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Warr v. JMGM Group, LLC

Court of Appeals of Maryland

July 25, 2013

WILLIAM J. WARR, JR., et al.
v.
JMGM GROUP, LLC, d/b/a/ DOGFISH HEAD ALEHOUSE

Bell, C.J., [*] Harrell, Battaglia, Greene, Adkins, Barbera, McDonald, JJ.

OPINION

Battaglia, J.

This case presents us with the opportunity to consider once again whether or not this Court should recognize dram shop liability.[1]

William J. Warr, Jr. and Angela T. Warr filed suit in the Circuit Court for Montgomery County against JMGM Group, [2] LLC, which owns the Dogfish Head Alehouse (Dogfish Head), to recover for injuries they and their daughter Cortavia M. Harris sustained and for the death of their second daughter, Jazimen, in a car accident. The Warrs alleged that Michael Eaton, [3] the driver of the vehicle that struck the car Mr. Warr was driving, had been served alcohol while Mr. Eaton was "clearly intoxicated" at Dogfish Head. Because members of the Dogfish Head's staff had served Mr. Eaton alcohol while he was so compromised, the Warrs alleged, the tavern had breached its duty to them to "not furnish alcohol to intoxicated persons, " which caused their injuries.[4]

Judge Eric M. Johnson of the Circuit Court for Montgomery County denied Dogfish Head's motion to dismiss. In granting, however, Dogfish Head's motion for summary judgment, Judge Johnson opined that he was bound by our decisions in State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951) and Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981) in which dram shop liability was not recognized as a cause of action in Maryland. The Warrs appealed Judge Johnson's decision but, before any proceedings in the Court of Special Appeals, we granted the Warrs' petition for certiorari, 427 Md. 606, 50 A.3d 606 (2012), to consider whether this Court should recognize dram shop liability.

The undisputed facts that give rise to our consideration of dram shop liability in this case were set forth by Judge Johnson in his opinion granting Dogfish Head's motion for summary judgment and reflect that on August 21, 2008, Michael Eaton was a customer at Dogfish Head Alehouse, which is located in Gaithersburg, Montgomery County. Mr. Eaton began drinking beer and liquor at 5:00 pm, allegedly ordering fourteen bottles of beer and two drinks of hard liquor and drinking at least one other drink that was purchased for him.[5]Mr. Eaton stopped drinking at about 10:00 pm that evening and left, but returned to the Dogfish Head about forty-five minutes later and allegedly ordered three more bottles of beer and a shot of tequila.[6] After being served the tequila, Mr. Eaton was informed by his server that he was not going to be served any more alcohol. Judge Johnson also noted that, "[a]n employee of the Dogfish offered to call a cab for this patron who they had cut off from alcoholic beverages. He refused." The complaint alleges that after Mr. Eaton left Dogfish Head in his vehicle, he was involved in the accident on Interstate 270 that forms the basis of the instant action.

In their complaint, the Warrs asserted five causes of action, all related to negligence. In each count, the theory of liability was that Dogfish Head had a duty to refuse to provide alcoholic beverages to an individual who was either visibly intoxicated or who was considered a "habitual drunkard." The Warrs asserted that the employees of Dogfish Head knew the Mr. Eaton was a "habitual drunkard" and that they knew, or should have known, that he was visibly intoxicated and still served him alcohol, which was the proximate cause, according to the Warrs, of the collision:

10. At all times material, [Dogfish Head] and its agents, servants and employees had a legal duty to not furnish alcohol to intoxicated persons and to not furnish alcohol to a habitual drunkard.
11. Notwithstanding this duty, and in breach thereof, [Dogfish Head's] agents, servants and employees negligently furnished alcohol to Michael Eaton, a clearly intoxicated individual who was also known as a habitual drunkard. [Dogfish Head] is vicariously liable for negligence of its agents, servants, and employees and [the Warrs'] resulting injuries and damages.
12. As a direct and proximate result of this breach of duty by [Dogfish Head], and its agents, servants and employees, Mr. Eaton operated his vehicle under the influence of alcohol. During the operation of his vehicle, Michael Eaton struck the rear of the Warr vehicle, causing Jazimen L. Warr to suffer fatal bodily injuries, to experience conscious pain and suffering and to suffer other damages. The Estate of Jazimen L. Warr also incurred medical expenses and burial and funeral expenses.

