Tennessee Dramshop Law

Virginia's the Place to Drink and Drive

2009-10-26T16:55:00.003-04:00

The U. S. Supreme Court recently refused to hear a lower court ruling that threw out a Virginia DUI conviction based on a traffic stop after an anonymous tipster called police to rat on the drunk driver.

The police officer responding to the tip observed no conduct of the accused that would lead him to believe the tipster was correct. A mere anonymous tip is not enough to allow the police to pull over a suspected drunk driver. In essence, drunk drivers in Virginia get one free swerve before a law enforcement officer is justified in pulling them over.

In a written dissent on the question of accepting the case for review, Chief Jusitce John Roberts said "the dangerous consequences of this rule are unavoidable." Roberts added, "But the police should have every legitimate tool at their disposal for getting drunk drivers off the road. I would grant certiorari to determine if this is one of them."

For more on this see the copyrighted AP story at WATE.COM.

Virginia does not have a dram shop law.

Webinar - "One Too Many: Dram Shop & Host Liqour Liability"

2009-09-04T22:34:00.002-04:00

Available through the Tennessee Bar Association, this one hour program examines the potential liability that comes from the sale and service of alcoholic beverages under both Tennessee's Dram Shop law and under common law. Sellers and servers must know ‘how much is too much' to avoid alcohol-related injuries.

Tennessee: 6th in Teen Fatalities

2009-07-03T10:34:00.002-04:00

"A study of teen fatality rates by the insurance company Allstate showed that Tennessee ranked sixth in the nation for driving deaths and the Nashville region fourth among 50 metropolitan areas in the study." For more on the story, see WBIR.

While driver training is a key missing ingredient in Tennessee, I suspect cellphone usage, texting while driving, and underage consumption of alcohol also play a significant role in Tennessee's poor ranking.

The Tennessee General Assembly recently acted on two of these issues by prohibiting texting while driving and adding criminal penalties for those allowing underage consumption of alcohol on property under their control.

Dram Shop Act Applies to Third Parties - Not First Party Purchasers

2009-03-29T15:10:00.007-04:00

Since 1996 when the Tennessee Supreme Court pronounced in Worley v. Weigels that the common law in regard to the negligent sale of alcoholic beverages had been replaced with the Dram Shop Law, litigants have wondered whether first party purchasers of alcohol might recover under the act. Finally, they have their answer.

According to the Eastern Section Court of Appeals, the Tennessee Dram Shop law is applicable only to plaintiffs who were not the initial purchasers of alcoholic beverages - "first parties" as they are called in Montgomery v. Kali Orexi LLC.

"On this issue of first impression we hold that Tenn. Code Ann. §§ 57-
10-101 and 102 apply only to third parties and do not permit an action against a seller of an 'alcoholic beverage or beer' by or on behalf of the supplied party, i.e., a first party."

Since the Dram Shop Act does not address first parties, according to the Court of Appeals, its enactment leaves the law as to first parties as it existed before the Act’s enactment. The law preceding enactment of the Tennessee Dram Shop Act is found in Brookins v. Roundtable, Inc., 393 S.W. 2d 755 (1981).

"In Brookins, the Supreme Court stated, '[W]hether the sale of intoxicants is the proximate cause of subsequent injuries is essentially a question of foreseeability . . . .' 624 S.W.2d at 549 (adopting Mitchell v. Ketner, 54 Tenn. App. 656, 666, 393 S.W.2d 755, 759 (1964))."

Parents of College Students Beware: Drinking Games Prove Deadly

2008-07-08T09:41:00.003-04:00

This from the Associated Press:

WINONA, Minn. — On the morning after the house party on Johnson Street, Jenna Foellmi and several other twentysomethings lay sprawled on the beds and couches. When a friend reached over to wake her, Foellmi was cold to the touch.

The friend’s screams woke up the others still asleep in the house.

Foellmi, a 20-year-old biochemistry major at Winona State University, died of alcohol poisoning on Dec. 14, one day after she had finished her last exam of the semester. According to police reports, she had three beers during the day, then played beer pong — a drinking game — in the evening, and downed some vodka, too.

Foellmi’s death was tragic, but typical in many ways.

An Associated Press analysis of federal records found that 157 college-age people, 18 to 23, drank themselves to death from 1999 through 2005, the most recent year for which figures are available. The number of alcohol-poisoning deaths per year nearly doubled over that span, from 18 in 1999 to a peak of 35 in 2005, though the total went up and down from year to year and dipped as low as 14 in 2001.

“There have always been problems with young people and alcohol, but it just seems like they are a little more intense now than they used to be,” said Connie Gores, vice president for student life at Winona State. “The goal of a lot of them is just to get smashed.”

Over the seven-year span, 83 of the college-age victims were, like Foellmi, under the drinking age of 21.

A separate AP analysis of hundreds of news articles about alcohol-poisoning deaths in the past decade found that victims drank themselves well past the point of oblivion — with an average blood-alcohol level of 0.40 percent, or five times the legal limit for driving. In nearly every case, friends knew the victim was drunk and put him or her to bed to “sleep it off.”

“Her friends were with her. It’s not like they just left her alone,” said Jenna’s mother, Kate Foellmi. “She went to bed and she was snoring. She just didn’t wake up.”

Schools and communities have responded in a variety of ways, including programs to teach incoming freshmen the dangers of extreme drinking; designating professors to help students avoid overdoing it; and passing laws to discourage binge drinking.

Charges were filed in about 40 percent of the cases in which outcomes of criminal investigations were known — most often against fraternity members or others who obtained alcohol for someone underage. There were a few hazing charges. In most cases, plea bargains were reached and the penalties included fines, probation or community service. Jail time was rare.

The federal data showed deaths spiking on weekends — when young people are more likely to go out with the goal of getting drunk — and in December, when college students wrap up finals. Most of the dead were young men.

College students on average drink only a little more than adults in a typical week or month, said Scott Walters, an assistant professor of behavioral sciences at the University of Texas School of Public Health. But college students “tend to save the drinks up and drink them all at once.”

The federal figures do not indicate whether a victim was a student or not. But the 2006 National Survey on Drug Use and Health showed that adults ages 18 to 22 in college full-time are more likely to binge-drink than those not in school.
AP’s analysis of news articles found freshmen at greatest risk, with 11 of 18 freshmen deaths occurring during the first semester.

Walters said one reason is that freshmen are on their own for the first time and trying new things. Also, there is a mentality that “if you’re under 21 and someone’s got alcohol, you’ve got to drink it, because you never know when somebody’s going to have it again.”

One practice — drinking 21 shots on a 21st birthday — has proven especially lethal. Of the college-age deaths that made news, 11 people, including eight college students, died while celebrating their 21st birthdays.

“The 21st birthday we knew was coming. We didn’t know about the 21-shot thing,” said Cindy McCue, who lost her son Bradley, a junior at Michigan State University, in 1998 after he downed 24 drinks in less than two hours.

The McCue family started a nonprofit organization nearly 10 years ago called Be Responsible About Drinking, or B.R.A.D., to teach young people about the dangers. The foundation created birthday cards reminding those turning 21 to celebrate responsibly.

Is Tennessee's Dram Shop Law Meant to Protect Only Innocent Third Parties?

2007-09-25T21:58:00.000-04:00

An article appearing in Monday's Tennessean describes a sordid series of events ending in a single car collision and the death of the 20 year old driver who himself purchased and consumed alcoholic beverages from both a bowling alley and nightclub in Nashville.

Maynard, according to the lawsuit, began his evening drinking at the Donelson Strike & Spare bowling alley. A lawyer representing the bowling alley, Nashville attorney Richard Moore, said he was still investigating the case and would respond to the accusations in court.

Maynard left the bowling alley and went to the Red Iguana, a former downtown nightclub, and drank until 2:30 a.m., the complaint says.

Representatives from the Red Iguana could not be reached for comment.

