Aanenson v. Bastien
1989 WL 24737, 438 N.W.2d 151, 1989 N.D. LEXIS 56 (1989)
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Rule of Law:
The doctrine of complicity, which precludes recovery by one who actively contributes to the intoxication of the person who causes the injury, is not a defense to an action brought under North Dakota's Dram Shop Act. The statute imposes liability on a commercial vendor for illegally selling alcohol to an intoxicated person, regardless of the plaintiff's participation in the drinking.
Facts:
- On October 26, 1985, Jon B. Aanenson and Brian Wolfgram met and decided to ride their motorcycles together.
- Throughout the day, they stopped at five different bars, including The Lower 48.
- At these bars, Aanenson and Wolfgram took turns paying for rounds of alcoholic beverages for each other.
- Aanenson alleges that The Lower 48 served alcoholic beverages to Wolfgram when he was already obviously intoxicated.
- After leaving The Lower 48, both men were riding their motorcycles, with Aanenson in the lead.
- Aanenson stopped his motorcycle at a stop sign at the intersection of County Road 14 and Highway 81.
- Wolfgram, following behind on his motorcycle, collided with Aanenson's stopped motorcycle, causing Aanenson to sustain injuries.
Procedural Posture:
- Jon B. Aanenson filed a dram shop action against James E. and Terry Kopp Bastien, d/b/a The Lower 48, in the District Court for Cass County, North Dakota (trial court).
- The defendants (The Lower 48) filed a motion for summary judgment, arguing Aanenson's claim was barred by the doctrine of complicity.
- The District Court granted the defendants' motion for summary judgment and entered a judgment dismissing Aanenson's complaint.
- Aanenson (plaintiff-appellant) appealed the dismissal of his complaint to the Supreme Court of North Dakota.
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Issue:
Does the common law doctrine of complicity bar a plaintiff from recovering damages under the North Dakota Dram Shop Act when the plaintiff purchased alcoholic beverages for the intoxicated person who subsequently caused the plaintiff's injuries?
Opinions:
Majority - Chief Justice Erickstad
No, the doctrine of complicity does not bar recovery under the North Dakota Dram Shop Act. The plain language of the statute, which allows recovery for 'every... other person' injured by an intoxicated person, contains no exception for complicity. The court reasoned that it is improper for the judiciary to legislate additional requirements into a clear and unambiguous statute. The Act is remedial in nature and must be liberally construed to suppress the mischief of illegal alcohol sales. The court extended its prior holding in Feuerherm v. Ertelt, which rejected comparative negligence as a defense, finding that liability under the Act is based on the vendor's illegal sale, not on common law fault principles. The legislature intended to place the responsibility and liability for serving an intoxicated person on the commercial vendor, who is in a better position to assess intoxication, rather than on a drinking companion.
Concurring - Justice Vande Walle
No, under the specific circumstances of this case, complicity does not bar recovery. While agreeing with the majority's result to reverse the summary judgment, this opinion suggests that the court should not create an absolute rule that complicity can never be a defense. The concurrence would leave open the possibility that under a different set of facts, public policy might dictate a different result, and complicity could potentially constitute a defense to a dram shop action.
Analysis:
This decision solidifies that North Dakota's Dram Shop Act creates a form of strict liability, diverging from the law of many other jurisdictions that recognize complicity as a defense. By rejecting this common law defense, the court places the full legal burden of preventing harm from over-service on the commercial alcohol vendor, rather than apportioning fault to a plaintiff who participated in the intoxication. This precedent strengthens the position of plaintiffs in dram shop cases and signals that statutory language will be strictly followed, even if it conflicts with traditional tort defenses. Future cases will likely focus on the elements of the statute itself—an illegal sale and resulting injury—without regard to the plaintiff's own conduct in contributing to the intoxication.
