No. 85-586 IN THE SUPREME COURT OF THE STATEOF MONTANA 1986

SHARONL. JEVNING, individually and as Personal Representative of the Estate of R.ichardL. Jevning, Deceased, Plaintiffand Appellant,

SKYLINEBAR, Its Agents, Serva.ntsand Employees, Defendants and Respondents.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable ThomasMcKittrick,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: 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: 

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ClerkMr. JusticeWilliam 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 judgmenton thepleadings. We vacate and remand. There are two issues on appeal. First, is Ch. 1, 1986 Mont. Spec. Sess. 49th Leg. as approved and adopted onApril 4,1986 retroactively applicableto 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 Jevningpurchased and consumed alcoholic beverages at the Skyline Ba.r near Great Falls. At a-bout2:30 a.m., Richard Jevning's pickup left the frontage road south of Grea.tFalls 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 injuriesand death. Skyline Bar answered the complaint and set forth two affirmative defenses. First, the injuries were the directand 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 onwhich relief could be granted. TheDistrict Court granted.SkylineBar's motion for judgment on the pleadings, relying on Runge v. Watts (1979)

## , 180 Mont. 91, 589 P.2d 145. The DistrictCourt stated, "The current state of Montana law does not recognize common law dram shop liability against an alcoholvendor." Since that time, this Court has handed down theNehring

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 theman 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 furtherproceedings. InNehring,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 alcoholicbeverage 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 ownerof liability fornegligence." Nehrinq, 712P.2dat 1335, 43 St.Rep. at 99. In Bissettv. DMI, Inc., we held that a tavern owner who serves an intoxicated minor could be held liable for injuries sustained by thatminor 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 

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Since our decisions in Nehring and Bissett, theMontana Legislature met in a special session and passed Ch. 1, 1986 Mont. Spec. Sess. 49th Leg., a 1-awwhich 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 froman event involving the personwho consumed the beverage.

(2) A person or entity furnishing an alcoholic beverage may not be found liable for injury or damagearising froman event involving the consumer wholly or pa.rtiallyon thebasis of a.provision or a violation of a provision of Title 16 of the Montana CodeAnnotated.

(3) Furnishing a. person with analcoholic 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 consumerwas under the legal drinking age and the furnishing person knew that the consumer was under age or did notmake a reasonable attempt to determine the consumer's age;

(b) the consumerwasvisibly intoxicated; or (c) the furnishing person forced or coerced the consumption or told the consumer that thebeverage contained no alcohol.Section 2. Effective date. This act is effective onpassage 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), 170Mont. 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, 1986Mont. Spec. Sess. 49thLeg. which indicatesan intent that the law be applied retroactively. Indeed,the statute is declared to be effective on passage and approval. The statutewas 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 shouldbe allowed to go forwardwith her claim for relief under Nehri-nqand 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 isa minor or an adult, their negligence as compared to the tavern owner's negligence is a question the jury should determine. Further,sheasserts thatunder thenew lawpassed 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 itwould.be unfair to refuse to allow the adultpatron in this case the opportunity to present and meet his burden ofproof. 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 isnotproperly before thisCourt. The District Courtgranted 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,wemust accept the allega.tionsin the complaint as true andwe cannot look tomatters outside thepleadings. 2A Moore's Federal Practice S 12.15; Kinion v. Design Systems, Inc. (1982), 197Mont. 177, 641P.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 onwhich relief can be granted. Thus the issue ofwillful andwanton conductby Jevning is not before us on the pleadings and cannot be considered in a motion for judgmenton thepleadings. 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 absentany factualallegationsas 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 DistrictCourt and remand for furtherproceedings.

We Concur: AMr. Justice Frank B. Morrison specially concurs with the majority opinionas 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 Ithoughtan intoxicateddriver should be barred in a suit against the tavern based upon the fact the driver would necessarily be more than fiftypercent responsible for his orher injuries. I still adhere to the concept Iespoused 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 tavernupon showingthat the defendant knew that thepersonwas 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.