Dogfish Head filed a motion to dismiss, under Maryland Rule 2-322(b)(2), [7] for failure to state grounds upon which relief could have been granted, in which it asserted that dram shop liability was not recognized in Maryland. Judge Johnson denied the motion, stating that, although in our decisions in Hatfield and Felder, as well at the Court of Special Appeals' decision in Wright v. Sue & Charles, Inc., 131 Md.App. 466, 749 A.2d 241 (2000), did not recognize a cause of action against a provider of alcoholic beverages under a theory of dram shop liability, "[o]ral arguments convinced this Court that the factual underpinnings of this case make a change in Maryland's jurisprudence with respect to Dram Shop Liability ripe to the core." Judge Johnson concluded that dismissal was not warranted, stating that:

[t]he dram shop laws and the rationale in support of them should be as the Court said in Felder . . . 'a vestige of the past no longer suitable for the circumstances of our people. . . .' Felder v. Butler, 292 Md. 174, 182-83. Maryland Courts have not hesitated to adopt a new cause of action by judicial decision when they have concluded that course was compelled by changing circumstances. For the reasons set for herein and reflected in the attached Order, Defendant's Motion to Dismiss is denied.

Dogfish Head, thereafter, filed a motion for summary judgment, asserting that Maryland did not recognize dram shop liability and that the facts did not warrant a change. Judge Johnson granted Dogfish Head's motion for summary judgment and issued an opinion that deviated from his earlier denial of Dogfish Head's motion to dismiss, based upon his view that the Circuit Court was not the appropriate judicial actor to make a "radical change" in the common law:

The facts of this case undoubtedly could serve as the impetus to adjusting Maryland jurisprudence on the topic of dram ship liability. This Court, however, is not the proper Court to make such a radical change in Maryland jurisprudence. The decision to overturn stare decisis is the province of the Maryland Court of Appeals. Consequently, this Court is bound by stare decisis and must grant the Defendant summary judgment. The Court is of the opinion that while the Maryland Legislature has not enacted dram shop liability legislation, it has not expressly prohibited it. The Court of Appeals, thus, is in a unique position where it can harmonize our jurisprudence with current societal conditions without being in conflict with the Maryland Legislature. The Maryland Court of Appeals has not hesitated to adopt a new cause of action by judicial decision when it had concluded that course was compelled by changing circumstances. This Court is of the opinion that the same holds true for dram shop liability. For the reasons set forth herein and reflected in the attached Order, Defendant's Motion for Summary Judgment is granted.

The Warrs appealed this decision, but, before any consideration in our intermediate appellate court, we granted their petition for certiorari to consider, once again, whether we should adopt dram shop liability. We shall decline to impose dram shop liability on Dogfish Head in the absence of any duty owed by the tavern to the Warrs.

In considering the question, we do not write on a blank slate.[8] We first considered whether to adopt dram shop liability in State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951), in which the widow of James Joyce sought damages for her husband's death in a car accident, caused by a minor who had been served alcohol by Hatfield and then assumed the wheel of a car. The trial court sustained Hatfield's demurrer[9] on the ground that providing alcohol was not a proximate cause of the accident. We affirmed but limited our analysis, however, to the issue of proximate cause:

[a]part from statute, the common law knows no right of action against a seller of intoxicating liquors, as such, for 'causing' intoxication of the person whose negligent of wilful wrong has caused injury. Human beings, drunk or sober, are responsible for their own torts. The law (apart from statute) recognizes no relation of proximate cause between a sale of liquor and a tort committed by a buyer who has drunk the liquor.

Hatfield, 197 Md. at 254, 78 A.2d at 756. We declined to adopt dram shop liability, noting that it was for the legislative branch, not the judiciary, to consider:

In the course of the law hundred years there probably has seldom, if ever, (except during prohibition) been a regular session of the General Assembly at which no liquor laws were passed. On few subjects are legislators kept better informed of legislation in other states. In the face of the flood of civil damage laws enacted, amended and repealed in other states and the Volstead Act – and the total absence of authority for such liability, apart from statute – the fact that there is now no such law in Maryland expresses the legislative intent as clearly and compellingly as affirmative legislation would.

Id. at 256, 78 A.2d at 757.

Three decades after our decision in Hatfield, we again were asked to adopt dram shop liability in Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981). In that case, Kenneth Felder sued Spearman Butler for injuries relating to a car accident involving Madeline Hawkins who, Felder alleged, was intoxicated as a result of Butler's sale of alcohol. The Circuit Court for Charles County sustained Butler's demurrer on the ground that Hatfield settled the matter.

In seeking a reversal of Hatfield, Felder argued before us that the legal landscape had changed significantly in the intervening thirty years and that many jurisdictions had adopted dram shop liability in the interim. We noted, however, that our Legislature had attached only criminal penalties to the sale of liquor to obviously intoxicated persons, Section 118(a) of Article 2B of the Annotated Code of Maryland (1957, 1976 Repl. Vol.), [10] and that states that had enacted criminal, but not civil, statutes regulating the sale of alcohol adhered to the common law rule of non-liability. Felder, 292 Md. at 181-82, 438 A.2d at 498.

