Metropolitan News-Enterprise


Monday, October 15, 2012


Page 1


Court of Appeal Holds Beer Seller Not Responsible for Fatal Crash

Retailer Not Liable for Selling to Person Whose Friend Allegedly Drove Drunk, Panel Says


By a MetNews Staff Writer


A retailer who sold beer to a person using a forged driver’s license cannot be held liable for an accident that the purchaser’s friend allegedly caused after sharing the beverage, even if they were  together at the time of the purchase and both appeared intoxicated at the time, the First District Court of Appeal ruled Friday.

Div. Five affirmed a Sonoma Superior Court judge’s ruling that Safeway, Inc. was entitled to summary judgment in a suit brought by the parents of a man killed when his vehicle collided with one occupied by a student at Sonoma State University and his friend.

Michael and Lydia Ruiz sued Safeway after their son Alex Ruiz, 22, was killed in a two-car collision in February 2009. The driver of the other vehicle, Dylan Morse—the son of Merced County District Attorney Larry Morse II—was sentenced to more than three years in prison.

Fraternity Party

Morse, who was 18 at the time, and his friend Ryne Spitzer—who suffered severe brain injuries in the crash—had allegedly been drinking earlier at a fraternity party at Sonoma State, where Spitzer was a student. After police broke the party up around midnight, they allegedly went to Safeway where Spitzer bought more beer; Morse was standing next to him and both were chatting with other customers.

The checker, who had 12 years experience, testified that it was Spitzer who stepped forward and presented a driver’s license. The license was unexpired, indicated that Spitzer was over 21, had a photograph that appeared to be Spitzer’s, and had a hologram, suggesting it was legitimate.

The license was later determined to be a forgery.

The pair left the store with Spitzer holding the beer, which he paid for with a check card. Morse later admitted he had been drinking while he drove, after Spitzer handed him some of the beer.

Sonoma Superior Court Judge Elliot Daum granted the retailer’s motion for summary judgment based on Business and Professions Code Sec. 25602(c), which was enacted in 1978 and abrogated several earlier cases holding bars and alcohol retailers liable for injuries caused by customers.

Immunity Exception

The statute immunizes sellers against such liability, subject to an exception—a party “who sells, furnishes, gives or causes to be sold, furnished or given” an alcoholic beverage to an “obviously intoxicated minor” may be held liable if “the furnishing, sale or giving of that beverage to the minor is the proximate cause of the personal injury or death.”

Safeway contended that neither Spitzer nor Morse was obviously intoxicated, and that even if one or both of them were, the exception did not apply because Spitzer was the purchaser and he did not cause the collision.

Daum ruled that there was a triable dispute as to whether Ryan and/or Spitzer was an “obviously intoxicated minor” but that Safeway was entitled to summary judgment because it was undisputed that it sold alcohol to Spitzer, not Morse.

Presiding Justice Barbara J.R. Jones, writing for the Court of Appeal, said the trial judge was correct. She rejected the plaintiffs’ argument that Safeway “caused” the beer to be furnished to Morse, because he and Spitzer were obviously together and Safeway had a duty to focus on the obviously intoxicated state they both were in.

Affirmative Act

Cases interpreting the statute, the presiding justice said, require that the defendant actually sell alcohol, or commit an affirmative act that causes it to be sold, to an obviously intoxicated minor, for the exception to apply.

“For example, one who, having control over the alcohol, directs or explicitly authorizes another to sell it to a minor who is clearly drunk falls within the statutory language,” she wrote. “On the other hand, merely providing a room where alcoholic beverages will be sold by others is not sufficient….”

Jones continued:

“Applying a similar analysis to the facts presented here, the evidence shows Safeway’s checker Gonzalez sold beer to Spitzer.  But nothing about that sale constitutes an affirmative act directly related to a sale to Morse, or an act that necessarily would have resulted in Spitzer furnishing or giving that beer to Morse.  We conclude there is no evidence that Safeway caused beer to be furnished or given to Morse.”

The theory that Safeway may be liable because Morse’s consumption was foreseeable as a result of the two men having entered, shopped, checked out, and departed together, Jones said, “fails to take into account the unique history of the statute at issue”—a singular exception to a broad rule of immunity—and “is in effect an attempt to return to the type of forseeability analysis that our Legislature specifically rejected when it” enacted the immunity.

The case is Ruiz v. Safeway, Inc., 12 S.OS. 5128.


Copyright 2012, Metropolitan News Company