Tobias v. Sports Club, Inc. 323 S.C. 345, 474 S.E.2d 450

Hearn, Judge:

Robert and Mary Ellen Tobias appeal the trial court’s denial of their motion for a new trial. They argue the court erred in submitting the defenses of contributory negligence and assumption of the risk to the jury in their negligence actions based upon alleged violations of S.C. Code Ann. §§ 61-5-30 and 61-9-410 (1990). We affirm.

The case marks the first time a South Carolina appellant *347court has been called upon to decide whether the defenses of contributory negligence and assumption of the risk are available to a defendant in a suit for injuries sustained when an inebriated person was served intoxicating liquor in violation of S.C. Code Ann. §§ 61-5-30 and 61-9-410 (1990). We hold that both contributory negligence and assumption of the risk were proper defenses in this case.1

FACTS

In his complaint, Robert Tobias alleged he was served intoxicating liquors at a bar in the Ramada Hotel in Columbia on May 3, 1989, when he was already noticeably intoxicated. He had begun drinking that afternoon while playing golf and continued his drinking that evening at three successive bars. The Ramada was the third bar he visited that night. Tobias alleged the employees of the Ramada knew or should have known he was intoxicated at the time they served him; however, Tobias presented no evidence that anyone observed him visibly intoxicated. Tobias left the Ramada, and after driving approximately twenty miles toward his home in Ridgeway, was involved in an automobile accident with another vehicle when he crossed the centerline of the highway. The collision between Tobias and the oncoming vehicle resulted in the death of one of the other vehicle’s occupants and injured another. Tobias was also injured in the accident.

Tobias brought this negligence action against the Ramada alleging violations of S.C. Code Ann. §§ 61-5-30 and 61-9-410. His wife, Mary Ellen Tobias, filed a companion suit for loss of consortium. The Ramada defendants answered the complaints alleging, among other things, contributory negligence and assumption of the risk by Robert Tobias. At trial, the Tobiases moved to strike those two defenses. The trial court denied their motion and the jury returned defense verdicts in both cases.

The Tobiases argue the trial court erred in submitting contributory negligence and assumption of the risk to the jury because those affirmative defenses do not apply as a matter of *348law to private causes of action brought under sections 61-5-30 and 61-9-410. They assert allowing a tavern owner to plead these defenses as a bar to an injured intoxicated person’s claim for damages effectively abrogates the remedy provided by law and violates the public policy established by the statutes. We disagree.

DISCUSSION

At common law, a tavern owner2 had no liability for serving alcohol to an intoxicated person who later injured himself or others. See 45 Am. Jur. (2d) Intoxicating Liquors § 553 (1969). The rationale for this rule was that consuming, not supplying, the alcohol was the proximate cause of intoxication. Id. Many jurisdictions, however, have departed from this common-law view. In an effort to deter drunk driving and to compensate innocent victims injured by drunk drivers, many state legislatures have enacted “dram shop acts.”3 These statutes impose civil liability on tavern owners under various circumstances, such as supplying alcoholic beverages to minors or to obviously intoxicated persons.4 In states where dram shop legislation has not been enacted, some courts have imposed liability on vendors of alcoholic *349beverages using principles of negligence, often basing a private cause of action on the violation of beverage control statutes.5 At least three jurisdictions have refused to interpret their penal statutes to create a civil cause of action,6 while others believe that such public policy decisions should be made by the legislature.7 Still other jurisdictions, embracing the common-law view, have enacted legislation which renders servers of alcohol immune from liability.8

*350South Carolina is among those jurisdictions that have recognized a civil cause of action based upon the violation of a penal statute. Christiansen v. Campbell, 285 S.C. 164, 328 S.E. (2d) 351 (Ct. App. 1985), cert. denied, S.C. Sup. Ct. order dated June 27, 1985.9 In Christiansen, as here, the plaintiff, who was also the intoxicated person, brought a private cause of action relying on S.C. Code Ann. § 61-9-410 (1976) which provides, in part:

“[n]o holder of a permit authorizing the sale of beer or wine or any servant, agent, or employee of the permittee shall knowingly do any of the following acts upon the licensed premises covered by the holder’s permit:

* * # * * *

(2) sell beer or wine to any person while the person is in an intoxicated condition”;____

*351Appellants also base their action on S.C. Code Ann. § 61-5-30 (1990) which reads:

It shall be unlawful for any person to possess or consume any alcoholic liquors upon any premises where such person has been forbidden to possess or consume alcoholic liquors by the owner, operator, or person in charge of the premises.