Maynard then drove to a friend's house, realized that he'd left his cell phone at the bar, went to retrieve it and wrecked on Hermitage Avenue about 4:30 a.m.

Tennessee's alcohol seller liability law may provide a cause of action for this family if the sellers knew young Maynard was under age 21.

But, significantly, the young man's fault in consuming the alcohol will be compared to the fault, if any, of the establishments selling him the alcohol in the first place. The sellers will surely argue no one made him buy and consume the alcohol. That was a decision he made. And Maynard's conduct in violating the law by purchasing the alcohol while he was underage will be compared to the conduct of the alcohol sellers.

If, and only if, a jury determines that Maynard's fault was less than fifty (50%) percent will his family recover for his wrongful death. And in the event a jury determines his share of the fault was less than half, the amount of damages awarded will be reduced by the percentage of his fault.

While no one said so during the legislative debate preceding the adoption of Tennessee's Dram Shop law in the mid-80's, the doctrine of comparative fault seems to dictate these cases are available primarily for innocent third parties injured at the hand of a drunk driver or impaired underage driver. Only in the rarest and most egregious of circumstances will an injured consumer of the alcoholic beverages [or his/her estate] be able to successfully pursue relief against the seller of that alcohol.

No Special Duty of Care Owed to Drunk Buddy

2007-09-05T16:39:00.000-04:00

Many jurisdictions hold that a person's intoxication "to such an extent that he or she is unable to take proper care of himself or herself does not impose on others an affirmative duty to provide for his or her safety." 65 C. J. S. Negligence sec. 84. Tennessee specifically holds an adult's voluntary intoxication does not relieve that person of the consequences of his own negligence. Kirksey v. Overton Pub, Inc., 739 S.W. 2d 230 (Tenn. App. 1987). An intoxicated person's conduct "must be measured against the conduct of an ordinary, reasonable person rather than an ordinary and reasonable intoxicated person." Morgan v. State, 2004 WL 170352 (Tenn. App. 2004).

These same rules apply to a person over 18 but under 21 years old. While emancipated in Tennessee at age 18, alcohol may not be sold legally to a person under age 21. So when Cody Downs and his buddies were partying in Williamson County, Downs' voluntary intoxication did not impose a special duty of care on his drinking buddies and Downs was held to the standard of care for an ordinary, reasonable and sober adult.

While partying with friends, Downs became sick. The truck in which he was a passenger was stopped for him to regurgitate on the roadside. Rather than let him back in the truck to perhaps regurgitate on them, Downs rode in the bed of the truck. Somewhere along the way, Downs got out of the truck, was hit by another vehicle on I-65 in Davidson County, and died from the trauma.

His drinking buddies drove several miles before noticing he was no longer in the bed of the truck. They knew not when, how, or where he got out of the bed of the drunk. They didn't go back to check on him either.

Finding he was not "helpless" the Tennessee Middle Section Court of Appeals held no special duty of care was owed by the driver or owner of the truck nor any of the other drinking buddies. Downs v. Bush, M2005-01498-COA-R3-CV.

Jackson Sun Editorial: July 17, 2007

2007-07-19T09:21:00.000-04:00

Adopt the proposed reforms to DUI law

When the Tennessee General Assembly reconvenes in January, one of lawmakers' first priorities should be fixing flaws in Tennessee's DUI laws. Specifically, they should adopt the recommendations put forth by the Governor's Task Force on DUI.

The task force, which is comprised of judicial and law enforcement officials, as well as citizen activists, was created in March 2006 to fix flaws in Tennessee's existing DUI laws. Under existing law, starting with a person's fourth DUI arrest, and for subsequent DUIs, the minimum punishment is a sentence of 365 days, with a minimum of 150 days served, a five-year license revocation and a fine.

Among the task force's recommendations is increasing opportunities and funding for drug and alcohol treatment. Another proposed measure would allow administrative license revocation. That would allow officers to seize a suspected drunken driver's license upon arrest instead of waiting for the state to act following a conviction.

The problems with Tennessee's existing law are glaringly obvious.

First, it doesn't kick in soon enough. The punishment for repeat DUIs is significant. But it doesn't kick in until a driver has been arrested three times for DUI.

Second, it focuses on the wrong aspect of the problem: punishment. This isn't to say that repeat offenders don't need to be punished, especially if loss of life is involved. But the truth is, taking a drunk's license away won't keep him or her from driving. Nor will technology, such as an ignition interlock, solve the problem completely. It's far too easy to get someone else to start the car, or to drive someone else's.

The governor's task force has the right idea. To really address the problem in a meaningful and permanent way, treatment is the right answer. This isn't to say that first-time offenders should be forced into treatment. But for repeat offenders, treatment shouldn't be an option. It should be the law.

It shouldn't matter how many times it takes before treatment sticks. Treatment should always be the first response when a person is pulled over and arrested for DUI. Treating the problem, not just punishing the offender, not only keeps Tennessee roads safer in the long run, but it also could save the driver's life.That's a worthwhile goal.

To the Editor of the Knoxville News Sentinel I Say: "Amen"!

2007-07-11T08:38:00.000-04:00

Universal carding law deserves close scrutiny
Tuesday, July 10, 2007

The new law known as the Responsible Vendor Act will be on trial for a year before it expires. Lawmakers next session might choose to extend it, make it permanent or let it die, but a number of people will be examining how it works during 2007-08.

The act that went into effect on July 1 requires everyone purchasing beer in a grocery or convenience store in Tennessee to show identification proving the buyer is 21 or older. Tennessee is the first state to make universal carding mandatory, according to the National Alcohol Beverage Control Association.

The law’s presence — at least during the first few months — will place increased emphasis on proper IDs for beer purchases. Whether a person is 21 or 91, he or she will have to produce an ID to buy beer.

The law also requires stores participating in the Responsible Vendor program to have clerks take training and obtain a certificate from the state Alcoholic Beverage Commission. Those who earn the certificate will face a reduced punishment if caught selling to underage patrons.

We realize that no statute is perfect, and this one has several flaws. We editorialized against it while it was being debated in the Legislature.

Some no doubt will be flattered they are being asked for an ID; others will get downright grumpy. Certainly, if a clerk is in doubt, he or she should ask for the ID, but there should be no doubt about the age of many beer buyers. This law leaves no room for discretion and stigmatizes a lot of people who should be able to buy a legal product without a hassle.

There is a perception — wishful thinking, perhaps — that the new law will help curb underage drinking. It might do that initially, while there is a lot of emphasis on producing IDs, but both business concerns and the state should monitor this over the long term. If they can show that it does curb underage drinking, it will be plus in considering renewing the act next year.

Another flaw is the act’s contempt toward local authorities, particularly city and county beer boards that traditionally have punished those caught selling to underage customers. Said Knoxville City Councilman Rob Frost earlier this month, “In my opinion, the best decisions are made on the local level.”

The new law also does not apply to beer sales in bars and restaurants — although a number of restaurants now advertise that they will ask for a customer’s ID on alcohol sales. The law also does not cover wine and liquor, which by terms of another questionable law are sold in separate stores from those where beer is sold.

Finally, too many things about this law indicate that it has more to do with protecting businesses against the judgment of local beer boards and the unannounced use of sting operations than it does about curbing underage drinking or setting standards of accountability.

It bears watching during the year ahead but with as much skepticism as hope.

MADD Executive Director Opinion: Memphis Commercial Appeal

2007-06-20T08:07:00.001-04:00

It's a judge's duty to fight drunken driving
By Laura Dial
Special to Viewpoint
June 19, 2007

According to preliminary data, there were 17,941 alcohol-related traffic fatalities in 2006, compared with 17,525 for 2005, according to the National Highway Transportation Safety Administration Fatal Analysis Reporting System.

That is a 2.4 percent increase. These numbers mean that alcohol-related traffic fatalities are at an all-time high since 1992.

