intoxication would result.

Id. at 169-70 (emphasis added) (citations omitted).

The foregoing is sufficient to decide the issues which have been presented to us. It seems appropriate, however, to respond to the interesting issues raised in Justice Moore’s concurrence. We do so at this point.

AS 04.21.020 describes circumstances under which vendors “may not be held civilly liable for injuries resulting from the intoxication of” the providee. In Kavorkian v. Tommy’s Elbow Room, Inc., 711 P.2d 521 (Alaska 1985), we held that by implication the statute thus permits imposition of liability (i.e., vendors “may” be liable) for “injuries resulting from the intoxication” of the providee. Id. at 523. However, contrary to the position taken by the concurrence, this is not to say that the theory of causation must be limited to treating the providee’s intoxication as the only causal antecedent. The concurrence overstates our holding in Kavorkian as interpreting AS 04.21.020 to preclude consideration of the vendor’s negligent provision as a causal antecedent and thereby creating a stricter causation test then would exist under traditional principles.

In Kavorkian, we interpreted the statute as removing barriers created by traditional “but for” causation analysis, not erecting barriers where the “but for” test could otherwise be satisfied. We held that under the statute the plaintiff is “not required” to prove that but for the negligent provision the harm would not have occurred (i.e., the plaintiff should not be put to the burdensome task of proving incremental, causative intoxication on the part of the provi-dee). Id. at 523. However, this does not preclude a traditional causation approach in a case where, for example, but for cause can be traced back to the negligent provision.

Likewise, when negligent provision of liquor was exclusively a common law cause of action, this court rejected the “argument that [vendors] cannot be held liable for continuing to serve an intoxicated patron because the patron would have committed the same acts without the additional alco-hol_” See Nazareno v. Urie, 638 P.2d 671, 677 (Alaska 1981). This language was relied on in Kavorkian, see 711 P.2d at 523, and thus, as a modification to the common *1322law, Nazareno stood for the proposition that plaintiffs would not be held to the burdensome task of proving incremental, causative intoxication. That is, they could frame the “but for” question in terms of the providee’s intoxication. As is the case under the current statute, however, there is no suggestion in Nazareno that plaintiffs could not choose to frame the “but for” question in terms of the negligent provision.

Accordingly, in Morris, a common law case decided after, and expressly reliant upon, Nazareno, this court framed the proximate cause question in terms of the negligent provision. Our approach to the question of proximate cause in Morris implies that even though the plaintiffs may frame the causation question in terms of the providee’s intoxication, they are not required to do so, and may instead take the more traditional approach. Like Kavorki-an, Nazareno removed barriers created by the traditional approach; it did not erect barriers where traditional “but for” causation could otherwise be proven.

REVERSED and REMANDED.

MOORE, J., with whom BURKE, J., joins, concurring.

. There is also evidence that Gonzales was the driver. Under the open container statute, AS 28.35.029, a person may not operate a motor vehicle when there is an open bottle of an alcoholic beverage in the passenger compartment of the vehicle.

. Gagnon’s blood alcohol level was .30 and that of Gonzales was .25 at the time of the accident.

. AS 04.21.020 reads in pertinent part:

Civil liability of persons providing alcoholic beverages. A person who provides alcoholic beverages to another person may not be held civilly liable for injuries resulting from the intoxication of that person unless the person who provides the alcoholic beverages holds a license authorized under AS 04.11.080-04.11.-220, or is an agent or employee of such a licensee and
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(2) the alcoholic beverages are provided to a drunken person in violation of AS 04.16.030.

At the time of the accident, AS 04.16.030 read in full:

*1320Sale or disposition of alcoholic beverages to drunken persons. A licensee, an agent, or employee may not with criminal negligence
(1) sell, give, or barter alcoholic beverages to a drunken person;
(2) allow another person to sell, give, or barter an alcoholic beverage to a drunken person within licensed premises;
(3) allow a drunken person to enter and remain within licensed premises or to consume an alcoholic beverage within licensed premises;
(4) permit a drunken person to sell or serve alcoholic beverages.

AS 04.21.080(a)(1) defines criminal negligence as follows:

[A] person acts with "criminal negligence" with respect to a result or to a circumstance described by a provision of law defining an offense when the person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstances exists; the risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

. AS 04.21.080(b)(8) provides:

"[DJrunken person” means a person whose physical or mental conduct is substantially impaired as a result of the introduction of an alcoholic beverage into the person’s body and who exhibits those plain and easily observed or discovered outward manifestations of behavior commonly known to be produced by the overconsumption of alcoholic beverages.