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24830 - Robert L. Tobias, et al. v. The Sports Club, Inc. et al.

Davis Adv. Sh. No. 29
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

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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).

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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).

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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.









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