• One Too Many
  • July 8, 2009 | Author: Michael A. Faulk
  • Law Firm: Faulk, Michael A. - Church Hill Office
  • Thirty-eight percent of all traffic fatalities are alcohol-related.[1] One-half of all boating fatalities have positive blood-alcohol content and alcohol is associated with between 47 percent and 65 percent of all adults drowning.[2] Up to 40 percent of industrial fatalities and 47 percent of industrial injuries can be linked to alcohol consumption and alcoholism.[3]

    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.[4] 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.[5] 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 Ann. §57-10-102[6] 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.[7]

    The Tennessee General Assembly has declared “consumption” by a tortfeasor of alcoholic beverages is the proximate cause of injures.[8] 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.[9]

    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 21 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.[10]

    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.[11]

    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.[12]

    The phrases “obviously intoxicated” and “visibly intoxicated” have been used interchangeably by other courts throughout the country.[13]

    In passing the Alcohol Server Responsibility and Training Act of 1995,[14] 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.[15]

    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 proscribe the sale of alcoholic beverages to the visibly intoxicated and those under age.[16]

    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[17] 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.”[18]

    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.”[19] Being reimbursed for purchasing alcoholic beverages for others does not make one a “seller” within the meaning of the act.[20]

    No liability or fault under Tennessee’s dram shop law attaches to a social host[21] or merchant[22] 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.”[23]

    A social host furnishing alcoholic beverages is immune from both fault and liability under Tenn. Code Ann. §57-10-101.[24] However, in limited circumstances such as those found in Biscan v. Brown,[25] a duty of care to protect underage guests from harm lies separate and apart from furnishing alcohol.[26]

    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.”[27] 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,[28] the prohibition for persons under the influence of alcohol from driving,[29] 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.[30]

    A finding of a “special relationship” also requires proof of “means and ability to control.”[31] “An adult host who is ‘in charge’ of a party held for minors … certainly has some ability to control the conduct of his guests.”[32]

    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.”[33] 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.[34]

    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.[35]

    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.

    • • •

    Notes

    1. National Highway Traffic Safety Administration May 27, 1999 press release.
    2. United States Department of Transportation, U. S. Coast Guard, Boating Statistics 1994 (Sept. 1995).
    3. M. Bernstein & J.J. Mahoney, “Management Perspectives on Alcoholism: The Employer’s Stake in Alcoholism Treatment,” Occupational Medicine, vol. 4, no. 2, 1989, pp. 223-232.
    4. 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.
    5. 624 S. W. 2d 547 (Tenn. 1981).
    6. “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 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.
    7. Worley v. Weigels, 919 S. W. 2d 589 (Tenn. 1996), headnote 5.
    8. Tenn. Code Ann. §57-10-101 (1986).
    9. Biscan v. Brown, 160 S. W. 3d 462 (Tenn. 2005).
    10. Worley, supra.
    11. Tenn. Pattern Instructions: Civ. § 4.10 (2005).
    12. Tenn. Pattern Instructions: Crim. § 38.01 (2005).
    13. 45 Am. Jur. 2d “Intoxicating Liquors”.
    14. Tenn. Code Ann. § 57-3-701 et seq. (Acts 1995).
    15. Tenn. Comp.R. & Regs. Ch. 0100-8-.02. DEFINITIONS.(9).
    16. Tenn. Code Ann. §§57-3-406(d), 57-3-412(a)(1), 57-4-203(b), and 57-3-103(a), (c).
    17. 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.
    18. Worley, supra, headnote 6.
    19. 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 …”
    20. Biscan v. Brown, 160 S. W. 3d 462 (Tenn. 2005).
    21. Biscan, supra.
    22. LaRue v. 1817 Lake Inc., 966 S. W. 2d 423 (Tenn. App. 1997).
    23. Tenn. Code Ann. § 57-10-101(Acts 1986).
    24. Tenn. