Plaintiff brought this tort action for damages against the defendant, Peter Borak, Sr., d/b/a Max's Terminal Buffet (Borak), and others. The action against Borak, the owner of a tavern, was based on the claim that Borak's negligence in serving liquor to an intoxicated patron, Reuben Flores, had been a cause of a subsequent motor vehicle accident in which Flores had inflicted serious injuries on plaintiff. Flores was joined as a defendant.
Borak moved for summary judgment on the ground that under Arizona law a tavern owner was not liable for negligence in serving an underaged, incompetent or intoxicated patron who injured a third party in a subsequent automobile accident. The trial court agreed and granted the motion; it also found no just reason for delay and entered judgment in favor of Borak and against the plaintiff. See Ariz.R.Civ.P. 54(b), 16 A.R.S. Plaintiff filed notice of appeal to Division I of the Court of Appeals. After the appeal was at issue, the Chief Judge of that division petitioned to transfer the case to this court. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and Ariz.R.Civ.App.P. 19(b), 17A A.R.S.
This case presents the issue of a tavern owner's common law liability for negligence in serving his or her patrons. Believing the question is of considerable importance and that the public interest requires a speedy and final decision, we granted the petition for transfer in order to meet and finally resolve the issue so squarely presented by the facts of this case. While the evidence is conflicting, the case was decided on motion for summary judgment and we are therefore required to review the facts in the light most favorable to the party against whom summary judgment was taken. Gulf Insurance Company v. Grisham, 126 Ariz. 123, 124, 613 P.2d 283, 284 (1980). Acknowledging this principle, defendant properly conceded in oral argument that for the purpose of deciding the question of law presented on this appeal the facts are as follows:
On May 22, 1975, Flores left work and, as was his custom, went to Borak's bar before going home. According to Flores' statement and deposition, he there had "quite a few" beers, which were served by the owner's son, and then went across the street to another bar for a short time. He returned to Borak's bar and remained there until closing time was announced at approximately 8:00 p.m. During the afternoon and early evening Flores consumed approximately 30 beers. Unfortunately, he was able to leave the bar and get in his car, which was parked in the bar's parking lot,
Plaintiff survived the accident, but received a fractured skull, subdural hematomas and liver damage. These injuries allegedly resulted in partial paralysis and
Ordinarily, a plaintiff may maintain an action in negligence if he proves:
At common law, however, a tavern owner is not liable for injuries sustained off-premises by third persons as the result of the acts of an intoxicated patron, even though the tavern owner's negligence in serving that patron was a contributing cause of the accident. See Cruse v. Aden, 127 Ill. 231, 234, 20 N.E. 73, 74 (1889); Waller's Adm'r v. Collingsworth, 144 Ky. 3, 6, 137 S.W. 766, 767 (1911); 45 Am.Jur.2d, Intoxicating Liquors § 553 (1969).
The seminal cases in Arizona on tavern owner ("dram shop") liability are Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147, and Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125, decided in 1940 and 1945, respectively. Plaintiff argues correctly that neither case explicitly held that a tavern owner could not be held liable under the common law in a fact situation similar to the one presented by the case at bench. We agree; however, implicit, if not explicit, in both Pratt and Collier is the acceptance of the common law rule. Thus, it was recognized both within and without Arizona that Pratt v. Daly had approved and adopted the common law rule of nonliability. See, for example, the annotation to Pratt v. Daly, entitled Right of Action at Common Law for Damages Sustained by Plaintiff in Consequence of Sale of Intoxicating Liquor or Habit-forming Drugs to Another, 130 A.L.R. 352, 357 (1941). This was well understood by our court of appeals, and the common law rule of nonliability was applied for injuries which occurred both on and off the premises in cases such as Lewis v. Wolf, 122 Ariz. 567, 568, 596 P.2d 705, 706 (App. 1979); Profitt v. Canez, 118 Ariz. 235, 236, 575 P.2d 1261, 1262 (App. 1978); Thompson v. Bryson, 19 Ariz.App. 134, 138, 505 P.2d 572, 576 (1973); Pierce v. Lopez, 16 Ariz.App. 54, 57, 490 P.2d 1182, 1185 (1971); and Vallentine v. Azar, 8 Ariz.App. 247, 249, 445 P.2d 449, 451 (1968). We conclude, therefore, that the rule of nonliability for tavern owners has been the common law in Arizona.
