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Jarrett v. Woodward Bros.5/25/2000
to the non-moving party. See Holland, 456 A.2d at 815.
This appeal presents two issues of law for decision: 1) whether in this jurisdiction an intoxicated underage patron, or his or her parents, may sue a tavern keeper for common law negligence or negligence per se for violation of the standard established in D.C. Code § 25-121 (b); and 2) even if § 25-121 (b) establishes the standard of care toward such a claimant, whether the claimant's voluntary intoxication constitutes a bar to recovery. We answer the first inquiry in the affirmative, and the second in the negative.
We begin with the basic elements of a claim of negligence: the existence of a duty, violation of a standard of care, and injury resulting as a proximate cause of the violation. See Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624, 628 (D.C. 1997). At the heart of this case is whether the requisite duty and standard of care is supplied by D.C. Code § 25-121 (b), of the Alcoholic Beverage Control Act ("ABC Act"), which states:
No person being the holder of a retail license issued pursuant to this chapter shall permit on the licensed premises the consumption of alcoholic beverages, except as permitted in subsections (i) and (j) of this section,[ ] by any person under the age of 21 years, by any intoxicated person, or any person of notoriously intemperate habits, or any person who appears to be intoxicated. No licensee shall be liable to any person for damages claimed to arise from refusal to permit the consumption of any beverage on any premises licensed under this chapter. D.C. Code § 25-121 (b).
In Rong Yao Zhou this court was presented with the question whether third parties injured as the result of the acts of an intoxicated driver state a cause of action against a restaurant that violated D.C. Code § 25-121 (b) by serving liquor to the driver after he was already intoxicated. The court concluded that the statute, "while not itself providing a cause of action against tavern keepers by injured third parties, supplies the standard of care by which tavern keepers' conduct is to be measured under the common law." Rong Yao Zhou, 534 A.2d at 1272. In developing the analysis, the court noted that " ncorporating into the common law a standard of care set by a legislative enactment is distinct from determining that a cause of action arises, by implication, under a statute. The latter task is a matter of statutory construction, requiring the court to determine whether the legislature intended something other than that which it provided expressly." Id. at 1273-74 (citation omitted).
In Rong Yao Zhou we expressly adopted the view articulated in Marusa v. District of Columbia, 157 U.S. App. D.C. 348, 353, 484 F.2d 828, 833 (1973), that "violation of an ordinance intended to promote safety can give rise to a negligence action." Rong Yao Zhou, 534 A.2d at 1273. We determined that § 25-121 (b) has a public safety purpose, see 534 A.2d at 1275, and that the injury suffered by the plaintiff in that case was "of the general type that the statute was intended to prevent, i.e. accidental injury to members of the public." Id. at 1277. As the Rong Yao Zhou court explained:
We have no difficulty concluding that § 25-121 (b) of the Alcoholic Beverage Control Act has a public safety purpose, and that its unexcused violation therefore constitutes negligence per se, i.e., breach of the duty of care that tavern keepers owe to the public. Thus, when members of the public allege, as plaintiffs have here, that the tavern keeper's negligence was the legal cause of their injuries, they state a cause of action under District of Columbia law. Id. at 1275.
The Rong Yao Zhou court conclude
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