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ROBINSON v. MATT MARY MORAN, INC., et al.



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ROBINSON

v.

MATT MARY MORAN, INC.,
et al.


March 3, 2000

Record No. 990778

TERESA F. ROBINSON, ADMINISTRATOR, ETC.

v.

MATT MARY MORAN, INC., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Theodore J. Markow, Judge

Present: Compton,[1] Lacy,
Hassell, Keenan, Koontz,and Kinser, JJ., and Poff, Senior Justice

OPINION BY JUSTICE BARBARA MILANO KEENAN


In this appeal, we consider whether the trial
court erred in sustaining a demurrer to a wrongful death action,
which asserted theories of common law negligence and negligence per
se against a restaurant and its bartender who allegedly
served alcoholic beverages to two intoxicated persons under the
age of 21. After leaving the restaurant, one of those intoxicated
persons drove a motor vehicle that was involved in an accident in
which her passenger, the plaintiff’s decedent, was killed.

Teresa F. Robinson, administrator of the estate
of her daughter, Nicole Leigh Breckenridge, filed a motion for
judgment against Matt Mary Moran, Inc. d/b/a Fox River Cafe and
Comedy Club (the Club) and Paul J. Schmidt, a bartender at the
Club (collectively, Fox River), and others. Counts V and VIII of
the motion for judgment are at issue in this appeal. In Count V,
Robinson alleged that Fox River was negligent in serving
alcoholic beverages to two underage patrons. In Count VIII,
Robinson alleged negligence per se based on Fox
River’s violation of statutory and regulatory provisions
prohibiting the sale of alcoholic beverages to intoxicated
persons and any sale of such beverages to persons under 21 years
of age.
[2]

Since the trial court decided this case on
demurrer, we will consider as true all material facts alleged in
the motion for judgment, all facts impliedly alleged, and all
reasonable inferences that may be drawn from the alleged facts. Gina
Chin & Assoc. v. First Union Bank
, 256 Va. 59, 61, 500
S.E.2d 516, 517 (1998); Norris v. Mitchell, 255 Va. 235,
237, 495 S.E.2d 809, 810 (1998). Robinson alleged in the motion
for judgment that in the late evening of November 12, 1997,
21-year-old Nicole Leigh Breckenridge and several friends,
including Nicole C. Johnson and Jason B. Johnson (the Johnsons),
consumed alcoholic beverages at the Club. During a period of
about three hours, Schmidt and other Club employees served
Breckenridge and the Johnsons "a significant amount" of
alcoholic beverages. At that time, Jason Johnson was 20 years old
and Nicole Johnson was 19 years old.

The Johnsons were employed at a restaurant
known as The Tobacco Company, which was located next to the Club.
The owner and the general manager of The Tobacco Company, in an
effort to prevent underage employees from consuming alcoholic
beverages at the Club, had provided the Club’s management with a
list of the names and birth dates of such employees. The
Johnsons’ names and birth dates were included on this list.

About 2 a.m. on November 13, 1997, Schmidt and
other Club employees directed Breckenridge and the Johnsons to
leave the Club premises, despite the fact that they were all
obviously intoxicated. Breckenridge entered a vehicle driven by
Nicole Johnson, while Jason Johnson began driving another
vehicle. The Johnsons, operating separate vehicles, engaged in a
race while heading west on Main Street in Richmond. They raced
for several blocks, passing through about 13 intersections
controlled by traffic lights. Nicole Johnson lost control of her
vehicle, which struck a tree.

Breckenridge died from the injuries she
sustained in the collision. Blood alcohol testing conducted after
the accident revealed that Nicole Johnson’s blood alcohol content
was 0.24% by weight by volume, Jason Johnson’s blood alcohol
content was 0.13% by weight by volume, and Breckenridge’s blood
alcohol content was 0.25% by weight by volume.

In Count V of her motion for judgment, Robinson
alleged that Fox River was negligent in serving alcoholic
beverages to the Johnsons when it knew or should have known that
they were under 21 years of age and were intoxicated. Robinson
also alleged that Fox River knew or should have known that the
Johnsons intended to operate motor vehicles and to transport
passengers after departing the Club. She alleged that
Breckenridge’s death was a direct and proximate result of Fox
River’s acts.