In 2005, 464 Tennesseans lost their lives to drunken drivers, and about 10,000 other people were seriously injured. With statistics like these, we cannot afford to treat driving under the influence lightly. Mothers Against Drunk Driving (MADD) is concerned that the orders set forth by Fayette County General Sessions Judge Mike Whitaker are not sending the right message about the seriousness of drunken driving and its consequences.

MADD's first concern is about the issue of limiting the number of charges an officer can make at the time of arrest. In the case of a DUI, too often the impaired driver will refuse to be tested, which automatically creates two charges.

This may be especially true in the case of a repeat offender who has become savvy about how the system operates. This driver may also be driving on a revoked license, which introduces a third serious charge.

Additionally, there are myriad other possible serious offenses that could occur, such as having children in the vehicle. All charges have independent and critical penalties that must be addressed to keep our communities safe.

According to Whitaker's new order, officers must get special permission from the courts to give more than two charges. This does not seem to be the most effective way to protect the public and enforce the existing laws.

MADD is also concerned about the issue of releasing DUI offenders on their own recognizance (OR). If a DUI offender commits another DUI while on bond, current law says that the bond for the new offense is to be at least double, but OR bonds do not allow financial penalties to the offender.

Also, in order to grant an OR bond, the judge must consider many factors related to the offense, which should include the likelihood of repeat offense. A blanket order about OR bonds means that each case does not have careful individual consideration.

People typically drive drunk nearly 100 times before they are ever arrested, and about one-third of those arrested are repeat offenders. With this degree of likelihood for repeat offense, OR bonds do not seem prudent. All of this again can lead to more crime and more potential danger to innocent people in our community.

MADD understands that Whitaker is making these decisions based on his concerns about court resources and jail crowding, but failing to follow through on the appropriate penalties for this crime creates a revolving door of drunken-driving offenses by reducing the deterrent effect of our laws.

Research shows that the best way to reduce repeat drunken-driving offenses is through mandating alcohol ignition interlocks, in combination with license restrictions for an extended period of time. Interlocks are up to 90 percent effective in reducing repeat offenses when installed on vehicles.

If Whitaker would like to reduce jail crowding through creative sentencing, we urge him to use these proven strategies to reduce repeat offenses and send a strong message to the public that can reduce the incidence of first-time offenses.

MADD's Campaign to Eliminate Drunk Driving can stop drunken driving for good if it is supported with strong technology, strong enforcement, strong public support and a strong message from the judicial bench that drunken driving will not be tolerated. With a strong message from the bench, the roads will be safer now and in the future.

We urge concerned citizens in the affected communities to contact MADD to learn how they can join us in preventing drunken driving and underage drinking.

Laura Dial is executive director of MADD-Tennessee. For more information, visit maddtn.org or call (800) 544-MADD (6233)

2007-06-19T15:43:00.000-04:00

From LexisONE:

Summer's Here ... and So Are More Teen Drivers

Source: SADD; Liberty Mutual Group
June 2007

As teens flow out of high schools across the country and into their cars, some will tragically contribute to this disturbing statistic: car crashes are the leading cause of death for 15- to 20-year-olds in the United States. Add that to the fact that there are more driving-related deaths in the summer months than in any other season of the year, and parents have reason for concern over their children's safety.

According to Liberty Mutual and SADD (Students Against Destructive Decisions) research, teens spend 44 percent more hours driving each week in the summer than during the school year. But the research gives parents a solution to keep their teens safe as young drivers exercise their summer freedoms behind the wheel: setting and enforcing consequences for breaking driving laws and family rules curbs speeding, piling in and cell phone use, and increases seat belt usage and adherence to traffic signals.

"It is refreshing to validate the influence parents have on their teen drivers and the fact that the tried and true measures we use to establish appropriate behavior in our children during their younger years -- following through on consequences when expectations are not met -- have the same powerful effect on teenagers," said SADD Chairman and Chief Executive Officer Stephen Wallace.

In a national study of more than 900 high school students with a driver's license, teens who believe their parents would follow through on threatened consequences for breaking a driving law are significantly less likely to say they speed (43 percent report driving 5 mph or more over the limit) than are the teens who say their parents are unlikely to follow through on any penalty (68 percent). Further, only 31 percent of teens who say their parents will enforce a consequence report they drive with more than three passengers in the car, compared to 60 percent of teens who consider their parents are "all talk and no action."

"These findings cannot be overstated. We all know that speeding contributes to crashes, and studies show the crash rate among teens drivers doubles or quadruples with two or three passengers, respectively, when compared to driving alone," said Greg Gordon, Liberty Mutual vice president, Consumer Marketing, citing research from the Insurance Institute for Highway Safety. "Parents can significantly reduce the likelihood of those behaviors by clearly establishing expectations of their teens and then following through on consequences should those expectations be breached."

Cell Phone Use and Text Messaging

As many states enact or consider legislation to curb cell phone use and text messaging while driving, the SADD/Liberty Mutual research further reveals how parents can influence the effects of these laws. More than half (52 percent) of teens who say their parents are unlikely to follow through on a consequence if they break a driving law report they talk on a cell phone while driving, compared to only 36 percent of teens who believe their parents would indeed penalize them.

And even in the absence of a cell phone law, the research confirms that parents can influence this behavior by establishing their own family rule about talking on the cell phone and driving -- and enforcing it. Teens who say their parents are likely to enforce a punishment for breaking a family driving rule about cell phones are significantly less likely to talk on the cell phone while driving (37 percent) than are teens who say their parents are unlikely to follow through on any consequence (65 percent).

Applies to Safe Behaviors, Too

The SADD/Liberty Mutual driving research points out not only how parents can deter destructive driving behaviors by setting and following through on consequences, but also how parental enforcement bolsters safe driving habits. Teens whose parents enforce penalties for driving law infractions are more likely to wear their seat belts (89 percent vs. 74 percent), require their passengers to buckle up (82 percent vs. 64 percent), obey stop signs (91 percent vs. 60 percent), and use turn signals (89 percent vs. 76 percent).

Summer Driving Realities

Earlier SADD/Liberty Mutual research (2003) that reveals teens drive 44 percent more hours each week during the summer (23.6 hours) than during the school year (16.4 hours) also spotlights teens' admission to an increase in risky driving behaviors that contribute to crashes.

Twenty-three (23) percent of teen drivers are more likely to drive with three or more teens in the car in the summer, compared to 6 percent of teen drivers who are more likely to do so during the school year.

Seventy-two (72) percent of all teens report they stay out later during the summer than the school year. Additionally, 47 percent of teen drivers are more likely to drive late at night during the summer, compared to 6 percent of teen drivers who are more likely to drive late at night during the school year.

Twenty-four (24) percent of teen drivers are more likely to drive when tired or sleepy during the summer, compared to 9 percent of teen drivers who are more likely to drive fatigued during the school year.

What Parents Can Do

Liberty Mutual and SADD use seven years of collective driving research to offer these tips to help parents talk to their teens:

Know your state's Graduated Driver License laws and restrictions, including unsupervised driving, time of day, and passengers in the car, and enforce them. The Governors Highway Safety Association provides a description of each state's laws at http://www.statehighwaysafety.org/.

Set family rules about driving, outline clear consequences for breaking the rules, and follow through. Liberty Mutual and SADD suggest some rules if they are not covered by your state laws:

No friends in the car without an adult

No driving after 10 p.m.

No use of alcohol or other drugs

No distractions while driving, including eating, changing CDs, handling iPods and putting on makeup

No cell phone use, including text messaging

Continue supervised driving once your child has received his or her license, and reinforce the rules and safe driving habits.

Don't relent. Parents should continue the dialogue with their teens and frequently reinforce the acute dangers of distracted driving, drinking and driving, or using drugs and driving.

