§43.4 First Party Claim Against Bar for Furnishing (Not Selling) Alcohol to Minor

The Case: LaRue v. 1817 Lake, Inc. , 966 S.W. 2d 423 (Tenn. Ct. App. 1997).

The Basic Facts: LaRue and Brewer, both minors, consumed alcohol beverages at several places, the last location being defendant's bar. Defendant did not sell alcohol to Brewer and LaRue. Later that evening LaRue died after a motorcycle wreck. The motorcycle was driven by an intoxicated Brewer.

The Bottom Line:

• "It seems quite clear that for T.C.A. § 57- 10-102 to apply, the plaintiffs must prove beyond a reasonable doubt that the defendants ' sold' an alcoholic beverage to LaRue and Brewer. The statute in each and every instance requires a sale before liability can be imposed. There is no direct evidence, nor evidence in the record from which an inference can reasonably be drawn, that there was a sale to either Brewer or LaRue by the 'dram shop' defendants. Plaintiffs argue, however, that the statute should not be construed as to require a 'sale' of alcohol to a minor or obviously intoxicated person. They argue that, because of public policy against furnishing alcohol to minors, a showing beyond a reasonable doubt that a defendant 'furnished' alcohol to a person under 21 should be enough to allow a jury to decide whether the furnishing was the proximate cause of an accident. We most respectfully disagree. We should first note that it is within the province of the General Assembly to establish and proclaim public policy. The Supreme Court in Watson v. Cleveland Chair Co., 789 S.W.2d 538 (Tenn. 1989), made the following observations:

  A definitive statement on the authority of the courts to determine public policy can be found in Nashville Ry. and Light Co. v. Lawson, 144 Tenn. 78, 91, 229 S.W. 741 (1921), citing from License Tax Cases, 72 U.S. 462, 5 Wall. 462, 18 L.Ed. 497:

  This Court can know nothing of public policy except from the constitution and the laws, and the course of administration and decision. It has no legislative powers. It cannot amend or modify any legislative acts. It cannot examine questions as expedient or inexpedient, or as politic or impolitic. Considerations of that sort must, in general, be addressed to the legislature. Questions of policy determined there are concluded here.

  Watson, supra at page 540. See also Smith v. Gore, S.W.2d 738 and the cases cited therein."

  966 S.W. 2d at 426.
• "The General Assembly has unambiguously declared the public policy with regard to the furnishing of alcohol to persons under the age of 21 as it relates to "dram shops." We are not at liberty to hold otherwise. Accordingly, in the absence of evidence of a sale, the trial court was correct in directing a verdict in favor of the "dram shop" defendants." Id.

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