Stephens v. Bonneville Travel, Inc., Case No. 950412, Filed March 28, 1997.
This opinion is subject to revision before final publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
Wayne V. Stephens and Suzanne M.
Stephens, individually and as
personal representatives of the
Estate of Michael Wayne Stephens
and as guardians ad litem for
Alex Ryan Stephens and Rebecca
Marie Stephens, minors, and
Ralph Siebert and Eileen Siebert,
Plaintiffs and Appellants,
Bonneville Travel, Inc., a
California corporation dba
Beehive Business and Leisure
Defendant and Appellee.
F I L E D
March 28, 1997
Third District, Salt Lake Div. I
The Honorable Sandra N. Peuler
Attorneys: Gordon L. Roberts, James T. Blanch, Salt Lake
City, for plaintiffs
Dale J. Lambert, Mark L. Anderson, Salt Lake
City, for defendant
Plaintiffs Wayne and Suzanne Stephens and Ralph and Eileen Siebert appeal from the trialcourt's grant of summary judgment in favor of defendant Bonneville Travel, Inc., dba BeehiveBusiness and Leisure Travel ("Beehive"), based on the court's ruling that Utah Code Ann. 32A-14-101 (the "Dramshop Act" or "Act") does not apply to an entity that provides liquor toan apparently intoxicated person in a noncommercial social setting.
Beehive is a travel agency that is not in the business of selling, storing, serving, manufacturing,or distributing alcoholic products. On Friday, September 11, 1993, Michael Marino had lunchwith Allison Pinder, a Beehive travel agent, during which he consumed three mixed drinks andtwo glasses of wine. Pinder testified that the purpose of this luncheon was to discuss travel plansfor Marino and his wife. Marino paid for the lunch and the drinks.
Toward the end of that same afternoon, several Beehive employees expressed an interest inhaving an alcoholic drink. One of the employees, who had purchased a bottle of vodka on herlunch hour, went to her car and brought the bottle into the office. About that same time, Marinocalled one of the Beehive employees and asked what the "girls" were doing after work. Marinoarrived at Beehive's office at approximately 5 p.m.
While at Beehive, Marino consumed an unspecified quantity of vodka from the bottle broughtinto the office by the employee. Approximately two hours after leaving Beehive, Marino wasinvolved in a multicar traffic accident that resulted in injuries to plaintiffs and to the Stephens'minor children, as well as the death of the Stephens' 12-year-old son.
Plaintiffs asserted claims against Marino, the Sage Club, a private club at which Marinoconsumed an undetermined amount of alcohol the day of the accident,(2) and Beehive Travelunder the Dramshop Act. The claims against Marino and the Sage Club were settled. Thisaction was brought solely against Beehive.
Plaintiffs contend that the specific and plain language of the Dramshop Act extends potentialliability to "any person"(3) who provides "liquor" to a person enumerated in the Act regardless ofthe location where the liquor is provided. Beehive maintains that the language of the statute andits legislative history indicate that liability is imposed only on those who are in the business ofselling liquor and who serve liquor in a commercial vending setting, not in a location likeBeehive where serving liquor is not part of its regular business. The trial court granted Beehive'smotion for summary judgment, ruling that the Dramshop Act does not impose liability forproviding liquor in a social, noncommercial setting.
STANDARD OF REVIEW
Summary judgment is proper only when there are no genuine issues of material fact and themoving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c); Wilcox v. GenevaRock Corp., 911 P.2d 367, 368 (Utah 1996); Higgins v. Salt Lake County, 855 P.2d 231, 235(Utah 1993). In reviewing a grant of summary judgment, "'[w]e determine only whether the trialcourt erred in applying the governing law and whether the trial court correctly held that therewere no disputed issues of material fact.'" Wilcox, 911 P.2d at 368 (quoting Ferree v. State, 784 P.2d 149, 151 (Utah 1989)). Because both parties stipulated to the facts for purposes of themotion for summary judgment and this appeal, there are no issues of material fact. The onlyissue before us is solely a question of law: whether the trial court properly interpreted andapplied the Dramshop Act. In matters of pure statutory interpretation, an appellate court reviewsa trial court's ruling for correctness and gives no deference to its legal conclusions. State v.Vigil, 842 P.2d 843, 844 (Utah 1992).
