FREELAND v. PIROZZI

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Court of Appeal, Second District, Division 2, California.

Donald Scott FREELAND, Deana Jan Freeland, Minors, by Janet A. Freeland, their Guardian Ad Litem, and Janet A. Freeland, Plaintiffs and Respondents, v. Vincent PIROZZI, Individually and d b a Vince's Continentale, Defendant and Appellant.

Civ. 52894.

Decided: January 31, 1979

Murchison & Cumming, Horvitz, Greines & Poster, Ellis J. Horvitz, and Miriam A. Tigerman, Los Angeles, for defendant and appellant. Burton & Blodgett, Newport Beach, Schmitz, Amato, Pettler & Schmitz, and Peter D. Pettler, Wilmington, for plaintiffs and respondents.

Donald Freeland by his guardian ad litem and Janet A. Freeland, Donald's mother, sued Vincent Pirozzi, individually and doing business as Vince's Continentale, for personal injuries and related damages resulting from a collision between Donald's motorcycle and a car driven by Scott C. It was alleged that Scott, who was 17 on April 19, 1974, had been “sold, furnished, and delivered copious amounts of alcoholic beverages” by defendants without requiring Scott to furnish any identification of any kind concerning his identity or age. The jury came to a 9 to 3 verdict in favor of Donald and his mother. Having found plaintiff 41 percent negligent and defendant and others 59 percent negligent, the jury awarded Donald $373,470 and his mother $23,998. By stipulation, the trial court deducted $75,000 from the award for monies received from others. Defendant appeals from the judgment.

FACTS:

Scott C. left school at about 10:15 to 10:30 a. m. on April 19, 1974, to go to a party at Mike G.'s house. He first went home to change clothes and got to the party at about 11 a. m. After drinking two 12-oz. cans of beer, he went to the beach for about 5 or 10 minutes and returned to the party at about 12:40. He had another beer. At about 1 p. m., Scott went to buy beer at defendant Vince's Continentale in the center of Riviera Village. He parked in the lot and bought a 6-pack of 12-oz. Coors. The cashier did not ask him for identification nor did he show any identification.1

On his way back to Mike's party at about 1:05 p. m., Scott drank one of the beers he had purchased at appellant's establishment. He drank four more of those beers at Mike's party. He left the party again at about 1:25 to 1:30, drank a beer at a friend's house, got another beer at his father's house and drank it on his way to a record store. Scott then headed back to the party, but that trip ended in the collision in front of Mike's house. Donald Freeland, a minor who was riding a motorcycle, had previously been at Mike's party2 ; he was seriously injured in the accident and is now a paraplegic.

Scott's blood was drawn at approximately 3:30 p. m. at a hospital. He had a blood alcohol level of .14 percent at that time. One expert estimated that at 1 p. m., before Scott had ingested those five cans of beer, his blood alcohol level would have been .02 or .03 percent and that those beers would have raised his blood alcohol by a net effect of .10 to .12-.16 percent. He further testified that age is a factor regarding tolerance of alcohol and that, in general, a 17-year old would have low tolerance. The expert admitted that at 1 p. m. a clerk would not have realized that Scott had been drinking.

CONTENTIONS ON APPEAL:

1. Respondents failed to plead or prove a cause of action against appellant: one who sells beer to a sober minor for off-premises consumption is not civilly liable to third persons for injuries caused by the minor.

2. Imposition of liability for sale to a sober minor would virtually result in strict liability and is, therefore, inconsistent with the law of California. It is not reasonably foreseeable that a third person will be injured by a customer who purchases beer for off-premises consumption. Imposition of liability upon a person licensed to sell beer and wine for off-premises consumption to a third person for injuries resulting from the act of a minor who purchased beer is contrary to common law and negligence concepts.

3. Imposition of liability under the facts of this case is not warranted or supported by the Alcoholic Beverage Control Act.

4. Liability under a theory of negligence per se is not mechanically affixed by reason of the fact that a statute was violated and such liability should not be affixed under the facts of this case. Evidence Code section 669 creates only a rebuttable presumption, and the trial court erred in instructing the jury in terms of negligence per se since the violation of a statute was not a cause of Freeland's injuries.

5. The court erred in instructing the jury concerning appellant's criminal responsibility for selling liquor to a minor.

DISCUSSION:

1. There is no automatic civil liability for one who sells beer to a sober seventeen-year-old who then injures a third party.

Appellant contends that the case law does not yet hold that one who sells beer to a sober minor for off-premises consumption is civilly liable to third persons for injuries caused by the minor. We agree. While the California Supreme Court has recently extended liability of those serving liquor to obviously intoxicated persons (Coulter v. Superior Court, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669; Ewing v. Cloverleaf Bowl, 20 Cal.3d 389, 143 Cal.Rptr. 13, 572 P.2d 1155),3 there is no Supreme Court holding on the question at bench.4 We therefore treat the issue as one of first impression.

Respondent argues that liability may be based either upon the doctrine of negligence per se or common law negligence. Liability based on negligence per se rests on Evidence Code section 6695 and its applicability to Business and Professions Code section 25658(a), which provides:

“Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor.”

