Oklahoma Bar Journal
Dilly, Dilly and Liability, Really
The Expansion of Dram-Shop Liability to Off-Premises Consumption
By Jake Pipinich
On Oct. 24, 2017, the Oklahoma Supreme Court decided Boyle v. ASAP Energy, Inc.1 and held that “Oklahoma recognizes a cause of action when a commercial vendor of alcohol sells alcohol to a noticeably intoxicated person for consumption off the premises…”2 This decision significantly broadened the traditional rule for dram-shop liability first established in Brigance v. Velvet Dove Restaurant3 which held that “one who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person.”4
This change in the law could have far reaching and significant implications for owners or operators of businesses that sell alcoholic beverages for off-premises consumption. Such businesses are now potentially liable for injuries/damages to third persons who are injured post-sale. Alternatively, even absent liability for such injuries, dispositive motions, such as motions for summary judgment, will be less likely to be successful, causing such vendors significant additional exposure to litigation expense for claims that previously would have been resolved via either a motion for summary judgment or motion to dismiss.
DRAM-SHOP LIABILITY BEFORE BOYLE V. ASAP ENERGY
“At common law a tavern owner who furnishes alcoholic beverages to another is not civilly liable for a third person’s injuries that are caused by the acts of an intoxicated patron.”5
Such rule is principally based upon concepts of causation that, as a matter of law, it is not the sale of liquor by the tavern owner, but the voluntary consumption by the intoxicated person, which is the proximate cause of resulting injuries, so that the tavern owner is therefore not liable for negligence in selling liquor.6
In 1959, the Oklahoma Legislature enacted the Oklahoma Alcoholic Beverage Control Act,7 which repealed earlier provisions pertaining to dram-shop liability8 and laws, or parts of laws, that conflicted with the act.9 The new statute10 made it illegal to “[s]ell, deliver or knowingly furnish alcoholic beverages to an intoxicated person.”11 In Brigance, the Oklahoma Supreme Court determined that, in light of the language of §537, “the application of the old common law rule of a tavern owner’s nonliability in today’s automotive society is unrealistic, inconstant with modern tort theories and is a complete anachronism within today’s society.”12 In combining the general duty of reasonable care and the criminal statute, the Oklahoma Supreme Court abrogated the traditional rule and created a cause of action for dram-shop liability against a vendor for on-premises consumption.
After Brigance, the Oklahoma Supreme Court decided Tomlinson v. Love’s Country Stores, Inc.,13 where liability was allowed to potentially attach to off-premises sales where the sale was to a person under 21 years old in violation of Oklahoma law.14 Important to the Tomlinson case was the fact that the petition alleged defendant “knew that the minors intended to drink the beer while driving or riding in a motor vehicle.”15 Approximately one year later, the Oklahoma Supreme Court decided Mansfield v. Circle K. Corp.16 In Mansfield, the court held “[t]he statutory proscription against the sale of beer to a minor is not limited to on-the-premises consumption.”17 Thus, the issue of sales to minors for off-premises consumption appeared to be settled law by 1994. However, the question remained undecided whether liability could attach to sales to an allegedly visibly intoxicated adult for off-premises consumption. In Boyle v. ASAP Energy, Inc., the Oklahoma Supreme Court appears to have provided the response to that question.
HOW BOYLE CHANGED THE LAW
In Boyle, it was alleged that the defendant “consumed alcohol and caused a vehicular homicide and permanent injuries to two additional people [having] started drinking alcohol in the morning, and between 8:30 a.m. and 5:00 p.m. [having] consumed 18-21 beers, 3-4 shots of vodka, and 2 ‘sips of moonshine.’”18 Apparently the defendant had drank much of the day at a golf tournament and later “drove himself to a Fast Lane convenience store in Clinton at approximately 5:17 p.m., and with a credit card bought a 9-pack of low-point Miller Lite beer.”19 Then at “approximately 11:00 p.m. and five to six hours after the Fast Lane sale, [defendant] was driving his vehicle, a pickup truck, and ran a four-way stop at a high rate of speed and collided with another vehicle resulting in the death of Pamela Crain and allegedly permanently injuring Ashley Haas and Shannon Keeves.”20 “Empty beer cans, allegedly Miller Lite cans, were observed on the roadway near [defendant’s] truck at the scene of the collision.”21 “[Defendant’s] blood was drawn at approximately 11:45 p.m., and he had a blood alcohol content of 0.29g% (0.29 gm/100 ml).”22
There was some ambiguity as to whether proper training or implementation of training had been provided to employees of Fast Lane relating to the sale of alcohol. “Plaintiffs’ expert witness, a toxicologist, concluded 1) [Defendant’s] blood alcohol content was 0.33g% (0.33 gm/100 ml) at the time of the sale and 2) [Defendant] showed gross [visible] signs of intoxication at the time of the sale.”23 The clerk who sold the beer to the defendant at Fast Lane did not have an independent recollection of the transaction.
