Michael Boyle v. ASAP Energy, Inc., et al.

Arapaho, Oklahoma personal injury negligence lawyer represented the Plaintiff.

¶ 1 Plaintiffs brought an action in the District Court for Custer County and claimed a convenience store negligently and recklessly sold low-point beer to a noticeably intoxicated person who injured plaintiffs in a vehicle collision several hours later. Defendant filed a motion for summary judgment which was granted by the trial court.1 We reverse the judgment of the District Court.





¶ 2 Two issues are raised in this appeal. First, does Oklahoma jurisprudence recognize a cause of action against a commercial vendor of alcohol who sells alcohol to a noticeably intoxicated adult for consumption off of the premises when the sale results in an injury to an innocent third party? We hold Oklahoma does recognize this cause of action. Second, were the facts submitted during the process for summary judgment sufficient to show a controverted issue of fact or a difference in inferences sufficient to reverse the trial court's summary judgment? We answer this question also in the affirmative.



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¶ 13 At approximately 11:00 p.m. and five to six hours after the Fast Lane sale, Carothers 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. Haas was driving the other vehicle, allegedly a "Take Out Taxi," a sober ride taxi service for Elk City, Oklahoma, and both Crain and Keeves were passengers. Haas was giving Keeves a ride from her home to her workplace when the collision occurred.



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¶ 22 In Brigance v. Velvet Dove Restaurant ,15 this Court 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."16 In Tomlinson v. Love's Country Stores, Inc. ,17 we noted other states "have chosen to extend the common law liability for the illegal sale by vendors of alcoholic beverages to minors for consumption off the premises of the vendor."18 We reaffirmed Tomlinson's place in Oklahoma jurisprudence one year later in Mansfield v. Circle K Corporation :19 "In Tomlinson , ... we found that commercial vendors have a duty not to sell beer to a person under the age of twenty-one ... regardless of whether consumption was on- or off-the-premises of the vendor."20...





¶ 23 In Tomlinson , we stated the elements of negligence are: (1) the existence of a duty on the part of a defendant to protect the plaintiff from injury; (2) a violation of that duty; and (3) injury proximately resulting from the violation.21 We noted that Brigance had found a duty was imposed: (1) by statute prohibiting a vendor from selling to noticeably intoxicated persons and; (2) by common law principles requiring a vendor to exercise reasonable care in selling or furnishing liquor to persons who by previous intoxication may lack full capacity of self-control to operate a motor vehicle and who may subsequently injure a third party.22...



¶ 24 In our 1991 opinion, Ohio Cas. Ins. Co. v. Todd ,24 we noted the statutory duty of a commercial vendor of alcohol arising from 37 O.S. 537 not to "sell, deliver or knowingly furnish alcoholic beverages to an intoxicated person."25 Violation of a statutory duty by a commercial vendor of alcohol was again noted in 1993 as a basis for a Brigance action in Tomlinson v. Love's Country Stores, Inc. , supra . In both Mansfield v. Circle K. Corp. , supra , (1994) involving a minor's off premises consumption and McGee v. Alexander , supra , (2001) involving breach of the vendor's statutory duty we discussed negligence per se arising from a violation of a statute ( 37 O.S. 247 ) and in the context of a Brigance cause of action: "To establish negligence per se on the basis of a statutory violation the party must establish that: 1) the injury was caused by the violation; 2) the injury was of a type intended to be prevented by the statute; and 3) the injured party was of the class meant to be protected by the statute."26...





¶ 25 In Brigance we stated: "We also note that a breach of duty for which we impose civil liability by this opinion constitutes a public offense under 37 O.S.Supp.1985 537.7," a statute which provided a vendor should not knowingly furnish alcoholic beverages to an intoxicated person, and a violation thereof could result in criminal liability. Brigance , 725 P.2d at 304. In a subsequent case, Ohio Casualty Insurance Co. v. Todd ,27 we quoted from Brigance and explained that the duty element to the civil cause of action did not arise exclusively from the duty created by statute.