However, the common law, which is judge-made and judge-applied, can and will be changed when changed conditions and circumstances establish that it is unjust or has become bad public policy. In reevaluating previous decisions in light of present facts and circumstances, we do not depart from the proper role of the judiciary.
Lewis v. Wolf, 122 Ariz. at 568, 596 P.2d at 706 (quoting Mr. Justice Douglas, Stare Decisis, 49 Colum.L.Rev. 735, 736 (1949)). This court has adhered to that concept in the past. Ryan v. State of Arizona, 134 Ariz. 308, 310, 656 P.2d 597, 599 (1982); Fernandez v. Romo, 132 Ariz. 447, 449, 646 P.2d 878, 880 (1982); Harris v. Buckeye Irrigation Co., 118 Ariz. 498, 502, 578 P.2d 177, 181 (1978); Stone v. Arizona Highway Commission, 93 Ariz. 384, 387, 381 P.2d 107, 109 (1963).
All counsel agreed at oral argument that the common law rule was not a rule of immunity. Indeed, it is impossible to imagine why, of all occupations, those who furnish liquor should be singled out for a judicially conferred blessing of immunity to respond in damages for their wrongful acts. The common law rule was one of nonliability, founded, as indicated in both Pratt and Collier, upon concepts of causation. In Pratt, this court indicated that the drinking of the liquor, and not the selling of it, is the act which causes the injury. We again acknowledge the obvious fact, mentioned in Pratt, that one cannot become intoxicated if one does not drink. However, the obverse is equally true: one cannot become intoxicated by drinking liquor unless someone furnishes it. Our common sense tells us that both the furnishing and the drinking are part of the chain of cause and effect that produces accidents such as the one in this case.
Arizona law holds that cause-in-fact exists if the defendant's act helped cause the final result and if that result would not have happened without the defendant's act. McDowell v. Davis, 104 Ariz. 69, 72, 448 P.2d 869, 872 (1968). Defendant's act need not have been a "large" or "abundant" cause of the final result; there is liability if the result would not have occurred but for defendant's conduct, even if that conduct contributed "only a little" to plaintiff's injuries. Markiewicz v. Salt River Valley Water Users' Association, 118 Ariz. 329, 338 n. 6, 576 P.2d 517, 526 n. 6 (App. 1978) (citing McDowell v. Davis, supra). Arizona also recognizes that more than one person may be liable for causing an injury and that a particular defendant may not avoid liability for his causative act by claiming that the conduct of some other person was also a contributing cause. McDowell v. Davis, supra; see also Recommended Arizona Jury Instructions, Negligence 4, Multiple Causation.
Therefore, as far as causation-in-fact is concerned, the general rule is that a defendant may be held liable if his conduct contributed to the result and if that result would not have occurred "but for" defendant's conduct. There are some dram shop cases where it would be possible to say as a matter of law that the defendant's acts did not contribute to the result,
Another part of the causation question is the concept of superseding cause.
Prosser, supra, § 42, at 244. The basic issue of intervening and superseding causes is whether a defendant "is to be held liable
The common law rule of tavern owner nonliability was mainly based upon the concept that the chain of legal causation between the selling of the alcohol and the injury was broken or "superseded by the voluntary act of the purchaser in imbibing the drink." Collier v. Stamatis, 63 Ariz. at 288, 162 P.2d at 126. We acknowledge, of course, that the customer who drinks to excess or the underage patron who drinks at all is at fault. To say that the immediate actor is at fault, however, is not to say that there is no liability to be imposed upon the remote actor. The policy of the law on questions of intervening and superseding cause has evolved to the rule that the original actor is relieved from liability for the final result when, and only when, an intervening act of another was unforeseeable by a reasonable person in the position of the original actor and when, looking backward, after the event, the intervening act appears extraordinary. Herzberg v. White, 49 Ariz. 313, 321-22, 66 P.2d 253, 257 (1937); Serrano v. Kenneth A. Ethridge Contracting Company, 2 Ariz.App. 473, 475-76, 409 P.2d 757, 759-60 (1966); City of Phoenix v. Schroeder, 1 Ariz.App. 510, 516-17, 405 P.2d 301, 307-08 (1965); Restatement (Second) of Torts §§ 435(2), comments c and d, and 442 (1965). However, where the negligent conduct of the first actor increases the foreseeable risk of a particular harm occurring through the conduct of a second actor, the "fact that the harm is brought about through the intervention of another force does not relieve the [first] actor of liability." Id. § 442(B).
