BILLY T. McCLELLAND AND BESSIE McCLELLAND, PLAINTIFFS-APPELLANTS,
v.
HARVIE KOTHE - ED RIEMAN, POST NO. 1201, VETERANS OF THE FOREIGN WARS OF THE UNITED
STATES, INC., A CORPORATION, DEFENDANT-APPELLEE.

THOMAS S. ARNOLD AND VICKI ARNOLD, INDIVIDUALLY AND AS PARENTS AND BEST
FRIENDS OF GREGORY ARNOLD, A MINOR, PLAINTIFFS-APPELLANTS,
v.
THE MUSKET CORPORATION, D/B/A LOVE'S COUNTRY STORE (LIBERAL, KANSAS),
DEFENDANT-APPELLEE.

PEARL MATLOCK, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF DONALD KENT MATLOCK, DECEASED, PLAINTIFF-APPELLANT,
v.
TUMBLEWEED BALLROOM, INC., AN OKLAHOMA CORPORATION, DEFENDANT-APPELLEE.

¶1 The issue dispositive of all three appeals is whether a claim against an alcoholic beverage vendor for harm occasioned to an intoxicated consumer or another is actionable when the injurious event occurred before the effective date of our pronouncement in Brigance v. Velvet Dove Restaurant, Inc. [Brigance I].¹ We now grant certiorari in all three cases, consolidate them for disposition by a single opinion and answer the question in the negative.

¶3 The plaintiffs alleged that the defendant had a duty 1) not to serve alcoholic beverages either to an already intoxicated person or to one who is known to drink and drive frequently and 2) to operate its business in a manner which protects the public from the very harm which generated this lawsuit. Furthermore, the terms of 37 O.S. 1981 § 537 (a)(2),² which prohibit the sale of alcoholic beverages to an intoxicated person, were alleged to have created a duty whose breach gives rise to a legally cognizable claim.

¶4 Upon defendant's motion, the trial court dismissed the suit for failure to state a claim. The Court of Appeals held that the common law and the terms of § 537(a)(2), as well as those of 76 O.S. 1981 §§ 1 and 5(a),³ impose a duty whose breach is redressible in a civil action.

¶6 Viewing the claim as one based on a violation of the Kansas statute which prohibits the sale of beer to minors, the trial court concluded that our law affords no relief against a beer vendor for injuries sustained by a purchaser who is injured after becoming intoxicated from drinking the beverage.⁴ Summary judgment went to the defendant.

¶7 The Court of Appeals reversed, holding that because, like Kansas, Oklahoma also prohibits by statute the sale of intoxicating beverages to minors,⁵ this state's public policy imposes on the defendant a duty not to sell any beer to a minor.

¶10 By the common law of England and that effective in Oklahoma before Brigance I,⁶ a tavern owner may not be held liable for furnishing alcoholic beverages to one who, after becoming intoxicated, injures either [770 P.2d 572] himself or another.⁷ The rule applies even when the inebriated consumer is a minor above the age of discretion.⁸ Claims do not lie against liquor vendors because - at common law - it is the drink's voluntary consumption rather than its sale that constitutes the proximate cause of the injuries sought to be redressed.⁹ The common-law causation rule ascribes to the voluntary act of excessive ingestion the causa causans of the harm - its sole efficient legal cause. By force of law, voluntary consumption effectively and completely insulates the seller, as the original actor, from all civil liability.¹⁰

¶11 Oklahoma's jurisprudence underwent a drastic metamorphosis with our pronouncement in Brigance I. There, we departed from the common law, holding for the first time that a commercial vendor of alcoholic beverages for on-the-premises consumption must exercise reasonable care not to sell or furnish liquor to persons who, by their noticeable inebriation, may appear to lack the capacity safely to operate a motor vehicle and are thus likely to subject others to an unreasonable risk of harm.¹¹ The rule announced in Brigance I applies prospectively - only to that case and to all claims arising from and after October 3, 1986, the date mandate issued.¹²

¶12 At the time of his injury the Arnold minor was nearly sixteen and Matlock minor nineteen years of age. Neither of them was below the common-law age of capacity or discretion.¹³ All three claims before us clearly arose before the Brigance I mandate; they are hence governed by the common-law concept of causation which was then in force.¹⁴

¶13 The plaintiffs sought to predicate their demands on common-law negligence, negligence per se resulting from violation of a statute, or directly on a breach of duty imposed by a penal statute. Because the common law's causation barrier stood unabrogated at the time each of the injurious events occurred and hence raises an insuperable impediment to recovery on any theory of liability that was pressed below,¹⁵ none of the claims can be deemed actionable.¹⁶

¹ Okl., 725 P.2d 300 [1986]. Our pronouncement in Brigance I became effective October 3, 1986, the date mandate issued therein. A second appeal, considered in Brigance v. Velvet Dove Restaurant, Okl., 756 P.2d 1232 [1988] [Brigance II], dealt with arguments unrelated to the single issue before us today.

