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Baxter v. Noce3/16/1988
WALTERS, Justice.
Joyce Baxter, as personal representative of the estate of decedent Wayne K. Baxter, brought a wrongful death action against Fausto and Eugene Noce d/b/a La Fiesta Night Club and Bar, Shady Grove Truckstop and Cafe, Inc., Johnny Eddy, and Ted Paulos, alleging that the respondents sold or served alcoholic beverages to Baxter and Robert Reynolds, Jr. when it was reasonably apparent that they were intoxicated. Baxter and Reynolds, both adults, died as a result of an accident involving the vehicle that Reynolds drove and in which Baxter was a passenger. A few hours prior to their deaths, Baxter and Reynolds together had consumed alcoholic beverages at both of the named establishments. Baxter's blood alcohol content was tested at .21 percent before he died.
The Noces and La Fiesta moved for judgment on the pleadings, and Eddy, Paulos, and Shady Grove moved for summary judgment. The trial court denied all motions, noting that Baxter was a third party in relation to the respondents, that his death might have been the proximate result of Reynold's operating a motor vehicle while intoxicated, and that the respondents might have served alcohol illegally to Reynolds. The respondents' applications for interlocutory appeal were granted and consolidated,
and the court of appeals reversed the trial court.
Relying on Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310 (Ct. App.), cert. denied, 104 N.M. 289, 720 P.2d 708 (1986), in concluding that Baxter had no cause of action, the majority of the court of appeals held that as a matter of law Baxter's voluntary intoxication, not the respondents' serving of alcohol to Reynolds, was the proximate cause of Baxter's death. Judge Garcia filed a special concurrence to express his opinion that proximate cause was not the issue. Judge Garcia's position was that respondents owed no duty to Baxter because " ublic policy should not protect adults from their own conscious folly." Baxter v. Noce, Ct. App. Nos. 9877 and 9880 (Consolidated) (Filed Sept. 10, 1987). We granted certiorari, and we reverse the court of appeals.
The issue presented on interlocutory appeal was whether an intoxicated passenger of a vehicle has a cause of action against the taverns that served alcohol, allegedly in violation of NMSA 1978, Section 41-11-1 (Supp.1983), to both the passenger and the driver of a vehicle that subsequently was involved in an accident. In Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982), we overruled two earlier cases that had followed the common-law prohibition of dramshop liability, and held that a third-party who is injured by an intoxicated driver has a cause of action against the tavernkeeper who illegally has served alcohol to the intoxicated driver. We reasoned that the "central issue is one of duty," id. at 630, 651 P.2d at 1274, and concluded that the existence of a duty is established by showing violation of a state regulation that prohibited sale of alcoholic beverages to intoxicated persons. Further, we noted that the "breach of this duty may constitute negligence," and that "sale or service of alcohol to an intoxicated automobile driver may be a proximate cause of injuries inflicted upon a third party * * *." Id. at 631, 651 P.2d at 1275 (emphasis in original); see Walker v. Key, 101 N.M. 631, 634, 686 P.2d 973, 976 (Ct. App.)(Lopez rejected contention that proximate cause of injury is buyer's drinking, not vendor's selling), cert. quashed sub nom. Hietpa
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