Page:Shannon v. Wilson.pdf/16

158   alcohol to minors can be a proximate cause because the consumption,  resulting intoxication, and injury-producing behavior is reasonably  foreseeable.

As we noted, supra, most states have rejected the rule that the sale of alcohol cannot be the proximate cause of subsequent injuries. Nearly every court that has recognized that liability may be imposed has predicated this upon the duty of a licensed vendor to refrain from selling alcohol to minors.

[5] In order to prove negligence, there must be a failure to exercise proper care in the performance of a legal duty which the defendant owed the plaintiff under the circumstances surrounding them. ''See generally, Bowie v. Missouri Pac. R.R. Co.,'' 262 Ark. 793, 561 S.W.2d 314 (1978). Duty is a concept which arises out of the recognition that relations between individuals may impose upon one a legal obligation for the other. See, § 42 at 244 (4th ed. 1971).

The existence of a duty to act with care when selling liquor to patrons can be found for an entity licensed to sell alcohol in this state in the affirmative requirements of statutes. The legislature has enacted statutes which regulate the liquor industry. Foremost, our legislature has declared that holding a license to sell alcoholic beverages is a privilege, not a right. Ark. Code Ann. § 3-3-218(a) (Repl. 1996). In regulating those who hold such licenses, the legislature enacted Ark. Code Ann. § 3-3-218(a), (b) (Repl. 1996) that provides that licensed seller of alcohol is to be held to "a high duty of care in the operation of the licensed establishment" and that "every holder of an alcoholic beverage permit to operate the business wherein alcoholic beverages are sold in a manner which is in the public interest, and does not endanger the public health, welfare, or safety." Additionally, the legislature has established a training program, the "Responsible Permittee Program" to "eliminate the sale of [alcohol] and consumption of [alcohol] by underaged persons; to reduce intoxication and to reduce accidents, injuries, and deaths in the state which are related to intoxication; and to encourage alcoholic beverage permit holders to be prudent in the sale and service of [alcohol]." Ark. Code Ann. § 3-4-803(a) (Repl. 1996).