S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Robert L. Tobias and
Mary Ellen Tobias, Petitioners,
v.
The Sports Club, Inc.;
Hotel Associates, a
Limited South Carolina
Partnership; The
Ramada Hotel;
Mallards: Interstate
Management and
Investment Corporation;
E. L. Pooser; and Robert
A. Dean of whom Hotel
Associates, a Limited
South Carolina
Partnership; The
Ramada Hotel;
Mallards; Interstate
Management and
Investment Corporation;
E. L. Pooser; and Robert
A. Dean, are Respondents.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Richland County
Thomas L. Hughston, Jr., Judge
p.3
ROBERT L. TOBIAS, et al. v. THE SPORTS CLUB, INC. et al.
Opinion No. 24830
Heard December 4, 1997 - Filed August 17, 1998
AFFIRMED AS MODIFIED
James A. Merritt, Jr. and William K. Witherspoon,
both of Berry, Adams, Quackenbush & Stuart, P.A.,
and Deborah R.J. Shupe, of Louthian & Louthian,
all of Columbia, for petitioners,
James W. Alford and Andrew Haselden, all of
Barnes, Alford, Stork & Johnson, LLP, of Columbia,
for respondents.
FINNEY, C.J.: We granted certiorari to consider the Court of
Appeals' decision holding that the defenses of contributory negligence and
assumption of the risk were available in a negligence suit1 brought by the
intoxicated adult patron against the tavern owner who served him. Tobias
v. The Sports Club, Inc., 323 S.C. 345, 474 S.E.2d 450 (Ct. App. 1996).2
We now join the majority of jurisdictions that have addressed this issue,
and hold that South Carolina does not recognize a "first party" cause of
action against the tavern owner by an intoxicated adult predicated on an
alleged violation of S. C. Code A-nn. 61-5-303 and/or 61-9-4104 (1990).
We therefore overrule Christiansen v. Campbell, 285 S.C. 164, 328 S.E.2d
351 (Ct. App. 1985) cert. denied Order, dated June 27, 1985, and its
progeny to the extent they recognize a first party action, but explicitly
retain the right of injured third parties to maintain a negligence suit
against the tavern owner based on a violation of these statutes.
1 This cause of action arose before the adoption of comparative
negligence.
2 This appeal consolidates the patron's suit and his wife's consortium
action.
3 Now codified at 61-6-2220 (Supp. 1997).
4 Now codified at 61-4-580(2) (Supp. 1997).
p.4
ROBERT L. TOBIAS, et al. v. THE SPORTS CLUB, INC. et al.
Accordingly, the opinion of the Court of Appeals in this case, which upheld
the trial court's denial of petitioners' new trial motions, is affirmed as
modified.
South Carolina Code Ann. 61-4-580(2) prohibits the
knowing sale of beer or wine to an intoxicated person, while 61-6-2220
prohibits the sale of alcoholic beverages contained in minibottles to
intoxicated persons. In recognizing a private cause of action for a
violation of these statutes, the Court of Appeals stated that their purpose
is to promote public safety, and to prevent an already intoxicated person
from becoming even more intoxicated, and thus an even greater risk to the
public at large, when he leaves the establishment. Christiansen, supra;
Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (1990). We agree. The Court
of Appeals went further, however, and held that another of the statutory
purposes was to protect the intoxicated person from their own
incompetence and helplessness, and therefore concluded the intoxicated
patron himself was entitled to bring a negligence suit for a statutory
violation. We disagree, and now hold that public policy is not served by
allowing the intoxicated adult patron to maintain a suit for injuries which
result from his own conduct.
Imposing liability on a tavern owner for continuing to serve an
intoxicated person who later injures others serves public policy by
imposing upon the tavern owner a duty to use judgment and discretion.
We do not believe that the owner will exercise this judgment and
discretion less prudently if he risks a law suit only when the intoxicated
person injures others. The decision to refuse to serve alcoholic beverages,
beer or wine to an intoxicated patron will be unaffected by our decision
today. In overruling Christiansen, we join other jurisdictions that have
refused to allow intoxicated persons to maintain a first party action
against a tavern owner based on alleged violations of statutes imposing
criminal penalties for the sale of alcoholic beverages to an intoxicated
adult. See Wright v. Moffitt, 437 A.2d 554 (De. 1981); Bertelmann v.
TAAS Associates, 735 P.2d 930 (Hawaii 1987); Cuevas v. Royal D'Iberville
Hotel, 498 So.2d 346 (Miss. 1986); Ohio Casualty Ins. Co. v. Todd, 813
P.2d 508 (Ok. 1991); Estate of Kelly v. Falin, 896 P.2d 1245 (Wash. 1995);
White v. HA, Inc., 782 P.2d 1125 (Wyo. 1989); Noonan v. Galick, 112 A.2d
892 (Conn. App. 1955); Riverside Enterprises v. Rahn, 320 S.E.2d 595 (Ga.
App. 1984); Fisher v. O'Connor's Inc., 452 A.2d 1313 (Md. Spec. App.
1982); Trujillo v. Trujillo, 721 P.2d 1310 (N.M. App. 1986) (altered by
subsequent statute).
p.5
ROBERT L. TOBIAS, et al. v. THE SPORTS CLUB, INC. et al.
We hold today that our alcohol control statutes do not create a
first party cause of action for an intoxicated adult patron, but that they do
permit a third party action. We leave for another day the issue whether
we will recognize a first party action brought by a minor. Accordingly, the
decision of the Court of Appeals is
AFFIRMED AS MODIFIED.
TOAL, MOORE, WALLER and BURNETT, JJ., concur.
p.6