HAGEN v. DIAS

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

Michael Steven HAGEN, Plaintiff and Appellant, v. Tom DIAS, Monta Dias, Robert Hagen, Y. Younan, dba Neta's, John D. Morrison dba Fritz That's It, Defendants and Respondents.

Civ. 64465.

Decided: September 03, 1982

Jeffrey C. Yellin, Santa Monica, and Leonard Sacks, Northridge, for plaintiff and appellant. Morgan, Wenzel & McNicholas, by Lawrence R. Ramsey, Los Angeles, for defendants and respondent.

Plaintiff in a personal injury action appeals from a judgment of dismissal entered after the trial court sustained, without leave to amend, a demurrer to the complaint.   We affirm.

Simply stated the facts are that the plaintiff, a 20-year old minor, was injured while a passenger in a car driven by one Dias who is an adult.   Both plaintiff and Dias were served alcoholic beverages by defendant, a licensed purveyor.

Dias' driving while intoxicated was the direct cause of plaintiff's injuries.   Plaintiff's theory of liability as against defendant, is that (1) defendant served alcohol to plaintiff, a minor;  (2) plaintiff became intoxicated;  and (3) as a result of the intoxication, plaintiff entered the car and permitted Dias to drive him home.

In 1978, the Legislature amended Civil Code section 1714, and Business and Professions Code section 25602, and added Business and Professions Code section 25602.1 to provide the following.

Civil Code section 1714 now provides:  “(a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.   The extent of liability in such cases is defined by the Title on Compensatory Relief.  (b) It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager (5 Cal.3d 153 [486 P.2d 151] ), Bernhard v. Harrah's Club (16 Cal.3d 313 [128 Cal.Rptr. 215, 546 P.2d 719] ), and Coulter v. Superior Court ( [21] Cal.3d [144, 145 Cal.Rptr. 534, 577 P.2d 669] ) and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.  (c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages.”

Business and Professions Code section 25602 now provides:

“(a) Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.   (b) No person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage pursuant to subdivision (a) of this section shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage.  (c) The Legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Vesely v. Sager (5 Cal.3d 153 [486 P.2d 151] ), Bernhard v. Harrah's Club (16 Cal.3d 313 [128 Cal.Rptr. 215, 546 P.2d 719] ) and Coulter v. Superior Court ( [21] Cal.3d [144, 145 Cal.Rptr. 534, 577 P.2d 669] ) be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages rather than the serving of alcoholic beverages as the proximate cause of injuries inflicted upon another by an intoxicated person.”  (Emphasis added.)

Business and Professions Code section 25602.1 provides:

“Notwithstanding subdivision (b) of Section 25602, a cause of action may be brought by or on behalf of any person who has suffered injury or death against any person licensed pursuant to Section 23300 who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage to any obviously intoxicated minor where the furnishing, sale or giving of such beverage to the minor is the proximate cause of the personal injury or death sustained by such person.”

Based on these statutory pronouncements, it was, of course, properly discerned below that, insofar as plaintiff sought relief as a third party whose injuries were proximately caused by defendant providing Dias with intoxicating liquor, no recovery from defendant was permissible.   The trial court determined as well, however, that defendant was likewise immune from liability arising out of having provided plaintiff with such intoxicants with the result plaintiff was rendered unable to exercise sound judgment in riding with Dias.

Plaintiff's contention that defendant's liability exists under Business and Professions Code section 25602.1 is premised on dicta to be found in Cory v. Shierloh (1981) 29 Cal.3d 430, 174 Cal.Rptr. 500, 629 P.2d 8, a case which upheld the validity of the 1978 amendment but did not involve the issue here presented.

In Cory v. Shierloh, supra, the court, in discussing what it perceived to be incongruities in the legislative scheme opined at page 440, 174 Cal.Rptr. 500, 629 P.2d 8:  “The obviously intoxicated minor, and those injured by him, retain a cause of action against the seller, but an adult consumer, and those similarly injured by him do not.”   We do not read Cory as authority for imposing liability on defendant under the circumstances of this case.

The clear import of the statute is that defendant's liability as a licensed seller, extends only to third persons injured as a result of the minor's intoxication and not to the minor himself.

The statute in question is a narrowly drawn exception to the general rule that the consumption, rather than the serving of alcoholic beverages, is the proximate cause of injuries inflicted upon another by the intoxicated person.   The exception should be strictly interpreted.

When Business and Professions Code section 25602.1 is read in conjunction with section 25602, it becomes clear that the exception is intended only to permit a person injured by the conduct of an intoxicated minor to bring an action against a licensed seller who furnished alcohol to the minor.

The intoxicated minor merely serves as a conduit or instrumentality in creating the liability of the licensee to the person injured by the minor.   If the Legislature had intended the term “minor” to be interchangeable with the term “person injured” it could have easily said so.   For the courts to make that change would be to rewrite the statute in a manner contrary to the clear purpose of the remedial legislation, which purpose was to severely circumscribe if not abolish the liability of the purveyor of alcoholic beverages for injury resulting from the conduct of inebriates.

The judgment is affirmed.

COMPTON, Associate Justice.

ROTH, P. J., and BEACH, J., concur.