No. 85-84 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

BEATRICE T. NEHRING, widow and surviving 

heir of Harold W. Nehring, deceased.; DONALD 

D. NEHRING, Personal Representative of the 

estate of Harold Nehring, deceased, and. TRISTATE INSURANCE COMPANY OF MINNESOTA, a Corp., 

Plaintiffs and Appellants, 

-vsEARL 3;. 1,aCOUNTE and JANICE C. LaCOUNTE, 

d/b/a LENNY'S BAR, 

Defendants, Third-Party Plaintiffs 

and Respondents, 

and 

MICHAEL J. BOTTENSEK, 

Defendant, 

-vsINSURANCE COMPANY OF NORTH AMERICA, a corp.; 

SF,ITZ INSURANCE AGENCY, and RODNEY LEMIEUX, 

individually and as agent for Seitz Insurance 

Agency and Insurance Company of North America, 

Third-Party Defendants. 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt, 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant : 

Jacque Rest; Habedenk, Cumming, Best & Maltese, 

Sidney, Montana 

Gene R. Jarussi argued; Keefer, Roybal, Hanson, Stacey 

& Jarussi, Billings, Montana 

For Respondent: 

Donald L. Harris argued; Crowley Law Firm, Billings, 

Montana 

Francis J. McCarvel, Glasgow, Montana 

Richard F. Cebull; Anderson, Brown Law Firm, Billings, 

Montana 

Thomas Monaghan; Lucas & Monaghan, Miles City, Montana 

For Amicus Curiae: 

Rodney T. Hartman; Herndon, Ha.rper & Munro; (Robert 

Brust d/b/a Drifter's Tavern), Billings, Montana 

Submitted: September 23, 1985 

Decided: January 21, 1986 

-- 

Clerk 
Honorable Frank I. Haswell, Retired Chief Justice, delivered 

the Opinion of the Court. 

In a wrongful death and survival action against the 

operators of a Montana tavern who allegedly wrongfully served 

alcoholic beverages to a driver who later killed decedent in 

an aut.omobile accident, the Roosevelt County District Court 

granted summary judgment to the tavern operators. We vacate 

and remand. 

The accident occurred during the early morning hours of 

September 20, 1980 in North Dakota, about three miles west of 

Williston. Michael Bottensek drove the wrong way on a 

four-lane divided highway and struck head-on an oncoming 

west-bound vehicle driven by decedent Harold Nehring. 

Nehring and two passengers in the Bottensek vehicle, Patty 

Thoring and Jolene McGillis, were killed. Michael Bottensek 

and his brother, the other passenger in his vehicle, 

survived. 

The events leading to this accident began on September 

19, 1980. Bottensek, his brother, Patty and Jolene decided 

to celebrate Jolene's nineteenth birthday by going to Lenny's 

Bar in Bainville, Montana, about 35 miles from their homes in 

Williston, North Dakota. LaCountes are the owners and 

operators of this tavern. Bottensek had consumed four beers 

and smoked a joint of marijuana between 2:00 p.m. and 9: 00 

p.m., the time they left Williston. On their way to Lenny's 

Bar, Bottensek drank two more beers. He drank four of these 

six beers within the three hours prior to arriving at the 

tavern at about 10:OO p.m.. 

At Lenny's Bar, Bottensek drank about eight more beers 

during the next two or three hours. He stated in his 

deposition that he was drunk when he ordered his last beer. 
He recalled that his speech was slurred, that he spoke with a 

"thick" tongue, and that he staggered when he left the bar. 

He also stated that he ha-d no difficulty ordering or paying 

for drinks, he did not vomit or spit-up, and that he did not 

fall down, knock chairs over or bump into other people. 

According to the LaCountes and one of their employees, 

Bottensek did not appear drunk, could pay for drinks, did not 

slur or stagger and did not cause problems with other 

patrons. However, LaCountes also stated that Bottensek 

threatened to shoot Earl LaCounte and was ejected from the 

bar between 10:OO and 11:OO p.m. 

Bottensek denied this act and stated that he left the 

tavern at about 1:00 a.m. because he was drunk, that his 

brother left about the same time, that they waited in the car 

until Patty and Jolene left at closing time an hour later, 

and that all four were drunk. Just before leaving, Patty and 

Jolene bought a fifth of lime vodka and a case of Budweiser 

beer. 