Felder also argued that societal changes in attitudes regarding alcohol consumption as well as the sharp increase in the number of states recognizing dram shop liability should have influenced our consideration of dram shop liability. In declining the invitation to change the common law, we acknowledged that the Legislature regulates the dispensing and consumption of alcoholic beverages and recognized that the failure to enact dram shop liability reflected that its imposition was disfavored as a matter of public policy:

Whether Maryland should abandon the rule in Hatfield and align itself with the new trend of cases which impose civil liability upon vendors of alcoholic beverages for the torts of their inebriated patrons depends ultimately upon which line of authorities, all things considered, best serves the societal interest and need. That determination clearly impacts on the development of the law relating to the dispensing and consumption of alcoholic beverages, a subject long pervasively regulated by the legislature.
In determining the public policy of the State, courts consider, as a primary source, statutory or constitutional provisions. Therefore, since the legislature has not yet created dram shop liability by statute, we decline, for now, to join the new trend of cases. . . .

Id. at 183-84, 438 A.2d at 499.

In the instant case, the Warrs adopt many of Felder's arguments and emphasize that societal shifts have been even more intense since Felder, because knowledge regarding the risks and consequences of drunk driving has increased substantially. They also argue that our analysis regarding proximate cause has shifted since Felder. Finally, they argue that nearly every other State recognizes, statutorily or at common law, some form of civil liability for vendors of alcohol who sell intoxicants to obviously intoxicated patrons. With respect to duty, the Warrs essentially argue that the Dogfish Head had a duty to protect them from injury from the acts of an evidently inebriated patron by refusing to serve that individual alcohol once he had become visibly intoxicated.

Dogfish Head responds that in Hatfield and Felder we appropriately stated that it was the role of the Legislature, not the courts, to adopt dram shop liability, in part because alcohol consumption is such a heavily regulated field. Dogfish Head also asserts that our jurisprudence does not recognize a duty imposed upon a tavern to protect the general public from the actions of a patron, absent a special relationship that does not exist here. Finally, the tavern asserts that our jurisprudence regarding proximate cause has not expanded so far as to impose liability in the present case, because Mr. Eaton himself made the decision to drink the alcohol and to drive home.

Any theory of liability sounding in negligence is predicated on the existence of the following elements: "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty." Valentine v. On Target, Inc., 353 Md. 544, 549, 727 A.2d 947, 949 (1999) (internal quotation marks omitted). Vital to sustaining a cause of action in negligence is the existence of a legally recognized duty owed by the defendant to the particular plaintiff. Id. at 549, 727 A.2d at 949. Duty, in this regard, is "an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." Patton v. USA Rugby Football, 381 Md. 627, 636-37, 851 A.2d 566, 571 (2004) (internal quotations omitted).

The Warrs proffer multifaceted arguments regarding the existence of a duty sufficient to support a cause of action against Dogfish Head. They assert that this Court, in Hatfield, assumed that there is a duty on the part of a tavern owner to refrain from providing alcohol to an intoxicated patron when we stated, "[w]e may assume, without deciding, that on such facts the defendant would be 'guilty of an actionable wrong independently of any statute', not, however, for making the driver drunk by selling him liquor, but for placing him bodily, in a state of unconsciousness, in the sleigh and starting the horses." Hatfield, 197 Md. at 252, 78 A.2d at 755.

This argument, however, does not bear weight under careful scrutiny, because we were emphasizing that a tavern owner who placed an unconscious patron in a sleigh would have undertaken a duty to the injured third party by actually placing the patron in the transport and starting it home, were that to have occurred. We began our discussion by reviewing an Indiana case, Dunlap v. Wagner, 85 Ind. 529, 530 (1882), in which a tavern owner had placed an unconscious patron into a sleigh and started the horses homeward. Because the patron in that case was unconscious, however, the horses ran off-route and one of them, owned by the plaintiff, was killed. We then opined that the tavern could have been liable under Maryland law, were its agent to actually have set events in motion by starting the horses home. In so doing we were not recognizing, implicitly or otherwise, the existence of a duty owed to a third party by the tavern owner to refuse to serve an intoxicated patron.

The Warrs next assert that Dogfish Head owed them a duty to prevent the harm caused by Mr. Eaton based on general principles of negligence law. Duty, however, is not assumed, but is generally determined by examining a number of factors, to include:

the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.

Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986), quoting Tarasoff v. Regents of University of California, 551 P.2d 334, 342 (Cal. 1976). Our analysis, unlike what the Warrs assert and the dissent embraces, supports the conclusion that Dogfish Head did not owe a duty to the Warrs because of its provision of alcohol to Mr. Eaton.