Order a free copy of "The Road Ahead: Stay Safe at the Wheel" by calling 1-800-4-LIBERTY or any local Liberty Mutual office. "The Road Ahead" kit includes a powerful video of teens discussing their driving attitudes and behaviors before and after viewing the HBO Family documentary Smashed: Toxic Tales of Teens and Alcohol, a family discussion guide and a family safe-driving pledge.

Download a copy of Liberty Mutual and SADD's Guidelines for Good Family Communication from the auto safety section of http://www.libertymutualinsurance.com/.

Download a copy of SADD's Opening Lifesaving Lines at http://www.sadd.org/

Source: SADD; Liberty Mutual Group

Kingsport Times News Editorial - May 25, 2007

2007-05-25T07:28:00.000-04:00

Alcohol use can make holiday weekend deadly

Despite prices for gasoline that seem to be soaring past Saturn these days, many in our region will likely take to the road at some point over this Memorial Day holiday.

Tragically, however, some won’t reach their desired destination; still others will arrive, but won’t make it back home.

Why? Too much beer and booze with the holiday picnics and barbecues.

Alcohol remains the leading factor in motor-vehicle deaths, according to the National Highway Traffic Safety Administration. More than 17,000 people die in alcohol-related crashes in an average year, representing 41 percent of all those killed on the nation’s roadways.

In Tennessee, drunk drivers claim an even higher 43 percent of all fatal crashes. And because holiday time — those luxurious three-day weekends — means party time for so many people, this becomes an especially dangerous time of year.

When it comes to highway traffic deaths, the United States has been losing valuable ground compared with other countries. The United States was the safest car-driving nation in the mid-1970s. But no more.

America has slipped behind Canada, Australia, England, the Netherlands and many other countries.

There are a variety of causes for the deaths, but in the No. 1 spot is alcohol consumption.

All the padded dashes, airbags, seat belts and other safety features in the world can’t save a life if motorists continue to drink and drive.

The Memorial Day weekend, a jump-start to summer, is traditionally one of the deadliest times of the year on the nation’s highways, and impaired driving is a big part of the problem.

Before you set out for your holiday, consider that alcohol:

• Can slow reaction time by 10 percent to 30 percent.

• Reduces the ability to perform two or more tasks at the same time.

• Reduces the driver’s ability to see distant objects and can reduce night vision by 25 percent.

• Can cause blurred and double vision.
• May create a sense of overconfidence, with the result that people are prepared to take greater risks.

Aside from the deaths caused by drunken driving, the costs of alcohol-related crashes are estimated at $45 billion annually, victimizing literally millions of innocent, sober and law-abiding people who are injured or have their vehicles damaged. But all of the adverse effects of alcohol-related accidents and deaths can be prevented.

If, for whatever reason, you decide to drink this Memorial Day weekend, please don’t drive while under the influence. Call a cab, hitch a ride with a sober friend or family member. Don’t let this holiday end in an unnecessary t r a g e d y.

One Too Many

2007-05-01T15:47:00.000-04:00

By Mike Faulk

Thirty-eight percent of all traffic fatalities are alcohol-related. One-half of all boating fatalities have positive blood-alcohol content and alcohol is associated with between 47% and 65% of all adults drowning. Up to 40% of industrial fatalities and 47% of industrial injuries can be linked to alcohol consumption and alcoholism.

While the statistics are sobering, this is not intended to be a lecture on the evils of alcohol. Two-thirds of the population drink, but 10% of all drinkers (those who drink most heavily) drink half of all alcohol consumed. This is the group most likely to cause injury to self and others resulting in litigation. This is a review of causes of action recognized and rejected in Tennessee concerning alcohol-related injuries other than those against intoxicated tortfeasors.

A cause of action for negligent sale of alcoholic beverages was recognized by the Tennessee Supreme Court in Brookins v. The Roundtable, Inc. But, in 1986, as a harbinger of tort reform to come, the Tennessee General Assembly adopted a statute governing the liability of sellers of alcohol. Tenn. Code Anno. §57-10-102 now determines the civil liability of a seller of alcoholic beverages rather than common law concepts of negligence and negligence per se that imposed duties defined under criminal statutes.

The Tennessee General Assembly has declared “consumption” by a tortfeasor of alcoholic beverages is the proximate cause of injures. The effect of this declaration, under the principles of comparative fault, provides immunity from both fault and liability for those merely furnishing alcoholic beverages to such alcohol-consuming tortfeasors.

Exceptions to the legislative declaration that consumption, rather than sale, is the proximate cause of injures caused by intoxicated persons provide a cause of action in two limited circumstances: sales of alcoholic beverages to 1) a person under age twenty-one or 2) a person already obviously intoxicated.

In the first exception, the seller must know the purchaser is a minor. Sale to one minor who supplies the alcohol to another minor tortfeasor is not covered under the act. The purchasing minor tortfeasor must consume the alcoholic beverage so sold and that consumption must directly cause the personal injury or death.

The second exception requires a sale to a person already “obviously intoxicated.” While no definition of “obviously intoxicated” has been provided by the legislature and no Tennessee appellate court has provided a precise definition, some direction exists in defining the term for a trier of fact.

“Intoxication” is defined in Tennessee Pattern Instructions - Civil as follows:

A person is intoxicated when that person’s physical and mental abilities are impaired as a result of drinking an alcoholic beverage. The impairment must be to the extent that the person is unable to act with ordinary or reasonable care, as would a sober person under the same or similar circumstances.

Under Tennessee law, “intoxication” means “under the influence of an intoxicant.” The definition for “under the influence of an intoxicant” in Tennessee Pattern Instructions – Criminal is:

The expression "under the influence of an intoxicant covers not only all well known and easily recognized conditions and degrees of intoxication, but also any mental or physical condition which is the result of taking intoxicants or drugs in any form and which deprives one of that clearness of mind and control of oneself which one would otherwise possess. In this situation, it would not be necessary that the person be in such a condition as would make [him] [her] guilty of public drunkenness. The law merely requires that the person be under the influence of an intoxicant or drug. The degree of intoxication must be such that it impairs to any extent the driver's ability to operate a vehicle.

The phrases “obviously intoxicated” and “visibly intoxicated” have been used interchangeably by other courts throughout the country.

In passing the Alcohol Server Responsibility and Training Act of 1995 , the legislature gave the Tennessee Alcoholic Beverage Commission authority to promulgate rules to implement that law. Accordingly, the Tennessee ABC determined the primary legislative purpose in passing the Alcohol Server Responsibility and Training Act of 1995 was to prevent intoxication-related deaths, injuries, and other damages through responsible alcohol serving practices and awareness.

The Tennessee Alcoholic Beverage Commission defines “visibly intoxicated” as follows:

An impairment of an individual's mental or physical faculties as a result of drug and/or alcohol consumption accompanied by a perceptible act, series of acts, or by the appearance of an individual which clearly demonstrates such impairment.

No Tennessee appellate court has addressed whether a cause of action exists for inadequate training or a failure to train employees regarding the proper, legal sale of alcoholic beverages. Tennessee criminal statutes prescribe the sale of alcoholic beverages to the visibly intoxicated and those under age.

The Alcohol Server Responsibility and Training Act of 1995 requires alcohol merchant employee-servers to have permits to sell alcoholic beverages. To obtain a permit, servers must receive and pass a test on alcohol awareness training. Server training programs must be approved by the Tennessee Alcoholic Beverage Commission. Approved training programs teach recognition of the traditional signs and symptoms of intoxication – the fact issues upon which “obvious” or “visible” intoxication depend.

The traditional burden of proof in criminal cases is the most prominent feature in this civil cause of action comprising Tennessee’s dram shop law. Proof of each element of the cause of action “beyond a reasonable doubt” is required including proof of the “obvious” or “visible” intoxication of the purchaser or proof the “seller knew that the purchaser was a minor and sold intoxicating beverages to him or her anyway”.

