No. 85-586 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

SHARON L. JEVNING, individually and 

as Personal Representative of the 

Estate of R.ichard L. Jevning, Deceased, 

Plaintiff and Appellant, 

SKYLINE BAR, Its Agents, Serva.nts and 

Employees, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John F. Iwen argued, Great Falls, Montana 

For Respondent : 

Alexander & Raucus; J. David Slovak argued, Great 

Falls, Montana 

- - 

Submitted: September 16, 1986 

Decided: October 10, 1986 

Filed: 913 i- . A , igfj6 

Clerk 
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the 

Court. 

Plaintiff Jevning appeals the order of the District 

Court, Eighth Judicial District, Cascade County granting 

defendant's motion for judgment on the pleadings. We vacate 

and remand. 

There are two issues on appeal. First, is Ch. 1, 1986 

Mont. Spec. Sess. 49th Leg. as approved and adopted on April 

4, 1986 retroactively applicable to Jevning's cause of action 

which occurred October 15, 1983? Second, do Nehring v. 

LaCounte (Mont. 1986), 712 P.2d 1329, 43 St.Rep. 93, and 

Bissett v. DMI, Inc. (Mont. 1986), 717 P.2d 545, 43 St.Rep 

252, provide Jevning with a cognizable cause of action? 

From 11:OO p.m. to 2:00 a.m., Richard Jevning purchased 

and consumed alcoholic beverages at the Skyline Ba.r near 

Great Falls. At a-bout 2:30 a.m., Richard Jevning's pickup 

left the frontage road south of Grea.t Falls and rolled over, 

throwing him from the vehicle. He died as a result of his 

injuries. 

His widow sued the Skyline Bar for negligence seeking 

damages for the personal injuries and death of her husband. 

The complaint alleged that Skyline Bar was negligent in 

allowing Jevning to consume liquor on the premises and then 

drive, and that Skyline Bar violated S 16-3-301 (2) (b) , MCA, 

and $ 16-6-304(1), MCA. The complaint alleged that the 

negligence of the Skyline Bar was the proximate cause of 

Jevning's injuries and death. 

Skyline Bar answered the complaint and set forth two 

affirmative defenses. First, the injuries were the direct 
and proximate result of decedent's own negligence, thus the 

judgment should be denied or proportionately reduced. 

Second, the complaint should be dismissed for failure to 

state a claim on which relief could be granted. Skyline Bar 

also filed a motion for judgment on the pleadings alleging 

Jevning had failed to state a claim on which relief could be 

granted. The District Court granted. Skyline Bar's motion for 

judgment on the pleadings, relying on Runge v. Watts (1979) , 

180 Mont. 91, 589 P.2d 145. The District Court stated, "The 

current state of Montana law does not recognize common law 

dram shop liability against an alcohol vendor." 

Since that time, this Court has handed down the Nehring 

v. LaCounte and Bissett v. DMI, Inc. opinions. Nehring v. 

LaCounte, involved a tavern patron who, after drinking 

heavily at a bar, attempted to drive back to North Dakota. 

He drove the wrong way down a four-lane divided highway and 

ran head on into another vehicle killing the driver of the 

on-coming vehicle as well as two passengers in his car. The 

widow of the man struck and killed sued the tavern owner for 

negligence. The District Court granted summary judgment in 

favor of the tavern owner. We vacated the summary judgment 

and remanded for further proceedings. In Nehring, we allowed 

the widow of the innocent third party to maintain a 

negligence action against the tavern owner and the tavern 

patron. We held the alcoholic beverage control statutes (SS 

16-3-301 and 16-6-304, MCA) furnished a standard against 

which negligence could be measured. We also held that 

"consumption of the alcoholic beverages served, subsequent 

driving, and the likelihood of an injury-producing accident 

are foreseeable intervening acts which do not relieve the 

tavern owner of liability for negligence." Nehrinq, 712 P.2d 
at 1335, 43 St.Rep. at 99. In Bissett v. DMI, Inc., we held 

that a tavern owner who serves an intoxicated minor could be 

held liable for injuries sustained by that minor in a motor 

vehicle accident, and that the minor's acts in drinking 

alcoholic beverages served to her and then becoming involved 

in an injury-producing accident were reasonably foreseeable 

events that would no longer protect a defendant from 

liability for negligence. Bissett v. DMI, Inc., 717 ~.2d at 

Since our decisions in Nehring and Bissett, the Montana 

Legislature met in a special session and passed Ch. 1, 1986 

Mont. Spec. Sess. 49th Leg., a 1-aw which creates civil 

liability for injuries involving alcohol consumption. That 

law states: 

Section 1. Civil liability - for injuries involving 

alcohol consumption. (1) The purpose of this 

section is to set statutory criteria governing the 

liability of a person or entity that furnishes an 

alcoholic beverage for injury or damage arising 

from an event involving the person who consumed the 

beverage. 

(2) A person or entity furnishing an alcoholic 

beverage may not be found liable for injury or 

damage arising from an event involving the consumer 

wholly or pa.rtially on the basis of a. provision or 

a violation of a provision of Title 16 of the 

Montana Code Annotated. 