The test, then, for whether the actions of a patron, such as Flores, constitute a superseding cause which relieves the tavern owner from liability is whether Flores' conduct was unforeseeable to one in Borak's position and whether the court can say with the benefit of hindsight that the occurrence of the harm through the conduct of the intervening actor was both unforeseeable and extraordinary. Even if there were no authority on the issue, we could find it neither unforeseeable nor unexpected that a patron who was served 30 beers over the space of five or six hours became quite drunk. The only thing extraordinary about the whole situation is that this patron, with a blood-alcohol level of .33, was able to walk to his car. It was certainly neither unforeseeable nor unexpected that once Flores began driving he would become involved in an accident likely to cause death or serious injury. This elemental point has not escaped other courts.
Rappaport v. Nichols, 31 N.J. 188, 202, 156 A.2d 1, 8 (1959); see also Campbell v. Carpenter, 279 Or. 237, 240, 566 P.2d 893, 895 (1977). In fact, courts have recognized that the injury-producing conduct of the patron who has been served more alcohol while intoxicated is one of the very hazards which make the tavern owner's act negligent. Vesely v. Sager, 5 Cal.3d 153, 164, 486 P.2d 151, 159, 95 Cal.Rptr. 623, 631 (1971). The trend of modern authority is well summarized by the following words of the Supreme Court of Hawaii:
Ono v. Applegate, 62 Haw. 131, 141, 612 P.2d 533, 540-41 (1980) (citations omitted) (emphasis supplied).
Borak argues, however, that as a matter of policy we should continue to hold that there is no "proximate cause" in dram shop cases. He contends that it will be difficult to sort out cause and effect in many cases since a patron who has already become intoxicated may be involved in an accident even without the "help" of the defendant who furnishes more alcohol. This contention is answered in the dissent in Meade v. Freeman, 93 Idaho 389, 462 P.2d 54 (1969). In criticizing the common law rule, Judge Prather stated:
Id. at 399-400, 462 P.2d at 64-65.
Judge Prather's words are even truer today, fourteen years after they were written. The statistics cited in the concurring opinion in State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 663 P.2d 992 (1983), indicate a frightful toll — 25,000 deaths and 650,000 injuries each year in motor vehicle accidents in which alcohol is a contributing cause. We believe, therefore, that the words of Division II of our Court of Appeals are correct:
Lewis v. Wolf, 122 Ariz. at 570, 596 P.2d at 708. We agree with the Pennsylvania Supreme Court that "[t]o serve an intoxicated person more liquor is to light the fuse." Jardine v. Upper Darby Lodge No. 1973, Inc., 413 Pa. 626, 632, 198 A.2d 550, 553 (1964). Therefore, Pratt v. Daly, supra, and Collier v. Stamatis, supra, are overruled insofar as they stand for the proposition that the negligence of a tavern owner in continuing
Having held that lack of causation is not a viable support for the theory of nonliability of tavern owners, we now turn to the question of whether there is any other reason for this court to continue to recognize the rule. Defendant argues that problems of "duty" make recognition of a dram shop action impractical.
Duty is a concept which arises out of the recognition that relations between individuals may impose upon one a legal obligation for the benefit of the other. Prosser, supra, § 42, at 244.
Id. at 324-27.
The relation between individuals which imposes a legal obligation is usually a direct relationship between the plaintiff and defendant. Viewed in these terms, this court has already indicated "that an operator of a bar, although not an insurer of the safety of his patrons, owes a duty to exercise reasonable care and vigilance to protect them from reasonably foreseeable injury" at the hands of another patron. McFarlin v. Hall, 127 Ariz. 220, 225, 619 P.2d 729, 734 (1980) (tavern owner's duty to protect his patrons from injury at the hands of another patron who has become unruly).
