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J. Loeb v. L. Rasmussen & L&L Investments (12/13/91), 822 P 2d 914
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
JOYCE LOEB, as Personal )
Representative of the Estate )
of TERESA BOUFFIOUX, )
)
)
Appellant and ) File No. S-3450/3464
Cross-Appellee, )
)
v. ) 4FA 85 431 Civil
)
LEO RASMUSSEN and L&L ) O P I N I O N
INVESTMENTS, a general partner-)
ship, d/b/a CUSHMAN BOXBOY, )
)
Appellees and )
Cross-Appellants. ) [No. 3786 - December 13,
1991]
________________________________)
Appeals from the Superior Court of the State
of Alaska, Fourth Judicial District, Fair
banks, Jay Hodges, Judge.
Appearances: Dale J. Walther, Clark,
Walther & Flanigan, Anchorage, for
Appellant/Cross- Appellee. Susan M. West,
Robertson, Monagle & Eastaugh, Anchorage, for
Appellees/Cross- Appellants.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
BURKE, Justice.
MOORE, Justice, with whom MATTHEWS, Justice,
joins, dissenting in part.
In this case, the plaintiff in a damage action challenges
the trial court's denial of its motion to bar the defense of
comparative negligence. The defendant cross-appeals the
court's denial of its motion for summary judgment based on the
alleged "willful misconduct"of the plaintiff's decedent.
Both parties appeal issues pertaining to the trial court's
award of attorney's fees.
I
On June 25, 1983, Teresa Bouffioux, age 17, was injured in a
one-car accident. Before the accident, Bouffioux and another
minor purchased liquor from the Cushman Boxboy, a store in
Fairbanks. Neither minor was asked by Boxboy personnel to
furnish proof of her age.
Following the accident, Bouffioux was transported to a
hospital, where a blood sample was taken. Test results
indicated that Bouffioux's blood alcohol level was 0.15, and
she was later charged with driving while intoxicated.
Approximately one year after the accident, Bouffioux committed
suicide.
On February 27, 1985, Bouffioux's estate filed a damage
action against L&L Investments & Rasmussen, doing business as
Cushman Boxboy (Boxboy). The complaint alleged that the sale
of liquor to Bouffioux was unlawful, under AS 04.16.0511 and
AS 04.21.050,2 because it was made to a minor without first
requiring proof of the buyer's age. The estate asked for an
award of damages, for both Bouffioux's injuries and her
ultimate death.3
Boxboy answered the complaint, alleging several affirmative
defenses. These included comparative negligence and willful
misconduct on the part of Bouffioux.
Prior to trial, the estate sought a ruling from the superior
court4 that the defense of comparative negligence was
unavailable to Boxboy, "as a matter of law." The estate's
motion was denied, however, and Boxboy was permitted to go
forward with the defense.
Boxboy moved for summary judgment, arguing that Bouffioux's
unlawful purchase and consumption of alcohol, and her
subsequent act of driving while intoxicated, were "the type of
intentional misconduct which bars recovery against another
[for negligence]." The trial court denied Boxboy's motion,
effectively ruling that Bouffioux's conduct did not, as a
matter of law, bar her recovery.
The jury found Boxboy guilty of negligence, for furnishing
alcohol to Bouffioux without first asking her for proof that
she was of lawful age. Such negligence was also found by the
jury to be the proximate cause of Bouffioux's injuries, but
not the cause of her death by suicide. The jury concluded
that Bouffioux's injuries were worth $144,593.09. Of this
amount, $69,593.09 were for Bouffioux's medical expenses and
$75,000 were for her general damages.5 Finally, the jury
compared Bouffioux's negligence to that of Boxboy, finding
that 90% of the fault was Bouffioux's; the damage award to her
estate was reduced accordingly.
Following return of the jury's verdict, the estate filed
alternative motions, seeking: (1) judgment without regard to
the jury's determination of comparative negligence, (2)
reconsideration of the court's rulings on the subject of
comparative negligence, (3) a new trial, (4) relief from
judgment, or (5) judgment in favor of the estate
notwithstanding the jury's verdict. These motions were
denied.
Both parties asked for their attorneys' fees. The trial
court ruled that the estate was the "prevailing party" and
awarded fees based on the amount of the reduced damage award,
using the fee schedule set forth in Alaska Rule of Civil
Procedure 82. These appeals followed.
II
Each of the issues now on appeal involves a pure question of
law. Thus, in reviewing these issues, we are free to
substitute our independent judgment for that of the trial
court. Foss Alaska Line, Inc. v. Northland Services, Inc.,
724 P.2d 523, 526 (Alaska 1986). "Our duty is to adopt the
rule of law that is most persuasive in light of precedent,
reason and policy." Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979).