We disagree with respondent's contention that the selling of a six-pack of beer by Vince's Continentale to a sober 17-year-old is as a matter of law the proximate cause of injury to the third person, which would place the conduct in the case at bench within subsection (a)(2) of Evidence Code section 669.6 As held in earlier cases (Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530; Cole v. Rush, 45 Cal.2d 345, 356, 289 P.2d 450, disapproved in Vesely v. Sager, 5 Cal.3d 153, 159-160, 95 Cal.Rptr. 623, 486 P.2d 151) and reaffirmed in the new legislation (ch. 929, stats.1978), the proximate cause of such accidents is usually the consumption of alcohol rather than the furnishing thereof. The fact the buyer is a minor is not in itself the cause of any injury.

Furthermore, the problem of foreseeability is more acute when the alcohol is purchased, whether by minor or adult, for off-premises consumption. The storekeeper cannot know if the liquor will be consumed by the buyer or is intended for another person, whether consumption will be immediate or at some date far in the future, or whether the eventual consumer will at that time be a driver or someone already intoxicated. We cannot find that as a matter of law the vendor must be liable for injuries to a third person caused by an imbibing minor. This does not mean that absent statute, there can never be common law negligence liability for this conduct. Depending on the circumstances of the case (e. g., a ten-year-old tells the vendor his age and says he is going to drink the alcohol and then drive his mother's car), there may well be duty, breach of duty, proximate cause, and damages. But we will not apply a rule of negligence per se in this case.

2. Even if we were to extend liability, the trial court erred in instructing the jury.

Even if instructions on negligence per se were appropriate, they were given incorrectly by the court below. BAJI 3.45 provides:

“If you find that a party to this action violated the statute just read to you and that such violation was a proximate cause of injury to another or to himself, you will find that such violation was negligence unless such party proves by a preponderance of the evidence that he did what might reasonably be expected of a person of ordinary prudence acting under similar circumstances, with desire to comply with the law.” (Emphasis added.) The immediately preceding instruction recited the contents of Vehicle Code section 21801(a), which concerns failure to yield during a left turn. Immediately before that instruction the court read a modified version of BAJI 5.40 regarding the unlawfulness of a person driving a vehicle upon a street or highway while under the influence of intoxicating liquor. Only before that was the jury instructed in terms of Business and Professions Code section 25658(a). The order of these instructions is confusing since the juxtaposition of section 25658(a) and the doctrine of negligence per se is not clear.

Although the order in which the instructions are given is of no significance as to their relative importance, the order in which they were apparently given here created uncertainty and confusion. “The statutes just read to [the jury]” before reading of BAJI 3.45 was not Business and Professions Code section 25658(a). Thus, the exculpatory provisions of the instruction as they applied to a possible violation of Business and Professions Code section 25658(a) may not have been understood by the jury to apply to and thus benefit appellants, irrespective of the proscription of Business and Professions Code section 25658(a).

Even more important, the court instructed in the exact words of Business and Professions Code section 25658(a).7 The jury was told, therefore, that a person who sells alcoholic beverages to a minor is “guilty of a misdemeanor.” As appellant contends, it would have been sufficient to instruct the jury that sale of intoxicating beverages to a minor is “prohibited by law.” A civil jury should not be led to believe the accident involved guilt of a criminal act. (Greening v. Ford, 127 Cal.App. 462, 463-464, 16 P.2d 143.) The insertion of the issue of criminal liability into this case was erroneous and prejudicial.

The judgment is reversed.

FOOTNOTES

1.  He described the cashier as a woman in her early 30's with dark hair and about 5 feet 6 inches to 5 feet 7 inches. He knew Marie Buck, one of the two women in the store at that time, but stated she did not wait on him. Susan Ferrulli testified that she was the other woman working at Vince's that day. She said that she never had black or dark hair.

2.  Scott had testified that Freeland had been at the party before the accident and was intoxicated.

3.  The holdings of this line of cases have been abrogated by Business and Professions Code section 25602(b) and (c) (ch. 929, stats. 1978), effective January 1, 1979. The Legislative Counsel has opined that the new statute is not retroactive in application.

4.  We recognize there is dicta in Walters v. Sloan, 20 Cal.3d 199, 206-207, 142 Cal.Rptr. 152, 571 P.2d 609 indicating that even a social host who furnishes liquor to minors may be liable for injury to (non-policemen) third parties. (See also dicta in Coulter v. Superior Court, supra, 21 Cal.3d at p. 151, 145 Cal.Rptr. 534, 577 P.2d 669.)

5.  Evidence Code section 669 in pertinent part provides:“(a) The failure of a person to exercise due care is presumed if:“(1) He violated a statute, ordinance, or regulation of a public entity;“(2) The violation proximately caused death or injury to person or property;“(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and“(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.“(b) This presumption may be rebutted by proof that:“(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law, ․”

6.  New section 25602.1 of the Business and Professions Code (ch. 930, stats.1978) recognizes an exception to lack of civil liability when one sells alcoholic beverages to an “obviously intoxicated” minor, but even then the sale must be “the proximate cause of the personal injury or death ․” (Emphasis added.)

7.  Respondent contends that appellant and respondent both requested the instructions and that appellant cannot now complain of them. (Weirum v. RKO General, Inc., 15 Cal.3d 40, 50, 123 Cal.Rptr. 468, 539 P.2d 36.) However, our examination of the record convinces us as appellant's reply brief explains, that despite markings in the clerk's transcript, appellant did not request these instructions.

BEACH, Associate Justice.

FLEMING, Acting P. J., and COMPTON, J., concur.