Gonzales v. Krueger

MOORE, Justice,

concurring, with whom BURKE, Justice, joins.

The court rules that the dram shop act does not require a plaintiff to prove that his injuries were proximately caused by the intoxication of the person to whom the vendor provided liquor. I believe that this conclusion is flatly inconsistent with our statement in Kavorkian v. Tommy’s Elbow Room, Inc., 711 P.2d 521 (Alaska 1985) that “under the text of [the dram shop act] the injuries must result from the intoxication of the drunken ‘person.” 711 P.2d at 523. Far from being idle dicta, this statement was necessary for us to conclude that a plaintiff is relieved from showing that the negligent provision of alcohol caused or contributed to the intoxication of the purchaser who caused his injuries.

By dismissing Kavorkian, the court appears to remove from the statute any requirement that the plaintiff prove that the intoxication of the purchaser caused his injuries. A vendor is liable for all injuries that are proximately caused by its negligent provision of liquor under AS 04.21.-020. However, the common law of proximate causation supplies the very same requirement by limiting a vendor’s liability to those injuries that fall within the range of risks that make its conduct negligent. Because liability under the statute depends solely on whether the purchaser was drunk, the risks that make a vendor’s provision of liquor negligent are limited to those that stem from the purchaser’s intoxication. Thus, although the court rules that the dram shop act does not require a plaintiff to prove that his injuries were caused by the intoxication of the purchaser, the common law of proximate causation dictates that a vendor cannot be held liable for injuries to persons for negligently providing liquor under the act unless the injuries result from the intoxication of the purchaser. If, on remand, the jury concludes that Gonzales’ injuries did not result from Gagnon’s intoxication, the court must give judgment to Safeway.

By its terms, the dram shop act establishes immunity from civil liability:

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 ... and (1) the alcoholic beverages are provided to a person under the age of 21 years ... or (2) the alcoholic beverages are provided to a drunken person in violation of AS 04.16.-030.

However, since the dram shop act was enacted, we have interpreted this language as implying a cause of action against a licensed vendor who sells alcohol to a drunken person for injuries resulting from the intoxication of that person:

[AS 04.16.030 and AS 04.21.020], although they are expressed in the negative rather than the affirmative form, clearly imply an affirmative command that a licensee who with criminal negligence provides alcoholic beverages to a *1323drunken person may “be held civilly liable for injuries resulting from the intoxication of that person....” 1

We relied on this text in Kavorkian in holding that a plaintiff is relieved of proving that the negligent provision of alcohol to an intoxicated person contributed to his intoxication. 711 P.2d at 523. Causation under the statute follows from the intoxication of the purchaser, not the particular bottle of liquor purchased.2

The court believes that this “overstates” the holding in Kavorkian. The court interprets the word “may” in the statement that vendors “may be held civilly liable for injuries resulting from the intoxication of [the person to whom it provides alcohol]” to permit but not require a plaintiff to show that his injuries were caused by the intoxication of the purchaser. Supra p. 1321. This interpretation is defeated by the very next sentence in our opinion: “Thus, under the text of our statute the injuries must result from intoxication of the drunken person." 711 P.2d at 523. This is not an idle statement of dicta. Rather, it is the major premise of our holding that the statute does not require a plaintiff to prove the “further link that the intoxication be caused by the negligent providing....” 711 P.2d at 523.

In reaching this holding, we relied on the reasoning of the Connecticut Supreme Court of Errors in Pierce v. Albanese, 144 Conn. 241, 129 A.2d 606 (1957). The court interpreted Connecticut’s dram shop act which imposes civil liability on vendors for selling liquor to an intoxicated person for injuries “in consequence of such intoxication” 3 to “require proof that the injuries complained of were in consequence of the intoxication of the person to whom the liquor was sold.” 129 A.2d at 614. Based on this language, the Connecticut court held that “[t]he statute does not require proof that the sale of intoxicating liquor produced or contributed to the intoxication of the person to whom it was sold.” 129 A.2d at 614. The court explained the intent of the legislation as follows:

[Ijnstead of requiring proof that the sale of any particular drink in violation of [law] caused or contributed to the intoxication in consequence of which injury to another person resulted, the legislature reasonably could find that in the great variety of factual situations encompassed by the terms of § [30-102] there would always be such a reasonable relationship between a sale in violation of the law and the injury consequent upon the intoxication of the one to whom the sale was made as would warrant a departure from common-law concepts of proximate causation and the substitution of a new basis of liability.

129 A.2d at 612. In Kavorkian, we interpreted the legislature’s statement that the “injuries result[] from the intoxication of [the purchaser]” to warrant a similar departure from a common law proximate causation analysis.

