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Thompson v. Dewey's South Royalton5/21/1999
Thompson v. Dewey's South Royalton, Inc. (97-273)
Supreme Court On Appeal from Orange Superior Court May Term, 1998 David T. Suntag, J.
Plaintiffs instituted this action under the Dram Shop Act (DSA), 7 V.S.A. § 501, against two licensed vendors of alcoholic beverages, seeking damages resulting from an intoxicated person's death. The trial court granted defendants' motion to dismiss, see V.R.C.P. 12(b)(6), ruling that plaintiffs, who were third persons injured as a consequence of an imbiber's death, did not have a cause of action under the DSA. We reverse.
The salient facts pled in the complaint are as follows. See Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997) (allegations of nonmoving party must be accepted as true in reviewing motion to dismiss). Defendants are two South Royalton bars -Dewey's South Royalton and South Royalton House -- their owners, and some of their employees. In June 1995, after spending the evening drinking excessively at both of defendants' bars, Mickey Lee Thompson (decedent) was injured in a car accident. He died three weeks later from injuries sustained in the accident. Plaintiffs filed claims under the DSA to recover for the injuries they suffered to their "person means of support" as a result of decedent's death "in consequence of intoxication." 7 V.S.A. § 501(a).
Plaintiffs include Annette Potwin, Ashley Thompson, Tessa Thompson, and Ken Thompson. Decedent lived with his partner Annette Potwin (the two were not married), and her daughter, Ashley, for over seven years, until the time of his death. Although Ashley was not decedent's biological daughter, she regarded decedent as her father and used his last name as her own. Decedent provided financial support to both Annette and Ashley. Tessa Thompson was born to decedent and Annette Potwin in February 1994. Decedent provided physical, moral, and intellectual support and training for both Tessa and Ashley. Ken Thompson is decedent's father. Father and son planned to commence a woodworking business together later in the summer of 1995.
All of the plaintiffs sought damages for loss of decedent's companionship and loss of means of support. Annette Potwin and her two children also sought damages for the loss of physical, moral, and intellectual training. In addition to the instant action, Annette Potwin, as the administrator of decedent's estate, filed a common law negligence claim against the same defendants under the Wrongful Death Act. See 14 V.S.A. §§ 1491-1492.
In granting defendants' motion to dismiss plaintiffs' claims, the court concluded, "Just as [decedent] had no cause of action under the DSA, the DSA likewise does not provide his relatives a remedy for their derivative claim." (Emphasis added). This appeal followed.
I.
The issues on appeal concern questions of law, and thus our "review is nondeferential and plenary." Godino v. Cleanthes, 163 Vt. 237, 239, 656 A.2d 991, 992 (1995). First, we address whether the DSA provides an independent and direct right of recovery to third persons injured as a consequence of an imbiber's death. Because we find that it does, we next address whether plaintiffs here are within the class of claimants entitled to recover under the DSA. Finally, we consider the range of damages available to third persons injured as a consequence of an imbiber's death.
A.
Relying on a plain meaning interpretation of the DSA, plaintiffs allege that the DSA provides them a direct cause of action against defendants. The DSA states in pertinent part:
A spouse, child, guardian, employer or other person who is injured in person, property or means of support by
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