The issue before us is narrow. We are asked to determine whether the Dramshop Act imposesliability upon any person who provides liquor, a defined term under the Act, to a person listed inthe Act regardless of the location where the "liquor" is served or whether the provider is engagedin the commercial sale of "liquor." The Dramshop Act provides in pertinent part:
(1) Any person who directly gives, sells, or otherwise provides liquor, or at a location allowingconsumption on the premises, any alcoholic beverage, to the following persons, and by thoseactions causes the intoxication of that person, is liable for injuries in person, property, or meansof support to any third person, or to the spouse, child or parent of that third person, resulting fromthe intoxication:
. . . ;
(b) any person who is apparently under the influence of intoxicating alcoholic beverages orproducts or drugs;
(c) any person whom the person furnishing the alcoholic beverage knew or should have knownfrom the circumstances was under the influence of intoxicating alcoholic beverages or productsor drugs[.]
Utah Code Ann. 32A-14-101(1) (1994).
When faced with a question of statutory construction, we look first to the plain language of thestatute. K & T, Inc. v. Koroulis, 888 P.2d 623, 627 (Utah 1994). In construing a statute, weassume that "each term in the statute was used advisedly; thus the statutory words are readliterally, unless such a reading is unreasonably confused or inoperable." Savage Indus., Inc. v.Utah State Tax Comm'n, 811 P.2d 664, 670 (Utah 1991) (footnote omitted). "Only if we findsome ambiguity need we look further." Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1112(Utah 1991); see also World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 259 (Utah 1994) ("Only when we find ambiguity in the statute's plain language need weseek guidance from the legislative history and relevant policy considerations.").
We turn to the specific language of the Dramshop Act. The term "alcoholic beverages" isdefined in the Alcoholic Beverage Control Act ("ABCA"), of which the Dramshop Act is a part,to include both "beer" and "liquor." Utah Code Ann. 32A-1-105(2). "Liquor" is defined toexclude "any beverage defined as a beer, malt liquor, or malted beverage that has an alcoholcontent of less than 4% alcohol by volume."(4) Id. 32A-1-105(24)(b). Thus ABCAdistinguishes between "alcoholic beverages" and "liquor," the former including the latter as wellas beer.
The Dramshop Act employs these definitions. The Act provides that "[a]ny person who directlygives, sells, or otherwise provides liquor, or at a location allowing consumption on the premises,any alcoholic beverage," (emphasis added) may be liable. Examining the text, it is clear that therequirement "or at a location allowing consumption on the premises" modifies the term"alcoholic beverages" but not the word "liquor." Thus, according to the Act's plain language,"any person" serving any "alcoholic beverage" is potentially liable if the serving occurs at "alocation allowing consumption on the premises." However, a person who serves "liquor" ispotentially liable regardless of the location where the "liquor" is served. In other words, theDramshop Act imposes its standard of care on a broader class of servers, by eliminating thelocation requirement, whenever the more powerful "liquor" is provided.
Beehive counters the Act's plain language, arguing that the statute was "inartfully drafted" andthat "it seems apparent that the term 'premises' in subsection (1) [of the Act] modifies both theterms 'liquor' and 'alcoholic beverage.'" We disagree. Such a reading would render the term"liquor" as used in the Dramshop Act completely superfluous and thereby would violate ourwell-established rule that "statutory provisions should be construed to give full effect to all theirterms." Vigil, 842 P.2d at 845 (emphasis added). Beehive's interpretation would impose thesame liability on servers of "liquor" and "alcoholic beverages" although the Dramshop Actemploys both of the definitionally distinct terms and treats servers of those drinks differently.
