Case Overview

Linda Gail Marcum, as Personal Representative of the Estate of Justin Michael Parks, Appellant, v. Donald Mayon Bowden, Gloria J. Bowden, and Utility Service Agency, Inc., Respondents

Appellant brought this wrongful death action alleging respondents violated S.C. Code Ann. § 61-4-90 (Supp. 2004),¹ which resulted in the death of appellant’s nineteen year old son (decedent). The circuit court granted respondents’ motion for summary judgment, finding first that the Article XVII, section 14 of the South Carolina Constitution simply allows for the restriction of the sale of alcoholic beverages to persons under age twenty-one, and does not remove legal rights and responsibilities from persons between the ages of eighteen and twenty-one, nor deem them disabled. Therefore, the decedent, at age twenty-one, was not a legal minor, but only prevented from purchasing alcohol. The judge found further that the decedent was a “voluntarily intoxicated first party,” and based on the South Carolina Supreme Court’s reasoning in Tobias v. Sports Club, Inc., 332 S.C. 90, 504 S.E.2d 318 (1998) and Lydia v. Horton, 335 S.C. 36, 583 S.E.2d 750 (2003), public policy mandates that intoxicated persons be held personally responsible for the decisions they make while the persons who may contribute to their impaired state are shielded from liability. Finally, the circuit court judge found, as a matter of law, the decedent was more than 50% negligent by virtue of voluntarily becoming intoxicated and then losing control of his car; therefore, appellant was precluded by the doctrine of comparative negligence from recovering against respondents.

Appellant filed an appeal in the Court of Appeals, but made a motion for the appeal to be transferred to the South Carolina Supreme Court. The Supreme Court agreed to transfer the appeal because it involves an issue that is novel and of significant public interest.

Appellant argues that the public policy of South Carolina, declared by the General Assembly in establishing a drinking age of 21, mandates that minors injured as a result of being provided alcohol have a first party claim against the persons illegally providing them the alcohol. Appellant also argues it precludes a defense of comparative negligence.²

In addition, appellant contends the circuit court judge erred in finding that under Article XVII, section 14 of the South Carolina Constitution, the decedent possessed “full social and civil rights.”³ Appellant maintains that pursuant to this provision, a minor is legally disabled, is a legal minor, and does not possess full social and civil rights.

Appellant next argues the circuit court judge erred in finding appellant was barred from recovery because the decedent was a voluntarily intoxicated first party. Appellant contends the finding was based on a misinterpretation of certain case law and lack of recognition of other case law. Finally, appellant argues once again that public policy precludes such a finding.

Appellant argues the circuit court judge erred in finding the decedent’s negligence exceeded that of respondents because the decedent voluntarily became intoxicated and respondents did not know he was under twenty-one years of age. Appellant maintains the statute imposing a duty on respondents is not dependent on their knowing a minor is intoxicated or on whether he appeared to be over the age of twenty-one. Instead, appellant argues, the statute at issue proscribes providing alcohol to persons under the age of twenty-one and it was respondents’ duty to affirmatively ensure compliance with the statute.

Finally, appellant argues the circuit court judge erred in finding the decedent’s negligence exceeded the negligence, if any, of respondents. Appellant contends the doctrine of comparative negligence must yield to the public policy proclaimed by the General Assembly that persons under the age of twenty-one are incompetent to make decisions regarding alcohol consumption. In the alternative, appellant argues that if the doctrine of comparative negligence is applicable, it is an issue that should have been decided by a jury instead of the judge.

¹ Section 61-4-90 prohibits giving alcoholic beverages to persons under twenty-one years of age.

² Under the doctrine of comparative negligence, a plaintiff can recover in South Carolina when his or her negligence is not greater than the defendant's negligence. See Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991).

³ Article XVII, section 14 states that “[e]very citizen who is eighteen years of age or older, not laboring under disabilities prescribed in this Constitution or otherwise established by law, shall be deemed sui juris and endowed with full legal rights and responsibilities, provided, that the General Assembly may restrict the sale of alcoholic beverages to persons until age twenty-one.

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