² The terms of 37 O.S. 1981 § 537 (a)(2) are:

³ The terms of 76 O.S. 1981 §§ 1 and 5 (a) are:

⁴ As a predicate for applying negligence per se, the Arnolds plead a violation of the Kansas penal statute that prohibits the sale of beer to minors. Their brief-in-chief nonetheless concedes that the common-law causal barrier posed by the vendee's voluntary ingestion was in effect in Kansas when this claim arose. The very case they cite to us, Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731, 735-736 and 739 [1985], shows the correctness of this premise. Based on the sources of Kansas law the Arnolds tendered below and on which they rely on review, we must conclude that, at the time this claim arose, the applicable Oklahoma common law of causation did not differ from that of Kansas. See in this connection, Benham v. Keller, Okl., 673 P.2d 152, 153 [1983].

⁵ See 37 O.S. 1981 § 537 (a)(1), whose terms are:

⁶ Brigance v. Velvet Dove Restaurant, Inc., supra note 1.

⁷ Brigance v. Velvet Dove Restaurant, Inc., supra note 1 at 302; Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383, 386 [1967]; Sorensen by Kerscher v. Jarvis, 119 Wis.2d 627, 350 N.W.2d 108, 113-114 [1984]. See also, Annot.: Right of action at common law for damages sustained by plaintiff in consequence of sale of intoxicating liquor or habit-forming drugs to another, 130 A.L.R. 352; Annot.: Common-law right of action for damage sustained by plaintiff in consequence of sale or gift of intoxicating liquor or habit-forming drug to another, 97 A.L.R.3d 528; Annot.: Liability of persons furnishing intoxicating liquor for injury to or death of consumer, outside coverage of civil damage acts, 98 A.L.R.3d 1230.

⁸ See Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125, 127-128 [1945]; Meyer v. King, 72 Miss. 1, 16 So. 245, 247-248 [1894]; and Cavin v. Smith, 228 Minn. 322, 37 N.W.2d 368, 369-370 [1949]. In Meyer v. King, supra, the court noted that a fifteen-year-old minor is presumed to be within the age of discretion; it held that the minor's act of drinking poison while intoxicated was the sole efficient legal cause of his death - its causa causans - and the father's claim against the liquor vendor was not actionable.

⁹ Brigance v. Velvet Dove Restaurant, Inc., supra note 1 at 302. See also, Comments, Common Law Liability of Tavern Owners, 1971 Wash.U.L.Q. 645.

¹⁰ The common law's rule of vendor nonliability rests on that legal system's concept of causation. The causal barrier imposed by the rule insulates the vendor from civil accountability regardless of whether the vendor could foresee harm to the vendee or others. The chain of legal causation between the selling of the alcohol and the subsequent injury is deemed to have been broken or superseded - as a matter of law - by the purchaser's voluntary act in imbibing the drink. Brigance v. Velvet Dove Restaurant, Inc., supra note 1 at 305; Ontiveros v. Borak, 136 Ariz. 500, 506, 667 P.2d 200, 206 [1983] (citing Collier v. Stamatis, supra note 8, 162 P.2d at 126); and Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147, 148 [1940].

¹¹ Brigance v. Velvet Dove Restaurant, Inc., supra note 1 at 304.

¹² See Brigance v. Velvet Dove Restaurant, Inc., supra note 1 at 306.

¹³ See supra note 8, for the common-law age limits for "capacity", "accountability" or "discretion".

¹⁴ So long as its causal barrier posed by vendee's voluntary ingestion stands unabrogated either by statute or jurisprudence, the common-law rule of liquor vendor nonliability must be regarded as continually viable. See Ontiveros v. Borak, supra note 10, 136 Ariz. at 507, 667 P.2d at 207, and Alegria v. Payonk, 101 Idaho 617, 618, 619 P.2d 135, 136 [1980].

¹⁵ The common-law's causal concept insulates the vendor from civil accountability to the vendee or third persons no matter what the plaintiffs' chosen theory of recovery may have been. So long as it remains unabrogated, the causation barrier poses an insuperable impediment to recovery sought to be predicated on (a) common-law negligence, (b) negligence per se based on breach of a legislatively-prescribed standard of conduct (see Boyles v. Oklahoma Natural Gas Co., Okl., 619 P.2d 613, 618 [1980], and Ontiveros v. Borak, supra note 10, 667 P.2d at 211), (c) grossly negligent or wilful conduct in furnishing a harmful substance to a person who is known or should have been recognized as one with a subnormal capacity for self-control (see Brannigan v. Raybuck, 136 Ariz. 513, 516-517, 667 P.2d 213, 216-217 [1983]), or (d) violation of a criminal statute claimed to confer an implied private right of action. Brigance v. Velvet Dove Restaurant, Inc., supra note 1 at 302; see also, Ontiveros v. Borak, supra note 10, 136 Ariz. at 506, 667 P.2d at 206. For the principles governing implication of a private right of action in a regulatory or penal statute, see Holbert v. Echeverria, Okl., 744 P.2d 960, 962-965 [1987], and Ontiveros v. Borak, supra note 10, 136 Ariz. at 510, 667 P.2d at 210 n. 3.

¹⁶ For the purpose of disposing of these cases we assume, but do not hold, that the abrogation in Brigance I of the common-law's causation barrier operates to benefit not only a third person injured by an intoxicated consumer but also the inebriated vendee himself.