III
A. Comparative Negligence
The first issue that we address is whether, in a tort action
brought by a minor or her estate for injuries caused by the
minor's use of liquor purchased unlawfully from the holder of
a liquor license, in violation of AS 04.21.050 and AS
04.16.051, the licensee is entitled to defend, in part, on the
basis of the minor's comparative negligence in making the
illegal purchase.6 In light of prior case law, and what we
believe to be the public policy in Alaska, we hold that a
licensee in such circumstances is not entitled to this partial
defense.
In Nazareno v. Urie, 638 P.2d 671 (Alaska 1981), we held
that violation of AS 04.15.020(a)7 was negligence per se,
rendering a liquor vendor civilly liable when the sale of
alcohol was a substantial factor in causing injury. Nazareno
specifically held that a third party injured by an intoxicated
customer could recover damages from the negligent liquor
vendor. Subsequently, in Morris v. Farley Enterprises, 661
P.2d 167 (Alaska 1983), we held that the vendor was liable
regardless of whether the suit was brought by an innocent
third party or the intoxicated consumer.
In Morris, a licensee sold alcohol to Randy Hanson, age 17.
Hanson shared the alcohol he had purchased with his
companions, one of whom was the driver of the automobile in
which they were travelling. Id. at 168. Thereafter, an
accident occurred in which Hanson and another minor were
killed. Id. The parents of the deceased minors filed an
action against the liquor licensee for the wrongful death of
their children based upon the licensee's violation of AS
04.15.020(a). The licensee argued that the complicity of the
decedents in contributing to the intoxication of the driver,
which was also forbidden by statute, barred the action. Id.
at 170-71. We held that such "complicity"did not preclude
the minor's action against the licensee. Id. at 171. In
reaching this conclusion, we stated:
[The] policy [of AS 04.15.020(a)] was,
in part, to protect minors from the effects
of alcohol. It was based upon an assumption
that minors are relatively incapable of
preventing themselves from abusing that
dangerous drug. It would run counter to the
purpose on which we have acted in adopting
the statute as a negligence standard, and
thus to the policy of the statute itself, to
hold that a minor is barred from maintaining
an action by his own illegal role in the
liquor's acquisition. As between the seller
and the minor, it is the seller who is the
responsible party in the transaction. The
fact that the minor's conduct was also a
misdemeanor . . . does not change this
relationship. [The statute prohibiting the
minor from obtaining alcohol] was passed to
prevent minors from acquiring intoxicating
liquor, not to protect those who sell liquor
to minors from civil liability.
Id.
In Nazareno and Morris we relied, in part, on Vance v.
United States, 355 F. Supp. 756 (D. Alaska 1973). In Vance
the district court held that AS 04.15.020(a) was an
exceptional statute designed to protect a special class. The
district court, therefore, concluded that a minor's
contributory negligence should not bar a tort claim against
the licensee, because the statute "place[s] the entire
responsibility for resulting harm upon the violator, for it is
virtually impossible for the statute to be violated without
contributory negligence on the part of the plaintiff-
consumer." Id. at 759-60 (emphasis added).
In general, then, we have been unwilling to consider a
minor's contributory negligence or complicity in an illegal
liquor transaction as an impediment to an action against a
liquor licensee who violates AS 04.15.020(a), embodying the
same legislative policy and, by design, protecting the same
class, i.e., those under the age of 21, from their own
inability to protect themselves from the effects of alcohol.
Boxboy argues, however, that our adoption of comparative
negligence in Kaatz v. State, 540 P.2d 1037 (Alaska 1975),
undermines the rationale for the rule that a violator of an
"exceptional statute"may not plead a plaintiff's contributory
fault.8 We disagree.
The legislature has now codified the doctrine of
comparative negligence. AS 09.17.060 provides:
In an action based on fault[,] seeking
to recover damages for injury or death to a
person or harm to property, contributory
fault chargeable to the claimant diminishes
proportionally the amount awarded as
compensatory damages for the injury
attributable to the claimant's fault, but
does not bar recovery.
AS 09.17.060; Ch. 139, 1, SLA 1986 (emphasis added). This
statutory provision is not at all inconsistent with our past
decisions, holding that the laws prohibiting the sale of
alcohol to minors and obviously intoxicated persons are
intended to place the entire responsibility for subsequent
harm on the violator. Our cases, like the statute, say
essentially that the plaintiff/ consumer's contributory fault
is not chargeable to the claimant in these circumstances, in
an action against the violator. Thus, the legislature's
adoption of comparative negligence did not change this well
established rule.9
While we are aware that there is a considerable split of
authority in this area of the law,10 we believe that our
holding today best comports with existing Alaska law and sound
public policy.
