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Smith v. Pena

decided: May 8, 1980.

STEPHEN W. SMITH AND CYNTHIA DODD A/K/A CYNTHIA SMITH, PLAINTIFF-APPELLANTS,
v.
ROBERT R. PENA AND THE UNITED STATES ARMY, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78-C-2263 -- Bernard M. Decker, Judge .

Before Swygert and Wood, Circuit Judges, and Ackerman, District Judge*fn* .

Author: Swygert

This appeal presents the question of whether one who seeks damages for personal injuries can invoke the Federal Tort Claims Act, 28 U.S.C. § 1346, by alleging negligence when, were he to sue in an Illinois court, his claim would be governed by an absolute liability statute. Stated differently for clarity, we must determine the combined effect of the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), imposing tort liability on federal employees who commit negligent acts for which a private person would be liable under state law, and the Illinois Dram Shop Act, Ill.Rev.Stat. ch. 43, § 135 (Supp.1979), imposing tort liability regardless of fault on a tavern owner who serves a person alcoholic beverages to the point of intoxication when that person while in an intoxicated state causes personal injury.

Plaintiffs brought this action against the United States Army, alleging that they were seriously injured in a car accident caused by the drunken driving of Army Sergeant Robert R. Pena who had been served liquor at an arsenal operated by the Army. Their complaint, brought under the Federal Tort Claims Act, alleges in the first count that Army employees negligently served alcoholic beverages to Pena which caused him to become intoxicated and that his intoxication caused the accident. In a second count, plaintiffs rely on the Illinois Dram Shop Act, alleging that the Army sold and served liquor to Pena and that as a result of consuming the liquor Pena became intoxicated, and while in a drunken condition he caused the accident. The Illinois Dram Shop Act does not require proof of negligence, and in the second count of their complaint plaintiffs do not allege negligence. In their brief plaintiffs state "that (under the FTCA) they are entitled to proceed on Count II under the Dram Shop Act if they are able to prove negligence on the part of the federal tavern keeper."

The district court dismissed both counts of the complaint for failure to state a claim upon which relief could be granted. The judge concluded that under Illinois law the Dram Shop Act is the exclusive remedy for acts within its coverage, so that no common law negligence claim (Count I) was possible. As to Count II, the court held that the FTCA cannot support a claim brought under the Dram Shop Act because the Dram Shop Act is a strict liability statute and the waiver of sovereign immunity under the FTCA does not extend to strict liability torts. The decision of the district court deprived plaintiffs of any claim against the Army.

We conclude that the Dram Shop Act does not deprive plaintiffs of a remedy within the jurisdictional coverage of the FTCA if they are able to meet the requirements of the Dram Shop Act and in addition prove that the Army employees were negligent according to Illinois law. We therefore vacate the dismissal of the complaint and remand to provide plaintiffs an opportunity to amend their second count to include an allegation of negligence.*fn1

I

Assuming the facts stated in the complaint to be true, Stephen and Cynthia Smith on January 27, 1978 were traveling on a public highway in a northern direction in an automobile driven by Stephen Smith when an automobile driven by Pena who was traveling in a southern direction, suddenly and without justification, crossed the center-median line and struck head on the vehicle in which plaintiffs were riding, causing serious personal injuries. Pena's unreasonable and unsafe manner of driving was directly caused by his excessive consumption of alcoholic beverages served him by Army employees at the Rock Island Arsenal, Rock Island, Illinois. At the time of the occurrence, the Army operated the facility at the Rock Island Arsenal which served alcoholic beverages to its patrons. Plaintiffs allege that the Army employees were grossly negligent in permitting Pena to consume an excess amount of alcoholic beverages. They further allege that these employees knew or should have known the excessive drinking habits of Pena and knew or should have known of his excessively inebriated condition and yet they permitted Pena to leave the arsenal driving an automobile.

II

The Federal Tort Claims Act, 28 U.S.C. § 1346(b), provides:

The interpretation of a statute must start with the language of the statute itself. Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979); Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 98 S. Ct. 2370, 57 L. Ed. 2d 239 (1978); Porter County Chapter of Izaak Walton League of America, Inc. v. Costle, 571 F.2d 359 (7th Cir.), cert. denied, 439 U.S. 834, 99 S. Ct. 115, 58 L. Ed. 2d 130 (1978). Moreover, a statute must be construed according to its ordinary meaning unless it can be said that Congress clearly did not intend it to have such meaning as determined from other parts of the statute or legislative history, or unless Congress could not have intended it to have such a meaning because it would render the statute unconstitutional. United States v. Marathon Pipe Line Co., 589 F.2d 1305 (7th Cir. 1978).

The plain language of the Federal Tort Claims Act, 28 U.S.C. § 1346(b), establishes a cause of action for personal injury caused by a negligent act of a Government employee if a private person would be liable under applicable state law. In this case, plaintiffs have alleged that negligent acts by employees of the Army caused their injuries. Further, there is a state law under which a private person would be liable in these circumstances. The Illinois Dram Shop Act, Ill.Rev.Stat. ch. 43, § 135 (Supp.1979) provides:

Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person.

It is clear that this provision imposes absolute (strict) liability.

The problem in this case lies in the fact that whereas the Federal Tort Claims Act requires a negligent act, the Illinois Dram Shop Act does not. The district court held that because the state statute is based on absolute liability rather than negligence, a claim cannot be stated under the federal act. It was the opinion of the trial judge that

(The) Dram Shop Act cannot support a claim under the FTCA because it is based on absolute liability, and the waiver of sovereign immunity does not extend to such cases, see Dalehite v. United States, ...


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