"[W]e find the commercial vendor for on the premises consumption is under a duty, imposed both by statute and common law principles , to exercise reasonable care in selling or furnishing liquor to persons who by previous intoxication may lack full capacity of self-control to operate a motor vehicle and who may subsequently injure a third party."



Ohio Casualty , 813 P.2d at 511, quoting Brigance , 725 P.2d at 303 (emphasis added).



[408 P.3d 192]



Again, we noted the dual sources for the duty element for the civil cause of action.



In Brigance , however, we recognized that the concept of duty is one of public policy and is "subject to the changing attitudes and needs of society." ... We must now decide whether public concerns and changing attitudes require this duty to be extended ... [to the party in the civil action].



Ohio Casualty , 813 P.2d at 511 (emphasis added, material omitted and added).



In Ohio Casualty the Court examined the criminal statute to determine the expressed legislative public policy and then the Court determined whether the vendor liability in a criminal action was a proper yardstick for measuring public policy and vendor liability for a civil action.



¶ 26 In Brigance the Court did not equate the elements for criminal statutory liability with the elements for a civil dram shop negligence action. It is certainly correct that in Brigance and subsequent opinions courts have looked to the nature of the statutory criminal liability, but not necessarily as a major premise to be mechanistically inserted into a categorical deductive syllogism for the purpose of concluding whether civil liability exists. Of course, a partial exception to this approach occurred in McGee v. Alexander , 2001 OK 78, 37 P.3d 800, where we discussed when the elements required for a violation of statute would rise to the level of negligence per se; and we concluded that because the statute did not attach criminal liability to one of the parties an element for negligence per se was missing and the party was not liable in a civil action.28



¶ 27 Brigance involved consumption of alcohol on the premises of the commercial vendor. We noted this distinction to be insufficient to insulate a vendor from liability when selling to a minor, and noted the statutory duty in 37 O.S.1991 241 to not sell beer to a minor regardless where the consumption occurred. We focused on the statute showing the existence of a duty with its underlying public policy.



¶ 28 We explained in McGee v. Alexander29 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.30 We relied on our opinions in Tomlinson and Busby .



In Tomlinson v. Love's Country Stores, Inc. , 1993 OK 83, 854 P.2d 910, 912, we acknowledged the profit potential for liquor vendors as one of the driving reasons for imposing dram shop liability against the commercial vendor of alcohol: "The Legislature has placed on every vendor who holds a license to furnish alcoholic beverages and a concomitant right of profit from its sale the responsibility to refrain from supplying those beverages to minors or to intoxicated persons." This Court made a similar acknowledgment in Busby v. Quail Creek Golf and Country Club , 1994 OK 63, 885 P.2d 1326, 1331, "[t]he public regulates and licenses commercial vendors to sell and distribute alcohol for profit. The public has a right to demand that a commercial vendor act more prudently and with greater duty towards minors than is asked of a private person who hosts a party."



McGee , 2001 OK 78, ¶ 13, 37 P.3d at 804.



In McGee , we explained 37 O.S.Supp.1996 247 was one basis for establishing a duty and liability for a commercial vendor furnishing low-point beer in violation of that duty.31



No holder of a retail license or permit to sell low-point beer, or an employee or agent of a holder of such a license or permit, shall knowingly, willfully and wantonly sell, deliver or furnish low-point beer to an intoxicated person. Any person violating the provisions of this section shall be



[408 P.3d 193]



guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for a term of not more than six (6) months, or by both such fine and imprisonment. Such violation shall be additional grounds for revocation of any license or permit for the sale of low-point beer as and in the manner provided by law.



Section 247 was in effect on in May 2012 when the sale of the alcohol to Carothers occurred. Fast Lane has a statutory duty not to sell low-point beer to an intoxicated person. Fast Lane also has a negligence-based duty not to sell low-point beer to an intoxicated person based upon the public policy recognized by this Court in many of its opinions.

Summary judgment in favor of Defendants.



Reversed.