In Count VIII, Robinson alleged that Fox River
violated several statutory and regulatory provisions that
prohibit the sale of alcoholic beverages to persons under the age
of 21 and to persons who are intoxicated. She alleged, among
other things, that these provisions were enacted to prevent
persons under the age of 21 from driving after consuming
alcoholic beverages and to protect all persons riding as
passengers in motor vehicles operated by such drivers. Robinson
asserted that Fox River’s violation of these statutes and
regulations was a proximate cause of Breckenridge’s death.

Fox River filed a demurrer to Counts V and
VIII, contending that the Commonwealth does not recognize a cause
of action against a vendor of alcoholic beverages for injuries or
death to third parties caused by the intoxication of a person who
consumed alcoholic beverages provided by that vendor. The trial
court sustained the demurrer to Count V, based on our holding in Williamson
v. The Old Brogue, Inc.
, 232 Va. 350, 350 S.E.2d 621 (1986).
There, we held that a common law negligence action did not lie
against a vendor who provided alcoholic beverages to a person who
later drove an automobile and injured a third party. Id.
at 354, 350 S.E.2d at 624.

Relying on Williamson, the trial court
also sustained the demurrer to Robinson’s claim of negligence per
se in Count VIII. The court held that the facts alleged
did not state a cause of action for negligence per se
because the sale of alcoholic beverages to a person is not a
proximate cause of that person’s later acts. The trial court
entered an order dismissing Counts V and VIII, and Robinson
appealed from this judgment.

On appeal, Robinson argues that Williamson
does not control the facts alleged in her motion for judgment
because Williamson involved an intoxicated person over
the age of 21 who was served alcoholic beverages and later caused
injury to a third party. Robinson contends that Fox River’s act
of providing alcoholic beverages to the Johnsons violated a
common law duty to refrain from serving alcoholic beverages to
persons who are not "able-bodied." She contends that
the Johnsons were not "able-bodied" because they were
less than 21 years of age, and that Fox River’s act in providing
them alcoholic beverages was a proximate cause of the motor
vehicle accident.

Robinson also argues that she stated a valid
claim of negligence per se based on her allegation
that Fox River violated the statutes and regulations referenced
in her motion for judgment. She contends that these provisions
were enacted to protect the general public from the dangers
created when persons under the age of 21 drive while intoxicated,
and that Breckenridge was a member of the class of persons that
these provisions were designed to protect. Robinson further
asserts that Fox River’s violation of the cited provisions was a
proximate cause of Breckenridge’s death. We disagree with
Robinson’s arguments.

We first conclude that Robinson failed to state
a cause of action for wrongful death based on common law
negligence. The common law of this Commonwealth, as expressed in Williamson
v. The Old Brogue, Inc.
, establishes that a vendor of
alcoholic beverages is not liable for injuries sustained by a
third party that result from the intoxication of the vendor’s
patron. 232 Va. at 352-53, 350 S.E.2d at 623. We explained that
"[t]he basis of the rule is that individuals, drunk or
sober, are responsible for their own torts and that, apart from
statute, drinking the intoxicant, not furnishing it, is the
proximate cause of the injury." 232 Va. at 353, 350 S.E.2d
at 623.

In stating this rule, we did not incorporate
any principles relating to "able-bodied" persons, and
we have not recognized this concept as part of the common law of
this Commonwealth. In Williamson, we referred to the
responsibility of "individuals" for the commission of
their own torts and we did not qualify that word in the course of
our analysis and holding. See id.

We decline to recognize an exception to the
common law set forth in Williamson based on the
distinction urged by Robinson. The responsibility of individuals
for torts they commit does not change because they are 19 or 20
years of age, rather than 21 years of age. Moreover, the fact
that they cannot legally purchase alcoholic beverages does not
alter this responsibility, just as it does not alter the
responsibility of intoxicated adults who cannot legally purchase
such beverages because of their intoxication. See Code
? 4.1-304.

