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Head Scratching Over Dram Shop Liability

Sometimes you just have to scratch your head. What the heck are these guys thinking? I always figure that the kids at least deserve the benefit of the doubt under the law, no matter how immature they act. After all, they are immature. Financially strong outfits like liquor stores and those who stand behind them don’t really need that same advantage.

In Sowinski v. Walker, the Alaska Supreme Court picked the liquor store over the children. The decision came out on New Year’s Eve, one of the biggest days of the year for selling and consuming booze. But why in the Court ruled the way it did has me stumped.

itch.jpgThe facts of Sowinski are sad but not surprising. Back in June of 1996, two 17 year old boys from Palmer, Alaska bought some booze from the DelRois Liquor Store. The liquor store, of course, was not supposed to sell alcohol to minors. Once it did so, the boys did something predictably boneheaded. They partied into the wee hours (it was just past the summer solstice) and then jumped on an ATV, taking a girl along for the ride. They roared off down an access road alongside the Knik River. The ATV ran into a cable that a nearby property owner had strung up to try to keep trespassers out. You can imagine what happened when three kids on a speeding ATV got clotheslined by a steel cable across the road. The two boys were killed and the girl was severely injured.

The families of the two boys sued a bunch of people, including the owners of the DelRois Liquor Store. The liquor store’s dram shop liability was clear under established Alaska law. According to the Alaska Supreme Court decision in Loeb v. Rasmussen, the liquor store could not reduce its own liability by the comparative fault of the underage drinkers. The three justice majority in Loeb followed a long, long line of cases saying that when a statute is meant to protect a particular group of people (here, minors), you can’t hold those people accountable for complicity in the violation of the law. The fault rests with the violator, which in Loeb was the liquor store that unlawfully sold the booze to begin with.

In spite of the Loeb case and the sound reasoning behind it that stretches back probably a couple of centuries, a three justice majority in Sowinski said that this rule no longer applied. The Sowinski majority concluded that Alaska’s subsequent embrace of pure several liability in the tort reform legislation meant the liquor store, which was legally obligated to know better, could shove off some of the liability onto the stupid kids. The fact that the liquor store was supposed to protect the children from their own stupidity cut no ice at all with the majority.

Chief Justice Fabe’s dissenting opinion showed that the case did not have to come out this way. As the Chief Justice said, the majority entirely failed to address whether “more good than harm would result” from their decision doing away with Loeb. The public policy against underage drinking is an exceptionally strong one. Indeed, the public policy of protecting children in general runs up and down the length and breadth of Alaska law. A huge portion of the resources of this State are all devoted to trying to protect and promote the health and safety of Alaska’s children. At the same time, Alaska law closely regulates the franchisees to whom the State of Alaska itself has given the extraordinary privilege of selling alcohol. Transgressions that would not have much of an adverse effect on an ordinary business are enough to get a grog shop’s ticket pulled. So it seems doubtful that the public good is best served by letting a liquor seller point the finger at the kids when the liquor seller violates its legal obligations?

I have hunted through the tort reform statute. I found nothing that says pure several liability trumps all other public policy considerations. In fact, there is a sentence in the statutory definition of “fault” (AS 09.17.900) that says: “Legal requirements of casual relation apply both to fault as the basis for liability and to contributory fault.” Well, as recognized in Loeb, the established law was that a child’s purchase and consumption of alcohol did not meet the “legal requirements of casual relation” for purposes of “contributory fault.” Instead, the “casual relation” was all attributed to the liquor store that illegally sold the demon rum at the get-go.

So it’s not hard to find room in tort reform statute to continue to protect Alaska’s kids over the liquor industry. And basic public policy must require the same. All of which leaves me scratching my head over Sowinski.