 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Baxter v. Noce3/16/1988
esses to the patron and a noninnocent participant a portion of each of their fault while at the same time assessing fault to the tavern owner for continuing to serve an intoxicated person. This would result in a recovery by undeserving plaintiffs who have voluntarily participated in a wrongdoing. Certainly, this cannot be the intent of our dramshop act.
Finally, I am unable to agree with the majority's sweeping statement that if plaintiff has well pleaded the elements of Section 41-11-1, plaintiff has stated a cause of action that will withstand a motion for judgment on the pleadings. Clearly, this usurps the trial court's discretionary function and does not comply with the language of the rule. Any party may move for judgment on the pleadings only "after the pleadings are closed." SCRA 1986, 1-012(C) (emphasis added). Plaintiff's filing of a complaint that sets forth the elements of Section 41-11-1 does not close the pleadings. A defendant must have the opportunity to file responsive pleadings he or she deems relevant before a judgment on the pleadings can be rendered by the trial court. It is only after both sides have filed their pleadings that the trial court can resolve the issues on those pleadings in favor of either party. A trial judge should not be restricted in this decision making process as the majority opinion suggests.
Accordingly, I would remand this case to the trial court to determine if Baxter was a noninnocent party.
|