With respect to foreseeabililty, the Warrs assert that the provision of alcohol to an intoxicated person will cause death to a third party, but this causal relationship is anything but assured. The first limitation is the inherent assumption that the third party, to whom alcohol was served, such as Mr. Eaton, will drive, which is obviously not an absolute. Indeed, in this case, Dogfish Head attempted to contact a taxi service for Mr. Eaton, but he refused. It is simply not a given that imbibing alcohol and driving are coextensive.

Even more of an obstacle is the assumption that Dogfish Head, or any entity or person who serves alcohol to another, has control over the actions of that party. Forseeability in the context of controlling ones's own behavior is readily derived. If a person fires a gun randomly, it is a natural and foreseeable result that someone else may be harmed by the bullet, and thus the individual is under a duty to exercise reasonable care in discharging his or her weapon.

When the harm is caused by a third party, rather than the first person, as is the case here, our inquiry is not whether the harm was foreseeable, but, rather, whether the person or entity sued had control over the conduct of the third party who caused the harm by virtue of some special relationship:

"[t]he fact that a result may be foreseeable does not itself impose a duty in negligence terms. This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person's conduct so as to prevent personal harm to another, unless a 'special relationship' exists either between the actor and the third person or between the actor and the person injured."

Remsburg v. Montgomery, 376 Md. 568, 583, 831 A.2d 18, 26-27 (2003), quoting Ashburn, 306 Md. at 628, 510 A.2d at 1083. A tavern owner who provides alcohol to an intoxicated patron does not exercise control over the conduct of the patron, in driving or walking, for example. In the absence of control, our jurisprudence is replete with holdings that, regardless of any foreseeability, a duty does not exist to the general public, with respect to harm caused by a third party, absent the existence of a special relationship between the person sued and the injured party or the person sued and the third party.

Our most recent pronouncement in which we did not define a duty to the general public with respect to harm caused by a third party was Barclay v. Briscoe, 427 Md. 270, 47 A.3d 560 (2012). In Barclay, we were asked to consider whether an employer was liable to an injured motorist when an employee, who had been working for 22 hours, was involved in a car accident on his way home. The duty to the public that was asserted before us was premised on the employer being liable for "failing to prevent the risk a fatigued employee posed to the motoring public." Id. at 292, 47 A.3d at 573. We noted that "there is no duty to control a third person's conduct so as to prevent personal harm to another, unless a 'special relationship' exists either between the actor and the third person or between the actor and the person injured." Id. at 294, 47 A.3d at 574-75, quoting Ashburn, 306 Md. at 628, 510 A.2d at 1297. We expressly stated that, "'[t]he fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not itself impose upon him a duty to take such action.'" Id. at 295, 47 A.3d at 575, quoting Lamb v. Hopkins, 303 Md. 236, 242, 492 A.2d 1297, 1300 (1985). We were explicit that there was no duty:

"[i]n the absence of either one of the kinds of special relations described in [Section 315 of the Restatement (Second) of Torts], the actor is not subject to liability if he fails, either intentionally or through inadvertence, to exercise his ability so to control the actions of third persons as to protect another from even the most serious harm. This is true although the actor realizes that he has the ability to control the conduct of a third person, and could do so with only the most trivial of efforts and without any inconvenience to himself."

Barclay, 427 Md. at 295, 47 A.3d at 575, quoting Lamb, 303 Md. at 242 n.4, 492 A.2d at 1300 n.4.

The Warrs and the dissent attempt to sidestep our jurisprudence by arguing that it is the conduct of the tavern, i.e. that a risk of injury was increased, that is at issue, rather than the conduct of the third party driver who actually causes the injuries. In so doing, they assert that the tavern is liable for increasing the risk that Mr. Eaton would drive while intoxicated, a concern about which we gave short shrift in Barclay.

In Barclay, the employer increased the risk that the employee would be fatigued by scheduling him for 22 hours of consecutive work, yet we held there was no duty because the employer could not control the employee's conduct after his shift and there was no relationship between the employer and the injured person. Barclay, premised on decades of our jurisprudence, is indistinguishable from the instant case and recognizes that risk assessment is not the nomenclature of duty to third parties; "special relationship" is. In Barclay, a unanimous opinion of this Court within the last year, we explicitly rejected that which the dissent embraces: "[A]ccording to Oregon case law, including its recognition of dram shop liability, the employer would still be 'subject to the general duty to avoid conduct that unreasonably creates foreseeable risk of harm' to a third party. . . . As explained, supra, this is not the law in Maryland." Barclay, 427 Md. at 300, 47 A.3d at 578 (emphasis added) (citations omitted).[11]