The legislature has passed many laws designed to
protect minors from the pernicious effects of alcohol.11 Such
laws, particularly those making it unlawful to sell liquor to a
minor, reflect society's belief that children are not competent
to assess in any meaningful way the risks involved in the use of
alcohol.12 Boxboy was able to exploit this lack of competence,
when it sold liquor unlawfully to Bouffioux. However, we can
think of no legitimate reason to allow Boxboy to exploit it
further, by having its liability to the plaintiff reduced because
Bouffioux failed to exercise the same degree of care for her own
safety reasonably expected of one more able to assess the risks,
when she purchased and used the defendant's product.13 Boxboy's
argument is particularly unpersuasive in light of the fact that
it could have avoided all liability merely by securing, in good
faith, proof that Bouffioux was of lawful age before selling her
liquor.14
For the above reasons, we hold that a licensee who
violates AS 04.16.050 or AS 04.21.051 is not entitled to assert
the comparative fault of the minor/consumer, in an action for
damages resulting from the unlawful sale of intoxicating liquor.15
B. Intentional Misconduct
Having held that a liquor licensee may not assert a
minor's comparative negligence to reduce the licensee's
liability, it follows that we should reject Boxboy's cross-appeal
on the issue of Bouffioux's willful misconduct.16 Furthermore, we
believe our holding in Morris v. Farley controls this issue.
In Morris, we held that the "wrongful conduct of . . .
Hanson in providing [the driver] with the means of becoming
intoxicated did not amount to a superseding cause as a matter of
law and therefore did not operate to relieve [the defendant] of
liability."Morris, 661 P.2d at 170. We concluded further that
"intervening causes which lie within the scope of the foreseeable
risk, or have a reasonable connection to it[,] are not
superseding causes which relieve the initial tortfeasor from
liability."Id. (noting Professor Prosser's position, cited with
approval in Sharp v. Fairbanks North Star Borough, 569 P.2d 178,
182 n.9 (Alaska 1977)). It is well within the scope of
foreseeable risk that a minor who purchases alcohol may drive an
automobile, and that an alcohol-related accident may result.
Characterizing a minor's conduct in illegally consuming
alcohol and then driving an automobile as negligence, complicity,
a superseding cause or willful misconduct is little more than
word play. For the reasons given in the preceding section, we
affirm the trial court's denial of Boxboy's motion for summary
judgment.
C. Attorney's Fees
The trial court determined that the estate was the
prevailing party, because it successfully established Boxboy's
liability concerning the personal injury claim. The court
awarded the estate $4,693.93 for its attorney's fees, calculated
according to Alaska Civil Rule 82.17
The estate appeals the amount of its award for
attorney's fees, arguing that it is entitled to actual attorney's
fees because, apart from the excessive cost of the litigation,
"it is in the interest of public policy and public interest for
attorney's fees to be awarded to prevailing parties in actions
where claims are brought and based upon violation of the `excep
tional' statutes affording protection to minors." Boxboy cross-
appeals, contending that the estate was not the prevailing party
and that, even if it was, the trial court inappropriately awarded
attorney's fees under Civil Rule 82.
"A party may be the `prevailing party' if [it] is
successful with regard to the `main issue in the action.'"Alaska
Placer Co. v. Lee, 553 P.2d 54, 63 (Alaska 1976) (quoting Cooper
v. Carlson, 511 P.2d 1305, 1308 (Alaska 1973)). The trial
court's determination that a party is the prevailing party will
be reversed only if the court abused its discretion. Id.
Moreover, we will not reverse an award of attorney's fees unless
"the trial court has abused its discretion to the extent the
award is `manifestly unreasonable.'" Luedtke v. Nabors Alaska
Drilling, Inc., 768 P.2d 1123, 1138 (Alaska 1989).
Here, we conclude that the trial court did not abuse
its discretion in determining that the estate was the prevailing
party. In establishing Boxboy's liability for Bouffioux's
injuries based on its violation of AS 04.21.050 and AS 04.16.051,
the estate was successful with regard to the main issue in the
action. See generally Alaska Placer Co., 553 P.2d at 63.