Although the statute's text seems clear, Beehive contends that Utah case law supports the trialcourt's decision not to extend liability to Beehive. Although this court has never addressed theissue, in Sneddon v. Graham, 821 P.2d 1185 (Utah Ct. App. 1991), the court of appealsinterpreted the Dramshop Act and applied it to a situation in which a person had provided beer,an "alcoholic beverage" but not "liquor" under ABCA, to an acquaintance in his home. Theanalysis of the court of appeals was similar to our analysis in this case. The court first observedthat the text of the Act, coupled with the definitions provided by ABCA, was not ambiguous. Itnoted that "alcoholic beverages" were statutorily defined to include both "beer" and "liquor" andthat the term "liquor" was defined to exclude "beer." Id. at 1188. The court then stated that"[t]he statute's plain language explicitly limits liability to persons who provide alcoholicbeverages 'at a location allowing consumption on the premises,'" id., thereby rejecting plaintiff'sclaim. The result reached by the court of appeals would be reached by following our analysis inthis case, and we adopt its holding. However, the court proceeded to state that "the DramshopAct does not apply to individuals in a noncommercial social setting," id., although it was notconfronted with a case involving "liquor." Therefore, the issue of whether liability extends to a"person" who provides "liquor" to someone protected by the Act in a location that does not"allow consumption on the premises" was not before it. Any statement regarding such liabilitymust be considered dicta and, in any event, is disavowed by our opinion today insofar as it isinconsistent. The holding in Sneddon is limited to those occasions where beer or other"alcoholic beverages" that cannot be considered "liquor" are the only beverages provided to theintoxicated person and therefore does not implicate the issue before us today.
In D.D.Z. v. Molerway, 880 P.2d 1 (Utah Ct. App. 1994), the court of appeals relied on the dictain Sneddon and applied the "noncommercial social setting" rule to a case where "liquor" and"beer" were provided. In Molerway, an employee of the defendant corporation who becameintoxicated at a company event sexually assaulted a co-employee. Id. at 2. The victim sued,asserting a claim, among others, under the Dramshop Act. The court of appeals relied solely onSneddon to dispose of the claim, with no analysis of the Act's text. Id. at 5. The Molerwaydecision failed to consider that the defendant had provided "liquor" to the intoxicated employee,not just beer as in Sneddon, a distinction essential to the determination of liability under the Act. Because of this omission, we decline to follow Molerway.
Beehive has also cited cases from other jurisdictions where courts have refused to create socialhost liability. It is clear, however, that the Utah Dramshop Act imposes different standards ofliability depending upon the type of alcoholic beverage at issue, and it appears that Utah isunique in creating such a distinction. As a result, cases interpreting dramshop statutes from otherjurisdictions are inapposite to the interpretation of Utah's Dramshop Act. Similarly, the casescited by Beehive involving common law social host liability, including jurisdictions such asHawaii and Washington, are irrelevant to the interpretation of the Utah Dramshop Act, alegislative enactment.
Beehive next makes several structural arguments regarding the Dramshop Act which, it contends,demonstrate that the legislature intended the Dramshop Act to apply only to commercialestablishments. Specifically, Beehive argues that the Act's title and its requirement that adefendant "directly give, sell, or otherwise provide" alcohol demonstrate that the legislatureintended that only those in the business of providing alcoholic beverages be liable.(5)
It is a plausible argument that the presence of "Dramshop" in the title of the Act connotes that theAct applies only to commercial establishments that sell alcohol for consumption on the premises. "Dram-shop" is defined as "[a] drinking establishment where liquors are sold to be drunk on thepremises; a bar or saloon." Black's Law Dictionary 444 (5th ed. 1979). However, this court hasheld that a statute's title is not part of its text and cannot be used as a tool of statutoryconstruction unless the statute's language is ambiguous. Funk v. Utah State Tax Comm'n, 839 P.2d 818, 820 (Utah 1992) (court will look to caption of statute to aid in determining statute'sintent only if there is ambiguous statutory language). Because the Dramshop Act is notambiguous and the plain language of the statute is clear, we find it inappropriate to use the Act'stitle to limit its application to "bars and saloons."
Beehive also contends that the phrase "directly give, sell, or otherwise provide" indicates that theprovider must be involved in the commercial vending of alcoholic beverages as a prerequisite toliability. This argument fails on two grounds. First, it ignores the terms "give" and "otherwiseprovide," actions that apply to "social hosts" and commercial establishments alike, andunwarrantedly focuses on "sell," the portion of the statute most likely to implicate a commercialestablishment. Second, the argument fails to recognize that "any person" may be liable under thestatute. The Act does not mention commercial establishments, but instead imposes liability on"any person who directly gives, sells, or otherwise provides liquor."