The foundation of our jurisprudence, [12] Ashburn v. Anne Arundel County, 306 Md. 617, 510 A.2d 1078 (1986), involved a police officer who encountered an intoxicated driver in a parking lot. The driver was behind the wheel of his car with the engine running, but the car was parked. The officer directed the driver to park his car in the lot and not to drive home. After the officer left, however, the driver attempted to drive home and collided with a pedestrian, who suffered serious injuries. The pedestrian sued the officer, the police department, and Anne Arundel County, alleging that the officer was negligent in failing to detain the driver. The Circuit Court granted the defendants' motion to dismiss on the issue of public official immunity, which we affirmed. We went on to state, however, that even if immunity were not applicable, liability could not attach because the officer did not owe the plaintiff a duty:

This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person's conduct so as to prevent personal harm to another, unless a "special relationship" exists either between the actor and the third person or between the actor and the person injured or between the actor and the person injured. Thus, we recognize the general rule, as do most courts, that absent a "special relationship" between police and victim, liability for failure to protect an individual citizen against injury caused by another citizen does not lie against police officers."

Id. at 628, 510 A.2d at 1083 (citations omitted).[13]

We reaffirmed the principle that a special relationship must exist to support liability for harm caused by a third party, in the context of 911 operators, in Muthukumarana v. Montgomery County, 370 Md. 447, 805 A.2d 372 (2002). In Muthukumarana, we resolved two cases involving the issue of whether emergency dispatchers owed a duty to individuals who suffered harm after contact with 911. In the first case, a young woman was left, unconscious, in the woods by a group of her "friends, " after they had been drinking. Fearing the consequences of being caught drinking underage, a member of the group called 911 to anonymously report the young woman's location. The dispatcher, however, relayed the incorrect information to patrol officers, who went to the wrong location, did not find the young woman, who died at the location provided to the dispatcher. In the companion case, a woman who had been assaulted by her husband called 911 to report the domestic violence. While she was on the phone with the operator, her husband returned to the room in which she and her children were and killed himself and the children.

In both cases, the plaintiffs alleged that the dispatch operators owed a duty to the injured third parties. We, however, disagreed, relying on Ashburn for the principle that, absent a special relationship, the dispatchers did not owe a duty to the members of the general public who call for emergency assistance. Muthukumarana, 370 Md. at 487-88, 805 A.2d at 396 ("'[a] proper plaintiff . . . is not without recourse. If he alleges sufficient facts to show that the defendant policeman created a 'special relationship' with him upon which he relied, he may maintain his action in negligence.'"(quoting Ashburn, 306 Md. at 630-31, 510 A.2d at 1085)).

We also addressed the issue of duty to a third party in the context of a hunting party, in Remsburg v. Montgomery, 376 Md. 568, 831 A.2d 18 (2003). In Remsburg, the senior Mr. Remsburg organized a deer hunting party that included his son, James Remsburg, Jr., near property owned by the Montgomerys. The junior Remsburg, while waiting for the hunting season to officially begin in a few minutes time, heard trees rustling and fired his shotgun in the direction of the sound, without determining whether it was a deer. The slug from his weapon stuck Brian and Charles Montgomery, who had been part of another hunting party and were shielded from sight by trees, and caused severe injury. The Montgomerys sued the senior Remsburg, alleging that he, as the leader of the hunting party, owed Mr. Montgomery a duty to prevent harm caused by third parties. We, however relied on the general rule, articulated in Ashburn, that absent a special relationship, no duty is owed to members of the general public.

We also declined to impose a duty for harm caused by a third party in the context of product liability and "failure to warn" claims in Gourdine v. Crews, 405 Md. 722, 955 A.2d 769 (2008). In Gourdine, we considered whether a manufacturer of insulin medications should have been under a duty to warn the injured party, who was not taking the medication, of the risk that a patient who was taking the medication could suffer side effects and cause injury. We held that the manufacturer had no duty to the specific plaintiff, who had not alleged any special relationship, to warn her of the potential harm caused by a patient on its medication. We declined to adopt a policy that there was a duty to the general public regarding the harm caused by a third party, because such a concept would encompass an indeterminate number of individuals:

In the case sub judice, there was no direct connection between [the manufacturer]'s warnings, or the alleged lack thereof, and Mr. Gourdine's injury. In fact, there was no contact between [the manufacturer] and Mr. Gourdine whatsoever. To impose the requested duty from [the manufacturer] to Mr. Gourdine would expand traditional tort concepts beyond manageable bounds, because such duty could apply to all individuals who could have been affected by [the patient] after her ingestion of the drugs. Essentially, [the manufacturer] would owe a duty to the world, an indeterminate class of people, for which we have resisted the establishment of duties of care.