When they left the parking lot, Bottensek drove east 

toward Williston. He had blank spots in his memory, but 

remembered having trouble driving. Apparently he stopped on 

the highway at one point because he recalled Patty getting 

into the driver's seat and telling him if he hurt Jolene's 

baby he would be in trouble. Jolene was pregnant at this 

time. He also recalled Patty saying she drove as badly as he 

did. After stopping in a rest area, Bottensek again got 

behind the wheel. The accident occurred about an hour after 

they left the tavern when, in a thick fog, Bottensek's 

vehicle crossed over into a west-bound lane and collided 

head-on with the Nehring vehicle. At the time of the 

accident, Bottensek's blood alcohol level was .20. 
On February 19, 1982, the plaintiffs filed an action 

seeking damages (1) for the wrongful death of Harold Nehring 

and (2) for Nehring's damages which accrued prior to his 

death and survived in favor of his estate. Plaintiffs are 

his surviving widow and heir, the personal representative of 

his estate and his automobile insurer. Defendants are 

Michael Bottensek and the owners and operators of Lenny's 

Bar, the LaCountes. 

The amended complaint contains three claims for relief: 

(I) The tavern operators or their agents sold 

alcoholic beverages to Michael Bottensek when he was 

actually, apparently or obviously intoxicated in violation of 

S 16-3-301, MCA; 

(2) the tavern operators or their agents violated 

North Dakota's dram shop act which applies to this action; 

(3) the tavern operators or their agents negligently 

sold alcoholic beverages to Michael Bottensek causing him to 

become intoxicated to such an extent that he was unable to 

operate or control his motor vehicle. 

Each of the three claims alleges proximate cause and 

resulting damages. 

On October 2, 1984, the District Court granted the 

tavern operators' motion for summary judgment on all three 

claims. The court held that under Montana law, the tavern 

operator was liable only if he served the customer while he 

was in a helpless condition, of which there were no 

supporting facts, citing Runge v. Watts (1979), 180 Mont. 91, 

580 P. 2d 145. The court held the North Dakota dram shop act 

inapplicable, citing a recent decision of North Dakota ' s 

Supreme Court that this act had no extraterritorial effect, 

Thoring v. Bottensek (N.D. 1984), 350 N.W.2d 586. Finally, 
the court found no corrlmon law liability of a tavern operator 

and refused to "legislate" on the matter. 

Final judgment bras entered in favor of the LaCountes 

and against plaintiffs pursuant to a Rule 54 (b) , M. R.Civ. P. 

certification. Plaintiffs appeal from the final judgment. 

We rephrase the issues: 

(1) Can a person injured off-premises by a patron of a 

licensee recover from the licensee who served the patron 

alcoholic beverages? 

(2) Does a genuine issue of material fact preclude 

summary judgment? 

Traditionally, at common law, no right of action 

existed against a seller of alcoholic beverages in favor of 

those injured by the intoxication of the purchaser. The 

reason usually given for this rule is that the consumption, 

rather than the furnishing, of the a-lcoholic beverages 

proximately caused the injury. This Court acknowledged a.nd 

followed this rule in Nevin v. Carla-sco (1961), 139 Mont. 

512, 365 P.2d 637, which concerned a tavern operator's 

liability to protect patrons from other patrons. We stated 

there that: 

. . . The rule followed by most courts is 

that when damage arises from voluntary 

intoxication, the seller of the 

intoxicant is not liable in tort for the 

reason that his act is not the efficient 

cause of the damage. The proximate cause 

is the act of him who imbibes the liquor. 

[Plaintiff] was obliged to prove a set of 

circumstances which created a duty to the 

injured patron and facts that would prove 

a breach of that duty. (Citation 

omitted. ) 

139 Mont. at 515, 365 P.2d at 639. 

In later cases, this Court acknowledged that Montana 

statutorily prohibits the sale of alcoholic beverages to 
minors and intoxicated persons. We declined to use the 

statutes as a basis for liability under the circumstances 

presented in those cases. In Folda v. City of Bozeman 

(1978), 177 Mont. 537, 582 P.2d 767, we held that the 

victim's voluntary intoxication prevented her from recovering 

because it was the proximate cause of her death and she had 

disregarded her duty to use due care. Swartzenberger v. 