Beehive further maintains that because this court has ruled that the Dramshop Act imposes a dutyakin to strict liability, see Reeves v. Gentile, 813 P.2d 111 (Utah 1991), its intent should beanalogous to the liability imposed upon sellers in strict product liability cases. Beehive arguesthat commercial sellers of alcohol are those best able to bear the loss under the Act. Once again,however, in the absence of ambiguity, we decline to examine legislative intent or analogize theAct to strict product liability statutes and decisions in order to obfuscate its plain meaning.
Finally, Beehive urges this court to adopt a limited reading of the Dramshop Act becauseextending liability to social hosts is contrary to public policy and, therefore, "[t]he radicalexpansion of civil liability advocated [by plaintiffs] should be avoided unless the legislature'sintentions in this regard are unmistakably clear." However, as discussed throughout this opinion,we conclude that the Act, and thereby the legislature, clearly distinguishes between servers of"liquor" and "alcoholic beverages." Under such circumstances, we refuse to consider publicpolicy arguments or otherwise attempt to assess the wisdom of the legislation. Cf. Brinkerhoff v.Forsyth, 779 P.2d 685, 686 (Utah 1989) (when "statutory language is plain and unambiguous,this court will not look beyond the same to divine legislative intent"). Our duty is to implementthe law as it reads unless it results in an absurd outcome. That is not the case here.(6)
In conclusion, we hold that the Dramshop Act imposes potential liability on "any person" whoprovides "liquor" to a person enumerated in the Act, regardless of whether the liquor is providedat a "location allowing consumption on the premises" or whether the provider is in the businessof purveying alcohol.
Reversed and remanded for proceedings consistent with this opinion.
Justice Durham and Judge Noel concur in Justice Howe's opinion.
ZIMMERMAN, Chief Justice, concurring:
I concur in the opinion of Justice Howe for the simple reason that the legislation in questioncannot fairly be read to reach a different result. However, in light of the potentially draconianresult for private citizens who choose to serve social guests alcoholic beverages other than beer,and the high level of moral outrage publicly expressed about drunken drivers and the carnagethey cause, I feel compelled to note the absurd distinctions contained in our dramshop act. Thesedistinctions suggest a strong measure of hypocrisy in the state's policy toward those furnishingalcohol to others.
As the majority notes, "liquor" is defined as beverages that contain higher than four percentalcohol. Under this definition, "liquor" includes wine, distilled spirits, and so-called "heavybeer" sold only in state liquor stores. On the premise that the stronger beverages are moredangerous than the weaker, the dramshop act makes any provider of "liquor" liable withoutlimitation for harm done by those who consume it, regardless of whether it is sold or given andregardless of the place where it is provided or consumed. But our statute is carefully crafted tomake it plain that this severe liability does not attach to those who give, or even sell, beer that isnot consumed on the premises, such as beer that is purchased in gas stations and conveniencestores for consumption elsewhere. Yet if we were to look at the actual actions of those whoconsume alcohol and are involved in automobile accidents, rather than relying on some simplisticnotion of "higher alcoholic contents equals more danger," we would have to acknowledge thatexcessive beer consumption is almost certainly involved in a majority of alcohol-relatedautomobile accidents, not excessive consumption of "liquor."
While the citizens of this state consumed roughly one and a half gallons of "liquor" (two-thirdsof a gallon of spirits, two-thirds of a gallon of wine, and one-tenth of a gallon of heavy beer) perperson in 1995,(7) they consumed just over twelve gallons of beer for every man, woman, andchild resident in Utah in 1995.(8) Given this enormous disparity, it is not unreasonable to assumethat beer is involved in more alcohol-related automobile accidents than are heavy beer, spirits,and wine.(9) In fact, roadside surveys of 753 people conducted in May and June of 1977 revealedthat fully 76 percent of the legally drunk drivers surveyed (blood alcohol content over .08percent) were beer drinkers, while only 8.1 percent preferred spirits and 2.9 percent preferredwine. Of the eight factors studied, "[t]he single most important variable differentiating [betweennondrinking and] drinking drivers was whether or not a person was a beer drinker."(10) Yet thosewho sell this beer for profit are not liable under the dramshop act, while a social host who giveswine to a guest is.