Id. at 750, 955 A.2d at 786 (internal quotations omitted). See also Patton v. USA Rugby Football, 381 Md. 627, 638-44, 851 A.2d 566, 570-76 (2004) (using the special relationship test to determine whether the rugby association could be liable for a referee's alleged negligence in failing to cancel a game, at which two players were struck by lightning).

The concept of special relationships, then, between the party sued and the injured party is the gravamen of our determinations of liability in third party duty cases. We have consistently recognized that, in the absence of control or a special relationship, there can be no duty to an injured person for harm caused by a third party. Our jurisprudence in this regard comports with the general understanding of duty as articulated in Dan B. Dobbs's The Law of Torts 474 (2000). He expressly noted that there is no "blanket duty" with respect to a tavern owner controlling the conduct of its intoxicated patrons:

Courts have said in many contemporary cases that in the absence of a special relationship, the defendant simply owes no duty to take affirmative action to protect the plaintiff from a third person. . . . Thus, if a duty of care is owed, taverns providing the alcohol that fuels criminal automobile driving, institutions releasing dangerous persons into the community, landlords leaving locks in disrepair, schools failing to protect students from attackers, and many others are now potentially subject to liability for harmful criminal behavior. But there is no blanket duty any more than there is blanket immunity.

In this case, the Warrs do not assert any relationship existed between themselves and Dogfish Head, and, therefore, there cannot be a duty owed to them by the tavern with respect to the harm caused by a third person.[14] Simply put, we just do not recognize a duty; instead we adhere to the principle that "[h]uman beings, drunk or sober, are responsible for their own torts." State v. Hatfield, 197 Md. 249, 254, 78 A.2d 754, 756 (1951); see also Valentine, 353 Md. at 553, 727 A.2d at 951.

The Warrs also argue that various provisions of the Restatements (Second) and (Third) of Torts provide a foundation for dram shop liability. They primarily rely upon Section 283 of the Restatement (Second) of Torts, [15] which states that, "[u]nless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances, " to support a duty owed to the general public. Section 283, however, refers to the standard of care, rather than the existence of a duty of care; the standard of care is one measure of liability once a duty of care has been established. In and of itself, the standard of care does not create a duty of care. See William L. Prosser, Law of Torts 205-07 (4th ed. 1971) (explaining that the existence of a duty is a separate question from the appropriate standard of care).

The Warrs next point to comment c of Section 302 of the Restatement (Second) of Torts, which we referenced in Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145 (1993), as illustrative of the duty owed by Dogfish Head to refuse to serve drunken patrons. Comment c provides, in relevant part according to the Warrs, that an actor "may be negligent in setting in motion a force the continuous operation of which, without the intervention of other forces or causes, results in harm to another." The Warrs' claim that this comment is evidence that there exists a duty at common law, however, is without merit, as comment c goes on to state that "[s]uch continuous operation of a force set in motion by the actor, or of a force which he fails to control, is commonly called 'direct causation' by the courts, and very often the question is considered as if it were one of the mechanism of the causal sequence." Thus, the very citation used to support the Warr's argument eviscerates it, as Section 302 applies to causality, not duty. See Reed, 332 Md. at 240, 630 A.2d at 1152 (utilizing Section 302 to analyze causality, not duty of care).[16]

Section 315 of the Restatement (Second) of Torts, however, relating to controlling the conduct of third parties, has been employed by numerous courts adopting dram shop liability:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Section 315 of the Restatement (Second) of Torts.[17] In Ontiveros v. Borak, 667 P.2d 200 (Ariz. 1983) (en banc), for instance, the Supreme Court of Arizona reviewed duty in the context of dram shop liability, stating:

We believe that changing social conditions require recognition of a duty which extends to innocent third parties and which is based on the relation of the licensed supplier of liquor and his patron. We acknowledge that we deal here with defendant's obligation to help control the conduct of his patron in order to prevent that patron from injuring someone else.

Id. at 208. Relying on a Pennsylvania case, Jardine v. Upper Darby Lodge No. 1973, Inc., 198 A.2d 550 (Pa. 1964), and invoking Section 315 of the Restatement (Second) of Torts, the court likened providing alcohol to an already intoxicated patron to giving a gun to a "demented individual, " and held that "those who furnish liquor have an obligation or 'duty' to exercise care for the protection of others." Ontiveros, 667 P.2d at 511.

