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New Oklahoma Supreme Court Opinion Dramatically Expands Legal Liability of Convenience Stores Related to Assessing the Intoxication Level of Customers Prior to Sale of Alcohol

Nov 1, 2017 - Court Decisions by

The Oklahoma Supreme Court has recently issued an opinion that will dramatically expand the potential liability of convenience stores (and other retail establishments) that sell alcohol to the public.  In that case, the Court concluded that a convenience store can be held liable when a noticeably intoxicated customer buys alcohol at the store, and then consumes that alcohol off-the premises, and then drives a vehicle and causes injury to a third person.  See Boyle v. ASAP Energy, Inc., 2017 OK 82, 2017 WL 4782999.  The third person who is injured by the customer’s “off-the-premises” intoxication now has a claim against the convenience store.

In Boyle, an individual consumed 14-16 beers at a golf tournament and a “sip of moonshine.”  He left the golf tournament at 2:00 p.m., and returned home at 3:20 p.m.  He then grilled chicken at home, and drank 4-5 beers, 3-4 shots of vodka and an additional sip of moonshine.  He went to the “Fast Lane” convenience store (the defendant in this case) at 5:17 p.m., and bought a 9 pack of low point beer and cigarettes.  He then returned home, and then left his house at approximately 9:00 p.m. to attend a party elsewhere.  He made it to the party, had another shot of vodka, and let around 11:00 p.m.  This was 5 hours after he purchased the beer at Fast Lane.  At that time, he ran a four-way stop at a high rate of speed and collided with another vehicle.  He killed one person, and injured two others.  He was heavily intoxicated at the time  — with a blood alcohol content of .29.

Fast Lane had a policy of not selling alcohol to noticeably intoxicated customers, but the employee did not recall the transaction involving the customer.  There was really no evidence in the case to substantiate that the tortfeasor was noticeably intoxicated at the time of the purchase of alcohol at Fast Lane, but the plaintiff’s toxicologist testified that his blood alcohol content was likely .33% at the time of the sale and that the customer would have shown gross visible signs of intoxication at that time.  The expert also deduced that he likely drank additional “beers” after the purchase (i.e., the ones he purchased at Fast Lane), which would have accounted for his blood alcohol content at the time of the accident.  But, there was no evidence that he actually consumed the Fast Lane beers.

As stated above, the Court recognized a cause of action under the circumstances of the case.  Oklahoma recognizes a cause of action against a commercial vendor who sells alcohol to a noticeably or visibly intoxicated adult for consumption off the premises.  Id. at ¶21.  The Court held that a convenience store will have an opportunity to observe how the customer arrived and the manner in which they are departing, and an opportunity to determine if they are noticeably intoxicated at the time.  Id. at ¶23.  If a convenience stores sells alcohol to such a customer, it is “foreseeable” that the customer will drive while intoxicated and injure an innocent third party.  Id.

The Court held that the plaintiff could produce facts from which a jury could determine that the tortfeasor was noticeably intoxicated at the time of the sale – the tortfeasor’s consumption of alcohol, his blood alcohol, and his conduct could lead to the conclusion that he was “noticeably intoxicated.”  Id. at ¶30.  The Court held that the mere service or sale of alcohol to an adult is insufficient to show a “breach of duty,” but that other evidence may create a fact question on this issue – such as, the admissions of the intoxicated driver, the “observational evidence” of the police officer after the service of the alcohol, or witness statements concerning the intoxicated driver.  The particular establishment’s own policies and procedures on determining “noticeable intoxication” are also relevant to that issue.

For those reasons, the Court reversed the summary judgment.

The opinion imposes dramatic new obligations on convenience stores.  As the dissenting opinion acknowledges, it will be difficult for convenience store clerks to assess the intoxication level of patrons, as they have not observed the customer’s previous consumption of alcohol and their interaction is often very brief.  Further, the causal chain between the sale of the alcohol to the customer and the ultimate harm to third persons will be difficult to isolate.  As the dissent points out:

And in the mine-run of cases, the seller’s culpability will not be apparent because, unlike the bartender, a convenience store clerk’s interaction with the customer will almost always be exceptionally brief, leaving the clerk poorly situated to make determinations about the customer’s state of inebriation. The clerk has not observed the customer’s consumption, does not know what alcohol the customer has consumed, and does not know how fast the customer consumed it. And because the law prohibits the customer from drinking the recently purchased alcohol at the store or anywhere else in public, or in a vehicle, the store has a reasonable expectation that the alcohol it sold will not be consumed until the customer has made it to a location where the alcohol can be safely and legally consumed. A sale for off-premises consumption thus fails to serve as an accurate marker of a seller’s contribution to the customer’s intoxication, and it makes for a liability trigger with little connection to the seller’s actual culpability for subsequent harms to third parties.

The dissent also outlines the difficulties imposed on business owners in Oklahoma to predict their obligations.  The dissent notes that a business is subject to tort liability if they make a false report of drunk driving, and is now also liable if they fail to take action to prevent an impaired individual from buying alcohol for off-the-premises consumption:

Together with today’s decision, our recent actions leave business owners adrift, caught between competing duties to ascertain who is drunk before selling them alcohol but never to report those they perceive to be driving drunk, lest they be wrong in that perception. In a society where we encourage those who “see something” to “say something,” and where we seek to protect the public by making those who hurt others pay for their actions, this liable-if-you-do-liable-if-you-don’t framework will do little to advance public safety and even less to ensure that truly culpable parties are held responsible for their negligent acts.