§43.2 Claim by Adult Alcohol Consumer Against Seller of Alcohol

The Case: Montgomery v. Kali Orexi, LLC. , ___ S.W.3d ___, 2009 WL 837711 (Tenn. Ct. App. Mar. 27, 2009)

The Basic Facts: Plaintiffs alleged that decedent, an adult, got intoxicated at defendant's Gondolier Italian Restaurant and Pizza ("Gondolier") and later died under unusual circumstances. They brought a claim against the Gondolier for negligence and negligence per se.

The Bottom Line:

• "The first issue we address is whether a person who purchases an "alcoholic beverage or beer" and is injured or dies as a result of the consumption may sue the supplier of the alcohol under the Dram Shop Act. This inquiry calls upon us to interpret the language of Tenn. Code Ann. §§ 57-10-101 and 102, which comprise the entirety of the Dram Shop Act." 2009 WL 837711 at *3.
• "The Plaintiff contends that Tenn. Code Ann. § 57-10-102 ("section 102") permits what she calls 'first party causes of action.' She says that under section 102 'any party' who has suffered personal injury or death may bring a cause of action against a commercial seller of an 'alcoholic beverage or beer' in circumstances in which the alcoholic beverage or beer was sold to an obviously intoxicated person or a minor." Id.
• "Gondolier contends that Tenn. Code Ann. § 57-10-101 ('section 101') states a general rule, i.e., that it is the consumption of the beverage and not the furnishing of it that is the proximate cause of injuries to third parties by intoxicated persons, and that section 102 states two narrow exceptions to the general rule of non-liability to third parties set out in section 101. These exceptions address circumstances in which a purveyor of the beverage sells it to 1) a person known to be a minor or 2) an 'obviously intoxicated' person. According to Gondolier, on the other hand, section 102 applies only in circumstances in which a third party is injured by the intoxicated person." Id.
• "Since the general rule stated in section 101 deals with circumstances in which a third party is injured by an intoxicated person, the exceptions to the general rule likewise were intended to apply in circumstances in which a third party is injured by an intoxicated person - either when a sale was knowingly made to a minor who injures another or when a sale is made to 'an obviously intoxicated person' who injures another. 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. We thus affirm the trial court's grant of summary judgment as to the Plaintiff's suit predicated upon an alleged violation of the Dram Shop Act." Id. at *5.
• "In this opinion, we have held that the Dram Shop Act does not apply to first parties, such as the Plaintiff's decedent in this case. Since the statute does not cover first party actions against furnishers of an alcoholic beverage or beer, it leaves the law concerning first-party actions as it existed before the Act's enactment. As we have previously noted, the common law is not repealed by implication. Our holding regarding the common law is further bolstered by appellate decisions since the enactment of the Dram Shop Act. For example, in Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934 (Tenn. 1994), which was a post-Dram Shop Act decision of the Supreme Court, the Court analyzed a case in which a minor sued a restaurant that had served her alcohol shortly before she drove and was injured in a one car accident. Id. at 936. There was no mention of, citation to, or discussion of the Dram Shop Act." Id. at *6.
• "We conclude and hold that the enactment of the Dram Shop Act did not affect the common law rules applicable to first-party actions against a furnisher of an alcoholic beverage or beer." Id.
• "Our review of the case law leads us to conclude that no Tennessee case has altered the common law rule in relation to first-party claims by adults^FN3 who are injured while intoxicated and seek to recover damages directly from the furnisher of the beverage. Indeed, in the same year the Dram Shop Act was passed, this court considered a case in which a 'grossly intoxicated' 27-year-old plaintiff was injured in a single-car accident after drinking at the defendant's bar. Jordan v. The Krystal Co., 1986 WL 11218, at *1 (Tenn. Ct. App. W.S., filed October 7, 1986). This court affirmed the trial court's dismissal of the case for failure to state a claim for which relief can be granted, noting that 'one cannot recover damages when he actively contributes to his own intoxication, which is the proximate cause of his injury.' Id. at *3.^FN4"

  FN3 The courts treat minors differently. See Jordan, 1986 WL 11218, at *3.
  
  FN4 Jordan was decided pre-McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992)."

  Id. at *7.
• "We recognize that if a person drives while intoxicated there is a foreseeable risk that accidents, injuries and deaths may result. See West v. East Tenn. Pioneer Oil Co., 172 S.W.3d 545, 552 (Tenn. 2005) (common knowledge that drunk driving directly results in accidents, injuries, and deaths). In this case, however, the Deceased did not drive. Rather, a Gondolier staff person called a taxi, assisted the Deceased into the taxi and paid for the Deceased's trip home. She also moved the Deceased's car, which was not parked on Gondolier's premises, so that it would not be towed. These facts are undisputed." Id.
• "Questions regarding foreseeability are ordinarily questions of fact for a jury. However, even this question may be decided at the summary judgment stage if the evidence is uncontroverted and if the facts and the inferences reasonably drawn from them permit reasonable persons to reach only one conclusion. See McCall, 913 S.W.2d at 153; Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995); Staples, 15 S.W.3d at 89. This is such a case." Id. at *8.
• "Based on the facts, and considering the inferences to be drawn from the facts favorable to the Plaintiff, we hold that a reasonable person can reach only one conclusion and it is that Gondolier could not have foreseen the general manner in which the Deceased's injuries occurred; nor through the exercise of reasonable care should Gondolier have foreseen that once the Deceased was safely in a taxi to be driven home, he would grab the steering wheel of the taxi turning it into the oncoming lane, be warned, repeat the same conduct, and be put out of the taxi onto the roadside by the taxi driver, following which he would fall off a bridge to his death." Id.

Other Sources of Note: The result in this case seems to be inconsistent with the result reached in LaRue v. 1817 Lake, Inc., 966 S.W. 2d 423 (Tenn. Ct. App. 1997)