Billings Labor Temple Assn. (1978), 179 Mont. 145, 586 P.2d 

712, discusses both the lack of a Montana dram shop act and 

the cases mentioned above. We denied recovery to the 

plaintiff because of his contributory negligence in violating 

statutory law and drinking. We distinguished Deeds v. United 

States (D. Mont. 1969), 306 F.Supp. 348, as presenting a 

claim of an injured third party rather than a claim by the 

imbiber. The most recent Montana case, Runge v. Watts 

(1979), 180 Mont. 91, 589 P.2d 145, concerned the liability 

of a social host furnishing liquor to a minor who then caused 

an accident injuring a third party. We held that the 

proximate cause of plaintiff's injuries was the driver s 

drinking, rather than d.efendantls serving of alcohol. Of 

these cases, only Deeds, supra, addresses a tavern operator's 

liability for off-premises injuries to a third party injured 

by a patron of the tavern. 

Section 16-3-301(2), MCA, originally enacted as part of 

the Montana Beer Act in 1933, provides: 

It shall be unlawful for any licensee, 

his or her employee or employees, or any 

other persons to sell, deliver, or give 

away or cause or permit to be sold, 

delivered, or given away any alcoholic 

beverage to: 

(a) any person under 19 years of age; 
(b) any intoxicated person or any person 

actually, apparently, or obviously 

intoxicated. 

Section 16-6-304, MCA, originally enacted as part of the 

State Liquor Control Act of Montana in 1933, provides: 

(I) No store manager, retail licensee, 

or any employee of a store manager or 

retail licensee may sell any alcoholic 

beverage or permit any alcoholic beverage 

to be sold to any person apparently under 

the influence of an alcoholic beverage. 

(2) No person may give an alcoholic 

beverage to a person apparently under the 

influence of alcohol. 

Both sections remained in the Code when the Legislature 

edited and amended portions of Title 16 and then re-enacted 

it in 1975. As we noted in Fletcher v. ~aige (1950)~ 124 

Mont. 114, 220 P.2d 484, the Montana Beer Act and the State 

Liquor Control Act were companion bills. "These statutes are 

in pari materia and must be construed together . . . [as] one 

homogenous and consistent body of law." (Citations omitted.) 

(Emphasis in original.) 124 Mont. at 116-117, 220 P.2d at 

485. This Court has a duty to reconcile such statutes, 

consistent with legislative intent, where possible. 

Fletcher, 124 Mont. at 119, 220 P.2d at 487. Thus, we 

consider both sections in this appeal. 

We recognize that the Legislature did not enact these 

alcoholic beverage control statutes to provide a civil remedy 

to persons injured as the result of a violation of those 

laws. The violation of statutes is negligence as a matter of 

law when the purpose of the statute is to protect a class of 

persons, the plaintiff is a member of that class, and the 

defendant is a person against whom a duty is imposed. Azure 

v. City of Billings (1979), 182 Mont. 234, 240-241, 596 ~.2d 

460, 464. The purpose of the statute also must he to protect 
against the kind of injury received by the plaintiff. Rauh 

v. Jensen (19731, 161 Mont. 443, 507 P.2d 520. Here, the 

stated purposes of the statutes are "the protection of the 

welfare, health, peace, morals, and safety of the people of 

the state." Section 16-1-101, MCA; see also 5 16-1-103, MCA. 

The Supreme Court of Arizona characterized a similar 

enactment as having the legislative purpose "to regulate the 

business [of selling alcoholic beverages] 

rather than enlarge civil remedies." (Bracketed phrase 

added. ) (Emphasis in original. ) Collier v. Stamatis (Ariz . 

1945), 162 P.2d 125, 127, cited in Ontiveros v. Borak (Ariz. 

1.983) , 667 P.2d 200, 210. Sections 16-3-301 (2) a.nd 16-6-304, 

MCA, are part of two acts enacted to regulate the business of 

selling liquor and beer. Nonetheless, they were intended to 

protect the people of the state generally and the interests 

of the state rather than to protect against any particular 

kind of injury or provide a civil remedy. Accordingly, we 

will not hold a violation of the alcoholic beverage control 

statutes to be negligence as a matter of law. 

The violation of a statute, although not negligence per 

se, nevertheless may be relevant in determining whether a 

defendant's conduct was negligent, i.e. in fixing a standard 

against which negligence can be measured. Where the statute 

does not provide for civil liability, the decision to adopt 

the statute as defining a standard is a judicial one. 

Restatement (Second) of Torts 5286 comment d, cited in 

Onti.veros, 667 P.2d at 210; also McClellan v. Tottenhoff 

(Wyo. 1983), 666 P.2d 408, 413. In the seminal case allowing 

recovery by an injured third party from a tavern keeper, 

Rappaport v. Nichols (N.J. 1959), 156 A.2d 1, the New Jersey 

Supreme Court held that a violation of an enactment similar 
to §§ 16-3-301 and 16-6-304, MCA, was evidence of negligence. 

