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Paul Baessler, As Personal Representative For the Estate of Carol Ann v. Doug Freier and Denny Freier

August 26, 2011

PAUL BAESSLER, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF CAROL ANN MUNKBERG, DECEASED; AND KAREN R. SCHMID, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF JOHN ALLAN MUNKBERG, DECEASED, APPELLANTS (PLAINTIFFS),
v.
DOUG FREIER AND DENNY FREIER, HUSBAND AND WIFE, INDIVIDUALLY AND D/B/A STOCKMAN'S BAR AND THE SMOKEHOUSE SALOON, WYOMING PARTNERSHIPS IN FACT, APPELLEES (DEFENDANTS).



Appeal from the District Court of Big Horn County The Honorable Steven R. Cranfill, Judge

The opinion of the court was delivered by: Voigt, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

VOIGT, J., delivers the opinion of the Court; KITE, C.J., files a dissenting opinion in which HILL, J., joins.

*This case was reassigned to Justice Voigt on July 19, 2011.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] The district court dismissed the appellants' civil action against the appellees for failure to state a claim upon which relief can be granted. The dismissal and this appeal raise issues of statutory construction and the constitutionality of a statute, with the focal question being the liability of a provider of alcohol for damages caused to a third person by the person to whom alcohol was provided.*fn1 We affirm.

ISSUES

[¶2] 1. Does the word "legally" in Wyo. Stat. Ann. § 12-8-301(a) (LexisNexis 2011) encompass legal enactments beyond Title 12 of the Wyoming Statutes such as the municipal ordinances at issue in this case?

2. If Wyo. Stat. Ann. § 12-8-301(a) prohibits liability under municipal ordinances, is the statute unconstitutional as violative of the equal protection provisions of the United States Constitution and the Wyoming Constitution?

3. If Wyo. Stat. Ann. § 12-8-301(a) prohibits liability under municipal ordinances, is the statute unconstitutional as violative of the special law provisions of article 3, section 27 of the Wyoming Constitution?

WYO. STAT. ANN. § 12-8-301

[¶3] § 12-8-301. Limitation of liability.

(a) No person who has legally provided alcoholic liquor or malt beverage to any other person is liable for damages caused by the intoxication of the other person.

(b) This section does not affect the liability of the intoxicated person for damages.

(c) This section does not affect the liability of the licensee or person if the alcoholic liquor or malt beverage was sold or provided in violation of title 12 of the Wyoming statutes.

(d) For purposes of this section "licensee" is as defined in W.S. 12-1-101(a)(viii) and includes the licensee's employee or employees.

FACTS*fn2

[¶4] The appellants are the personal representatives of the estates of a husband and wife, Allan and Carol Ann Munkberg, who were killed in a motor vehicle accident caused by Randall LaBrie, who also died in the accident. Prior to the accident, LaBrie became intoxicated as a result of consuming alcoholic beverages at the Stockman's Bar in Basin, Wyoming, and the Smokehouse Saloon in Greybull, Wyoming, both of which establishments are owned by the individually named appellees. LaBrie's conduct at both establishments showed that he was highly intoxicated, and such conduct was obvious and noticeable to anyone in his presence. Nevertheless, the appellees' employees at both establishments continued to serve alcoholic beverages to LaBrie.

[¶5] The appellants filed a wrongful death/negligence complaint against the appellees, in which they also sought a judgment declaring § 12-8-301 unconstitutional if, as a matter of law, the statute provided immunity to the appellees for their tortious conduct. The appellees responded with a motion to dismiss the complaint pursuant to W.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted. After additional briefing and argument, the district court granted the motion to dismiss on the ground that this Court had already found the statute to be constitutional in Greenwalt v. Ram Restaurant Corporation of Wyoming, 2003 WY 77, 71 P.3d 717 (Wyo. 2003). This appeal followed.

DISCUSSION

Does the word "legally" in Wyo. Stat. Ann. § 12-8-301(a) (LexisNexis 2011) encompass legal enactments beyond Title 12 of the Wyoming Statutes such as the municipal ordinances at issue in this case?

[¶6] As applicable to the issues now before the Court, we have described our standard for the review of a dismissal for failure to state a claim upon which relief can be granted as follows:

Our review is de novo, and we employ the same standards and examine the same materials as the district court. We accept the facts alleged in the complaint as true and view them in the light most favorable to the non-moving party. Dismissal is appropriate only if it is certain on the face of the complaint that the plaintiff cannot assert any facts that create entitlement to relief.

Swinney v. Jones, 2008 WY 150, ¶ 6, 199 P.3d 512, 515 (Wyo. 2008). Statutory construction is also a question of law that is reviewed de novo. Sponsel v. Park County, 2006 WY 6, ¶ 9, 126 P.3d 105, 108 (Wyo. 2006).

[¶7] The issue of statutory construction presently before the Court is whether the limitation of liability provided in § 12-8-301(a) extends to any provider who has not violated a provision of Title 12 of the Wyoming Statutes or, to the contrary, extends to any provider who has not violated a provision of Title 12 of the Wyoming Statutes or any other provision of law that may apply to the sale or providing of alcohol. Specifically, if the appellees did not violate Title 12 in providing alcohol to LaBrie, but did violate the provisions of local ordinances, do they lose the limitation on liability provided by the statute? Stated differently, and in terms related to a negligence cause of action, is the standard of care under the phrase "legally provided" limited to adherence to the provisions of Title 12, or can the standard of care under the statutory language be determined by the existence of a municipal ordinance?

[¶8] While this precise question may not directly have been presented in Greenwalt, the opinion in that case clearly reveals our conclusion that Title 12 "covers the field" in regard to the meaning of "legally provided" in § 12-8-301(a). In the course of generally discussing the plenary nature of the police power of the legislature, we examined that body's 1985 response to McClellan v. Tottenhoff, 666 P.2d 408 (Wyo. 1983), in which case this Court had "established a common law tort claim upon which relief could be granted against a liquor vendor and in favor of an injured third-party." Greenwalt, 2003 WY 77, ¶ 12, 71 P.3d at 723. First, we recognized that "regulation of all matters concerning intoxicating liquors is an area over which the legislative department is free to exercise its plenary police power." Id. at ¶ 19, at 725. Next, we noted that the legislature's "comprehensive exercise" of those powers is "largely found" in Title 12. Id. at ¶ 20, at 726. With this background, we concluded that

It is within this comprehensive regulatory scheme that we find the evidence of the legislature's exercise of its plenary police power in the form of those specific sections creating the third-parties' tort claim against those liquor licensees and non-licensees who furnish intoxicating liquor ...


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