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Jarrett v. Woodward Bros.5/25/2000
icensee, independent of the wishes of the patron, not to "permit . . . consumption" of alcohol by those persons that the licensee knows, or should know, to be underage or intoxicated. The statute expressly requires that licensees make a good faith effort to ascertain whether patrons are of drinking age. Behind the statutory prohibition against permitting the consumption of alcohol by underage and intoxicated persons on licensed premises lies a legislative determination that such persons do not make prudent decisions for themselves as to the reasonable consumption of alcohol. As the report of the Committee on Consumer and Regulatory Affairs expressed in November 1986, "used to excess, [alcohol] can and frequently does contribute to irresponsible actions criminal misconduct." Report on Bill 6-504, supra, at 8. Thus, the legislature has declared the policy that no alcohol is to be consumed by underage and intoxicated persons, and that liquor licensees have an obligation not only not to sell or deliver liquor to them, see D.C. Code § 25-121 (a), but also not to "permit . . . consumption" by patrons who are underage or intoxicated, see D.C. Code § 25-121 (b). Therefore, we hold that assumption of the risk is inapplicable to relieve a licensee who has violated the statutory standard of liability because its necessary premise that a plaintiff have knowingly and voluntarily encountered a known risk is antithetical to the legislative policy determination that underage and intoxicated persons need to be protected from their choice when it comes to the consumption of alcohol, which is prohibited by the statute. Adam Jarrett was both underage and, the Jarretts would argue, already visibly intoxicated when he was served at Winston's. At that point, with his youthful judgment already clouded by alcohol, the statutory scheme's design was that the licensee should step in to preclude him from drinking further in the licensed establishment. Instead, it is alleged, Winston's continued to serve him alcohol with fatal consequences. Because we hold that the Jarretts state a claim for negligence against the tavern keeper for violation of the standard of care set forth in D.C. Code § 25-121 (b), and that their son's actions do not, as a matter of law, preclude liability, we reverse the grant of summary judgment and remand the case for further proceedings consistent with this opinion.
Reversed and remanded.
Kern, Senior Judge, concurring and dissenting:
I concur with the majority's holding that "D.C. Code § 25-121 (b) provides the basis for civil liability by a tavern owner to an injured underage intoxicated patron" and, as such, a tavern keeper may be sued for common law negligence or negligence per se for violation of this standard. I respectfully dissent from the majority's holding on the second issue in this appeal that "assumption of risk is inapplicable in this context because an underage, intoxicated person is deemed incapable, as a matter of law, of relieving the tavern keeper of the duty which the statute imposes."
In this jurisdiction, we have recognized the proposition that despite the choice by the legislature to extend protection over a particular class of persons, such as underage patrons of taverns and bars, an individual in a protected class may choose to act in such an egregiously reckless manner as to require that such individual take responsibility for his own actions. See Martin v. George Hyman Constr. Co., 395 A.2d 63 (D.C. 1978). It is well established that a person can impliedly accept the risk of harm arising from the defendant's conduct "by voluntarily electing to proceed, with knowledge of the risk, in a manner which will expose him to it." Restatement (Second) of
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