On Boxboy's cross-appeal, we conclude that the trial
court acted properly in deciding to calculate the attorney's fee
award according to Civil Rule 82. The estate's argument for
actual attorney's fees is without merit for two reasons: (1) the
estate did not assert that it was a "public interest"litigant in
the proceeding below and, therefore, the estate may not present
the issue on appeal, Zeman v. Lufthansa German Airlines, 699 P.2d
1274, 1280 (Alaska 1985), and (2) even if the issue had been
presented below, the estate did not satisfy our stated "public
interest"litigant criteria.18
Thus, we affirm the trial court's award of attorney's
fees according to Civil Rule 82. The amount of the fee award,
however, must be recalculated, as it was entered on a verdict
which was improperly reduced because of Bouffioux's comparative
negligence.
The judgment of the superior court is REVERSED in part
and AFFIRMED in part. The case is REMANDED to the superior court
for entry of an amended judgment not inconsistent with this
opinion.
MOORE, J., dissenting, (MATTHEWS, J., joins in part one of this
opinion).
I.
Because there is nothing in either the language or
history of AS 04.16.051 and AS 04.21.050 evincing any legislative
intent that liquor licensees should, under all circumstances,
bear full responsibility for all damages resulting from the
licensee's violation of those acts, I cannot agree with the
majority's decision in section III. A. In Kaatz v. State, 540
P.2d 1037 (Alaska 1975), this court abolished the contributory
negligence rule in favor of instituting the more equitable
comparative negligence principle in Alaska. We then stated that
the new comparative negligence rule would "apply to any case in
which the trial commences"after the date of Kaatz. Id. at 1050
(emphasis added). However, in section III. A. of its opinion,
the majority clings to a special exception developed under the
former contributory negligence rule to mitigate the particular
harshness of that principle. When this state abolished that
principle, the need for the special exception also vanished; it
therefore should not be applied today. For this reason, I
respectfully dissent.
In Kaatz, we quoted Li v. Yellow Cab Co., 532 P.2d 1226
(Cal. 1975), in recognizing that the contributory negligence rule
often yielded inequitable and unjustified results due to its "all-
or-nothing" nature. 540 P.2d at 1048. Indeed, it was in
response to this specific problem that certain special exceptions
such as the "exceptional statute"rule and the doctrine of "last
clear chance"arose. See Sagadin v. Ripper, 221 Cal. Rptr. 675,
690 (Cal. App. 1985). The Kaatz decision, however, remedied the
specific weaknesses of the former rule by adopting the principle
of pure comparative negligence. This principle's "allocation of
proportionate fault approaches reality more closely than the
total loss or victory represented by the contributory negligence
rule." 540 P.2d at 1048. This court then acknowledged that
certain judicially-created doctrines developed under the
contributory negligence rule were no longer useful and should be
abolished along with the former rule. The "last clear chance"
rule is one such doctrine specifically abrogated by Kaatz. We
stated, "[w]ithout the contributory negligence rule there [is] no
need for the palliative doctrine of last clear chance. To give
continued life to that principle would defeat the very purpose of
the comparative negligence rule -- the apportionment of damages
according to the degree of mutual fault." Id. at 1050.
The "exceptional statute"rule used by the majority to
explain its holding today is clearly another doctrine whose
purpose vanished with the abolition of the former rule. Under
the contributory negligence scheme, the "exceptional statute"
principle served to ensure that plaintiffs within the protected
class of a certain statute could bring an action against a
defendant who violated that statute despite the plaintiff's own
conduct which may have contributed to the defendant's violation.
When the comparative negligence principle did away with the harsh
all-or-nothing quality of the former rule, however, the
particular need for which this special exception was created also
disappeared.
It seems beyond dispute that an exception loses its
validity once its purpose is exhausted. This approach has been
espoused by California in the case of Sagadin v. Ripper, 221 Cal.
Rptr. 675 (Cal. App. 1985). There, the court of appeals
correctly reasoned that
there is no compelling reason why an
exception to the rule ought to survive when
the rule itself has been abrogated. As
enshrined in a maxim of jurisprudence,
`[w]hen the reason for a rule ceases, so
should the rule itself.' A corollary to that
maxim is that when the rule falls, so should
its exceptions.
Id. at 692 (citation omitted).
Therefore, the Sagadin court held that, under the
comparative negligence rule, a plaintiff's fault in causing his
or her harm should be considered by the fact finder even though
the defendant may have violated a statute designed to protect the
plaintiff from his or her own inadvertence, unless the
legislature has explicitly stated to the contrary. Id. at 691-
92.
Under this approach, the fact finder will continue to
give due regard to the fact that the defendant violated a statute
designed to protect the plaintiff. In addition to considering
this offense, however, the fact finder should be allowed to
consider the plaintiff's own contribution to the resulting harm.