The Supreme Court of Texas also referenced Section 315 when it adopted dram shop liability in El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex. 1987), modified by statute, Texas Alcoholic Beverage Code (Supp. 1993), Section 2.03, as recognized by Graft v. Beard, 858 S.W.2d 918, 919 (Tex. 1993). In that case, the Texas Supreme Court considered whether it should alter its common law to recognize a cause of action sounding in dram shop liability. The court concluded that public attitudes toward drinking and driving as well as the information surrounding intoxication had changed sufficiently to warrant adoption, judicially, of dram shop liability. With respect to duty, the court opined that the employees of a tavern were under "the general duty to exercise reasonable care to avoid foreseeable injury to others, " id. at 311, and that the tavern employees had a duty to control the conduct – drinking – of patrons to protect the general public. Id. at 312. The court noted that it had held over a century before that a tavern that allowed a patron to drink himself to death was liable to the patron's estate and cited Section 315 of the Restatement (Second) of Torts as reflective of the common law duty to "take affirmative action to control or avoid increasing the danger from another's conduct which the actor has at least partially created" as a natural extension of the previously recognized liability. Id.

We, though, have rejected extending the rationale of Section 315 to the general public in Valentine v. On Target, Inc., 353 Md. 544, 553, 727 A.2d 947, 951 (1999), when we stated "[o]ne cannot be expected to owe a duty to the world at large to protect it against the actions of third parties, which is why the common law distinguishes different types of relationships when determining if a duty exists. The class of persons to whom a duty would be owed under these bare facts would encompass an indeterminate class of people, known or unknown." We recently reaffirmed rejection of expansive liability under Section 315 in Barclay v. Briscoe, 427 Md. 270, 47 A.3d 560 (2012). In Barclay, we were asked to consider whether an employer was liable to an injured third party when an employee, who had been working 22 straight hours, was involved in a car accident on his way home. We held that he could not and noted, with respect to the issue of duty, that

[i]n the absence of either one of the kinds of special relations described in [Section 315of the Restatement (Second) of Torts], the actor is not subject to liability if he fails, either intentionally or through inadvertence, to exercise his ability so to control the actions of third persons as to protect another from even the most serious harm. This is true although the actor realizes that he has the ability to control the conduct of a third person, and could do so with only the most trivial of efforts and without any inconvenience to himself.

Id. at 295, 47 A.3d at 575, quoting Lamb v. Hopkins, 303 Md. 236, 242 n.4, 492 A.2d 1297, 1300 n.4 (1985). In reaching the conclusion that there was no duty, we relied, in part, on the reasoning of our brethren on the Court of Special Appeals in Kuykendall v. Top Notch Laminates, Inc., 70 Md.App. 244, 520 A.2d 1115 (1987), a case involving facts very similar to those now before us.

In Kuykendall, Evelyn Hargis was killed in a motor vehicle accident involving a drunk driver. Two employees of Top Notch Laminates were driving separate cars and were swerving back on forth on the roadway in "horse play." One of the employees swerved across the center line and struck the car driven by Ms. Hargis. The employees had been drinking at a company function for five-and-a-half hours before the accident and were highly intoxicated. Ms. Hargis's husband filed suit against Top Notch Laminates, alleging that the employees were obviously drunk and Top Notch Laminates was liable for negligently providing them alcohol. The Circuit Court granted Top Notch Laminates's motion to dismiss, and the Court of Special Appeals affirmed, stating, with respect to duty, "[t]he Court of Appeals has adopted the principle that there is no liability to a third person absent a 'special relationship' with a clear right to control." Id. at 249, 520 A.2d at 1117. The Warrs do not allege a special relationship between themselves and the owners of the Dogfish Head in their complaint, although special relationships have informed much of our recent jurisprudence regarding duty. See Barclay v. Briscoe, 427 Md. 380, 47 A.3d 560 (2012), Gourdine v. Crews, 405 Md. 722, 955 A.2d 759 (2008), Remsburg v. Montgomery, 376 Md. 568, 831 A.2d 18 (2003).[18] While other courts have embraced the concept of duty to control the conduct of its patrons under Section 315 of the Restatement (Second) of Torts, the Warrs disavow this rationale in favor of imposing a duty that Dogfish Head owed to the general public to refuse to serve intoxicated patrons.

The Warrs finally assert that the tavern owners owed a duty to refuse to serve an intoxicated patron, because there is a criminal statute prohibiting the sale of alcohol to visibly intoxicated persons. Section 12-108(a)(1) of Article 2B of the Maryland Annotated Code (1957, 2011 Repl. Vol.) states that a licensed vendor of alcohol may not sell alcohol:

(i) To a person under 21 years of age for the underage person's own use or for the use of any other person; or
(ii) To any person who, at the time of the sale, or delivery, is visibly under the influence of any alcoholic beverage.

In so doing, the Warrs rely on jurisprudence from sister courts that have extrapolated civil liability from criminal statutes.

