The problem is whether damage liability may be imposed upon an automobile service station operator for selling gasoline to a recognizably intoxicated motorist who then injures a third person.
The minor plaintiff was injured and his father, mother, sister and brother were killed in a collision with an automobile driven by Herschel Baker, a defendant. In the second count of his complaint plaintiff names as defendants Standard Stations, Inc., operator of a service station near Vacaville, and Associated Oil Company, owner of a station in the nearby community of Winters. He alleges that on the day of the accident both service station operators supplied "chattels" to Baker "knowing or having reason to know that because of [his] intoxicated condition" he would use "said chattels" in a manner involving the unreasonable risk of physical harm to others. The gasoline retailers filed a general demurrer, which the trial court sustained without leave to amend. Plaintiff appeals from the judgment.
Both in the trial court and in their briefs on appeal the parties have indicated that the "chattels" consisted of gasoline supplied to Baker's automobile.
The negligent entrustment theory is frequently expressed in decisions imposing liability upon an automobile owner who permits its use by an incompetent or intoxicated driver who injures the plaintiff. (Johnson v. Casetta (1961) 197 Cal.App.2d 272, 275 [17 Cal.Rptr. 81]; Knight v. Gosselin (1932) 124 Cal.App. 290,
A strongly contrasting result is reached in decisions involving a tavernkeeper who knowingly sells liquor to an intoxicated customer, who then injures himself or another. California decisions exempt the tavernkeeper from liability as a matter of law. (Cole v. Rush (1955) 45 Cal.2d 345 [289 P.2d 450, 54 A.L.R.2d 1137]; Lammers v. Pacific Elec. Ry. Co. (1921) 186 Cal. 379 [199 P. 523]; Fleckner v. Dionne, supra, 94 Cal.App.2d 246; Hitson v. Dwyer (1943) 61 Cal.App.2d 803 [143 P.2d 952].)
Some jurists have confessed inability to distinguish between the defendant who knowingly supplies liquor to a drunken driver and one who places an automobile at his disposal. (Fleckner v. Dionne, supra, 94 Cal. App.2d at p. 253 (dissent); Mitchell v. Ketner (1964) 54 Tenn. App. 656 [393 S.W.2d 755, 759].) The incongruity between the liquor sale cases and the automobile entrustment decisions is partly explainable in historic terms. The common law gave no remedy against a tavernkeeper for injury or death following the sale of liquor, and the courts — at least in California — have deferred to the Legislature by declining to change the rule through judicial decision. (Cole v. Rush, supra, 45 Cal.2d at pp. 348-349, 354-355; Fleckner v. Dionne, supra, 94 Cal. App.2d at p. 249.) The courts of other jurisdictions have been disposed to qualify the common law rule, especially when the drunken customer inflicted injury on an innocent third person. (Rappaport v. Nichols (1959) 31 N.J. 188 [156 A.2d 1, 75 A.L.R.2d 821]; McKinney v. Foster (1958) 391 Pa. 221 [137 A.2d 502]; see Annot. 75 A.L.R.2d 833; 18 W.Res.L.Rev. (vol. No. 1) 251 (1966); Johnson, Drunken Driving — The Civil Responsibility of the Purveyor of Intoxicating Liquor, 37 Ind.L.J. 317 (1962).)
Remarkably enough, the California tavernkeeper decisions unanimously declare that the customer's intoxication and not
When the facts at hand are approached as a duty of care problem, there may be justification for a rule imposing liability on a service station operator who sells gasoline to a recognizably intoxicated motorist. The operator is negligent as to persons beyond his vision when his conduct creates a recognizable risk of harm to them. (See com. c, Restatement Second of Torts, § 281(b).) The element of foreseeability offers no problem. There is no "freak accident" here, no extraordinary combination of events culminating in an unforeseeable injury. (See Premo v. Grigg, 237 Cal.App.2d 192 [46 Cal.Rptr. 683]; Prosser, Selected Topics on the Law of Torts: Palsgraf Revisited (1953) 191, 234-239.) Supplying motive power to a drunk driver involves a recognizable, indeed obvious, danger to other motorists and pedestrians.
Fleckner v. Dionne denied liability of a tavernkeeper alleged to have sold liquor to a known inebriate who would foreseeably drive his car, thus exposing others to danger. This case involves one who sells him gasoline. There is no significant distinction of logic, social policy or law between these sellers.
There are several complications. First: In Cole v. Rush the plaintiffs were the heirs of the intoxicated customer who had been killed while fighting with a fellow patron. The complaint did not allege that the defendant sold him liquor knowing that he was drunk, but only that the seller knew of his belligerent disposition when he was intoxicated. Counsel for our present plaintiff point to the statement in the Cole opinion that "as to a competent person it is the voluntary consumption, not the sale or gift, of intoxicating liquor which is the proximate cause of injury from its use...." (Italics ours.) (45 Cal.2d at p. 356.) Certainly the quoted statement points to a distinction of possible significance between the Cole case and this. It is not Cole which stands as binding precedent here, but rather Fleckner v. Dionne as approved in Cole. In Fleckner, as here, the seller was alleged to know of his customer's intoxication. Since we draw no distinction between alcoholic beverage and gasoline as ingredients in the recipe of a foreseeable accident, we draw none between Fleckner and the case at bar.
Second: In Cole the Supreme Court apparently held that the complaint's allegations demonstrated the decedent's contributory negligence as a matter of law. (45 Cal.2d at p. 356.) Thus there was no necessity for endorsing the tavernkeepers' nonliability doctrine. Nevertheless the Cole opinion seems to view that doctrine as ratio decidendi and not dictum.
Third: Cole v. Rush and its California antecedents approach the initial adjudication of negligence via the obsolete gateway of proximate cause rather than duty. Thus these cases may be unreliable and ripe for qualification or disapproval. In Cole, however, the Supreme Court declared that Fleckner v. Dionne represents the law until disapproved by it. As an intermediate appellate court we take the law as we find it and do not reexamine doctrines approved by the Supreme Court with a view to enunciating a new rule of law. (Goncalves v. San Francisco Unified School Dist., 166 Cal.App.2d 87, 89 [332 P.2d 713].)
Fourth: A possible alternative is offered by the rule of liability prevailing when an automobile is negligently entrusted to an intoxicated driver. (Knight v. Gosselin, supra, 124 Cal.App. 290; Restatement Second of Torts, § 390.) While recognizing the broad principle represented by the automobile
Aside from commenting on the fairly obvious element of foreseeability of danger, we abstain from any attempt to weigh the factors for and against imposition of a duty of care on the service station operator.
Pierce, P.J., and Regan, J., concurred.
A petition for a rehearing was denied May 22, 1967, and appellant's petition for a hearing by the Supreme Court was denied June 28, 1967. Peters, J., Tobriner, J., and Mosk, J., were of the opinion that the petition should be granted.