That court noted the restrictions were intended for the 

protection of members of the general public, not just for the 

protection of the minors and intoxicated persons listed in 

the enactments. Rappaport, 156 A.2d at 8. In Rappaport, the 

court stated: 

The negligence may consist in the 

creation of a situation which involves 

unreasonable risk because of the 

expectable action of another . . . Where 

a tavern keeper sells alcoholic beverages 

to a person who is visibly intoxicated or 

to a person he knows or should know from 

the circumstances to be a minor, he ought 

to recognize and foresee the unreasonable 

risk of harm to others through action of 

the intoxicated person or the minor. 

(Citations omitted.) 

Rappaport, 156 A.2d at 8. Such is the case here. 

An unreasonable risk of harm is more likely under 

present day conditions than in the past, when the common law 

bar to recovery was a majority position. " . . . [TI his j-s 

particularly evident in current times when traveling by car 

to and from the tavern is so commonplace and accidents 

resulting from drinking are so frequent" Rappaport, 156 A.2d 

at 8-9, cited in Deeds, 306 F.Supp. 348, 355. Current 

conditions in Montana are such that the literal application 

of the common law rule has become unjust. "When the reasons 

of a rule ceases, so should the rule itself." Section 

1-3-201, MCA. Therefore we judicially adopt the alcoholic 

beverage control statutes as furnishing a standard against 

which negligence or due care can be measured. A.ccordingly, a 

violation thereof is evidence of negligence. 

In any negligence case, the plaintiff 

must establish certain elements: 

(1) that the defendant owed a duty 

recognized in law to the plaintiff, 

(2) that she breached the duty, 

(3) that the breach was the cause of the 
plaintiff's injury, and 14) that the 

plaintiff was damaged. 

46 Mont.I,.Rev. 381, 382 (1985), Bender, Tort Liability tor 

Serving Alcohol: An Expanding Doctrine. Both Deeds, 306 

F.Supp. 348, and Johnson v. United States (D. Mont. 1980), 

496 F.Supp. 597, considered Montana law on negligence and 

held the seller of alcoholic beverages liable to third 

parties injured by an intoxicated patron. After establishing 

the seller's duty to the injured party, Deeds discussed the 

element of causation and held that the operators who served 

alcoholic beverages 

. . . could reasonably foresee or 

anticipate some accident or injury as a 

reasonable and natural consequence of 

their illegal and negligent acts, 

particularly in view of the ever 

increasing incidence of serious 

automobile accidents resulting from 

drunken driving. 

306 E'.Supp. at 361. Deeds applied the common law negligence 

rule that if an intervening cause is one which might be 

reasonably foreseen as probable or is one which the defendant 

might reasonably anticipate under the circumstances, that 

cause will not cut off the defendant's liability. We 

discussed this rule of foreseeability in Reino v. Montana 

Mineral Land Development Co. (1909), 38 M0n.t. 291, 296, 99 P. 

853, 855, and stated that: 

It is sufficient if the facts and 

circumstances are such that the 

consequences attributable to the wrongful 

conduct charged are within the field of 

reasonable anticipation; that such 

consequences might be the natural and 

probable results thereof, though they may 

not have been specifical-ly contemplated 

or anticipated by the person so causing 

them. (Citations omitted.) 

WE! adopt this approach in the case at bar and hold tha.t 

consumption of the alcoholic beverages served, subsequent 
driving, and the likelihood of an injury-producing accident 

are foreseeable intervening acts wh,ich do not relieve the 

tavern operator of liability for negligence. 

The earlier Montana cases, Folda, 177 Mont. 537, 582 

P.2d 767, and Swartzenberqer, 179 Mont. 145, 586 P.2d 712, 

are not controlling authority for the case at bar. Those 

cases both concerned injury to the imbiber rather than a 

third person and found no liability on the basis of the 

imbiber's contributory negligence. Runge, 180 Mont. 91, 589 

P.2d 145, also is distinguishable as it concerns the absence 

of liability of a social host who furnished alcoholic 

beverages to a minor. 

