Moran v. Foodmaker, Inc.

BISHOP, Judge. Appellant Maria Moran filed suit in the Circuit Court for Montgomery County against Allan Ray Ashley, Jr. (Ashley) for injuries sustained in an automobile accident. After deposing Ashley, 1 appellant filed an Amended Complaint which named appellee Foodmaker, Inc., t/a Chi Chi’s (Food-maker), as a co-defendant. Foodmaker filed a motion for summary judgment which was granted on February 20, 1990.

A trial was held on May 21,1990. Defendant Ashley admitted liability and judgment was entered in favor of appellant. A timely appeal was filed as to appellee Food- ¹⁵³ maker. One issue was raised which we have rephrased as follows: I. Whether appellant has a cause of action in tort against appellee, Foodmaker, for its failure to protect appellant from the risk of injury by an intoxicated patron.

FACTS On November 24, 1987, appellant Maria Moran left work and drove to Wheaton, Maryland to visit a friend. After arriving at her friend’s house, Ms. Moran parked her car and went to the rear of the car in order to get something out of the trunk. At approximately 3:30 in the afternoon, as she was pulling the item out of the trunk, Ashley drove his automobile directly into the rear of Ms. Moran’s car, pinning her between the two vehicles. Ms. Moran sustained extensive injuries over her entire body including a shattered left lower extremity with neurovascular compromise and comminuted fractured femur, which resulted in the traumatic amputation of her lower left leg to the high thigh.

Her injuries required extensive hospitalization, therapy and rehabilitation. In addition, she suffered from bouts of depression. Prior to the accident, Ashley had been at Chi Chi’s restaurant on Rockville Pike where he consumed approximately four to five drinks of bourbon and coke. Apparently, Mr. Ashley frequented Chi Chi’s approximately two times per week during the six months prior to the accident because one of the bartenders would make strong drinks for him.

While at Chi Chi’s, Ashley became very loud and boisterous, he turned on several beer spigots at the bar and threw glasses onto the floor. At no time was Ashley asked to leave, nor did the employees at Chi Chi’s make any attempt to stop serving Ashley alcoholic beverages. Immediately following the accident, the police tested Ashley’s blood alcohol level at .19, well above the legally ¹⁵⁴ permissible level. 2 Ashley was eventually charged with driving while intoxicated. He entered a plea of guilty and was sentenced to one year in the Montgomery County Detention Center.

The sentence was suspended and Ashley was placed on three years supervised probation. The trial court also ordered Ashley to make restitution to Ms. Moran in the amount of $1,000.00. DISCUSSION Drunken driving is a problem of great proportion. Its cost to society, in terms of the loss of human lives, is immeasurable.

Moreover, “[t]he universal use of automobiles and the frequency of accidents involving drunken drivers are matters of common knowledge.” Cimino v. Milford Keg, Inc., 385 Mass. 323 , 431 N.E.2d 920, 925-26 (1982). According to the National Safety Council, the estimated cost of alcohol-related motor vehicle accidents is about $13 billion and drinking is a factor in fifty to fifty-five percent of all fatal motor vehicle accidents. National Safety Council, Accident Facts, 52 (1988). The United States National Highway Traffic Safety Administration reported that, in 1988, 20,208 drinking drivers were involved in fatal motor vehicle accidents.

U.S. Dept. of Commerce, Statistical Abstract of the United States 1990, (110th ed.). In recent years, the question of who is to pay for the injuries that result from drunken driving has been widely debated and addressed, in various ways, by state legislatures and courts. Under the traditional common law view, a commercial supplier of liquor could not be held liable for injuries caused or suffered by an intoxicated patron to whom the supplier had furnished alcohol. This view was based upon the ¹⁵⁵ notion that the law recognizes no relation of proximate cause between the sale of liquor and a tort committed by a buyer who has drunk the liquor.

See generally State v. Hatfield, 197 Md. 249, 259 , 78 A.2d 754 (1951). The majority of states, however, through either legislative or judicial action, have departed from this traditional rule. Today, twenty-three states have dramshop acts which impose civil liability on suppliers of intoxicating beverages in certain circumstances. 3 At one time or another, thirty-eight states have had some form of dramshop act. These laws were enacted as a result of the efforts of prohibitionists to curtail the availability of alcoholic beverages____ After prohibition ended in 1933, states began to repeal their dramshop acts.

By 1978, only eighteen states had such acts on their books, and no state had adopted one in the preceding forty years. In more recent years, however, dramshop legislation has enjoyed a renaissance____ Moreover, it appears that this trend will continue, this time sparked not by a conviction that liquor is immoral, but rather by public ¹⁵⁶ pressures to deter drunken driving and to compensate the victims of those accidents that do occur. Comment, Third Party Liability For Drunken Driving: When “One for the Road” Becomes One for the Courts, 29 VilLL.Rev. 1119, 1124-25 (1983-84) (footnotes omitted). In some states, the Dramshop Act is the exclusive cause of action by which a vendor may be held liable for injuries caused by an intoxicated patron.

See e.g., Cal. Bus. & Prof.Code § 25602.1 (West 1984); N.J.Stat.Ann. § 2A:22A-1 et. seq. (West 1987 & Supp.1990). Other states, however, have at some time, recognized a cause of action in negligence based on a violation of the state’s alcoholic beverage control act. 4 See generally Comment, 29 Vill.L.Rev. 1119, 1138 n. 86 (1983-84).

All fifty states and the District of Columbia have alcoholic beverage control acts. Maryland’s act provides in part: § 118. Sales to minors and intoxicated persons prohibited. (a) Generally.— (1) A licensee licensed under this article, or any employee of the licensee, may not sell or furnish any alcoholic beverages at any time to a person under 21 years of age: (i) For the underage person’s own use or for the use of any other person; or (ii) To any person who, at the time of the sale, or delivery, is visibly under the influence of any alcoholic beverage. >f< # # * $ * (3) (i) A licensee or employee of the licensee violating any of the provisions of this subsection is guilty of a misde ¹⁵⁷ meanor and, upon conviction, suffers the penalties provided by § 200 of this article.

Md.Ann.Code art 2B, § 118 (1990). In general, states which have recognized a cause of action in negligence based on a violation of an alcoholic beverage control act have determined that the injured plaintiff was within the class of persons that the statute was designed to protect, that the tavern keeper owed a duty to the plaintiff and that a breach of this duty imposes civil liability for negligence. For example, in Jardine v. Upper Darby Lodge No. 1973, Inc., 413 Pa. 626 , 198 A.2d 550 (1964), the Supreme Court of Pennsylvania affirmed a trial court’s finding that a commercial vendor of alcoholic beverages was the proximate cause of injuries suffered by a pedestrian who had been struck by an automobile operated by one of the vendor’s intoxicated patrons. In that case, since the dramshop act had been repealed, Pennsylvania’s Supreme Court relied upon a legislative act that made it unlawful for any person to sell liquor to one already intoxicated.

In enacting this statute, the legislature recognized that an intoxicated person is and can be an instrument of danger to others, especially when operating a motor vehicle. Id. 198 A.2d at 533 . Since the pedestrian was in the class of persons intended to be protected by the legislative act, and the intoxicating beverages were sold to the customer in violation of the act, the Supreme Court of Pennsylvania affirmed the trial court’s finding that the commercial vendor was negligent and its unlawful acts were the proximate cause of the pedestrian’s injuries. Id.

Similarly, in Taylor v. Ruiz, 394 A.2d 765 (Del.1978), the plaintiff-pedestrian brought an action against a tavern owner for injuries sustained when he was struck by an