Why this irrational distinction, one that plainly undermines the declared purposes of thedramshop act? I suspect that this distinction can be explained by the fact that those who sell beerand vastly profit from those sales have a much stronger lobby than those social hosts who mayprovide their guests with wine in their homes or elsewhere. It seems that a more coherent socialpolicy, one less subject to the charge of hypocrisy, would apply the dramshop sanctions equallyto all alcoholic beverages rather than discriminating in favor of the providers of the only form ofalcohol that the state of Utah permits to be sold in packaged form for profit by private interests.
Justice Russon concurs in the concurring opinion of Chief Justice Zimmerman.
Having disqualified himself, Associate Chief Justice Stewart does not participate herein; DistrictJudge Frank G. Noel sat.
1. The facts were stipulated by the parties for the purposes of defendant's motion for summaryjudgment and this appeal. Those facts have been edited for purposes of this opinion. Wetherefore note that both parties have reserved the right to contest the stipulated facts and that ourrestatement of those facts should in no way be considered binding upon the parties or limit theirright to contest said facts or present alternative scenarios in subsequent stages of this case.
2. Although Beehive contests the issue, it is willing to assume for the purposes of this appeal thatthe liquor consumed by Marino at Beehive contributed to his intoxication and that suchintoxication was a proximate cause of the accident.
3. "'Person' means any individual, partnership, firm, corporation, association, business trust, orother form of business enterprise, including a receiver or trustee, and the plural as well as thesingular number, unless the intent to give a more limited meaning is disclosed by the context." Utah Code Ann. 32A-1-105(34) (1994).
4. "Heavy beer," which has an alcohol content greater than four percent, is considered "liquor." Utah Code Ann. 32A-1-105(19) (1994).
5. Beehive also argues that the Act's damage limitations and provisions prohibiting an employerfrom retaliating against an employee who refuses to serve alcohol to a person protected under theAct, Utah Code Ann. 32A-14-101(5), (8) (1994), demonstrate that the Act applies only tocommercial establishments engaged in the sale of alcohol. These arguments are without merit. The fact that some provisions of the Dramshop Act are addressed primarily to commercialestablishments does not mean that the entire Act applies exclusively to those in the business of
6. A reasonably clear public policy rationale is discernible on the face of the statute. "Liquor" hasa higher alcohol content than other "alcoholic beverages" and its consumption is more likely tointoxicate the drinker. It is therefore understandable that liability is imposed upon a broaderclass of "liquor" servers than servers of less potent "alcoholic beverages."
7. See Utah Department of Alcoholic Beverage Control, Summary of Operations, July 1, 1995, toJune 30, 1996, tbl. (showing 2,997,220 gallons of liquor sold in Utah and 1,959,000 population).
8. See Beer Institute, Brewer's Almanac Annual Report 1995 (showing 24,151,139 gallons ofbeer imported into Utah in 1995).
9. We note that 1.5 ounces of spirits or 3 ounces of wine are roughly equal to 12 ounces of beerfor the purposes of blood alcohol content. Utah Department of Alcoholic Beverage Control,Summary of Operations, July 1, 1995, to June 30, 1996, tbl. ("Know Your Limit"). Calculatingbased on the total of all alcoholic beverages consumed in Utah, the ratio of alcohol consumed inthe form of beer compared to that consumed as wine is roughly 4.6 to 1, and compared to spiritsis 1.5 to 1. See id. ((12.33 gal. beer/(.669 gal. wine * 4) = 4.6) and (12.33 gal. beer/(.697 gal.spirits * 8) = 1.5)). Thus, even considering the lower alcohol content of beer, it is still the casethat beer is responsible for more alcohol consumed in Utah than are spirits or wine.
10. See Utah Alcohol Safety Action Project, Roadside Survey 8 (June 1977) (available from UtahHighway Safety Office).