Wright v. Sue & Charles, Inc.

MOYLAN, Judge. With commendable candor, the appellants acknowledge that their primary argument on this appeal is 1) that the substantive law with respect to tort liability for (a) dispensing and (b) ⁴⁶⁸ supervising the consumption of alcoholic beverages desperately needs changing and 2) that we, in the course of reversing the judgment against them, should make that substantive change. It is a bold and sweeping invitation. Out of deference, however, to James Madison 1 and other architects of the American governmental scheme, we must decline.

American courts do, indeed, sometimes make law. If it were not so, appellate reports would not be published. Courts, however, make law only on the periphery. They make law when they interpret statutes and constitutional provisions, but they do not enact statutes or frame constitutional provisions.

They make law with respect to the procedures and the rules of evidence that facilitate the functioning of the courts. They do not, however, create or change substantive law affecting conduct outside the courtroom. As Justice Holmes explained, “judges ... legislate ... only interstitially.” 2 Time was, of course, when common law courts actually made or changed substantive law, but that practice is no longer a valid precedent. The time was pre-1776 and the place was England (or other places that were still the colonies of England).

The rationale for such authority in the common law courts was that the primary source of law was not the people, speaking through a legislative branch, but the King. The courts were simply an arm of the King, as the very extension of the word “court” to those more peripheral venues of the royal presence graphically demonstrates. That law-making prerogative was forever curtailed when American constitution makers, state and federal, designed a radically different governmental scheme incorporating Montesquieu’s concept of three coordinate branches of government and the careful allocation of separate powers among those separate branches. If the judicial branch today occasionally strays beyond its ⁴⁶⁹ assigned turf, it is either an inadvertent lapse or a stealthy usurpation of a power that properly belongs somewhere else.

On April 22, 1997, seventeen-year-old Anthony Joseph Wright (“the decedent”), along with eighteen-year-old Jason Burch, purchased alcohol from appellee Sue & Charles, Inc. (d/b/a “New Hampshire Liquors”). The two boys then proceeded to the home of another acquaintance, Bobby Foard, where the deceased and Burch consumed the alcohol they had earlier purchased. At some time later, the deceased left the Foard home alone in his motor vehicle. The deceased was then involved in a single-car automobile accident in which he was killed.

On April 22,1998, the appellants, Joseph Wright and Theresa Wright, brought a wrongful death action on behalf of their deceased son in the Circuit Court for Prince George’s County. Named as defendants in the Complaint were (1) Sue & Charles, Inc.; (2) Lee Choi and Han Yong Choi, the owners/operators of Sue & Charles, Inc.; and (3) Robert Clebe Foard and Lois Jean Foard, the parents of Bobby Foard. The appellants sought $15 million in damages. Sue & Charles, Inc. and the Chois filed a Motion to Dismiss the Complaint on the ground that it failed to state a claim on which relief could be granted.

On July 27,1998, Judge Arthur M. Ahalt granted the motion. Thereafter, the Foards also filed a Motion to Dismiss. Six months later, the appellants filed a Motion for Appropriate Relief complaining that a hearing had not been held before the initial granting of the Motion to Dismiss. On July 6, 1999, a hearing was conducted.

At the conclusion of that hearing, Judge Ahalt granted the Motion to Dismiss in favor of all defendants. This timely appeal was noted. The appellants allege that the trial court improperly granted the appellees’ motions to dismiss. The appellants specifically contend that: 1.

The trial court erred in ruling that there is an absolute prohibition on civil liability based on the sale of alcoholic beverages to a minor; and ⁴⁷⁰ 2. The trial court erred in failing to hold the Foards accountable for the decedent’s death based on a theory of “social host liability.” Dram Shop 3 Liability The trial court, in granting the appellees’ motions, explained: As counsel for the Plaintiff recognizes, the law in Maryland has been fairly well established for a considerable period of time concerning liability in situations like this. The Court of Appeals has not spoken with respect directly to some of the issues raised, but it’s not the function of this Court to create causes of action. ... It’s not my responsibility to create new policy or new causes of action, so for all of those reasons, the current state of the law in Maryland requires me to grant the Motion to Dismiss for [all] of the Defendants.

