"Dramshop" Liability Extended Beyond Liquor Providers
September, 2005
by Edward M. Kay and Melinda S. Kollross
In West v. East Tennessee Pioneer Oil Co., 2005 WL 1981883 (Tenn. 2005), the Tennessee Supreme Court held that a convenience store owes a duty of care to persons on roadways not to sell gasoline to a clearly intoxicated motorist and not to assist the motorist in pumping gas, and may also be held liable for ensuing motor vehicle accidents on a “negligent entrustment” theory based on its sale of gas.
Facts
Defendant operated an Exxon convenience store/gas station on a highway. Tarver entered the convenience store one evening looking to purchase beer. The clerk refused because Tarver appeared intoxicated: he smelled of beer and staggered as he walked. After being denied beer, Tarver laid three dollars on the counter, said “we need gas” and then turned to leave. A customer opened the door for Tarver, who staggered out of the store and back toward the gas pump where his car was parked.
A few moments later an alarm beeped inside the store, alerting the clerk that someone was attempting to activate the gas pumps outside. The clerk asked two other off-duty employees (“Drinnon” and “Armani”), then in the store, to go see what was happening. Drinnon and Armani aided Tarver, who could not push the correct button to activate the pump. Drinnon could tell Tarver had been drinking but was not fully aware of the degree of Tarver’s intoxication until after activating the pump. Dinnon pushed the correct button and the clerk then activated the pump from inside the store. Tarver operated the nozzle himself, obtaining the gas without further assistance. After pumping three dollars worth, Tarver got back into his vehicle and--without turning on his headlights--pulled out into the wrong lane of traffic on the highway, traveling southbound in the northbound lane. The clerk first learned that Tarver was driving at this time; she earlier believed Tarver had been accompanied by another person and was not driving himself.
Tarver traveled 2.8 miles before striking plaintiffs’ vehicle head-on. Plaintiffs sustained serious injuries. Plaintiffs’ expert examined the fuel tank of Tarver’s vehicle and determined that at the time Tarver stopped at defendant’s store his vehicle contained only enough fuel to travel another 1.82 miles. Without the three dollars worth of gas purchased from defendant, Tarver would have run out of gas before reaching the accident scene.
Plaintiffs sued defendant alleging its employees were negligent in selling gas to the visibly intoxicated Tarver and assisting him in pumping it into his vehicle. Plaintiffs contended it was reasonably foreseeable that these actions would result in an automobile accident. Plaintiffs also contended that furnishing gasoline to an intoxicated driver constituted negligent entrustment.
Analysis
Employing a balancing approach to assess whether defendant's conduct created an unreasonable risk of harm to plaintiffs, thus giving rise to a duty to act with due care, the Tennessee Supreme Court rejected defendant’s assertion that it owed no duty of care absent a “special relationship” obligating defendant to control the actions of a customer. The Court explained that plaintiffs’ claims “are predicated on the defendant’s employees’ affirmative acts in contributing to the creation of a foreseeable and unreasonable risk of harm, i.e., providing mobility to a drunk driver which he otherwise would not have had” -- thereby creating a risk to persons on the roadways as it is “common knowledge that drunk driving directly results in accidents, injuries, and deaths.”
The Court noted that a safer alternative was readily available and easily feasible--simply refusing to sell gas to an obviously intoxicated driver. According to the Court, “all reasonable persons recognize that refraining from selling gasoline to or assisting intoxicated persons in pumping it into their vehicles will lead to safer roadways.”
The Court looked to temper its holding by stressing that because “[f]oreseeability is the test of negligence,” the convenience store employee “must know that the individual is intoxicated and that the individual is the driver of the vehicle before a duty arises.” This is a question of fact for a jury. The Court further added that its holding does not impose a duty on convenience store employees “to physically restrain or otherwise prevent intoxicated persons from driving” and did not opine whether proximate cause could ultimately be established on the evidence before it.
Impact of West
Despite these precautionary statements, West clearly expands the scope of traditional “dramshop” liability by imposing a duty of care on non-alcohol providers with respect to intoxicated persons. Although West involved the sale of gasoline, the same analysis employed by the Tennessee Supreme Court here could be used to impose liability for alcohol-related accidents on any number of defendants who might in some way enable the intoxicated person to come into contact with the injury plaintiff.•
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