In this manner, minors who certainly are or should be aware of
the perils of drinking and driving, or who negligently operate a
vehicle while impaired, may be held accountable for their conduct
in proportion to their degree of fault in causing their harm.
I see no justification for a rule which completely
insulates capable minors from responsibility for the consequences
of their actions merely because alcohol is involved. The Alaska
Legislature did not intend such a result, nor did it intend that
liquor licensees bear full liability for all consequences flowing
from their violations of AS 04.16.051 and AS 04.21.050.
II.
We have routinely applied comparative negligence princi
ples to actions after Kaatz. Indeed, we even apply such
principles to strict liability cases where the purpose of the law
is similarly to shift the burden of loss away from injured
persons who are deemed relatively incapable of protecting
themselves. See Butaud v. Suburban Marine & Sporting Goods,
Inc., 555 P.2d 42, 46 (Alaska 1976) ("The defendant is strictly
liable for the harm caused from his defective product, except
that the award of damages shall be reduced in proportion to the
plaintiff's contribution to his injury.").
In a pre-Kaatz case, we allowed the contributory negli
gence defense where a defendant-employer violated provisions of
the state General Safety Code designed to protect workers, thus
injuring the plaintiff-employee. Bachner v. Rich, 554 P.2d 430
(Alaska 1976). In Bachner, we rejected the same arguments that
the court accepts today: that the defendant was better able to
prevent the harm; that it was better able to bear risks and to
distribute losses; and that the legislative intent behind the
Code would be frustrated if the contributory negligence defense
were allowed. Id. at 438-39. It is impossible to reconcile
Bachner with the majority's finding today, especially since the
case of the injured worker is far more compelling than that of
the minor. Employees in unsafe working conditions are faced with
the difficult choice of either accepting certain risks or losing
their jobs. Minors, on the other hand, can simply choose to
abide by the law and refrain from purchasing alcohol.
Other jurisdictions have held that the comparative
negligence system can effectively achieve a balance between
liquor licensees' duty not to serve minors and minors' individual
responsibility for any harm resulting from their contribution to
a licensee's violation of the law. See, e.g., Lyons v. Nasby,
770 P.2d 1250, 1259 (Colo. 1989) (to prohibit defendant tavern
owner from asserting the comparative negligence defense runs
counter to the traditional tort principle that there be fault on
the defendant's part and that this fault contribute to a
plaintiff's harm); Sagadin v. Ripper, 221 Cal. Rptr. 675 (Cal.
App. 1985).19
The majority relies on Vance v. United States, 355 F.
Supp. 756 (D. Alaska 1973), and Morris v. Farley Enters., 661
P.2d 167 (Alaska 1983), for the general proposition that we have
been unwilling to consider a minor's contributory negligence or
complicity in an illegal liquor transaction as an impediment to
the minor's action against a liquor licensee who violated AS
04.16.051. This is undoubtedly true.20 I do not agree, however,
that this general proposition also grants absolute immunity to
minors for the consequences of their willful conduct in
unlawfully procuring and consuming alcohol, and then engaging in
conduct such as driving a car, in knowing disregard of the risks
associated with drinking and driving. In arriving at its
conclusion to the contrary, the majority not only exaggerates
Morris and Vance, but it ignores the policy unambiguously set
forth in Kaatz. The Morris and Vance cases therefore do little
to persuade me that the judiciary should preserve the "special
statute" exception to the contributory negligence rule in the
absence of any legislative encouragement to do so.
Indeed, the Alaska Legislature's recent codification of
the comparative negligence rule would seem to be evidence of its
intent to apply comparative negligence principles to all actions,
including those brought under AS 04.16.051. Alaska Statute
09.17.060 states the policy adopting the comparative negligence
rule, and AS 09.17.080 instructs the judiciary to apply that rule
"[i]n all actions involving fault of more than one party to the
action. . . ." AS 09.17.080(a). (Emphasis added). Neither
section, however, contains any limiting language to indicate the
legislature's intent that actions brought under AS 04.16.051 be
treated under some other rule.21
The majority's concern that minors would not be
deterred from negligent action even if the comparative negligence
defense was available to liquor licensees does not make its
decision today any more persuasive. In my opinion, a rule
allowing the comparative negligence defense would, in fact, have
a deterrent effect on the actions of minors. However, I do not
see the issue in this case as one of deterrence; it is instead
whether individuals who negligently contribute to their own
injuries should be held legally accountable for their conduct. I
fail to see why minors should not be deemed capable of accepting
some responsibility for their actions where alcohol is concerned
when we routinely expect minors to act responsibly in other areas
of the law. For example, we often determine that minors well
under the age of twenty-one may be criminally tried as adults
because we deem them capable of conducting themselves according
to the same standards expected of adults.