However, a duty to the plaintiff may also arise out of a relation between the defendant and a third party whose negligence causes injury to the plaintiff. Prosser, supra, § 56, at 349. We believe that changing social conditions require recognition of a duty which extends to innocent third parties and which is based on the relation of the licensed supplier of liquor and his patron. We acknowledge that we deal here with defendant's obligation to help control the conduct of his patron in order to prevent that patron from injuring someone else. But the law has always recognized a duty to anticipate the intervening negligent conduct of others.
Prosser, supra, § 33, at 172, citing Rappaport v. Nichols, supra, and Waynick v. Chicago's Last Dept. Store, 269 F.2d 322 (7th Cir.1959), cert. denied, 362 U.S. 903, 80 S.Ct. 611, 4 L.Ed.2d 554 (1960). Thus, the common law recognizes a duty to take affirmative measures to control or avoid increasing
Case law has recognized the principle in many situations. For instance, one who lends an automobile or dangerous instrument to an inexperienced or intoxicated person may be held liable for injuries inflicted by that person upon another. See Johnson v. Casetta, 197 Cal.App.2d 272, 17 Cal.Rptr. 81 (1961); Harris v. Smith, 119 Ga.App. 306, 167 S.E.2d 198 (1969); Pennington v. Davis-Child Motor Co., 143 Kan. 753, 57 P.2d 428 (1936); Deck v. Sherlock, 162 Neb. 86, 75 N.W.2d 99 (1956); Stone v. Shaw Supply Co., 148 Or. 416, 36 P.2d 606 (1934). These holdings have been translated into a finding of duty in common law dram shop cases. The rationale, put succinctly, is:
Jardine v. Upper Darby Lodge No. 1973, Inc., 413 Pa. at 631-32, 198 A.2d at 553. Put more legalistically, the Alaska Supreme Court stated as follows:
Nazareno v. Urie, 638 P.2d 671, 674 (Alaska 1981) (citations omitted) (emphasis supplied), (quoting Jardine v. Upper Darby Lodge No. 1973, Inc., supra, and citing Bernhard v. Harrah's Club, 16 Cal.3d 313, 325, 546 P.2d 719, 726-27, 128 Cal.Rptr. 215, 222-23 (1976)); Colligan v. Cousar, 38 Ill.App.2d 392, 414, 187 N.E.2d 292, 302 (1963); see also Berkeley v. Park, 47 Misc.2d 381, 384, 262 N.Y.S.2d 290, 293 (1965) (recognizing coexistence of common law dram shop action and statutory action under a civil damage act expressly creating such an action).
Even if the existence of a tavern owner's duty to act with care when furnishing liquor to patrons could not be found by application of common law principle and authority, its existence could be postulated upon the affirmative requirements of statute. A.R.S. § 4-244(14) makes it unlawful for a licensee to furnish alcohol to an intoxicated person. Violation of this law is a misdemeanor. A.R.S. § 4-246. Borak argues, however, that these statutes were not enacted as safety measures but merely as regulatory measures affecting the liquor industry.
In Collier v. Stamatis, we acknowledged that the sale of liquor was a cause in fact of the injury, but held that it was "superseded by the voluntary act of the purchaser in imbibing the drink." 63 Ariz. at 288, 292-93, 162 P.2d at 126, 128. We went on to discuss the plaintiff's contention that the violation of the Arizona statute (§ 72-113, A.C.A. 1939) by sale to a minor was negligence per se and thus made the seller liable in tort. Judge Kelly, writing for the court, stated:
63 Ariz. at 289, 162 P.2d at 127 (emphasis supplied). Conversely, we held in Mendelsohn v. Superior Court, 76 Ariz. 163, 169, 261 P.2d 983, 988 (1953), that the liquor laws were designed "to protect the welfare, health, peace, temperance, and safety of all the citizens by providing for the strict regulation and control" of the industry. (Emphasis supplied.)