(3) Furnishing a. person with an alcoholic beverage 

is not a cause of, or grounds for finding the 

furnishing person or entity liable for, injury or 

damage wholly or partly arising from an event 

involving the person who consumed the beverage 

unless: 

(a) the consumer was under the legal drinking age 

and the furnishing person knew that the consumer 

was under age or did not make a reasonable attempt 

to determine the consumer's age; 

(b) the consumer was visibly intoxicated; or 

(c) the furnishing person forced or coerced the 

consumption or told the consumer that the beverage 

contained no alcohol. 
Section 2. Effective date. This act is effective 

on passage and approval. 

The law was approved on April 4, 1986. The first issue we 

face is whether Ch. 1, 1986 Mont. Spec. Sess. 49th Leg. 

applies retroactively to Jevning's cause of action which 

accrued October 15, 1983. 

The Montana rule concerning retroactivity is set forth 

in § 1-2-109, MCA, as follows: "No law contained in any of 

the statutes of Montana is retroactive unless expressly so 

declared." We have held that this statute means the intent 

of the legislature to make a statute retroactive must be 

determined from the statute and no other source. Penrod v. 

Hoskinson, MD (1976), 170 Mont. 277, 281, 552 P.2d 325, 327; 

Dunham v. Southside National Bank of Missoula (1976), 169 

Mont. 466, 475, 548 P.2d 1383, 1386. We find nothing in Ch. 

1, 1986 Mont. Spec. Sess. 49th Leg. which indicates an intent 

that the law be applied retroactively. Indeed, the statute 

is declared to be effective on passage and approval. The 

statute was approved on April 4, 1986. We hold that Ch. 1, 

1986 Mont. Spec. Sess. 49th Leg. is not to be applied 

retroactively. 

Next, Jevning raises the issue of whether she has a 

cognizable claim for relief against the tavern owners. 

Jevning contends she should be allowed to go forward with her 

claim for relief under Nehri-nq and Bissett on the grounds 

that a violation of 5 16-3-301(2) (b), MCA, is evidence of 

negligence regardless of whether the intoxicated person is a 

minor, as in Bissett, or an adult, as here. She argues that 

under Bissett, whether an intoxicated person is a minor or an 

adult, their negligence as compared to the tavern owner's 

negligence is a question the jury should determine. Further, 
she asserts that under the new law passed by the 1986 Special 

Session, the negligence of the adult patron as compared to 

the negligence of the tavern owner is a jury question. She 

argues it would. be unfair to refuse to allow the adult patron 

in this case the opportunity to present and meet his burden 

of proof. 

Skyline Bar, on the other hand claims this case is 

distinguishable from Nehring, which involved an innocent 

third party injured by the bar patron, and Bissett, which 

involved a minor. Skyline further contends that the actions 

of Jevning in consuming alcoholic beverages, then driving a 

motor vehicle while intoxicated should be construed by this 

Court as willful and wanton conduct which, as a matter of 

law, must be the primary cause of the subsequent car 

accident. We decline to so rule for two reasons. 

The issue of willful and wanton conduct is not properly 

before this Court. The District Court granted Skyline's Rule 

12 (c) motion for judgment on the pleadings. The only record 

before this Court is the complaint and the answer. For 

purposes of a Rule 12(c) motion for judgment on the 

pleadings, we must accept the allega.tions in the complaint as 

true and we cannot look to matters outside the pleadings. 2A 

Moore's Federal Practice S 12.15; Kinion v. Design Systems, 

Inc. (1982), 197 Mont. 177, 641 P.2d 472; Mathews v. Glacier 

General Assurance Co. (1979), 184 Mont. 368, 603 P.2d 232. 

In this case, Skyline pled two affirmative defenses: One, 

that the damages were a direct and proximate result of 

decedent's own negligence and thus any judgment should be 

denied or proportionately reduced; and two, that Jevning's 

complaint failed to state a claim for relief on which relief 

can be granted. Thus the issue of willful and wanton conduct 
by Jevning is not before us on the pleadings and cannot be 

considered in a motion for judgment on the pleadings. 

Even if willful and wanton conduct had been alleged. in 

the pleadings, we could not rule as a matter of law that 

driving a motor vehicle while intoxicated is willful and 

wanton conduct absent any factual allegations as to the cause 

of the accident. 

We hold, therefore, that the District Court erred in 

granting Skyline's motion for judgment on the pleadings. 

Jevning's complaint alleging negligence against Skyline for 

violation of 5 16-3-301(2) (b), MCA, and 5 16-6-304(1), MCA, 

states a claim for relief. 

We vacate the decision of the District Court and remand 

for further proceedings. 

We Concur: A 
Mr. Justice Frank B. Morrison specially concurs with the 

majority opinion as follows: 

I concur in the result. In Bissett v. D.M.1, Inc. 

(Mont. 1986), 717 P.2d 545, 43 St.Rep. 252, I filed a dissent 

stating that I thought an intoxicated driver should be barred 

in a suit against the tavern based upon the fact the driver 

would necessarily be more than fifty percent responsible for 

his or her injuries. 

I still adhere to the concept I espoused in Bissett but 

I join in this result because the legislature, after we 

rendered the Bissett decision, enacted a statute governing 

liability which did not exempt the driver from its purview. 

In other words, the statute enacted by the legislature 

permits the driver or any other person to proceed with 

litigation against the tavern upon showing that the defendant 

knew that the person was intoxicated at the time that person 

was served alcoholic beverages. Since the legislature has 

spoken since our Bissett decision, and has not exempted the 

intoxicated person from those persons who are permitted to 

recover, I find myself in a position where I must concur in 

allowing this case to go forward although I feel it to be 

poor public policy.