No person or establishment licensed to sell alcoholic beverages pursuant to this article shall sell such beverages to persons in an intoxicated condition and such sales shall be deemed violations of the provisions thereof and subject to the penalties contained herein.

No person, corporation or organization for whose premises a license is required shall knowingly allow the possession or consumption of any alcoholic liquors upon such premises unless a valid license issued pursuant to subsection (3) or (4) of § 61-5-20 has been obtained and is properly displayed.

Since this cause of action was judicially created in South Carolina, we have no statutory guidance on the class of persons who may recover or on the availability of defenses. In many states where such a cause of action is statutorily authorized, the dram shop act or cases interpreting it have specifically precluded the intoxicated person from that class of plaintiffs who may bring suit.10 In addition, many courts in jurisdictions with penal statutes, including most of those relied upon by the Court in Christiansen, have precluded first party re*352covery.11 Christiansen, however, clearly extended the cause of action to the intoxicated person himself. Therefore, our only inquiry today is whether defenses may be asserted against the intoxicated person by the tavern owner.

Appellants argue that to permit a tavern owner to raise traditional tort defenses in a suit against it would undermine the cause of action recognized in Christiansen, asserting this cause of action is more in the nature of one grounded in strict liability. We cannot accept this characterization. The cause of action recognized in Christiansen sounds in negligence. Under Christiansen, the jury must determine if the statutory violation is a proximate cause of the alleged injury. Subse*353quent decisions of the Supreme Court and the Court of Appeals have held the South Carolina liquor control statutes also create a private cause of action in favor of injured minors who were unlawfully served alcohol as well as innocent third parties injured by the inebriant. See Whitlaw v. Kroger Co., 306 S.C. 51, 410 S.E. (2d) 251 (1991) (sections 61-9-40 and 61-9-410 give rise to civil liability if third party plaintiff can establish negligence per se. After establishing negligence per se, plaintiff must prove the violation of the statute was causally linked, both in fact and proximately, to the injury); Jamison v. The Pantry, Inc., 301 S.C. 443, 392 S.E. (2d) 474 (Ct. App. 1990) (third party plaintiff has cause of action under sections 61-9-40 and 61-9-410); Daley v. Ward, 303 S.C. 81, 399 S.E. (2d) 13 (Ct. App. 1990) (third party and intoxicated minor have cause of action under section 61-9-410); cf. Garren v. Cummings & McCrady, Inc., 289 S.C. 348, 345 S.E. (3d) 508 (Ct. App. 1986) (social host incurs no common-law liability to third party plaintiffs when he serves alcohol to his adult guests). Thus, Christiansen and the decisions which followed it clearly indicate liability should be predicated upon a negligence standard, i.e., “whether the bartenders negligently served alcoholic beverages to a person who, by his appearance or otherwise, would lead a prudent man to believe that person was intoxicated.” Daley, 303 S.C. at 87, 399 S.E. (2d) at 16.

We hold that while a plaintiff who proves a violation of the statute has established negligence per se, certain defenses which break the causal chain may still be asserted by the defendant. This construction is consistent with the Supreme Court’s holding in Whitlaw v. Kroger Co. that “[violation of the statute, thus, is not conclusive of liability.... We can only say that if any cause of action exists for this plaintiff under the statute, the cause of action will be subject to any valid defenses and limitations which may break the causal chain.” Id. 306 S.C. at 54-55, 410 S.E. (2d) at 253. See also Crolley v. Hutchins, 300 S.C. 355, 387 S.E. (2d) 716 (Ct. App. 1989) (liability under S.C. Code Ann. § 61-5-30 (1976) did not extend to an intoxicated person who later attempted suicide after being arrested at a bar for disorderly conduct). The question of what constitutes a valid defense to an action brought by an intoxicated plaintiff has never been answered in this State.

*354Although this case arose prior to the adoption of comparative fault, we note other jurisdictions have applied principles of comparative negligence under similar circumstances.12 These courts have held that voluntary intoxication is a self-indulgent act and “a person who voluntarily consumes alcohol to the point of intoxication is at the very least partially responsible for his injuries.” Lyons v. Nasby, 770 P. (2d) 1250, 1255 (Colo. 1989). As the Lyons court noted, foreclosing a tavern owner from showing that its breach of duty did not contribute to the plaintiffs injuries or that the plaintiff’s negligence was greater than that of the defendant “would clearly be contrary to traditional tort principles.” Id. at 1259.

Similar reasoning convinces us that contributory negligence was properly charged in this case. Tobias had been drinking on the golf course and at two other bars before coming to the Ramada bar. By his own admission he had consumed at least eight drinks prior to ordering another at the Ramada. It is difficult to conceive of a fact situation more compelling on the issue of contributory negligence.