The court states that nothing in Kavorki-an says that “the theory of causation must be limited to treating the providee’s intoxication as the only causal antecedent.” Supra p. 1321 (emphasis added). I agree. *1324However, our holding in Kavorkian would make no sense unless the dram shop act was interpreted to require that the purchaser’s intoxication is a causal antecedent. If AS 04.21.020 is interpreted not to require a showing that the injuries resulted from the intoxication of the purchaser, there is no basis for the conclusion that the statute relieved a plaintiff of his burden of proving that the negligent sale caused or contributed to the intoxication which in turn caused the injuries.

By dismissing our interpretation of AS 04.21.020 in Kavorkian, the court denies that the statute requires the plaintiff to prove that the intoxication of the purchaser caused his injuries. Instead, a plaintiff may prove that the negligent provision of alcohol proximately caused the injuries. Supra p. 1321. However, the court’s holding is of little moment because the common law of proximate causation provides the very same requirement. In determining whether the injuries are proximately caused by the negligent provision, the court must determine whether the injuries fall within the scope of the foreseeable risks of the negligence. The requirement of proximate causation ensures that liability does not extend beyond the risks that make the defendant’s conduct negligent in the first place. See Osborne v. Russell, 669 P.2d 550, 556-57 (Alaska 1983); Prosser and Keeton, The Law of Torts, § 42 at 273 (5th ed.1984) (“scope of liability should ordinarily extend to but not beyond the ‘foreseeable risks’ — that is, the risks by reason of which the actor’s conduct is held to be negligent.”).

The dram shop act provides that a vendor is negligent and subject to civil liability for providing liquor to an adult only when the adult is intoxicated. Where an adult purchaser is not intoxicated, the vendor is immune from civil liability. The difference between liability and immunity for providing liquor depends solely on whether the person to whom it was provided was drunk. The risks that make a vendor’s provision of liquor negligent, therefore, are limited by operation of statute to those related to the intoxication of the purchaser.4 Any other risks of providing alcohol not associated with the intoxication of the purchaser fall outside the scope of the risks that make a vendor’s provision of alcohol negligent.

Although the court rules that AS 04.21.-020 does not require a plaintiff to prove that his injuries were caused by the intoxication of the purchaser, the common law of proximate causation does. A vendor cannot be held liable for injuries to persons for negligently providing liquor under AS 04.-21.020 unless the injuries result from the intoxication of the purchaser. All other injuries fall outside the scope of the risks that make a vendor’s conduct negligent under AS 04.21.020.

In this case, it is unclear whether Gonzales’ injuries resulted from Gagnon’s intoxication because Gagnon was not driving the car when the accident occurred. A reasonable juror may find that Gagnon’s intoxication had nothing to do with Krueger’s drinking the schnapps and thus nothing to do with the accident. On the other hand, a reasonable juror also could conclude that Gagnon’s intoxication was related to the accident because of how it impaired Gagnon’s judgment about drinking in a car. Thus, I agree with the court’s decision to reverse the superior court’s grant of summary judgment to Safeway. However, if at trial, the jury finds that Gonzales’ injuries did not result from Gag-non’s intoxication, Safeway’s sale of liquor to Gagnon is not a proximate cause of the injuries and the court must enter judgment for Safeway.

. Kavorkian, 711 P.2d at 523 (emphasis in original). We first suggested that there is an implied cause of action under the statute in Nazareno v. Urie, 638 P.2d 671 (Alaska 1981). In Nazareno, we rejected the common law rule that a purvey- or of alcoholic beverages could not be held liable for injuries or damage caused by an intoxicated customer. At the same time, we noted that "the utility of this common law cause of action is limited to cases arising before the legislature amended AS 04.21.020(a).” 638 P.2d at 675 n. 5. We intended subsequent cases to be analyzed as statutory actions.

. 783 P.2d at 239-40. We applied this analysis in Williford v. L.J. Carr Investments, 783 P.2d 235 (Alaska 1989), where we remanded the case for a determination "whether Tomaganuk’s injuries resulted either from his own intoxication or that of his nephew.” We included Tomaganuk in the remand instructions because both he and his nephew were drunken persons and the licensee provided both with alcohol.

.Connecticut's act provides:

If any person, by himself or his agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, ... to be recovered in an action under this section.... Conn.Gen.Stat.Ann. § 30-102 (West 1975).

. In Nazareno, supra n. 1, we interpreted AS 04.15.020(a) (repealed ch. 131, § 12, SLA 1980) which made it a crime to sell liquor to an intoxicated person as "unquestionably designed ... to protect against personal injuries caused by intoxication.” 638 P.2d at 675 (quoting Vance v. United States, 355 F.Supp. 756, 759 (D.Alaska 1973)).