Felder v. Butler

Murphy, C. J., delivered the opinion of the Court. Davidson, J., dissents and filed a dissenting opinion at page 184 infra. The issue in this case is whether, in light of changes evolving in the common law since our decision in State v. Hatfield, 197 Md. 249 , 78 A.2d 754 (1951), Maryland should now recognize a right of action in tort against a licensed vendor of intoxicating beverages for injuries negligently caused by an intoxicated patron to an innocent third party. I The plaintiffs sued the defendant tavern owner in the Circuit Court for Charles County, alleging that on November 19, 1977, the defendant and his agents: "in the evening and until midnight ... did cause and contribute to the intoxication of Madeline Cecelia Hawkins by negligently, carelessly, wrongfully and unlawfully selling [to her] intoxicating liquor, while she was then and there visibly under the influence of intoxicating beverages.” The declaration averred that at 12:15 A.M. on November 20, 1977, Hawkins drove her automobile across the lane of oncoming traffic and collided with a vehicle occupied by the plaintiffs; that Hawkins was then "intoxicated and visibly under the influence of intoxicating beverages and . . . was incompetent to properly drive and control her motor ¹⁷⁶ vehicle due to the sale of intoxicating beverages to her by the Defendant”; and that as a direct and proximate result of the defendant’s negligent and unlawful act in selling liquor to Hawkins, plaintiffs suffered severe bodily injuries.

The defendant demurred to the plaintiffs’ declaration. Relying upon State v. Hatfield, supra, the tavern owner contended that the plaintiffs had no cause of action because the proximate cause of the collision was not the unlawful sale of liquor to Hawkins but her negligence in drinking it. The circuit court sustained the demurrer without leave to amend and the plaintiffs appealed to the Court of Special Appeals. We granted certiorari on our own motion prior to decision by the intermediate appellate court.

II In State v. Hatfield, supra, Maryland adopted the early common law rule that an innocent third party did not have a cause of action against a vendor of alcoholic beverages for injuries suffered as a result of the intoxication of the vend- or’s patron. In that case, the tavern owner was sued for damages under a declaration which alleged that he had knowingly sold intoxicating liquors to a minor in violation of a Maryland criminal statute which prohibited such sales to minors and intoxicated persons. The declaration averred that the defendant continued to sell liquor to the minor after he became intoxicated; that in the exercise of due care, the defendant should have known that the minor was intoxicated and unable to operate his automobile safely; that the defendant negligently and recklessly permitted the intoxicated minor patron to leave the premises and operate his automobile; and that as a direct result of the tavern owner’s negligent and unlawful conduct, a collision occurred when the intoxicated minor negligently operated his vehicle and collided with the automobile driven by the decedent. The defendant tavern owner demurred to the declaration on the ground that it failed to state a cause of action.

The ¹⁷⁷ demurrer was sustained without leave to amend, and we affirmed the judgment on appeal. The Court said: "Apart from statute, the common law knows no right of action against a seller of intoxicating liquors, as such, for 'causing’ intoxication of the person whose negligent or wilful wrong has caused injury. Human beings, drunk or sober, are responsible for their own torts. The law (apart from statute) recognizes no relation of proximate cause between a sale of liquor and a tort committed by a buyer who has drunk the liquor. ...

"... 'Under the common law it is not an actionable wrong either to sell or to give intoxicating liquors to an able-bodied man.... The common-law rule holds the man who drank the liquor liable, and considers the act of selling it as too remote to be a proximate cause of an injury caused by the negligent act of the purchaser of the drink.’ ” 197 Md. at 254-55 ; 78 A.2d at 756-57 (citations omitted). In so holding, the Court in Hatfield noted that statutes existed in some states, although not in Maryland, creating a civil cause of action for damages against one selling alcohol to an intoxicated person who, as a result of such intoxication, negligently causes injury to innocent persons. The Court said that apart from statute, no cases existed which held "a seller of intoxicating liquor ... liable for a tort of the buyer who drank the liquor.” Id. at 255 .

The Court concluded its opinion with these observations: "[W]e should virtually usurp legislative power if we should declare plaintiffs contentions to be the law of Maryland. In the course of the last hundred years there probably has seldom, if ever, (except during prohibition) been a regular session of the General Assembly at which no liquor laws were passed. On few subjects are legislators kept better informed of legislation in other states. In the face of the flood of ¹⁷⁸ civil damage laws enacted, amended and repealed in other states and the Volstead Act — and of the total absence of authority for such liability, apart from statute — the fact that there is now no such law in Maryland expresses the legislative intent as clearly and compellingly as affirmative legislation would.” Id. at 256 .

Ill The appellants correctly point out that in the thirty years since Hatfíeld was decided, a number of jurisdictions have departed from the early common law rule and have imposed civil liability, independent of statute, upon sellers of alcoholic beverages for damages caused by their intoxicated patrons. They urge that we abandon Hatfíeld and adopt the rationale of the new trend of cases which, applying traditional negligence principles, recognizes a cause of action brought against a tavern owner by a party injured as a result of negligent acts of a patron of the tavern to whom alcoholic beverages were sold while the patron was under the influence of intoxicating liquors. Two cases launched the new trend — Waynick v. Chicago’s Last Department Store, 269 F.2d 322 (7th Cir. 1959), and Rappaport v. Nichols, 31 N.J. 188 , 156 A.2d 1 (1959). Both involved factual allegations similar to those in the case before us.

