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Winters v. Silver Fox Bar8/7/1990
ng social, economic and legal consequences of modifying the common law as Appellant urges. At least two major concerns in contemplating such modification of the common law arise: (1) where existing law distinguishes between two groups of minors, i.e. those below eighteen years and those between eighteen to twenty years, should the latter group be included in the protected class when under the law, they are treated as adults in every other respect; and (2) whether the legislature's expressed policy of reducing and stabilizing commercial insurance liability costs should be altered by expanding the liability of commercial liquor suppliers.
III.
We turn now to that portion of the certified question of whether survivors of a deceased minor are precluded from suing the commercial liquor supplier under HRS § 663-3 (1985). In Bertelmann , we stated:
The majority rule is that a plaintiff in a wrongful death action can only recover if the tortious harm the decedent suffered would have entitled the decedent to maintain an action against the defendant. That is, if the decedent's recovery was barred, so are his or her survivors' wrongful death action.
The Survivors' loss of love and affection claims under HRS § 663-3 are derivative. As such, since Decedent had no cause of action against [commercial liquor supplier], the Survivors cannot pursue their wrongful death action. Accordingly, no wrongful death action accrued.
69 Haw. at 103, 735 P.2d at 935 (citations and footnote omitted).
Since we have concluded in the instant case that minors and/or their estates are precluded from suing the commercial liquor supplier, survivors of the deceased minor are likewise barred from pursuing a wrongful death action.
IV.
While we sincerely sympathize with Appellant's tragic loss, based on the foregoing, we are compelled to answer the certified question in the affirmative.
Disposition
While we sincerely sympathize with Appellant's tragic loss, based on the foregoing, we are compelled to answer the certified question in the affirmative.
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