BASSETT v. LAKESIDE INN, INC.

Filed 6/21/06

CERTIFIED FOR PARTIAL PUBLICATION^*

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

APPEAL from a judgment of the Superior Court of Lassen County, Suzanne N. Kingsbury, Judge. Affirmed.

Thomas J. Dunnion, Jordan Morgenstern and Gerard A. Rose for Plaintiffs and Appellants.

Laxalt & Nomura, Angela M. Bader; Jacobson, Hansen, Najarian & McQuillan, Leith B. Hansen for Defendants and Respondents.

After their daughter was killed by a drunk driver while crossing the street on her way to school, plaintiffs Robert and Teddi Bassett brought suit against the driver and two other individuals and numerous entities for wrongful death. They appeal from a judgment of dismissal after the trial court sustained the demurrers of defendants Lakeside Inn, Peter Douthitt, Lee Smith, and Lake Tahoe Unified School District (the District) without leave to amend. The Bassetts contend Lakeside Inn and security guards Douthitt and Smith contributed tortiously to the accident because they had assumed a duty to protect patrons of the Lakeside Inn and the public and they breached that duty by escorting an obviously drunk patron to his car and allowing him to drive off. The Bassetts contend the District had liability because it designated a school bus stop in a dangerous intersection. We agree with the trial court that Lakeside Inn and its employees had no duty to the Bassetts's daughter, and that the District has immunity under Education Code section 44808 because the accident occurred off campus and outside the supervision of the District. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Because the matter arises after demurrer has been sustained, we must treat all properly pled facts as true. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The operative complaint as to Lakeside Inn, Douthitt, and Smith is the second amended complaint. The operative complaint as to the District is the third amended complaint.

On September 2, 2003, at about 7:00 a.m., Marissa Bassett was on her way to her first day of high school. As she crossed the street at a crosswalk at 15th Street and Eloise Avenue in South Lake Tahoe, she was struck by a car driven by Jesse Whitworth, a drunk driver. She died later that day. The District had designated a school bus pickup point at that intersection.

Throughout the night before the accident, Whitworth and four companions engaged in a night of partying, with excessive consumption of alcohol. Within an hour before the accident, Whitworth and his companions were finishing up their night of partying at Taberna Restaurant, located within Lakeside Inn. They were intoxicated, loud, and obnoxious. Someone called the security guards. Douthitt and Smith responded and told the Whitworth group to quiet down. Ten minutes later, Douthitt and Smith responded again and escorted Whitworth and his companions to Whitworth's car. The security guards watched as Whitworth drove off onto an adjacent thoroughfare.

Douthitt and Smith were aware that Whitworth and his companions were intoxicated, incapable of operating a vehicle safely, and would be driving on public roads. Notwithstanding this knowledge, they did nothing to stop Whitworth from driving off. In fact, they encouraged him to do so.

Within one year following the accident, the Bassetts brought suit, naming as defendants Whitworth, Lakeside Inn, Douthitt and Smith, the City of South Lake Tahoe, State of California Department of Transportation, California Transportation Commission, El Dorado County, and the District. The complaint sought monetary damages for wrongful death and a survivor's action against all defendants and against Whitworth for assault and battery.

Douthitt and Smith demurred, asserting the complaint did not state a cause of action against them. Their demurrer was sustained with leave to amend. The Bassetts amended the complaint and Douthitt and Smith again demurred.

The Bassetts filed a second amended complaint. By stipulation of the parties, the demurrer of Douthitt and Smith, which was joined by Lakeside Inn, applied to the second amended complaint. The court sustained the demurrer without leave to amend.

The Bassetts filed a third amended complaint. The District demurred to this complaint, requesting that the trial court take judicial notice that the District did not own the public property where the accident occurred. The trial court sustained the demurrer without leave to amend.

A judgment of dismissal was entered as to Lakeside Inn, Douthitt, Smith, and the District. The Bassetts appealed.

DISCUSSION

I. Demurrer of Lakeside Inn, Douthitt, and Smith

The trial court sustained the demurrer of Lakeside In n, Douthitt, and Smith (the casino defendants) because the Bassetts could not state a common law cause of action against them. The court found the casino defendants had immunity for alcohol-consumption related injuries under Business and Professions Code section 25602 and the Bassetts failed to plead a special relationship. The Bassetts contend the trial court erred because (1) the immunity of section 25602 has no extraterritorial effect and the Lakeside Inn is located in Nevada; and (2) the alleged tortious act is not the furnishing of alcohol, but the breach of the duty, assumed by the casino defendants, to protect patrons and third parties.

Civil liability for injuries incurred as a consequence of the service and consumption of alcoholic beverages has been subject to dramatic shifts in California law. The traditional common law rule denied recovery from a tavern keeper for injuries caused by a customer who, as a result of intoxication, injures a third person. (Vesely v. Sager (1971) 5 Cal.3d 153, 157.) In Vesely, the California Supreme Court rejected this rule and held a tavern keeper could be liable based on concepts of proximate cause when he violates Business and Professions Code section 25602 by serving alcoholic beverages to an obviously intoxicated person. (Vesely v. Sager, supra, at p. 165.)

In response to a series of cases finding that one who furnishes alcoholic beverages could be liable for injuries caused by the intoxicated person (Vesely v. Sager, supra, 5 Cal.3d 153; Coulter v. Superior Court (1978) 21 Cal.3d 144; Bernhard v. Harrah's Club (1976) 16 Cal.3d 313), the Legislature acted. It amended Civil Code section 1714 and Business and Professions Code section 25602, to restore the traditional common law rule. (Stats. 1978, ch. 929, §§ 1-2, pp. 2903-2904.)

Civil Code section 1714, subdivision (a) provides that every one is responsible for the result of his willful acts and for injuries caused by his want of ordinary care or skill in the management of his person or property. The 1978 amendment added subdivision (b), which provides: â€