Miller v. Gastronomy2/25/2005
(For Official Publication)
Plaintiffs Allen D. and Beverly B. Miller, parents of Robert Miller (Decedent), appeal the trial court's grant of Defendant Gastronomy, Inc.'s motion for judgment on the pleadings in Plaintiffs' wrongful death suit. We affirm.
BACKGROUND
On August 10, 2002, Decedent dined at the Market Street Grill, a Defendant-owned restaurant, where he consumed four glasses of wine in approximately forty minutes. Following his meal, Decedent went next door to the Market Street Oyster Bar, also a Defendant-owned restaurant, where Defendant's employees continued to serve Decedent wine. In total, Decedent consumed nine glasses of wine between approximately 3:04 pm and 5:18 pm; eight of those beverages were served within an hour and three-quarters. Furthermore, Decedent was visibly intoxicated while being served.
Roughly thirty minutes after leaving Defendant's premises, Decedent lost control of his car while driving up Parley's Canyon. Decedent died in the resulting single car accident. An autopsy revealed that Decedent's vitreous blood alcohol concentration was .22 grams.
Plaintiffs later filed a wrongful death action against Defendant, alleging negligence and negligence per se. Defendant filed a motion for judgment on the pleadings. After oral argument, the trial court granted Defendant's motion, ruling that Plaintiffs' claim was preempted by the Alcoholic Beverage Liability Act (Dramshop Act), see Utah Code Ann. §§ 32A-14a-101 to -105 (2003), and that "under common law there can be no claim against a liquor provider for a person who, as a result of his voluntary intoxication, injures himself or causes his own death." Thus, the trial court dismissed Plaintiffs' complaint with prejudice. Plaintiffs appeal.
ISSUES AND STANDARD OF REVIEW
Plaintiffs raise three issues on appeal: (1) whether Utah recognizes a common-law cause of action by first parties against a dramshop for injuries stemming from the patron's voluntary intoxication; (2) whether, if such a cause of action exists, it is preempted by the Dramshop Act; and (3) whether a dramshop is negligent per se for violating the Alcoholic Beverage Control Act (ABCA), see Utah Code Ann. § 32A-12-204 (2003), by serving alcohol to an intoxicated patron.
"The grant of a motion for judgment on the pleadings is reviewed under the same standard as the grant of a motion to dismiss, i.e., we affirm the grant of such a motion only if, as a matter of law, the plaintiff could not recover under the facts alleged." Thimmes v. Utah State Univ., 2001 UT App 93, , 22 P.3d 257 (quotations and citation omitted). As all three issues present questions of law, we review for correctness. See id.
ANALYSIS
I. Common-Law Dramshop Liability
Plaintiffs, as Decedent's heirs, may recover under Utah's wrongful death act, see Utah Code Ann. § 78-11-7 (2002), if Decedent, had his injuries not proven fatal, could himself have recovered. See Francis v. Southern Pac. Co., 162 F.2d 813, 816 (10th Cir. 1947), aff'd, 333 U.S. 445 (1948). To wit, Plaintiffs contend that there exists at common law a first-party cause of action against dramshops for injuries sustained by the imbiber. Defendant counters that Utah courts have never recognized such an action, and that to do so would run counter to the rule espoused in the majority of jurisdictions.
Plaintiffs rely on Rees v. Albertson's, Inc., 587 P.2d 130 (Utah 1978), and Yost v. State, 640 P.2d 1044 (Utah 1981), for the proposition that a first-party cause of action against a dramshop exists at common law.
In Rees, the plaintiff, a minor who pur
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