The first case to address the issue presented in this case was State v. Hatfield, 197 Md. 249 , 78 A.2d 754 (1951). In that case, Frank Love, a minor, bought alcohol at a tavern and consumed the alcohol while on the premises. Shortly thereafter Love operated a motor vehicle and caused a collision in which James Joyce, an innocent party in another vehicle, died. Joyce’s widow subsequently brought suit against the tavern and its operators claiming that the defendants were negligent in (1) selling alcohol to a minor and (2) continuing to sell Love alcohol when he was visibly intoxicated and the tavern operators had reason to know Love would have to operate a motor vehicle in order to leave the premises.

The trial court would not permit the suit to go forward, holding that the proximate cause of the collision was not the unlawful sale of liquor but the negligence of the individual who drank the liquor. ⁴⁷¹ In considering whether the tavern could be held liable for Joyce’s death, the Court of Appeals focused on the common law: Apart from statute, the common law knows no right of action against a seller of intoxicating liquors, as such, for “causing” the intoxication of the person whose negligence 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 the sale of liquor and a tort committed by a buyer who has drunk the liquor. * * * 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 754 (emphasis supplied). In Hatfield , the Court articulated what was then the overwhelmingly majority rule, 197 Md. at 254-55 , 78 A.2d 754 , that a tavern could not be held liable for the actions of a patron in becoming intoxicated and injuring another individual.

Hatfield stood undisturbed for thirty years until Felder v. Butler, 292 Md. 174 , 438 A.2d 494 (1981), came before the Court of Appeals. The facts in Felder were virtually identical to those before the Court in Hatfield except 1) that Madeline Hawkins, the intoxicated individual in Felder , was not a minor, and 2) that the innocent third party was seriously injured in a motor vehicle collision but was not killed. 292 Md. at 175-76 , 438 A.2d 494 . Chief Judge Murphy, writing for the Court, framed the question: 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 ⁴⁷² vendor of intoxicating beverages for injuries negligently caused by an intoxicated patron to an innocent third party. 292 Md. at 175 , 438 A.2d 494 . After discussing its earlier decision in Hatfield at great length, the Court recognized the trend in other jurisdictions to back away from the common law position: The appellants correctly point out that in the thirty years since Hatfield 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 beverage for damages caused by their intoxicated patrons.

They urge that we abandon Hatfield[.] 292 Md. at 178 , 438 A.2d 494 (emphasis supplied). After discussing in detail two such cases (i.e., 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)), the Court of Appeals recognized that at least twenty-one other jurisdictions had followed suit and permitted an establishment selling liquor to be held civilly liable for damages caused by an intoxicated patron. 292 Md. at 180-81 , 438 A.2d 494 . The Court of Appeals, although recognizing the great importance of the common law and of stare decisis, suggested that those restraints would not necessarily bind the Court: Of course, the common law is not static. Its life and heart is its dynamism — its ability to keep peace with the world while constantly searching for just and fair solutions to pressing societal problems like that presented by the senseless carnage occurring on our highways, due in no small measure to the drinking driver.

The common law is, therefore, subject to modification by judicial decision in light of changing conditions or increased knowledge where this Court finds that it is a vestige of the past, no longer suitable to the circumstances of our people. * * * Although of great importance, we have not construed the doctrine of stare decisis to prevent us from changing a rule ⁴⁷³ of law if we are convinced that the rule has become unsound in the circumstances of modem life. 292 Md. at 182-83 , 438 A.2d 494 . Despite that dubious 4 panegyric to judicial law-making power, however, the Court declined to create substantive legal liability and acknowledged that the proper modality for such change would be legislative and not judicial. Judge Murphy concluded: Whether Maryland should abandon the rale in Hatfield and align itself with the new trend of cases which impose civil liability upon vendors of alcoholic beverages for the torts of their inebriated patrons depends ultimately upon which line of authorities, all things considered, best serves the societal interest and need. That determination dearly impads on the development of the law relating to the dispensing and consumption of alcoholic beverages, a subject long pervasively regulated by the legislature. ...

The absence of any statute in Maryland creating a civil cause of action in such circumstances prompted the Court in Hatfield to conclude that the legislature did not intend to impose civil liability upon alcoholic beverage vendors for the tortious acts of their intoxicated customers. [SJince the legislature has not yet created dram shop liability by statute, we decline, for now, to join the new trend of cases initiated by Waynick and Rappoport. 292 Md. at 183-84 , 438 A.2d