Waynick rejected the view espoused in Hatfield that the sale of alcoholic beverages to an intoxicated person is a sale to "an able-bodied man.” 269 F.2d at 325 . Applying common law principles of negligence, the Court said: "Every person has a general duty to use due or ordinary care not to injure others, to avoid injury to others by any agency set in operation by him---- "One essential element in a tort is the existence of a duty imposed by statute or otherwise in favor of the party injured and on the party whose conduct ¹⁷⁹ produces the injury.... The duty, breach of which may constitute negligence, may be a duty to the person injured as an individual, but that is not essential, since it is sufficient that the duty was owed to him as a member of a class or group. ...” Id. at 325 (citations omitted). Combining "[e]very personf’s]” general duty of care with Illinois’ criminal statute prohibiting sale of alcoholic beverages to intoxicated persons, the court held that the tavern owner’s action in serving an intoxicated patron was a proximate cause of the plaintiffs ensuing injuries.

Id. at 326 . The court found no merit in the notion that the causal claim linking the plaintiff and the tavern owner was irreparably destroyed by the intervening negligent actions of the intoxicated patron. Rappaport agreed with the holding in Waynick and expanded upon the reasoning underlying the imposition of civil liability on tavern owners. Support for the result reached in Waynick was present in comparable situations, the court indicated, where persons "whose unlawful and negligent conduct contributed with the negligent conduct of other tortfeasors in injuring innocent third parties,” id. at 7, citing Anderson v. Settergren, 100 Minn. 294 , 111 N.W. 279 (1907) (defendant who loaned gun and sold bullets to a minor held liable to third party injured by minor’s negligence in using the gun); Semeniuk v. Chentis, 1 Ill.

App. 2d 508 , 117 N.E.2d 883 (1954) (sale of air rifle to child was a proximate cause of plaintiffs injuries; firing of the gun was not a superseding cause); and Ney v. Yellow Cab Co., 2 Ill.2d 74 , 117 N.E.2d 74 (1954) (unattended taxi with keys in ignition stolen by thief who negligently injured the plaintiff). The court in Rappaport went on to say: "When alcoholic beverages are sold by a tavern keeper to a minor or to an intoxicated person, the unreasonable risk of harm not only to the minor or the intoxicated person but also to members of the traveling public may readily be recognized and foreseen; this is particularly evident in current ¹⁸⁰ times when traveling by car to and from the tavern is so commonplace and accidents resulting from drinking are so frequent.” Id. at 8 (citations omitted). The court also found that the intervening action of the intoxicated patron could have been a foreseeable and normal incident of the risk created by the tavern owner in serving liquor to him. Id. at 9.

In summation, the court held that a prima facie case of tortious liability had been established, and the matter was properly for the jury’s determination. A number of other jurisdictions have followed the lead of Waynick and Rappaport in imposing civil liability upon vendors of intoxicating liquors for damages caused by their intoxicated customers. See Vance v. United States, 355 F. Supp. 756 (D. Alas. 1973); Vesely v. Sager, 5 Cal.3d 153 , 95 Cal. Rptr. 623 , 486 P.2d 151 (1971); 1 Davis v. Shiappacossee, 155 So.2d 365 (Fla. 1963); Ono v. Applegate, 62 Ha. 131, 612 P.2d 533 (1980); Alegria v. Payonk, 101 Idaho 617 , 619 P.2d 135 (1980); Colligan v. Cousar, 38 Ill.

App. 2d 392 , 187 N.E.2d 292 (1963); Elder v. Fisher, 247 Ind. 598 , 217 N.E.2d 847 (1966); Lewis v. State, 256 N.W.2d 181 (Iowa 1977); Pike v. George, 434 S.W.2d 626 (Ky. 1968); Adamian v. Three Sons, Inc., 353 Mass. 498 , 233 N.E.2d 18 (1968); Trail v. Christian, 298 Minn. 101 , 213 N.W.2d 618 (1973); Munford, Inc. v. Peterson, 368 So.2d 213 (Miss. 1979); Sampson v. W. F. Enterprises, Inc., 611 S.W.2d 333 (Mo. App. 1980); Deeds v. United States, 306 F. Supp. 348 (D. Mont. 1969); Berkeley v. Park, 47 Misc. 2d 381 , 262 N.Y.S.2d 290 (1965); Mason v. Roberts, 33 Ohio St. 2d 29 , 294 N.E.2d 884 (1973); Campbell v. Carpenter, 279 Or. 237 , 566 P.2d 893 (1977); Jardine v. Upper Darby Lodge No. 1973, Inc., 413 Pa. 626 , 198 A.2d 550 (1964); Mitchell v. Ketner, 54 Tenn. App. 656 , 393 S.W.2d 755 (1964); Callan v. O’Neil, 20 Wash. App. 32 , 578 P.2d 890 (1978); Marusa v. D. C., 484 F.2d 828 (D.C. Cir. 1973).

See also Annot., 98 A.L.R.3d 1230 (1980); 97 A.L.R.3d 528 ¹⁸¹ (1980). Applying common law principles of duty, foreseeability and proximate causation, these cases recognize a civil right of action against a seller of alcoholic beverages where the patron’s intoxication is shown to have been either apparent, visible, obvious, or actual and was so known to the tavern owner or his employees, or should have been known had due care been exercised. Some of these cases conclude that criminal statutes in force in their jurisdictions which proscribe sales of intoxicants to minors or inebriated persons establish a standard of conduct for tavern owners and their employees from which to deviate may constitute actionable negligence. 2