Before Ruiz and Reid, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Ruiz, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Ellen Segal Huvelle, Trial Judge)
(Argued March 18, 1998 Decided May 25, 2000 )
Opinion for the court by Associate Judge Ruiz.
Opinion concurring in part and dissenting in part by Senior Judge Kern at p. ___.
This case presents an issue of first impression: whether an intoxicated underage patron who sustains injury as a result of his intoxication can sue the restaurant-bar that served him liquor for common law negligence or negligence per se in violation of the standard set forth in D.C. Code § 25-121 (1996), which prohibits the sale of alcohol to, and the consumption of alcohol by, underage and intoxicated persons. We reverse the order granting summary judgment for the restaurant-bar because we conclude 1) that our opinion in Rong Yao Zhou v. Jennifer Mall Restaurant, Inc., 534 A.2d 1268 (D.C. 1987), appeal after remand and reversed and remanded on other grounds by, 699 A.2d 348 (D.C. 1997), and the principles we developed there, require us to extend liability in the case of an underage, intoxicated patron injured as a result of the tavern keeper's negligence; and 2) that assumption of risk is inapplicable in this context because an underage, intoxicated person is deemed incapable, as a matter of law, of relieving the tavern keeper of the duty which the statute imposes.
Construed in the light most favorable to the Jarretts, who opposed summary judgment, the record before us shows the following basic facts. *fn1 On September 16, 1993, Adam Jarrett, then a nineteen-year-old George Washington University ("GW") student, went to Winston's, a popular restaurant-bar owned by appellee, located at 3295 M Street, N.W. Earlier that night, at around 7:00 p.m., Adam and his friends had dinner at Friday's, a restaurant located in the vicinity of GW, where they attempted to buy alcohol, but Adam's fake identification was rejected. Before returning home, Adam and his roommate, Eric Kaufman, stopped at a friend's house shortly after 8:00 p.m., where Adam consumed anywhere from four to six cups of beer from a keg. From there, Adam continued to Winston's with a group of friends. It is not clear from the record whether Adam was allowed into Winston's with knowledge that he was an underage patron *fn2 or whether he used a fake identification card to gain admission. *fn3
At around ten o'clock that evening, when he caught up with Adam at Winston's, Kaufman observed that Adam had consumed at least three shots of alcohol and four or five bottles of beer in a period of less than one hour. Craig Fields, also a friend of Adam's, noticed that Adam was intoxicated when he arrived at Winston's and saw him consume two shots and a beer in a ten-to-fifteen minute period. According to Fields, when he arrived at Winston's Adam was "ridiculous[ly] drunk," "had slurred speech. His eyes were half shut. He was laughing and wobbling all around." Kaufman testified in his deposition that Adam was visibly drunk at the time he received "shots" from Winston's. Specifically, "his eyes were like swimming. He was kind of like slurring. He was definitely slurring his words."
Adam Jarrett left Winston's, alone, sometime after eleven o'clock in the evening. At approximately 11:47, he was struck by a car while he was walking in the southbound lanes of Rock Creek Parkway just south of the M Street overpass. Adam was rendered unconscious by the impact, was unresponsive at the scene of the accident, and died the following day. The toxicology report reflected that Adam's blood alcohol level at or near the time of the accident was 298 mg/dL for ethanol which is equivalent to the more familiar measure of .298 percent alcohol by weight. *fn4 The National Park Service Report stated that Adam was very intoxicated at the time of the accident and that his intoxication was a contributing factor in his death.
B. The Trial Court Proceedings.
Adam Jarrett's parents filed a wrongful death and survival action against appellee, Woodward Brothers, Inc., the owner of the restaurant (hereinafter "Winston's"), based on the theory that it illegally and negligently served Adam Jarrett, a nineteen-year-old, underage patron who was already intoxicated, excessive amounts of alcohol which resulted in his death. *fn5 Winston's moved for summary judgment, arguing that it was entitled to judgment because: 1) D.C. Code § 25-121 and District of Columbia case law do not support a claim for negligence per se or ordinary negligence by or on behalf of an intoxicated patron; and 2) Adam Jarrett was contributorily negligent as a matter of law. The Jarretts responded that § 25-121 supports claims for both negligence and negligence per se by a patron such as Adam and that Winston's cannot avail itself of the defenses of contributory negligence or assumption of the risk because § 25-121 is a safety statute intended to protect underage and intoxicated persons such as Adam. The trial court granted summary judgment to Winston's "on the grounds that plaintiff's decedent [Adam Jarrett] does not fall within the protected class that the statute was designed to protect, and even if decedent could invoke the protections of the statute, his voluntary intoxication would constitute reckless conduct, thereby constituting a bar to recovery."
The judge acknowledged that the issue is one of first impression in this jurisdiction and framed it as: "whether an intoxicated underage patron of a restaurant can sue a restaurant for common law negligence or negligence per se under [D.C. Code] § 25-121." Relying on our opinion in Rong Yao Zhou, and the order of Judge Patricia Wynn of the Superior Court of the District of Columbia in Gavins v. Willard Intercontinental Hotel, No. 93-CA-2569 (D.C. Super. Ct. Jan. 9, 1995), the trial court concluded that there is no cause of action that can be brought on behalf of the decedent *fn6 because 1) "there is no common law cause of action against a tavern owner" for injury resulting from negligently serving alcohol, and 2) "there is no statutory cause of action because an intoxicated minor is not a member of the class protected by § 25-121." Alternatively, it adopted the reasoning of the trial court in Gavins that the decedent would be barred as a matter of law by his own conduct from bringing suit under the exceptions of Martin v. George Hyman Constr. Co., 395 A.2d 63, 68-74 (D.C. 1978), permitting the defense of assumption of a statutorily-regulated risk. See Gavins, No. 93-CA-2569, order at 12-13.
On appeal, the Jarretts argue that § 25-121 sets the standard of care for this action because Adam is a member of the protected class and he suffered the type of harm the statute seeks to prevent.
When reviewing the trial court's grant of summary judgment, we apply the same standard as the trial court and conduct an independent review of the record. See Holland v. Hannan, 456 A.2d 807, 814 (D.C. 1983). We review the trial judge's conclusion de novo. See Seigel v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 745 A.2d 301, 303 (D.C. 2000). The moving party has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Wyman v. Roesner, 439 A.2d 516, 519 (D.C. 1981). In determining whether there is an issue of material fact, this court must view the record in the light most favorable to the non-moving party. See Holland, 456 A.2d at 815.
This appeal presents two issues of law for decision: 1) whether in this jurisdiction an intoxicated underage patron, or his or her parents, may sue a tavern keeper for common law negligence or negligence per se for violation of the standard established in D.C. Code § 25-121 (b); and 2) even if § 25-121 (b) establishes the standard of care toward such a claimant, whether the claimant's voluntary intoxication constitutes a bar to recovery. We answer the first inquiry in the affirmative, and the second in the negative.
We begin with the basic elements of a claim of negligence: the existence of a duty, violation of a standard of care, and injury resulting as a proximate cause of the violation. See Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624, 628 (D.C. 1997). At the heart of this case is whether the requisite duty and standard of care is supplied by D.C. ...