The common law considers the act of selling
alcoholic beverages as too remote to be a proximate cause of an
injury to a third party resulting from the negligent conduct of
the purchaser of the beverages. Williamson, 232 Va. at
353, 350 S.E.2d at 623. Thus, Robinson’s pleading is insufficient
as a matter of law because Fox River’s act of furnishing alcohol
to the Johnsons was not a proximate cause of Breckinridge’s
death. In the absence of proof of proximate causation, a
defendant will not be held liable for the injury or death of
another person caused by his negligent acts. See Farren
v. Gilbert
, 224 Va. 407, 412, 297 S.E.2d 668, 671 (1982); Roll
‘R’ Way Rinks, Inc. v. Smith
, 218 Va. 321, 329, 237 S.E.2d
157, 162 (1977); S & C Co. v. Horne, 218 Va. 124, 128,
235 S.E.2d 456, 459 (1977). Therefore, we hold that the trial
court did not err in sustaining Fox River’s demurrer to Count V.

We emphasize, however, as we did in Williamson,
that we are not insensitive to the societal problem illustrated
by these types of cases. See 232 Va. at 353, 350 S.E.2d at
624. Nevertheless, a decision to abrogate this longstanding
common law principle is the proper function of the legislature,
not of the courts. The legislature provides a public forum for
consideration of the competing social, economic, and policy
issues that are raised by the prospect of abrogating this settled
rule. Id. at 354, 350 S.E.2d at 624. The sheer number of
issues that can be raised in a debate of this nature demonstrates
the inadequacy of the judicial process to balance these competing
concerns. Thus, we decline to engage in such an exercise here. Id.

We next consider Robinson’s assertion of a
cause of action based on negligence per se. The
requirements for establishing an action based on negligence per
se are well settled. First, a plaintiff must prove that
the defendant violated a statute that was enacted for public
safety. Halterman v. Radisson Hotel Corp., 259 Va. 171,
___, ___ S.E.2d ___, ___ (2000); MacCoy v. Colony House
Builders, Inc.
, 239 Va. 64, 69, 387 S.E.2d 760, 763 (1990); Virginia
Elec. and Power Co. v. Savoy Const. Co.
, 224 Va. 36, 45, 294
S.E.2d 811, 817 (1982). Second, the plaintiff must establish that
she belongs to the class of persons for whose benefit the statute
was enacted. Halterman, 259 Va. at ___, ___ S.E.2d at ___;
Williamson, 232 Va. at 355, 350 S.E.2d at 624; Pearson
v. Canada Contracting Co.
, 232 Va. 177, 186, 349 S.E.2d 106,
112 (1986). Third, the plaintiff must prove that the statutory
violation was a proximate cause of her injury. Halterman,
259 Va. at ___, ___ S.E.2d at ___; Thomas v. Settle, 247
Va. 15, 20, 439 S.E.2d 360, 363 (1994); Hack v. Nester,
241 Va. 499, 503-04, 404 S.E.2d 42, 43 (1990).

Our holding in Williamson concerning
proximate causation resolves this inquiry. As stated above, under
that holding, Fox River’s act of providing alcoholic beverages to
the Johnsons was not a proximate cause of Breckinridge’s death. See
Williamson, 232 Va. at 353, 350 S.E.2d at 623. Thus,
Robinson failed as a matter of law to allege proximate causation,
one of the three essential requirements for proving a claim of
wrongful death based on negligence per se.
Accordingly, we conclude that the trial court did not err in
sustaining Fox River’s demurrer to Count VIII.

For these reasons, we will affirm the trial
court’s judgment.

Affirmed.

 

FOOTNOTES:

[1] Justice Compton participated in
the hearing and decision of this case prior to the effective date
of his retirement on February 2, 2000.

[2] Robinson asserted additional
counts against Fox River alleging "willful, wanton and
intentional conduct," premises liability, and nuisance. The
trial court sustained Fox River’s demurrer to those counts, and
Robinson does not challenge those rulings in this appeal.

 

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