Sellers are shielded from liability in situations where the intoxicated person was not in the seller’s establishment when the sale of the alcoholic beverages occurred and have no control over who consumes the alcoholic beverage after the product leaves the premises. All relevant circumstances will be considered in answering the question of whether there was a “sale” within the terms and meaning of Tenn. Code Ann. §57-10-102. Who paid for the alcoholic beverage is but one of many circumstances to consider in determining whether there was a “sale”. Being reimbursed for purchasing alcoholic beverages for others does not make one a “seller” within the meaning of the Act.

No liability or fault under Tennessee’s dram shop law attaches to a social host or merchant for gratuitously providing alcoholic beverages. In either circumstance, the legislature has declared “. . . the consumption of any alcoholic beverage or beer rather than the furnishing of any alcoholic beverage or beer is the proximate cause of injuries inflicted upon another by an intoxicated person.”

A social host furnishing alcoholic beverages is immune from both fault and liability under Tenn. Code Anno. §57-10-101 . However, in limited circumstances such as those found in Biscan v. Brown , a duty of care to protect underage guests from harm lies separate and apart from furnishing alcohol.

A social host, who allows a minor to consume alcohol on his premises, even though he did not furnish alcoholic beverages, has an affirmative duty to act because of the “special relationship doctrine.” Public policy is considered in determining whether a duty exists under the “special purpose doctrine”. Such considerations include the legislature’s determination that minors are generally prohibited from consuming alcohol , the prohibition for persons under the influence of alcohol from driving , the care required for minors due to their immaturity and inexperience relative to adults, and the voluntary assumption of supervision, custody and control of a visiting child.

When a host establishes a rule that any minor guest who consumes alcohol in his home is required to spend the night with the intention to prevent minors who had been drinking from leaving the party, the forseeability of harm to such minors and others is proven by the host’s recognition of the need for the rule in the first place and supports a finding of a special relationship.

A finding of a “special relationship” also requires proof of “means and ability to control”. “An adult host who is ‘in charge’ of a party held for minors . . . certainly has some ability to control the conduct of his guests.”

Whether or not a person has assumed a duty to act is a question of law. “Because he knowingly permitted and facilitated the consumption of alcohol by minors, an illegal act, Worley had a duty to exercise reasonable care to prevent his guests from harming third persons or from befalling harm themselves.”

By establishing his “rule” and then failing to enforce his “rule”, Worley assumed a duty of care to all the minor guests attending the party and then breached that duty by failing to ensure intoxicated guests did not leave the party.

Selling gasoline, not alcohol, to an obviously intoxicated driver and/or assisting an obviously intoxicated driver in pumping gasoline into his vehicle, the Tennessee Supreme Court has held, creates a foreseeable risk to persons on the roadways and grounds a cause of action of negligent entrustment.

Servers and sellers of alcohol beverages as well as consumers of alcoholic beverages may share responsibility for injuries to innocent third parties in Tennessee. A complicated mix of social responsibility and limitation of liability has evolved through legislation and common law. A careful analysis of facts surrounding the provision and consumption of alcoholic beverages that precede injury to others in each case is a must in navigating related litigation in Tennessee.

National Highway Traffic Safety Administration May 27, 1999 Press Release.
United States Department of Transportation, U. S. Coast Guard, Boating Statistics 1994 (Sept. 1995)
M Bernstein & JJ Mahoney, "Management Perspectives on Alcoholism: The Employer's Stake in Alcoholism Treatment," Occupational Medicine, Vol. 4, No. 2, 1989, pp. 223-232.
National Institute on Alcohol Abuse and Alcoholism, Sixth Special Report to U.S. Congress on Alcohol and Health, United States Department of Health and Human Services, 1/87, p. 3.
624 S. W. 2d 547 (Tenn. 1981).
“Notwithstanding the provisions of § 57-10-101, no judge or jury may pronounce a judgment awarding damages to or on behalf of any party who has suffered personal injury or death against any person who
has sold any alcoholic beverage or beer, unless such jury of twelve (12) persons has first ascertained
beyond a reasonable doubt that the sale by such person of the alcoholic beverage or beer was the proximate
cause of the personal injury or death sustained and that such person:

(1) Sold the alcoholic beverage or beer to a person known to be under the age of twenty-one (21) years and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold; or

(2) Sold the alcoholic beverage or beer to an obviously intoxicated person and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold.

Worley v. Weigels, 919 S. W. 2d 589 (Tenn. 1996), headnote 5.
Tenn. Code Ann. §57-10-101 (1986)
Biscan v. Brown, 160 S. W. 3d 462 (Tenn. 2005).
Worley, supra.
Tenn. Pattern Instructions: Civ. § 4.10 (2005).
Tenn. Pattern Instructions: Crim. § 38.01 (2005).
45 Am. Jur. 2d “Intoxicating Liquors”.
Tenn. Code Anno. § 57-3-701 et seq. (Acts 1995).
Tenn. Comp.R. & Regs. Ch. 0100-8-.02. DEFINITIONS.(9).
Tenn. Code Anno. §§57-3-406(d), 57-3-412(a)(1), 57-4-203(b), and 57-3-103(a), (c).
TIPS (Training for Intervention Procedures), BARCODE, CARE (Controlling Alcohol Risks Effectively), ServSafe, SPIRITS (Sound Procedures in Reaction and Intervention Techniques of Alcohol Service), TASK (Tennessee Alcohol Server Knowledge), and Top Shelf have been approved.
Worley, supra, headnote 6.
Temlock v. McGinnis, (2006 WL 2032501, No. E2005-02646-COA-R3-CV, Tenn. App. May 23, 2006) where the Eastern Section elaborated adding: “To hold otherwise would mean that a business could adopt a policy that in serving any group of more than one individual, only one person in the group is to be allowed to ‘pay’ for the alcohol ordered and consumed by all the other members in that party even though those other individuals directly ordered the alcohol from the seller’s wait staff, had the alcohol delivered by the seller’s wait staff directly to them, and they consumed the alcohol on the seller’s premises, and, the seller then would have no potential liability under Tenn. Code Ann. §57-10-102 except as to the one person who paid. Such a decision would be contrary to the clear intent and purpose of the legislature . . .”
Biscan v. Brown, 160 S. W. 3d 462 (Tenn. 2005).
Biscan, supra.
LaRue v. 1817 Lake, Inc., 966 S. W. 2d 423 (Tenn. App. 1997).
Tenn. Code Anno. § 57-10-101(Acts 1986).
Tenn. Code Anno. § 57-10-101(Acts 1986).
160 S. W. 3d 462 (Tenn. 2005).
Biscan, supra.
Biscan, supra.
See e.g. Tenn. Code Ann. §57-4-203(b) (2002) making it illegal for minors to purchase alcohol and for any person to sell or furnish a minor with alcohol and Tenn. Code Ann. §57-5-301(e)(1)(2002) making it illegal for minors to possess beer “for any purpose”.
. Tenn. Code Ann. §§55-10-401 – 416(2002).
Biscan, supra
See Lett v. Collins Foods, Inc., 60 S. W. 3d 95, 100 (Tenn. App. 2001) and Newton v. Tinsley, 970 S. W. 2d 490, 493 (Tenn. App. 1997).
Biscan, supra.
Biscan, supra.
Biscan, supra.
West v. East Tennessee Pioneer Oil, 172 S. W. 3d 545 (Tenn.. 2005).

Prom Night: Special Problems

2007-04-24T13:33:00.000-04:00

During typical prom weekends in 2005, 290 young people ages 15-20 were killed in alcohol-related crashes—of those 198 deaths involved a 15-20-year-old impaired driver.

Alcohol is the No. 1 drug problem among youth killing more young people than all other illicit drugs combined. More than 6,000 young people die each year due to underage drinking-related causes. In 2005, 2,035 15-20 year olds were killed in alcohol-related traffic crashes—an average of six deaths per day. Of those deaths, 1,387 youth aged 15-20 died in crashes involving a 15-20-year-old alcohol-impaired driver.