F.espondents argue that if this Court overrules Runge, 

180 Mont. 91, 589 P.2d 145, any new law should be applied 

prospectively only. They rely on the statement in Runge that 

no cause of action existed unless the imbiber was furnished 

alcoholic beverages while "in such a state of 

helplessness . . . as to be deprived of his willpower or 

responsibility for his behavior." (Citation omitted.) 180 

Mont. at 93, 589 P.2d at 146-147. The term "helplessness" 

implies a far stricter requirement than the language of the 

alcoholic beverage control statutes. As discussed above, the 

language in the statutes defines the standard of care to be 

used. In addition, the language from Runge, quoted above, 

was dicta. In Runge we declined to impose liability on a 

social host who furnished alcoholic beverages to a minor in 

favor of those injured as a consequence of the minor's 

intoxication. The reasoning behind this holding was that the 

minor's drinking rather than the social host's serving of 

beer proximately caused plaintiff's injuries. The mention of 

"helplessness" was unnecessary to this holding. We are not 
required to give precedential value to dicta. Montana Human 

Rights Division v. City of Billings (Mont. 1982) , 649 P. 2d 

1283, 1287, 39 St.Rep. 1504, 1508. This judicial language 

was not intended to change the meaning of the statutory 

language and does not refer to or change Montana law 

regarding the principles of causation or duty owed in 

negligence. Nonetheless, Runge is bottomed on a statement of 

law that must be addressed, viz. that the drinking of the 

intoxicating beverage, not the furnishing thereof, is the 

proximate cause of any subsequent injury (subject to the 

"helplessness" exception). This Neanderthal approach to 

causation exempts the purveyor of alcoholic beverages from 

liability without regard to his own negligence or fault. To 

the extent Runge may be read to so hold, we expressly 

overrule it. 

This Court set forth three factors to consider before 

adopting a rule of nonretroactive application in XaRoque v. 

State (1978), 178 Mont. 315, 583 P.2d 1059. 

First, the decision to be applied 

nonretroactively must establish a new 

principle of law either by overruling 

established precedent on which litigants 

have relied or by deciding an issue of 

first impression whose resolution was not 

clearly foreshadowed. Second, the merits 

of each case must be weighed by looking 

to the history, purpose and effect of the 

rule in uuestion and whether retroactive 

applicati^on will further or retard its 

operation. Finally, the inequity of 

retroactive application must be 

considered, for where substantial 

inequity will result by such application, 

a ruling of nonretroactivity is proper. 

LaRoque, 178 Mont. at 319, 583 P.2d at 1061, citing Chevron 

Oil v. Huson (1971), 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 

296. We applied this three part test in Jensen v. State 

Dept. of Labor and Industry (Mont. 1984), 689 P.2d 1231, 41 
St.Rep. 1971, and Sorum v. Rieder and Co. (Mont. 1983), 666 

P.2d 1221, 40 St.Rep. 1120. 

With respect to the first factor, respondents argue 

that they relied on the statement in Runge, 180 Mont. 91, 589 

P.2d 145, that a bar owner is liable only if the patron was 

served while helplessly intoxicated. However, respondents 

had an obligation to comply with the stricter requirements of 

the alcoholic beverage control statutes as well. Thus, the 

reliance argument is not persuasive. In the second factor, a 

prospective a.pplication would condone disregard for these 

alcoholic beverage control statutes rather than further their 

purpose or operation. Jensen, 689 P.2d at 1233, 41 St.Rep. 

at 1974. Finally, respondents carry the burden of showing 

the substantial inequity of retroactive application. 

LaRoque, 178 Mont. at 320, 583 P.2d at 1061. This case only 

permits certain unlawful conduct by respondents to be used as 

evidence of their negligence. This is not the kind of 

significant hardship that supports a ruling of 

nonretroactivity. Accordingly, we will not limit the holding 

of this case to a prospective application as urged by the 

respondents on appeal. 

The second issue concerns whether genuine issues of 

material fact exist precluding summary judgment. Generally, 

issues of negligence are not susceptible to summary judgment 

and are better determined at trial. Brown v. Merrill Lynch, 

Pierce, Fenner and Smith, Inc. (1982), 197 Mont. 1, 10, 640 

P. 2d 453, 458. In this case there are a number of questions 

of material fact that remain unanswered, for example, Michael 

Bottensek' s degree of actual, apparent or obvious 

intoxication, when and how much alcoholic beverages LaCountes 
served to Michael Bottensek, and the time that Michael 

Eottensek left the bar, to name a few. 

We therefore vacate the summary judgment and the final 

judgment entered thereon by the District Court. We remand to 

the District Court for further proceedings. 

=3~~4,. &A&M 

Honorable Frank I. Haswell, 

Retired Chief Justice, 

Sitting in Place of Mr. Justice 

L. C. Gulbrandson 

We concur: . ./