The New Jersey Supreme Court, the first to judicially adopt dram shop liability, in. Rappaport v. Nichols, 156 A.2d 1 (N.J. 1959), for instance, addressed a situation in which a tavern had sold alcohol to a minor, and was sued because the minor had driven home from the bar, colliding with a car driven by Arthur Rappaport, who was killed. After summary judgment was granted in favor of the tavern, noting that the common law rule was that taverns were not liable for injuries caused to third parties by intoxicated patrons, id. at 4, the patron appealed. In reversing, the court briefly discussed the duty owed by the tavern operators to not sell alcohol to intoxicated patrons, imposed because tavern owners were statutorily prohibited from selling alcohol to minors and those "actually or apparently intoxicated, " "for the protection of members of the general public" as part of the licensing requirements to sell alcohol. Id. at 8.

The Maine Supreme Judicial Court, having been called upon to decide whether the Maine Dram Shop Act provided an exclusive remedy or whether the plaintiffs could maintain a traditional negligence action in Klingerman v. Sol Corporation of Maine, 505 A.2d 474 (Me. 1986), acknowledged that there was a "safety" statute that imposed fines upon establishments that served visibly intoxicated persons. Based on this statute, the court evoked a duty: "[t]he statute achieves that objective by imposing a duty upon liquor licensees not to serve alcoholic beverages to visibly intoxicated patrons." Id. at 478.

In Massachusetts, its supreme court, in Adamian v. Three Sons, Inc., 233 N.E.2d 18 (Mass. 1968), also adopted dram shop liability based, in part, upon statutory enactments. In that case, the tavern owner operated a bar on a highway that had a large parking lot. A patron of the tavern consumed a large amount of alcohol and, after leaving, was involved in a car accident. In reviewing whether the plaintiff's complaint against the tavern should have been demurred, the court noted that the statute providing liability for tavern owners was repealed at the end of the Prohibition Era, but that "[t]he legislative policy, being clear, is not to be rendered futile of practical accomplishment because of the repeal at the end of the prohibition era of the Dram Shop Act which gave an express right of action to persons suffering damage due to a violation of the act." Id. at 19. The court then held that tavern owners could be held liable under common law negligence for the sale of liquor to "already intoxicated individuals, " id. at 20. Although most of the court's analysis was focused on the issue of proximate cause, the court stated, with respect to duty, that the tavern owner had a "duty to members of the general public using the public highways, " id. at 19, that was imposed by virtue of a 1933 criminal statute that stated, "[n]o alcoholic beverage shall be sold or delivered on any premises licensed under this chapter to an intoxicated person." Id.

In Wyoming, the Supreme Court of Wyoming was even more explicit in its recognition of a duty to the entire public when adopting dram shop liability, in McClellan v. Tottenhoff, 666 P.2d 408 (Wyo. 1983), modified by statute, 1985 Wyo. Sess. Laws ch 205, Section 1, as stated in Daniels v. Carpenter, 62 P.3d 355 (Wyo. 2003). Wyoming had earlier decided that there was no liability on the part of taverns for injuries caused by a drunken patron, Parsons v. Jow, 480 P.2d 396 (Wyo. 1971), noting that the basis for such a holding was that "[t]here may be sales without intoxication, but no intoxication without drinking." McClellan, 666 P.2d at 409 (internal quotation omitted). In overturning its decision in Parsons, the Supreme Court of Wyoming noted that there was a statute that provided for civil liability if a tavern served alcohol to either a minor or a habitual drunkard, but only if the tavern had been given written notice of such. McClellan, 666 P.2d at 410. The court then explicitly noted that it was importing a duty from a statute that made it illegal to sell or furnish alcohol "to a minor or intoxicated person in the area, " Section 12-5-301 of Wyoming Statutes Annotated (1977), designed to prohibit intoxicated persons from being served. Id. at 413.

This Court historically, however, has not extrapolated civil liability from criminal statutes regulating the sale of alcohol, unlike some of our sister states. Indeed, an earlier version of Section 12-108, the current prohibition on selling alcohol to intoxicated persons, was in effect at the time Felder was decided. In that case, we explicitly rejected the notion that the existence of a criminal statute was sufficient to establish civil liability, because the Legislature had not enacted laws to impose civil liability:

At that time the public policy of the State, declared by the legislature in what is now § 118 (a) of Article 2B, imposed only criminal sanctions upon a licensed vendor of alcoholic beverages who sold or furnished intoxicants to minors or persons visibly under the influence of alcohol. The absence of any statute in Maryland creating a civil cause of action in such circumstances prompted the Court in Hatfield to conclude that the legislature did not intend to impose civil liability upon alcoholic beverage vendors for the tortious ...

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