Tenn. Code Ann. §57-4-203(b) (2002) makes it illegal for minors to purchase alcohol and for any person to sell or furnish a minor with alcohol and Tenn. Code Ann. §57-5-301(e)(1)(2002) makes it illegal for minors to possess beer “for any purpose”.

For parents who sponsor post-prom events, Tennessee's alcohol laws deserve study.

Having a party for prom goers makes one a "social host" in the eyes of the law. A social host furnishing alcoholic beverages is immune from both fault and liability under Tenn. Code Anno. §57-10-101 . However, in limited circumstances such as those found in Biscan v. Brown , a duty of care to protect underage guests from harm lies separate and apart from furnishing alcohol.

A social host, who allows a minor to consume alcohol on his premises, even though he did not furnish alcoholic beverages, has an affirmative duty to act because of the “special relationship doctrine.”

Public policy is considered in determining whether a duty exists under the “special purpose doctrine”. Such considerations include the legislature’s determination that minors are generally prohibited from consuming alcohol , the prohibition for persons under the influence of alcohol from driving , the care required for minors due to their immaturity and inexperience relative to adults, and the voluntary assumption of supervision, custody and control of a visiting child.

When a host establishes a rule that any minor guest who consumes alcohol in his home is required to spend the night with the intention to prevent minors who had been drinking from leaving the party, the forseeability of harm to such minors and others is proven by the host’s recognition of the need for the rule in the first place and supports a finding of a special relationship.

A finding of a “special relationship” also requires proof of “means and ability to control”. “An adult host who is ‘in charge’ of a party held for minors . . . certainly has some ability to control the conduct of his guests.”

Whether or not a person has assumed a duty to act is a question of law.

“Because he knowingly permitted and facilitated the consumption of alcohol by minors, an illegal act, Worley had a duty to exercise reasonable care to prevent his guests from harming third persons or from befalling harm themselves.” By establishing his “rule” and then failing to enforce his “rule”, Worley assumed a duty of care to all the minor guests attending the party and then breached that duty by failing to ensure intoxicated guests did not leave the party.

Prom night presents special problems for concerned parents. The Faulk house went through dilemmas for about four years. Do we provide a safe post-prom environment for our teenagers and their friends and assume some risk knowing there may be some teenagers who will have consumed alcoholic beverages before arrival at our home? Or, do we eliminate personal liability by having no post-prom party at our house taking a chance on the venue of choice of our own children during those dangerous hours immediately after the prom ends?

As it relates to teenagers, there is no easy answer. The lawyer in me must tell you, "no party". In those prom years past, the Dad in me said "provide them with a safe place".

Alcohol Served at Legislative Receptions: Third Party Responsibility?

2007-04-16T15:13:00.000-04:00

Currently, legislative receptions constitute one of the twelve exceptions to the lobbyist gift ban under Tennessee's Ethics law enacted in 2006.

Receptions for legislators are held nearly every week with multiple receptions often occurring in one night.

With the new ethics laws in place, organizations that have legislative receptions must send a copy of the invitation to the Tennessee Ethics Commission at least 7 days prior to the event. Within 30 days of the event, organizations are required to report how much money was spent. According to the Tennessee Ethics Commission’s website, $255,354.56 has been spent this year on 46 legislative receptions with 15 receptions yet to be reported.

On February 7, 2007, State Senator Jerry Cooper (D - Morrison) wrecked on his way home after attending multiple legislative receptions seriously injuring himself in a single car crash.

According to the Tennessean, arrest records showed that Cooper's blood-alcohol level was 0.18 percent. Tennessee's drunken-driving laws define intoxication as 0.08 percent.

Representative Brian Kelsey (R-Germantown) has proposed an amendment to House Bill 1776 to prohibit legislative receptions. The amendment and HB 1776 are scheduled to be presented tonight on the House floor. Currently, legislative receptions constitute one of the twelve exceptions to the lobbyist gift ban. HB 1776 is an ethics bill prohibiting the ethics commission from imposing certain civil penalties on administrative and legislative employees.

“We enacted a series of ethics laws last year to crack down on legislator’s being wined and dined, and these receptions are the last remnants of the good ol’ boy network that we are trying to abolish,” said Rep. Kelsey in a press release issued today.

Whether the host of such a reception might be liable for injuries to innocent third parties under Tennessee's Dram Shop Law, Tenn. Code Ann. sec. 57-10-101 et seq. depends on whether the alcohol so served was sold or merely provided. The mere furnishing of alcohol to another does not lead to third party responsibility. Biscan v. Brown, 160 S. W. 3d 462 (Tenn. 2005).

December: National Drunk & Drugged Driving Prevention Month

2006-12-07T21:39:00.000-05:00

Dangerous Intersections: Parallel Civil and Criminal Prosecutions

2006-10-17T18:09:00.000-04:00

By Mike Faulk

Representing the injured in a civil action while the tortfeasor is prosecuted by the State for a crime arising out of the same incident presents special dangers for the plaintiff’s attorney. Consider this case: your uninsured client was severely injured by an uninsured drunk driver who spent the hours prior to the collision imbibing at the local tavern. The drunk driver is charged with vehicular assault.[1]

A dram shop case against the local pub appears to be the only avenue available for significant compensation.[2] While the drunk driver’s toxicology supports a claim that the pub served the patron when he was already obviously intoxicated, you have no eye witness who can confirm the sale of alcoholic beverages to the patron who appeared inebriated at the time of sale. With the drunk driver’s cooperation, you could prove the dram shop claim.[3]

Under no circumstances should you agree to serve as a special prosecutor. Tenn. Code Ann. § 8-7-401 in part provides: “A victim of crime or the family members of a victim of crime may employ private legal counsel to act as co-counsel with the district attorney general or the district attorney general's deputies in trying cases, with the extent of participation of such privately employed counsel being at the discretion of the district attorney general.”

An excellent discussion of the inherent conflicts between the role of government prosecutor and private prosecutor is found in State v. Eldridge, 951 S. W. 2d 775, 781 (Tenn. Crim. App. 1997). To serve these dual roles is tantamount to a violation of the criminal defendant’s rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution as well as the Law of the Land provision in Article I, § 8 of the Tennessee Constitution. [4]

Most, if not all, criminal prosecutors want the victim’s approval of any negotiated plea agreement. Driving while intoxicated is a lesser included offense of vehicular assault and is merely a misdemeanor rather than a felony. A plea to the lesser included offense of driving while intoxicated will surely be considered and likely proposed by defense counsel for the drunk driver.

Can there be a quid pro quo for the victim’s consent to a negotiated plea agreement? There is inherent advantage for a drunk driver tortfeasor in shifting as much comparative fault to the dram shop as possible especially since a judgment against a drunk driver is non-dischargeable in bankruptcy.[5] The terms of any such agreement between the drunk driver and the victim will certainly be vetted by the dram shop defense attorney.

Rule of Professional Conduct Rule 4.4(b) provides that a lawyer shall not threaten to present a criminal charge, or to offer or to agree to refrain from filing such a charge, for the purpose of obtaining an advantage in a civil matter. Even after criminal charges have been filed, great care should be exercised by plaintiff’s counsel in discussing these matters with the prosecution or the defense.

Surely a requirement that the drunk driver defendant tell the “whole truth” about how much he had to drink, the signs and symptoms of intoxication he exhibited while being served or sold alcoholic beverages, his tendencies and propensities when consuming intoxicants, and like matters should be a reasonable expectation of the victim and his attorney. And his telling the truth as to these matters should further the causes of both justice and public safety. But, just what a victim can and should expect or demand in exchange for the victim’s agreement to a reduced sentence for the drunk driver is a gray area within the Rules of Professional Conduct.