We also believe the trial judge correctly charged the defense of assumption of the risk to the jury. Tobias testified that his usual limit was four drinks. On the night in question, however, he had consumed eight drinks before arriving at the Ramada bar. He recalled ordering one cocktail there. He testified he remembered nothing further after that. There is no evidence in the record to suggest that Tobias consumed this alcohol other than at his own volition.

The concurrence argues that allowing the tavern owner to assert the defenses of assumption of the risk and contributory *355negligence results in the complete abrogation of the statute, since a person will rarely become intoxicated except by his own volition. However, the tavern owner is still subject to fines and license revocation for his actions under the statute regardless of whether the inebriant assumed the the risk of becoming intoxicated. Thus, the legislative purpose of deterring drunk driving and punishing tavern owners who serve obviously intoxicated persons is served without absolving the inebriant of responsibility for his actions.

The concurrence also cites three cases where the tavern owner was not allowed to assert the defense of contributory negligence. However, since Aliulis v. Tunnel Hill Corp., 114 N.J. Super. 205, 275 A. (2d) 751 (App. Div. 1971), aff'd, 59 N.J. 508, 284 A. (2d) 180 (1971), New Jersey has adopted the law of comparative negligence. N.J. Stat. Ann. §§ 2A:15-5.1 to -5.3 (West 1987 & Supp. 1996). Furthermore, New Jersey has also passed a dram shop act, N.J. Stat. Ann. § 2A:22A-5 (West 1987), and has passed a statute making comparative negligence applicable under the dram shop act. N.J. Stat. Ann. § 2A:22A-6 (West 1987) (“in any case where a licensed alcoholic beverage server or any other party to a suit instituted pursuant to the provisions of this act is determined to be a joint tortfeasor, the licensed alcoholic beverage server or other party shall be responsible for no more than that percentage share of the damages which is equal to the percentage of negligence attributable to the server of other party.”). (Emphasis added.) In Lee v. Kiku Restaurant, 127 N.J. 170, 603 A. (2d) 503 (1992) the New Jersey Supreme Court held that comparative negligence is a defense available to a tavern owner against an intoxicated patron. The court stated:

In reassessing the principles that should govern liability in dram-shop litigation, we are strongly influenced not only by the principles of comparative negligence but also by the public interest in deterring those who would create risk to others by voluntarily driving to the point of intoxication. Our statutory and case law reflect the compelling public policy that those who voluntarily become intoxicated must be held responsible for the consequences of their behavior. Id. 603 A. (2d) at 509.

*356Similarly, since the Pennsylvania Supreme Court’s holding in Majors v. Brodhead Hotel, 416 Pa. 265, 205 A. (2d) 873 (1965), Pennsylvania has adopted comparative negligence and now permits the tavern owner to introduce evidence of the intoxicated person’s comparative negligence. Barrie v. Pennsylvania Liquor Control Board, 137 Pa. Cmwlth. 514, 586 A. (2d) 1017 (1991) (“More recent cases decided under the comparative negligence statute have permitted the introduction of the actor’s contributory negligence, when a violation of the liquor laws has occurred.”).

The concurrence is correct in stating that some states do prohibit a tavern owner from asserting the defenses of contributory negligence or assumption of the risk against an intoxicated patron. However, the majority of states that have considered this issue limit the inebriated patron’s ability to sue the tavern owner for the consequences of the patron’s voluntary intoxication.

Accordingly, we hold that both contributory negligence and assumption of the risk were properly submitted to the jury in this case. In our view, a rule which allows an intoxicated individual to hold a tavern owner liable without regard to his own actions in continuing to consume alcohol promotes irresponsibility and rewards drunk driving. “Given a choice between a rule that fosters individual responsibility and one that forsakes personal accountability, we opt for personal agency over dependency and embrace individual autonomy over paternalism.” Estate of Kelly v. Falin, 127 Wash. (2d) 31, 896 P. (2d) 1245, 1250 (1995) (enbanc).

Accordingly the jury verdict is

Affirmed.

Goolsby, J., concurs in a separate opinion.

Connor, J., concurs.