Similarly, we expect all persons operating motor
vehicles to conform to an adult standard of care. See Prosser
and Keeton, Prosser and Keeton on Torts 181 (5th ed. 1984);
Krieger v. Howell, 710 P.2d 614 (Idaho 1985). Although I agree
that a minor's willful conduct in driving while intoxicated does
not constitute an intervening act sufficient to completely bar
the minor's recovery against the liquor licensee, it strikes me
as beyond question that such negligent operation of a vehicle
should be considered by the fact finder in assessing the degree
of fault attributable to each party.
As for deterring liquor licensees, the comparative
negligence rule does not allow licensees to escape responsibility
for their unlawful conduct. Vendors continue to have a decided
interest in checking the identification of young-looking purchas
ers. What the defense does allow, however, is for fact finders
to achieve just and equitable outcomes based on the overall
circumstances of each case while also fulfilling the purpose of
AS 04.16.051. A jury can be instructed to make some
apportionment of fault under the specific facts of each case to
account for the gravity of the licensee's violation of Alaska law
by selling alcohol to a member of a protected class. Thus, the
vendor who violates the law will be civilly liable for its
action. The comparative negligence mechanism only ensures that
the licensee will not bear a disproportionate amount of fault
solely because it is deemed the "deep pocket"of the lawsuit. To
the extent the majority's rule today precludes such equitable
tailoring to reflect the individual merits of each case, I cannot
join its decision.
_______________________________
1.AS 04.16.051 provides in part:
(a) A person may not furnish an
alcoholic beverage to a person under the age
of 21 years.
2.AS 04.21.050 requires liquor licensees and their
employees to procure proof of the age of a person entering a
liquor establishment or attempting to purchase alcoholic
beverages whenever the licensee or employee "questions or has
reason to question whether [that person] has attained the age
of 21 years."
3.AS 04.21.020 provides in part:
A person who provides alcoholic
beverages to another person may not be held
civilly liable for injuries resulting from
the intoxication of that person unless the
person who provides the alcoholic beverages
holds a license authorized under AS 04.11.080
-- 04.11.220, or is an agent or employee of
such a licensee and
(1) the alcoholic beverages are
provided to a person under the age of 21
years in violation of AS 04.16.051, unless
the licensee, agent or employee secures in
good faith from the person a signed
statement, liquor identification card, or
driver's license meeting the requirements of
AS 04.21.050(a) and (b), that indicates that
the person is 21 years of age or older[.]
We treat the estate's cause of action as arising under AS
04.21.020 since common law claims against a licensee are no
longer recognized. Williford v. L.J. Carr Investments, Inc.,
783 P.2d 235, 238 & n.10 (Alaska 1989).
4.The estate sought to bar the defense of comparative
negligence, as a matter of law, through a "motion to establish
the law of the case." The term "law of the case" generally
applies to a situation in which an appellate court makes a
determination regarding a question of law, which determination
governs subsequent proceedings in the same action. See
generally Stepanov v. Gavrilovich, 594 P.2d 30, 36 (Alaska
1979). In the case at bar, the estate was not seeking to
enforce a determination by an appellate court after a remand;
it was seeking, instead, to determine in advance of trial the
legal theories to be presented to the jury. The estate's
motion requesting that Boxboy be precluded from arguing
Bouffioux's comparative negligence was, thus, more akin to a
motion for partial summary judgment. See Alaska R. Civ. P.
56.
5.In its Memorandum Decision, the trial court stated each
component of the award correctly, but slightly misstated the
amount of the total award.
6.We explicitly reserved rulings on this question in
Morris v. Farley Enterprises, 661 P.2d 167, 171 n.7 (Alaska
1983).
7.AS 04.15.020(a) provided:
Sale to minors or intoxicated persons.
It is unlawful to give, barter or sell any
intoxicating liquors, including beer and
wine, to a person under the age of 19 years
or to an intoxicated person . . . .
(Repealed 1980).
8.Boxboy would have us follow the approach taken in
California in Sagadin v. Ripper, 221 Cal. Rptr. 675 (Cal. App.
