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Miller v. Gastronomy2/25/2005
ew or should have known from the circumstances was actually or apparently intoxicated." Id. § 32A-12-204(1).
In this instance, looking at the evidence in the light most favorable to Plaintiffs, we assume Defendant's employees knowingly sold wine to the visibly intoxicated Decedent, a class A misdemeanor, in violation of the ABCA. See id. § 32A-12-204(2)(b).
Nevertheless, in Utah, "criminal culpability generally constitutes only evidence of negligence in a civil action, rather than negligence per se as a matter of law." Dixon v. Stewart, 658 P.2d 591, 600-01 (Utah 1982). Therefore, notwithstanding Defendant's violation of the ABCA, Plaintiffs' negligence per se argument fails because, while such a violation may be evidence of Defendant's negligent conduct, no common-law first-party negligence claim against a dramshop exists to which Plaintiffs may anchor their claim, and there is no negligence per se for criminal violations.
Additionally, if there was negligence in this situation, it was the negligence of the Decedent. "Drunken persons who harm themselves are solely responsible for their voluntary intoxication and cannot prevail under a common law or statutory basis." Bertelmann v. Taas Assocs., 735 P.2d 930, 933 (Haw. 1987). As such, because no common-law first-party action against a dramshop exists, Plaintiffs can present no set of facts on which they could prevail on a wrongful death claim against Defendant.
CONCLUSION
Plaintiff argues that Utah recognizes a common-law first-party action against dramshops for injuries suffered by the intoxicated person. However, Utah adheres to the majority position that there is no such action. To rule otherwise would be illogical vis-a-vis Utah's common-law prohibition of third-party actions against dramshops. Indeed, we will not put the cart before the ox by recognizing a first-party action where none exists for injured third parties. Furthermore, because no first-party action exists, Plaintiffs' claim cannot be preempted by the Dramshop Act. Finally, Plaintiffs' argument that Defendant is negligent per se for violating a criminal statute fails as there is no underlying cognizable claim.
Accordingly, we affirm the trial court's dismissal of Plaintiffs' wrongful death action.
Pamela T. Greenwood, Judge
WE CONCUR:
Russell W. Bench, Associate Presiding Judge
James Z. Davis, Judge
Page 1 2 3 4 Utah DUI Attorneys
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