The two statements are not necessarily in conflict. While the plaintiff in Collier, supra, argued that the statute was enacted for the protection of minors and was "in effect the equivalent of the Civil Damage Act known to many jurisdictions," Judge Kelly stated, and we think correctly, that the legislative purpose was "to regulate the business rather than to enlarge civil remedies." Id. No doubt that was true and the legislature neither considered nor intended to enact a measure creating a new civil damage action. Conversely, we believe it fair to say that in enacting the statutes in question the legislature intended to regulate the business and one of their purposes in doing so was to promote the safety of our citizens.
We believe, however, that Judge Kelly erred in his characterization of the issue. The question before us is not whether the legislature established a statutory cause of action, but whether there is a "duty" or "obligation" imposed on the tavern owner. We believe that the portion of the statute forbidding the sale of liquor to an already intoxicated person was "enacted to protect members of the public who might be injured or damaged as a result of the intoxication which was aggravated by the particular sale of the alcoholic liquor." Lopez v. Maez, 98 N.M. 625, 631, 651 P.2d 1269, 1275; Waynick v. Chicago's Last Dept. Store, 269 F.2d at 325; Walz v. City of Hudson, 327 N.W.2d 120, 122-23 (S.D. 1982); Berkeley v. Park, 47 Misc.2d at 384, 262 N.Y.S.2d at 293-94. We believe, as does the Alaska Supreme Court, that "[a] duty of care and the attendant standard of conduct may be found in a statute silent on the issue of civil liability." Nazareno v. Urie, 638 P.2d at 675; see also Restatement (Second) of Torts, supra, § 286 comment d (indicating that when the legislature has adopted a statute requiring certain conduct and imposing either civil or criminal penalties for breach, the court is free to adopt and apply that standard in negligence actions notwithstanding that the legislature has failed to so provide).
Borak argues that the statute should not be adopted by this court either for the purpose of recognition of duty or of setting the standard of care because it contains many provisions which have nothing to do with safety. Borak cites, for example, those portions of the statute which pertain to selling liquor before noon on Sunday or on election days. A.R.S. § 4-244(15) and (16). Borak contends that if we allow the statute to create the duty or to set the standard of care, injured parties may bring actions for damages based on such violations. We do not agree. First, we do not consider such provisions in this opinion and have not and do not hold that they create a duty for the protection of those who may be injured as a result of violation. More important, it is basic to negligence law that the courts will adopt a statutory standard only when the statute under consideration can be interpreted "to protect the class of persons in which the plaintiff is included, from the type of harm which has in fact occurred as a result of its violation." Prosser, supra, § 36, at 200. The legislature may regulate several aspects of an industry to achieve different goals. Thus, liquor licensees are prohibited from selling liquor before noon on Sunday and on election days, but it is obvious that these regulations are intended to protect interests other than safety.
We conclude, therefore, that those who furnish liquor have an obligation or "duty" to exercise care for the protection of others. This is an obligation imposed upon tavern owners for the benefit of those who may be injured by the tavern owners' patrons, whether such injury occurs on or off the premises. We find that duty both as a matter of common law and of statute. The duty is not limited to preventing violent or unruly conduct that threatens other patrons (McFarlin v. Hall, supra); it includes the duty to exercise due care in ceasing to furnish intoxicants to customers in order to protect members of the public who might be injured as a result of the customer's increased intoxication.
Borak next argues that even though duty and causation may exist under the facts of a particular case, we should continue to recognize a rule of nonliability because of the fear that liability might be extended to the furnishing of liquor by social hosts. See Coulter v. Superior Court of San Mateo, 21 Cal.3d 114, 577 P.2d 669, 145 Cal.Rptr. 534 (1978). We are not dealing here with a social situation, but, rather, with the conduct of those licensed to dispense alcohol. We do not reach the social host-guest problem and will not speculate on the question of whether a social host may be under a lesser duty for protection of the public than a licensed seller of liquor.
Finally, Borak argues that we should continue to recognize the common
Borak points out that two dram shop bills, which would have reversed the common law rule, were introduced in the legislature in recent years and were not reported out of committee. He contends that this establishes the legislature's desire that the common law rule not be changed. We are not persuaded that such an inference is proper. There are many reasons why bills are not reported out of committee. For example: the bill may be opposed by a particular committee member or by the chairperson; efforts of special interest groups and lobbyists may be successful at the committee level; or a lack of time for consideration of the bill may prevent passage by the committee.