1985). There the court noted that prior to the judicial
adoption of comparative negligence, the contributory
negligence of the plaintiff barred recovery with limited
exceptions, including the "special class"exception. Id. at
690-93. The "special class" exception eliminated a
contributory negligence defense where the negligence action
was premised upon a defendant's violation of a statute which
was construed as being intended "to place the entire
responsibility on the defendant, and to protect the plaintiff
even against the consequences of his own fault."Id. at 690
(quoting Prosser, Selected Topics on the Law of Torts,
Comparative Negligence, at 8-9 (1953)). The underlying policy
of the "special class"exception, the court reasoned, was
based on the assumption that contributory negligence would bar
the plaintiff's action entirely, thereby thwarting the purpose
of the statute. Sagadin, 221 Cal. Rptr. at 691-92. However,
the court found that these underlying concerns were mitigated
with the adoption of the comparative negligence doctrine, and,
therefore, the "special class" exception was no longer
necessary. Id.
9.The following statement is found in 57B Am. Jur. 2d
1173:
As a general rule, the subsequent
enactment of a comparative negligence statute
will not affect a pre-existing safety statute
that provides that contributory negligence is
not a defense to a statutory violation. A
violation of a statute designed to protect a
class of persons including the plaintiff, may
also be construed as precluding the defense
of comparative negligence.
See also H. Woods, Comparative Fault 10.1 (2d ed. 1987 & Supp.
1990).
10.Cases refusing to apply comparative fault principles to
dram shop actions include: Booth v. Abbey Road Beef & Booze,
Inc., 532 So. 2d 1288, 1290 (Fla. App. 1988) (error to reduce
verdict on account of plaintiff's comparative negligence in
dram shop action); Slager v. HWA Corp., 435 N.W.2d 349, 351-54
(Iowa 1989) (comparative fault not a defense to action brought
under dram shop act); Chausse v. Southland Corp., 400 So. 2d
1199, 1202 (La. App. 1981) (minor plaintiff cannot have
recovery reduced based upon contributory negligence under dram
shop act). Cf. Keenan v. Hydra-Mac, Inc., 422 N.W.2d 741, 744-
45 (Minn. App. 1988), reversed on other grounds, 434 N.W.2d
463 (Minn. 1989) (Child Labor Standards Act is exceptional
statute and violators may not assert plaintiff's negligence as
a defense).
Cases applying principles of comparative fault to dram shop
actions include: Del E. Webb Corp. v. Superior Court of
Arizona, 726 P.2d 580 (Ariz. 1986) (affirmative defenses of
contributory negligence and assumption of risk could be
asserted in dram shop actions brought after effective date of
comparative negligence statute); Sagadin, 221 Cal. Rptr. at
675 (social host may assert minor's comparative negligence as
a defense in action brought by minor for host's furnishing him
alcohol in violation of a statute); Lyons v. Nasby, 770 P.2d
1250 (Colo. 1989) (tavern owner may assert comparative
negligence as a defense to negligence action arising out of
serving already intoxicated patron who is then injured
driving).
11. E.g. AS 04.11.410 (restricting location of liquor
establishment near schools); see In re Application of Wakefield,
10 Alaska 599 (D. Alaska 1945) (discussing the legislative intent
of passing AS 04.11.410); see also AS 04.16.049 (prohibiting
minors from entering premises of a licensed liquor
establishment).
12. Cf. Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554
P.2d 250 (Alaska 1976) (laws prohibiting employment of children
in occupations dangerous to life and limb are premised, in part,
on the notion that children are not competent to assess the risks
of personal injury and exploitation attendant in the performance
of hazardous activities); see also Caterpillar Tractor Co. v.
Beck, 590 P.2d 871, 891 (Alaska 1979) (general policy of strict
liability demands that responsibility for placing defective
products on the market should not be shifted to those in no
position to assess the danger).
13. Because Bouffioux was a minor, deemed by society
incompetent to assess in a meaningful way risks associated with
the use of alcohol, this case is readily distinguishable from
Bachner v. Rich, 554 P.2d 430 (Alaska 1976), where we allowed the
defendant to raise the defense of comparative negligence in an
adult plaintiff's damage action based on the defendant's
violation of the general safety code.
14. AS 04.21.020 provides, in pertinent part, that when
such precautions are taken, "[a] person who provides alcoholic
beverages to another person may not be held civilly liable for
injuries resulting from the intoxication of that person." See
note 3, supra.
15. Because this case does not involve multiple
defendants, we need not decide how the recent Tort Reform Act
affects this issue. See AS 09.17.086(a) (stating that "judgment
[shall by entered] against each party liable on the basis of
several liability in accordance with that party's percentage of
fault") (effective March 5, 1989). Multiple defendants might
complicate a case when an injured third party brings action
against both the minor and the liquor licensee, or when more than
one liquor licensee has unlawfully provided the minor with
liquor. E.g., Schreier v. Sonderlieter, 420 N.W.2d 821 (Iowa
1988). We reserve for future consideration all issues related to
multiple defendants.