The Oklahoma Supreme Court began its analysis of the issue presented – namely whether to extend dram-shop liability to vendors of alcohol for off-premises consumption for customers over the age of majority – with a review of a case from outside Oklahoma. In Flores v. Exprezit! Stores 98-Georgia, LLC., the Georgia Supreme Court determined “[i]f a convenience store sells alcohol to such a customer, it is foreseeable that the customer will drive while intoxicated and injure an innocent third party.”24 With that interpretation, the Oklahoma Supreme Court went through the analysis it had applied in previous cases and determined that “vendor liability for selling alcohol to minors and intoxicated persons was derived from the statutory duties placed on vendors of alcohol and the sale of alcoholic beverages for profit.”25 In reversing the trial court’s grant of summary judgment, the Oklahoma Supreme Court reasoned, “[w]e do not view a Brigance action against Fast Lane as establishing a completely new liability in Oklahoma as argued by defendant. Again, Fast Lane had a statutory duty not to sell low-point beer to an intoxicated person pursuant to a statute.”26 “[T]aken together [these statutes and cases] serve as guides for a commercial vendor of alcohol easily predicting this Court’s holding that a statutory duty prohibiting sale to an intoxicated adult with its similar associated common law duty would be applied to an off-premises consumption.”27 “Thus, [w]e hold that Oklahoma recognizes a cause of action when a commercial vendor of alcohol sells alcohol to a noticeably intoxicated person for consumption off the premises.”28
While it is true that previous cases had allowed the potential for tort liability for the illegal sale of alcohol to a minor, the Boyle v. ASAP Energy, Inc. case is certainly an expansion of dram-shop type liability into sales to adults for off-premises consumption. Naturally, issues will emerge not only with the typical question of the appearance and demeanor of the patron – but now with the added question of whether the purchased alcohol was consumed, when it was consumed and its effect (if any) on the intoxication that caused the alleged accident.
It is of note that Justice Wyrick’s dissenting opinion also indicates that the relevant statutes at issue29 “only prohibit ‘knowingly’ or ‘knowingly, willfully and wantonly’ selling to an intoxicated person, a far narrower duty than the duty not to sell to those who are noticeably intoxicated.”30 In any event, this is at least somewhat uncharted territory for vendors and businesses on the business end of these transactions – especially in light of the recent proliferation of curbside delivery, self-checkout and home delivery services, all of which might be subject to this new rule and its potential consequences. Practitioners in this area should carefully familiarize themselves with this opinion and advise their clients (on either side of the case) about the holding in Boyle, its extension of the doctrine of dram-shop liability and its likely effect on current and anticipated lawsuits.
ABOUT THE AUTHOR
Jake Pipinich is an attorney with Pierce Couch Hendrickson Baysinger & Green LLP. Mr. Pipinich’s practice centers on defending companies and businesses against various tort or negligence type of claims.
1. 2017 OK 82, 408 P.3d 183.
2. Id. at 194-95 (¶33).
3. 1986 OK 41, 725 P.2d 300.
4. Id. at 304 (¶17).
5. Id. at 301 (¶8).
6. Id. (emphasis in original).
7. 37 O.S. §501, et seq.
8. 37 O.S. §§1-7 and 9-131.
9. Brigance, 725 P.2d at 301 (¶5).
10. 37 O.S. §537.
11. Id. at 304 (¶18).
12. Id. at 304 (¶15).
13. 1993 OK 83, 854 P.2d 910.
14. Id. at 912 (¶23).
15. Id. at 911.
16. 1994 OK 80, 877 P.2d 1130.
17. Id. at 1131 (¶16).
18. Boyle, 408 P. 3d at ¶8.
19. Id. at ¶10.
20. Id. at ¶13.
21. Id. at ¶14.
23. Id. at ¶18.
24. Flores v. Exprezit! Stores 98-Georgia, LLC., 713 S.E.2d 368, 371 (Ga. 2011).
25. Boyle 408 P.2d at ¶28.
26. Id. at ¶32.
28. Id. at ¶33.
29. 37 O.S. §§247 and 537.
30. Boyle, Wyrick, J., dissenting opinion at ¶7.
Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 7 (November 2018)