We believe that the legislature is as cognizant as this court of the tragic toll in life and limb resulting from the combination of alcohol and gasoline. See Ekstrom, supra; Lopez v. Maez, 98 N.M. at 632 n. 7, 651 P.2d at 1276 n. 7. The legislature may well believe that when a judge-made common law rule has become obsolescent, anachronistic and unjust, the responsibility for change is ours, not theirs. There is no reason that we should refuse to act within our power and perform our duty when by so doing we further legislative objectives. Restatement (Second) of Torts, supra, § 286 comment d. The facts of this case compel the conclusion that continued existence of the rule of tavern owner nonliability is both bad law and bad social policy. Hopefully, accountability for the results of their conduct will produce greater care on the part of all those licensed to sell liquor, and greater care will produce fewer deaths and injuries. Therefore, we agree with the words of the New Mexico Supreme Court; even in the absence of legislative action, "the time has come for this court to address this issue." Lopez v. Maez, 98 N.M. at 628, 651 P.2d at 1272.
We reach the conclusion, therefore, that we should apply to those licensed to sell liquor and their employees the same rules of liability applied to all other persons in Arizona. We are aware in doing this that tavern owners and liquor store operators, like every other special group, business, profession or occupation, see good reason why they should be favored by special doctrines which would enable them to have or retain some immunity from the rules of liability which are applicable to all others. We have previously observed that it is a sad fact that special rules of nonliability and immunity lead to the encouragement of irresponsibility and consequent harm to society. Harris v. Buckeye Irrigation Company, supra. This court is committed to the principle that no person and no group should be given special privileges to negligently injure others without bearing the consequences of such conduct. We do not favor special rules of tort nonliability or immunity. Ryan v. State, supra; Fernandez v. Romo, supra; Harris v. Buckeye Irrigation Company, supra; Grimm v. Arizona Board of Pardons and Paroles, supra; Stone v. Arizona Highway Commission, supra.
We acknowledge that in some situations, the public interest, constitutional considerations, or both, require special rules to protect certain businesses, professions or occupations from the ordinary theories of tort liability. Thus, those who speak and publish on matters of public interest or concern are not held liable for ordinary negligence and rules of judicial and legislative immunity and privilege or quasi-privilege are recognized. Although they do not
We hold, therefore, that the common law doctrine of tavern owner nonliability is abolished in Arizona. Tavern owners and other licensed sellers in Arizona will be under a duty of care and may be held liable when they sell liquor to an intoxicated patron or customer under circumstances where the licensee or his employees know or should know that such conduct creates an unreasonable risk of harm to others who may be injured either on or off the premises.
The judgment below is reversed, and the case is remanded for further proceedings.
The issue of the duty imposed upon a tavern owner in serving intoxicants is governed by statute, and in my opinion any discussion of common law duty is irrelevant. Subject to this limitation I concur in the decision of the court.
Berkeley v. Park, 47 Misc.2d at 384, 262 N.Y.S.2d at 293 (quoting Cardozo, J. in MacPherson v. Buick Motor Company, 217 N.Y. 382, 391, 111 N.E. 1050, 1053 (1916). The situation is different where the cause of action is of a nature wholly unknown to common law and where, therefore, no cause of action will exist unless the statute under consideration expressly confers a private right of action. Compare Riegel Textile Corp. v. Celanese Corp., 493 F.Supp. 511 (S.D.N.Y. 1980), aff'd 649 F.2d 894 (2d Cir.1981) (no private cause of action for violations of Federal Hazardous Substances Act) with Young v. Robertshaw Controls Co., 560 F.Supp. 288 (N.D.N.Y.) (recognizing private right of action for defendant's violation of rule enacted under the Consumer's Products Safety Act, 15 U.S.C. 2051-2083, where statute permitted private cause of action for violation of such rules). See also J.E. Hoetger and Co. v. Asencio, 558 F.Supp. 1361 (E.D.Mich. 1983), (refusing to recognize private cause of action for defendant's failure to register with the Commodity Futures Trading Commission, § 4K of the Commodity Exchange Act, because the statute was silent with respect to whether a private cause of action could be brought).