16. In support of its contention, Boxboy relies on
Coudreit v. Southland Corp., 244 Cal. Rptr. 69 (Cal. App. 1988)
(unpublished decision), review denied (May 5, 1988). In
Coudreit, a 7-11 employee negligently sold liquor to an obviously
intoxicated minor. The minor proceeded to consume the alcohol and
further increased his intoxication. Shortly thereafter, the
minor was injured in a single-motorcycle accident. The minor
brought suit pursuant to California Business & Professions Code
sections 25602.1 and 25658, which create a cause of action
against a licensee who provides alcohol to an obviously
intoxicated minor and prohibit the sale of alcohol to anyone
under the age of 21, respectively. The court held that the
minor's "willful misconduct" of voluntarily driving while
intoxicated barred his recovery. Id. at 72-75; see also Trenier
v. California Inv. & Dev. Corp., 164 Cal. Rptr. 156 (Cal. App.
1980).
17. It is not altogether clear which party was to be
awarded its attorney's fees. Judge Hodge's Memorandum Decision
identifies the estate as the prevailing party, but the judgment
states that "IT IS . . . ORDERED that defendant L&L Investments,
Inc. d/b/a Cushman Boxboy is awarded Civil Rule 82 attorney's
fees of $4,693.93 . . . against plaintiff Estate of Teresa
Bouffioux." The parties' positions on appeal and cross-appeal,
however, are that the estate was the prevailing party and that it
was awarded Civil Rule 82 attorney's fees.
18. See Southeast Alaska Conservation Council v.
State, 665 P.2d 544, 553 (Alaska 1983). The criteria in
determining whether a particular lawsuit involves the public
interest are:
(1) Is the case designed to effectuate
strong public policies?
(2) If the plaintiff succeeds will
numerous people receive benefits from the
lawsuit?
(3) Can only a private party have been
expected to bring the suit?
(4) Would the purported public interest
litigant have sufficient economic incentive
to file suit even if the action involved only
narrow issues lacking general importance?
Id. at 553 (quoting Kenai Lumber Co. v. LeResche, 646 P.2d 215,
222-23 (Alaska 1982)). "A prevailing public interest plaintiff
is normally entitled to full reasonable attorney's fees."
Hunsicker v. Thompson, 717 P.2d 358, 359 (Alaska 1986); see also
Alaska Survival v. State, Dep't of Natural Resources, 723 P.2d
1281, 1292 (Alaska 1986). Even assuming, arguendo, that the
estate did raise the issue below, the estate does not satisfy the
above criteria for the following reasons. First, the case was a
simple negligence action against an alleged tortfeasor. There is
no indication that the estate filed suit because they believed
there was a constitutional or statutory policy violated.
Southeast Alaska Conservation Council, 665 P.2d at 554. Second,
only the estate and other similarly situated members of a special
class bringing suit under AS 04.21.020 and AS 04.16.051 stood to
benefit. Third, the state can implement criminal proceedings
against the individual clerk, and can further order fines, store
closures, and other criminal penalties against offending
licensees pursuant to AS 04.16.180. Fourth, by bringing the
action, the estate stood to gain hundreds of thousands of
dollars.
19. Many jurisdictions allow the comparative negligence of
a minor to be considered in actions against social hosts who
serve alcohol to minors in violation of statutes. See, e.g.,
Longstreth v. Gensel, 377 N.W.2d 804 (Mich. 1985) (minor's action
against social host who violated statute is subject to
comparative negligence statute since, although minors are not
considered competent to handle the effects of alcohol, the law
presumes they are competent to operate automobiles
nonnegligently); Sage v. Johnson, 437 N.W.2d 582 (Iowa 1989)
(agreeing with court's reasoning in Longstreth); Batten v. Bobo,
528 A.2d 572 (N.J. Super. Law Div. 1986) (although statute's
intent is to protect minors from own lack of maturity, minors'
comparative negligence may be considered by the jury in action
against social host); Congini v. Portersville Valve Co., 470 A.2d
515 (Pa. 1983) (because they may be held liable as adults for
certain offenses and are presumptively capable of negligence,
minors' comparative negligence should be considered in action
against social host even though minors are legislatively
determined incompetent to handle effects of alcohol).
20. However, I note that Vance predates the Kaatz decision
and is therefore of little precedential value to this court.
21. The majority reasons that because we have never
"charged"a minor plaintiff with any contributory fault in these
circumstances, none will be charged under AS 09.17.060. This
lacks a logical foundation. After Kaatz, and more recently AS
09.17.080, comparative fault should be chargeable to minors
absent some clear legislative expression to the contrary.
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