Trenier v. California Invesment & Development Corp.

It is alleged that plaintiff, after this remarkably concentrated drinking bout, departed in his automobile on dangerously curved roads, and ran off the road with consequent injury.

Not unmindful of the difficulties inherent in his case, counsel alleged that the bartender and the other defendants knew that plaintiff was going to drive his car on dangerously curved highways (see Coulter v. Superior Court (1978) 21 Cal.3d 144 , 152-153 [ 145 Cal.Rptr. 534 , 577 P.2d 669 ]); for good measure, there is an artfully drawn allegation that the bartender knew plaintiff was an inexperienced drinker, who was unable to realize what he was doing or control his own actions (see Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389 , 402-404 [ 143 Cal.Rptr. 13 , 572 P.2d 1155 ]). By its judgment, the court below held that no cause of action had been (or could properly be) stated.

Clearly enough, the basis for that holding necessarily has to be that plaintiff has pleaded himself “out of court”; that the allegations indicate a complete defense.

We are thus led along a busy thoroughfare, the traffic on which by appellate courts and the Legislature has vastly increased in recent years—the road of liability for the damage caused by, and to, the drinker. This was a quiet byway, enlivened only by an occasional move toward legislative change, until Vesely v. Sager (1971) 5 Cal.3d 153 [ 95 Cal.Rptr. 623 , 486 P.2d 151 ], when the Supreme Court removed the first major roadblock. That case was clear, simple, and direct. Its holding can easily be stated as: (1) the former rule to the effect that voluntary consumption by the drinker was the only proximate cause of any injury, was incorrect and improper as applied to injuries caused a third person by a drunk driver who had been served alcoholic beverages when in an obviously intoxicated condition, since the furnishing of the liquor could be a substantial factor in causing the damage to the third person; (2) that a bartender^[2] owes a duty, based on section 25602 of the Business and Professions Code, to protect “members of the general pub-

Once the roadblock^[3] was gone, and the avenue of liability opened to members of the general public injured as a result of a collision with a driver alleged to have been served by a bartender when in an obviously intoxicated condition, others sought its use. In Coulter v. Superior Court, supra, 21 Cal.3d 144 , the scope was expanded to passengers in the drunk driver’s automobile, and to place possible liability on a social host or other noncommercial provider of alcohol to an obviously intoxicated driver-to-be, both on statutory duty and common law bases.

The more difficult and interesting area, and the one with which we are here concerned, is the problem of liability on the part of the bartender (Rice) and the apparent noncommercial provider (Gibbs) for injuries caused to the drinking driver himself, as a result of his erratic driving.

In this area, there are actually only two cases, both being wrongful death cases. The first is Paula v. Gagnon (1978) 81 Cal.App.3d 680 [ 146 Cal.Rptr. 702 ]. There decedent went to three taverns, consumed at least enough alcohol to have had a .19 percent blood alcohol reading, and killed himself in a single car accident on his way home. Defendants moved for summary judgment and were successful in the trial court, but fared less well on appeal. The appellate decision was, that the question of obvious intoxication was one of fact, as was the question of willful misconduct. Indeed, that court stated that “[b]ecause we have concluded that in the present procedural situation the complaint does not reveal willful misconduct as a matter of law, we need not decide whether such a showing would bar recovery by appellants.” (Paula v. Gagnon, supra, 81 Cal.App.3d at p. 685; italics added.)

In Sissle v. Stefenoni (1979) 88 Cal.App.3d 633 [ 152 Cal.Rptr. 56 ], that very question was presented, and a judgment of dismissal like one in the instant case (after general demurrer sustained without leave to amend) was affirmed by a different division of the same appellate court. There, as here, it was alleged that the drinking driver-to-be was served alcohol in a bar while already obviously intoxicated, and that the

Thus, unless the facts are essentially distinguishable or the Sissle case is clearly wrong, we ought to follow that authority.

The cases are far from distinguishable. Plaintiff here alleges that he was not only obviously intoxicated, but that it was known that he intended to drive in an intoxicated condition upon roads containing dangerous curves, which he did, and became involved in a single car accident (apparently a euphemism for a statement that he ran off the road). Thus, the driving under the influence is alleged. Though undoubtedly more makeweight than anything else, one can discern a plethora of lesser Vehicle Code violations murkily delineated through the pleading, including such familiar standbys as Vehicle Code sections 22350 (driving at greater than a prudent speed), 23103 (driving with wilful^[4] or wanton disregard for the safety of persons or property), and perhaps such lesser ones as 21650 (driving other than on the right half of the roadway), 21662 (driving on mountain highways as near to the right edge as possible) or others even more remote. Indeed, it is almost a ridiculous truism that it would be almost impossible to run off the road without violating one or more of the rules of the road, unless it was a violation excused by reason of the acts, or an emergency situation created by the acts, of others. Sissle is, for present purposes, on all fours with this case.

Ultimately, appellant undertakes to avoid the effect of Sissle by nimbly leaping from one to another contention: that Sissle is indeed wrong, and that as an inexperienced drinker, his situation differs from that of Mr. Sissle. We disagree.

Disposition

The order is affirmed.

Lillie, Acting P. J., and Hanson (Thaxton), J., concurred.

A petition for a rehearing was denied May 20, 1980.