If a plea agreement is reached between the State and the drunk driver, it may be central to the successful prosecution of the civil case. Care should be taken by the plaintiff’s attorney in the civil case to see that the plea in the criminal case is taken meticulously and properly recorded. In a civil trial, evidence of a felony conviction would be admissible to prove the facts necessary to sustain a judgment.[6]

When the guilty plea is being taken by the criminal court judge, placement of the criminal defendant under oath is a must. A defendant is prohibited from taking a position in future litigation incompatible with a position taken in prior litigation when the prior position was so taken under oath.

“Estoppel by oath” is a form of judicial estoppel within the class of estoppels arising from sworn statements made in the course of judicial proceedings generally in the form of litigation. “The distinctive feature of the Tennessee law of judicial estoppel (or estoppel by oath) is the expressed purpose of the court, on broader grounds of public policy, to uphold the sanctity of an oath. The sworn statement is not merely evidence against the litigant, but (unless explained) precludes him from denying its truth. It is not merely an admission but an absolute bar.”[7]

Under the doctrine of “judicial estoppel”, where a person states under oath in prior litigation, “either in pleadings or testimony, that a fact is true, she will not be permitted to deny that fact in subsequent litigation.” [8]

As followed in a long line of cases in this state, under the doctrine of judicial estoppel, no showing of prejudice is necessary – but in order for the judicial estoppel to apply, the party against whom the estoppel is urged must have made a statement of fact under oath that he or she later seeks to contradict.[9]

Thus it is most important that the judge taking the plea recite the facts (usually found in the affidavit of complaint or the indictment or recited to the court by the prosecutor) to which the criminal defendant is pleading guilty. The defendant’s confirmation of those facts and his agreement that those facts constitute the elements of the offense to which he is pleading guilty (especially if the elements of the offense include recklessness) while he is under oath will help insure the proof of those facts in the civil case against both him and the dram shop.

Another key element in securing and keeping the cooperation and truthfulness of the drunk driver may be achieved in bifurcation of the taking of a guilty plea and the sentencing phases of the criminal prosecution. If both the State’s attorney and the trial court accepting the plea are willing, a delay in sentencing until after the civil case has been concluded is preferable. But, a delay in sentencing until the drunk driver has testified under oath in the civil matter may be advisable to insure the defendant testifies consistently and continues to cooperate in both civil and criminal cases.

Taking special care to avoid danger where parallel civil and criminal prosecutions intersect will well serve the interests of justice, your client, yourself.

[1] Tenn. Code Ann. §39-13-106. Vehicular assault ; intoxication.(a) A person commits vehicular assault who, as the proximate result of the person's intoxication as set forth in § 55-10-401, recklessly causes serious bodily injury to another person by the operation of a motor vehicle. For the purposes of this section, "intoxication" includes alcohol intoxication as defined by § 55-10-408, drug intoxication, or both.

[2] See Tenn. Code Ann. §40-24-107 for criminal injuries compensation as it relates to driving while intoxicated.

[3] Tenn. Code Ann. §57-10-102 Standard of proof. Notwithstanding the provisions of § 57-10-101, no judge or jury may pronounce a judgment awarding damages to or on behalf of any party who has suffered personal injury or death against any person who has sold any alcoholic beverage or beer, unless such jury of twelve (12) persons has first ascertained beyond a reasonable doubt that the sale by such person of the alcoholic beverage or beer was the proximate cause of the personal injury or death sustained and that such person:

(1) Sold the alcoholic beverage or beer to a person known to be under the age of twenty-one (21) years and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold; or

(2) Sold the alcoholic beverage or beer to an obviously intoxicated person and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold.

[4] Eldridge, p.782.

[5] 11 U.S.C. §523(a)(9).

[6] Paine, Tennessee Rules of Evidence §803(22).

[7] Terox Corp. of America v. Carr, 52 Tenn. App. 595, 376 S.W. 2d 735, 738 (Tenn. App. 1964), citing Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 2d 313, 318 (Tenn. 1924).

[8] Cardin v. Campbell, 920 S.W. 2d 222, 223-24 (Tenn. App. 1995).

[9] Werne v. Sanderson, 954 S.W. 2d 742 (Tenn. App. 1997).

Temlock v. McGinnis: Who Pays for the Beer Isn't Dispositive - Was There a Sale?

2006-08-11T08:59:00.000-04:00

Tennessee’s Eastern Section Court of Appeals reversed a recent defendant’s summary judgment in a Knox County dram shop case on July 20, 2006. Temlock v. McGinnis et al., 2006 WL 2032501, No. E2005-02646-COA-R3-CV. To this author’s knowledge, this is at least the third time the issue of what constitutes a “sale” has arisen in the last three years in Tennessee trial courts.[1]

In McGinnis [the irony of the last name cannot be escaped], the intoxicated driver was a customer at Baileys in Knoxville on the night of the accident, directly ordered beer by the glass from the wait staff, was served beer by the glass by the Bailey’s wait staff, and consumed the beer ordered and served by the wait staff. But, McGinnis’ friend paid for the beer.

Baileys argued that the “sale” of beer was to McGinnis’ friend and not to McGinnis, the intoxicated driver, as is required under Tennessee’s Dram Shop law.[2] The trial court agreed with Baileys and granted summary judgment.

The Eastern Section distinguished Tennessee’s leading dram shop case, Worley v. Weigels, 919 S.W. 2d 589 (Tenn. 1996), where a third young man who drank the beer became intoxicated and lost control of his vehicle but was not in the store when his underage friends purchased the beer. In distinguishing Worley, the Court of Appeals held:

Our Legislature clearly intended to shield sellers from liability in situations such as in the Worley case where the intoxicated person was not even in the seller’s establishment when the sale of the alcoholic beverages occurred, did not order the beer from the seller, did not have the seller deliver the beer directly to him, and did not consume the beer while in the seller’s place of business. In such a situation, the seller has no control over who consumes the alcoholic beverage after the product leaves the store premises.

All relevant circumstances must be considered in answering the question of whether there was a “sale” within the terms and meaning of Tenn. Code Ann. §57-10-102. Who paid is but one of many circumstances to consider in determining whether there was a “sale.”.

With cogent forethought, the appellate court added:

To hold otherwise would mean that a business could adopt a policy that in serving any group of more than one individual, only one person in the group is to be allowed to ‘pay’ for the alcohol ordered and consumed by all the other members in that party even though those other individuals directly ordered the alcohol from the seller’s wait staff, had the alcohol delivered by the seller’s wait staff directly to them, and they consumed the alcohol on the seller’s premises, and, the seller then would have no potential liability under Tenn. Code Ann. §57-10-102 except as to the one person who paid. Such a decision would be contrary to the clear intent and purpose of the legislature . . ..[3]

[1] Joyner v. Buchanan and Cheddars, Hawkins County Circuit No. 5385J (2002) and Jones v. Gooch and South Street, Davidson County Circuit No. 04C-2530 (2006).

[2] 57-10-102 Standard of proof. Notwithstanding the provisions of § 57-10-101, no judge or jury may pronounce a judgment awarding damages to or on behalf of any party who has suffered personal injury or death against any person who has sold any alcoholic beverage or beer, unless such jury of twelve (12) persons has first ascertained beyond a reasonable doubt that the sale by such person of the alcoholic beverage or beer was the proximate cause of the personal injury or death sustained and that such person:

(1) Sold the alcoholic beverage or beer to a person known to be under the age of twenty-one (21) years and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold; or

(2) Sold the alcoholic beverage or beer to an obviously intoxicated person and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold. [Acts 1986, ch. 519, § 2.]

[3] McGinnis, supra.

DRAMSHOP CASES

2006-07-04T12:28:00.000-04:00

Your client has been severely injured by a drunk driver who, based on elevated blood alcohol content, pleads guilty to DUI. The drunk driver’s liability insurance carrier immediately offers the paltry limit of its minimum coverage policy. You recommend accepting the policy limit without spending any money or time on the case because this approach will give your client the best net results. Rather than suggesting a contingency fee arrangement, you bill the client for the small amount of time you have in the case, feel good about your results, and close your file.

