§25.8 Sale of Gasoline to Intoxicated Motorist

The Case: West v. East Tennessee Pioneer Oil Co ., 172 S.W.3d 545 (Tenn. 2005).

The Basic Facts: Plaintiffs were injured in a head on collision with a drunk driver. The drunk driver had purchased gasoline from the Defendant gas station moments before and tests revealed that the drunk driver would not have had enough fuel to reach the scene of the accident without purchasing gasoline at the station. Plaintiffs filed suit against the gas station, alleging its employees were negligent in selling the drunk driver gasoline.

The Bottom Line:

• "A negligence claim requires proof of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate or legal cause. Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn. 1998) overruled on other grounds byCross v. City of Memphis, 20 S.W.3d 643 (Tenn. 2000); see also McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995); McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991). While we will discuss each of these elements in turn, our primary focus is on the first element: duty of care." 172 S.W.3d at 550.
• "Although not a part of the early English common law, the concept of duty has become an essential element in all negligence claims. McCall , 913 S.W.2d at 153; Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993); see also [W. Page Keeton, Prosser & Keeton on the Law of Torts § 53 (5th ed. 1984)]. The duty owed to the plaintiffs by the defendant is in all cases that of reasonable care under all of the circumstances. Doe v. Linder Const. Co., 845 S.W.2d 173, 177 (Tenn. 1992). Whether the defendant owed the plaintiffs a duty of care is a question of law to be determined by the court. Burroughs v. Magee, 118 S.W.3d 323, 327 (Tenn. 2003); Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89; Coln, 966 S.W.2d at 39." Id.
• "If a defendant fails to exercise reasonable care under the circumstances, then he or she has breached his or her duty to the plaintiffs. The term reasonable care must be given meaning in relation to the circumstances. Linder Const. Co., 845 S.W.2d at 178; McCormick v. Waters , 594 S.W.2d 385, 387 (Tenn. 1980). Reasonable care is to be determined by the risk entailed through probable dangers attending the particular situation and is to be commensurate with the risk of injury. Linder Const. Co., 845 S.W.2d at 178. Thus, legal duty has been defined as the legal obligation owed by a defendant to a plaintiff to conform to a reasonable person standard of care for the protection against unreasonable risks of harm. Burroughs, 118 S.W.3d at 329; Staples, 15 S.W.3d at 89; McCall, 913 S.W.2d at 153; see also [Keeton, supra, § 53]." Id. at 550-51.
• "The risk involved must be one which is foreseeable; 'a risk is foreseeable if a reasonable person could foresee the probability of its occurrence or if the person was on notice that the likelihood of danger to the party to whom is owed a duty is probable.' Linder Const. Co., 845 S.W.2d at 178. 'The plaintiff must show that the injury was a reasonably foreseeable probability, not just a remote possibility, and that some action within the [defendant's] power more probably than not would have prevented the injury.' Tedder v. Raskin, 728 S.W.2d 343, 348 (Tenn. Ct. App. 1987)." Id. at 551.
• "We employ a balancing approach to assess whether the risk to the plaintiff is unreasonable and thus gives rise to a duty to act with due care. Burroughs, 118 S.W.3d at 329; Staples, 15 S.W.3d at 89. This Court has held that a risk is unreasonable, ''if the foreseeable probability and gravity of harm posed by defendant's conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm.'' Burroughs, 118 S.W.3d at 329 (quoting McCall, 913 S.W.2d at 153)." Id.
• "The defendant argues that it owed no duty of care to the plaintiffs because the intoxicated driver was merely a customer at the defendant's convenience store; thus there was no 'special relationship' giving rise to a duty on the part of the defendant to control the actions of the customer. See, e.g., Nichols v. Atnip, 844 S.W.2d 655, 661 (Tenn. Ct. App. 1992) (discussing how a defendant who assumes a special relationship with a third party may also incur a duty to control the conduct of that third party). In our view, the defendant misconstrues the plaintiffs' claims as being based upon a 'special relationship' arising from the sale of gasoline to Mr. Tarver (the intoxicated driver). The plaintiffs' allegations do not revolve around any duty of the defendant to control the conduct of a customer. Instead, the claims are predicated on the defendant's employees' affirmative acts in contributing to the creation of a foreseeable and unreasonable risk of harm, i.e., providing mobility to a drunk driver which he otherwise would not have had, thus creating a risk to persons on the roadways. Viewed in this light, the balancing test set out above is appropriate to determine whether the defendant owed the plaintiffs a duty." Id. at 551-52.
• "Simply stated, the defendant convenience store owed a duty to act with reasonable care under all the circumstances. Under the facts of this case, we conclude that the acts of the defendant in selling gasoline to an obviously intoxicated driver and/or assisting an obviously intoxicated driver in pumping gasoline into his vehicle created a foreseeable risk to persons on the roadways, including the plaintiffs. It is common knowledge that drunk driving directly results in accidents, injuries, and deaths.^FN5 As to the possible magnitude of the potential harm posed to the plaintiff, we again need look no further than to the frequency and severity of injuries caused by drunken driving. As we noted in Burroughs:

  Deaths and serious injuries tragically occur every day as the result of impaired drivers who are operating motor vehicles on our roads and highways. In addition to the devastation such accidents can wreak on individuals and families, our society also incurs substantial costs (both human and economic) as a result of impaired drivers.

  118 S.W.3d at 332.

  FN5 The severity of the risk posed by drunken driving in this state is clearly indicated in Tennessee Department of Safety statistics which reveal that alcohol related automobile accidents led to 2,498 deaths in Tennessee between 1998 and 2003. [ Dep't of Safety Internet - DUI Statistics: Known Alcohol Related Crashes, available at http://www.tennessee.gov/safety/ duistats.htm (last visited July 6, 2005)]."

  Id . at 552.
• "We next examine the feasibility of alternative, safer conduct and the burdens associated with such alternative conduct. A safer alternative was readily available and easily feasible-simply refusing to sell gasoline to an obviously intoxicated driver. The clerk at the defendant's store had already refused to sell beer to Mr. Tarver. In fact, both state law^FN6 and store policy required her to refuse to sell alcohol to intoxicated persons. It was also the clerk's understanding that she was never required to allow a customer to purchase any item, including gasoline. The relative usefulness and safety of this alternative conduct is obvious. All reasonable persons recognize that refraining from selling gasoline to or assisting intoxicated persons in pumping it into their vehicles will lead to safer roadways.

  FN6 See Tenn. Code Ann. § 57-3-406(c) (1999) (providing that '[n]o retailer shall sell any alcoholic beverages to any person who is drunk')."

  Id .
• "Based upon the foregoing analysis, we conclude that a convenience store employee owes a duty of reasonable care to persons on the roadways, including the plaintiffs, not to sell gasoline to a person whom the employee knows (or reasonably ought to know) to be intoxicated and to be the driver of the motor vehicle. Similarly, a convenience store employee also owes a duty of reasonable care not to assist in providing gasoline (in this case pumping the gasoline) to a person whom the employee knows (or reasonably ought to know) to be intoxicated and to be the driver of the motor vehicle. We stress that because '[f]oreseeability is the test of negligence,' Linder Const. Co., 845 S.W.2d at 178, the convenience store employee must know that the individual is intoxicated and that the individual is the driver of the vehicle before a duty arises. It is a question of fact for a jury as to what the employee knew with respect to the individual's intoxication and status as driver. We also hasten to point out, as did the Court of Appeals, that by our decision today we do not hold that convenience store employees have a duty to physically restrain or otherwise prevent intoxicated persons from driving." Id.