Goolsby, Judge

(concurring):

I would also affirm the defense verdict, but only because the verdict is susceptible to the construction that the jury found the Ramada Hotel neither knew nor should have known Mr. Tobias was intoxicated when he allegedly purchased a single drink there. It is an elementary principle of appellate re*357view that when the general verdict of a jury is susceptible to two constructions, one that will uphold it and the other that will defeat it, the one that will allow the jury’s determination to stand is preferred. Inman v. Thompson, 297 S.C. 221, 375 S.E. (2d) 358 (Ct. App. 1988) (affirming a verdict for the plaintiff, holding even if the trial court erred in charging the doctrine of last clear chance, it could not be determined whether the jury could have found that the defendant had the last clear chance to avoid the accident or merely that the child was not contributorily negligent).

Were it not for the fact that the jury’s general verdict is susceptible to the construction that the jury found no negligence on the Ramada Hotel’s part, I would reverse the trial court’s decision to charge contributory negligence and assumption of risk and hold those defenses do not apply to private causes of action brought under S.C.Code Ann. §§ 61-5-30 and 61-9-410.

In considering passage of the statutes at issue, the South Carolina legislature clearly contemplated the fact that, in order to become intoxicated, a person ordinarily must first have voluntarily consumed alcohol. The legislature also must have recognized that a voluntary consumption of alcohol to the point of intoxication could also result from negligence. Nevertheless, our legislature enacted §§ 61-5-30 and 61-9-410, which impose liability upon tavern owners and vendors who sell such beverages to an intoxicated person.

This court in Christiansen v. Campbell, 285 S.C. 164, 328 S.E. (2d) 351 (Ct. App. 1985) held § 61-9-410 gave rise to a private cause of action and existed not only to protect injured innocent third parties, but also to protect intoxicated persons from their own incompetence and helplessness. Under this analysis, Mr. Tobias was a member of an intended statutorily protected class and he had the right to avail himself of the civil cause of action arising from the applicable code sections. By permitting the Tobiases’ claims to be barred because of Mr. Tobias’s alleged negligence or assumption of the risk, the legislature having already contemplated such conduct prior to enacting the statutes, the majority is permitting the complete abrogation of the public policy set forth and the relief afforded by these statutes. See Galvin v. Jennings, 289 F. (2d) 15, 19 (3rd Cir. 1961) (“When a statute sets up a standard in some in*358stances the court says that violation of the standard by a defendant resulting in injury to a plaintiff is not to be defended on the bases of the plaintiff’s contributory negligence. The theory is that the prohibition in the statute represents a device to protect an incompetent against the consequence of his incompetency.”); Vance v. United States, 355 F. Supp. 756 (D.C. Alaska 1973) (contributory negligence on the part of the plaintiff was not a defense to a violation of the statute, which constituted negligence per se since the statute was intended to place the entire responsibility for resulting harm upon the violator because it was virtually impossible for the statute to be violated without contributory negligence on the part of the plaintiff consumer); Aliulis v. Tunnel Hill Corp., 114 N.J. Super. 205, 275 A. (2d) 751 (App. Div. 1971), aff'd, 59 N.J. 508, 284 A. (2d) 180 (1971) (the bar of contributory negligence would not be available to a tavern owner in an action to recover for injuries sustained by a person in consequence of having been illegally served intoxicating liquor); Majors v. Brodhead Hotel, 416 Pa. 265, 205 A. (2d) 873 (1965) (if a defendant’s negligence constituted a violation of a statute enacted to protect a class of persons from their inability to exercise self-protective care, a member of such class is not barred by his contributory negligence from recovery for bodily harm caused by the violation of such statute; the fact that the plaintiff consciously reduced himself into a state of intoxication was immaterial since the statute in question was intended to protect persons when they are intoxicated regardless of where or how they may have become intoxicated); RESTATEMENT (SECOND) OF TORTS § 483 cmt. c, at 539 (1965) (contributory negligence does not apply to statutes that are intended to place the entire responsibility for the harm that has occurred upon the defendant; a statute may be found to have that purpose particularly where it is enacted in order to protect a certain class of persons against their own ability to protect themselves). The majority allows the tavern owner to avoid its statutory responsibility not to serve intoxicated customers by simply accusing the patron of drinking too much.

I would also emphasize that the legislature’s decision that the tavern owner should bear the responsibility as between itself and the intoxicated patron for injuries arising out of violations of §§ 61-5-30 and 61-9-410 is not without logical appeal. *359While the customer is certainly not blameless, morally speaking, for ordering alcoholic beverages after reaching the point of intoxication, at the time the owner serves the beverages only the owner has the benefit of clear, sober judgment; only the owner is in the business of dealing with intoxication; and only the owner stands to benefit financially from a violation of the statute. I believe the majority’s decision in this case undercuts this court’s analysis in Christiansen and abrogates this State’s legislative intent and established public policy.