APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT UNION COUNTY, SOUTH DAKOTA HONORABLE STEVEN R. JENSEN Judge.
The opinion of the court was delivered by: Konenkamp, Justice
[¶1.] An underage employee, who had unlimited access to his employer's alcoholic beverages, drank to intoxication while at work. After his shift ended, the employee drove his vehicle off the premises and struck the plaintiff, who was a passenger on a motorcycle. She brought suit against the employee and the employer. As to the employer, the plaintiff alleged negligence per se, based on a violation of SDCL 35-4-79, and common law negligence for failure to exercise ordinary care in the hiring and supervision of the employee. The employer moved for summary judgment, asserting that it owed no duty to the plaintiff. The circuit court agreed, and plaintiff appeals. Because it was foreseeable that a member of the general public could be injured when the employer provided an employee, who was below the drinking age, unsupervised and unrestricted access to alcoholic beverages, we conclude that the employer owed a duty to the plaintiff.
[¶2.] On August 16, 2003, Dean J. Curry, age 20, an employee of Park Jefferson Speedway, Inc., left work an hour after his shift ended. It was 12:45 a.m. Curry drove around the Speedway racetrack a couple times in his pickup, cut through a ditch, and entered a road bordering the Speedway's property. He was drunk, speeding, and driving on the wrong side of the road. Not seeing a northbound motorcycle driven by Chris Mollet, on which Catherine McGuire was a passenger, Curry collided with the motorcycle. McGuire was seriously injured.
[¶3.] McGuire brought suit against the Speedway and Curry.*fn1 She alleged that Curry was negligent in the operation of his vehicle. As against the Speedway, McGuire claimed that it negligently hired, retained, and supervised Curry, was negligent per se based on SDCL 35-4-79, and was liable based on the theory of respondeat superior.*fn2 Curry was underage for consuming alcoholic beverages. Nonetheless, the Speedway had hired him as a "runner" to deliver alcohol and other supplies to its concession stands and bars.
[¶4.] After hiring Curry as a runner, the Speedway gave him a key to its alcohol storage facility. The Speedway did nothing to monitor Curry's access to, and possible pilfering and consumption of, the company's alcohol. Nor did it check the amount of alcohol sold or used on any given night. Moreover, the Speedway was unaware when it hired Curry that he had an extended history of substance abuse. With his unmonitored access, Curry would later admit that he drank every night from the beginning of his shift until the end. On the evening of the accident, Curry had two beers, four vodka drinks, two whiskey and cokes, and a rum drink. After his shift, while still in the Speedway's parking lot, Curry drank a 32-ounce beer.
[¶5.] The circuit court granted the Speedway's motion for summary judgment concluding that the Speedway owed no duty to McGuire under theories of negligent hiring, retention, and supervision.*fn3 The court based its conclusion on the fact that the accident happened off the Speedway's property and not with any Speedway equipment. The court also declined to find a duty based on McGuire's claim of negligent hiring and training because Curry's job did not place him in contact with the general public. The court rejected McGuire's argument that SDCL 35-4-79 created a duty on the part of the Speedway because the statute was designed to protect the underaged and not the public at large. Finally, the court declined to find that the Speedway voluntarily assumed a duty to protect McGuire by adopting a no drinking policy at work.
[¶6.] McGuire appeals asserting that the court erred when it granted the Speedway's motion for summary judgment on the grounds that it owed no duty to McGuire on her claims of negligent hiring and supervision, negligence per se under SDCL 35-4-79, and assumption of an affirmative duty.*fn4
[¶7.] Summary judgment is warranted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact[.]" SDCL 15-6-56(c). Summary judgment is usually inappropriate in a negligence case, except when no duty exists as a matter of law. Bordeaux v. Shannon County Schools, 2005 SD 117, ¶11, 707 NW2d 123, 126 (citation omitted). We review de novo a circuit court's conclusion that the defendant owed no duty to the plaintiff. Id.
[¶8.] McGuire argues that both SDCL 35-4-79 and the common law created a legal duty on the Speedway to supervise Curry to prevent him from having unmonitored access to alcohol and becoming intoxicated on the job. According to McGuire, the Speedway violated SDCL 35-4-79, which prohibits an on-sale licensee from allowing underage persons to consume alcohol on the premises. This violation, McGuire contends, constitutes negligence per se. She also asserts that, because the Speedway instituted a no-drinking policy for underage employees, the Speedway undertook an affirmative duty to protect the general public from its employees who drink at work. Finally, McGuire contends that it was foreseeable to the Speedway that negligently allowing Curry unmonitored access to alcohol would allow him to consume these beverages, become intoxicated, and cause injury to members of the general public.
[¶9.] Absent legislative preemption, courts decide the existence of a legal duty because it is "'entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law. . . .'" Tipton v. Town of Tabor, 1997 SD 96, ¶11, 567 NW2d 351, 357 (Tipton II ) (quoting W. Page Keeton, et al. , Prosser & Keeton on the Law of Torts § 37, at 236 (5thed 1984)). When a duty is alleged based on the common law, its existence depends on the foreseeability of injury. Luke v. Deal, 2005 SD 6, ¶19, 692 NW2d 165, 170 (quoting Poelstra v. Basin Elec. Power ...