As the pessimist says, “No good deed will go unpunished!” If this scenario applied to you in the past year, you may need to back up or you may have to put your malpractice insurance carrier on notice.

Deposing the drunk driver before setting such a case is a must. At the very least, get a sworn statement from the drunk driver. You may learn, like I did, that the drunk driver had been drinking for several hours at the local tavern where he passed out. But, while maintaining the “party atmosphere” advertised by the bar, the cocktail waitress awoke the drunk driver in waiting to serve him another tequila shooter. His itemized credit card receipt substantiated the 12 shooters he had. The waitress knew him from parties past. She knew he demonstrated all the traditional signs and symptoms of intoxication. But she didn’t want to offend him or peeve the boss by cutting him off.

No liability or fault under Tennessee’s dram shop attaches to a social host[1] or merchant[2] for gratuitously providing alcoholic beverages. In either circumstance, the legislature has declared “. . . the consumption of any alcoholic beverage or beer rather than the furnishing of any alcoholic beverage or beer is the proximate cause of injuries inflicted upon another by an intoxicated person.”[3]

However, under limited circumstances, sellers of alcoholic beverages in Tennessee may be liable for injuries caused by intoxicated persons. Tenn. Code Anno. §57-10-102 provides:
Notwithstanding the provisions of § 57-10-101, no judge or jury may pronounce a judgment awarding damages to or on behalf of any party who has suffered personal injury or death against any person who has sold any alcoholic beverage or beer, unless such jury of twelve (12) persons has first ascertained beyond a reasonable doubt that the sale by such person of the alcoholic beverage or beer was the proximate cause of the personal injury or death sustained and that such person:

(1) Sold the alcoholic beverage or beer to a person known to be under the age of twenty-one (21) years and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold; or

(2) Sold the alcoholic beverage or beer to an obviously intoxicated person and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold.

A cause of action for negligent sale of alcoholic beverages was recognized by the Tennessee Supreme Court in Brookins v. The Roundtable, Inc., 624 S. W. 2d 547 (Tenn. 1981). But, the code section quoted above, adopted in 1986 governing the liability of sellers of alcohol, now determines the civil liability of a seller of alcoholic beverages rather than common law concepts of negligence and negligence per se that imposed duties defined under criminal statutes .[4]

Exceptions to the legislative declaration that consumption, rather than sale, is the proximate cause of injures caused by intoxicated persons provide a cause of action in two limited circumstances: sales of alcoholic beverages to 1) a person under age twenty-one or 2) a person already obviously intoxicated.

In the first exception, the seller must know the purchaser is a minor. Sale to one minor who supplies the alcohol to another minor tortfeasor is not covered under the act. The purchasing minor tortfeasor must consume the alcoholic beverage so sold and that consumption must directly cause the accident.[5]

The second exception requires a sale to a person already “obviously intoxicated.” Defining the phrase “obviously intoxicated” may directly affect the outcome of a dram shop case. Defendants want to frame these cases so that “obviously intoxicated” means severely drunk with super-elevated blood alcohol concentrations. Plaintiffs will oppose the suggestion that “obviously intoxicated” means “more intoxicated” or “severely intoxicated”. If the State considers a person with a .08 g% blood alcohol concentration “intoxicated”, shouldn’t “obvious” signs and symptoms of that condition meet the requirement of Tenn. Code Anno. §57-10-102?

While no definition of “obviously intoxicated” has been provided by the legislature and no Tennessee appellate court has provided a precise definition, some direction exists in defining the term for a trier of fact. “Intoxication” is defined in Tennessee Pattern Instructions - Civil as follows:

A person is intoxicated when that person’s physical and mental abilities are impaired as a result of drinking an alcoholic beverage. The impairment must be to the extent that the person is unable to act with ordinary or reasonable care, as would a sober person under the same or similar circumstances.[6]

Under our DUI laws, “intoxication” means “under the influence of an intoxicant.” The definition for “under the influence of an intoxicant” in Tennessee Pattern Instructions - Criminal is more detailed, and, frankly, is easier to work with in pursuing a dram shop case:

The expression "under the influence of an intoxicant covers not only all well known and easily recognized conditions and degrees of intoxication, but also any mental or physical condition which is the result of taking intoxicants or drugs in any form and which deprives one of that clearness of mind and control of oneself which one would otherwise possess. In this situation, it would not be necessary that the person be in such a condition as would make [him] [her] guilty of public drunkenness. The law merely requires that the person be under the influence of an intoxicant or drug. The degree of intoxication must be such that it impairs to any extent the driver's ability to operate a vehicle.[7]

The phrases “obviously intoxicated” and “visibly intoxicated” have been used interchangeably by other courts throughout the country.[8]

In passing the Alcohol Server Responsibility and Training Act of 1995[9], the legislature gave the Tennessee Alcoholic Beverage Commission authority to promulgate rules to implement that law. Accordingly, the Tennessee ABC determined the primary legislative purpose in passing the Alcohol Server Responsibility and Training Act of 1995 was to prevent intoxication-related deaths, injuries, and other damages through responsible alcohol serving practices and awareness.
The Tennessee ABC defines “visibly intoxicated” as follows:
An impairment of an individual's mental or physical faculties as a result of drug and/or alcohol consumption accompanied by a perceptible act, series of acts, or by the appearance of an individual which clearly demonstrates such impairment.[10]

The traditional burden of proof in criminal cases is the most prominent feature of this civil cause of action. Proof of each element of the cause of action “beyond a reasonable doubt” is only slightly more complicated that the burden of proof carried by the State in the typical DUI case. The complication concerns proof of the “obvious” or “visible” element.

The Alcohol Server Responsibility and Training Act of 1995 requires alcohol merchant employee-servers to have permits to sell alcoholic beverages. To obtain a permit, servers must receive and pass a test on alcohol awareness training. Server training programs must be approved by Tennessee ABC. Approved training programs[11] teach recognition of the traditional signs and symptoms of intoxication. Alcohol servers are subjected to criminal sanctions for improper sales of alcoholic beverages[12]. These typical signs and symptoms of intoxication are the cannon fodder for dram shop cases. Tennessee appellate courts have not addressed the relationship between the dram shop law, the server training law, and a cause of action for failure to properly train alcohol servers.

While limited in scope and onerous in application, Tennessee’s dram shop law may provide a means to recovery for those who suffer the misfortune to be injured by a drunk driver who has little or no liability insurance coverage. At the very least, investigation of injuries caused by drunk drivers should include a careful look at potential dram shop liability.

[1] Biscan v. Brown, 160 S. W. 3d 462 (Tenn. 2005).
[2] LaRue v. 1817 Lake, Inc., 966 S. W. 2d 423 (Tenn. App. 1997).
[3] Tenn. Code Anno. § 57-10-101(Acts 1986).
[4] Worley v. Weigels, 919 S. W. 2d 589 (Tenn. 1996).
[5] Worley, supra.
[6] Tenn. Pattern Instructions: Civ. § 4.10 (2005).
[7] Tenn. Pattern Instructions: Crim. § 38.01 (2005).
[8] 45 Am. Jur. 2d “Intoxicating Liquors”.
[9] Tenn. Code Anno. § 57-3-701 et seq. (Acts 1995).
[10] Tenn. Comp.R. & Regs. Ch. 0100-8-.02. DEFINITIONS.(9).
[11] TIPS (Training for Intervention Procedures), BARCODE, CARE (Controlling Alcohol Risks Effectively), ServSafe, SPIRITS (Sound Procedures in Reaction and Intervention Techniques of Alcohol Service), TASK (Tennessee Alcohol Server Knowledge), and Top Shelf have been approved.
[12] Tenn. Code Anno. §57-4-203; Tenn. Code Anno. §57-5-301.

originally published in Tennessee Trial Lawyers Magazine, Winter 2005-2006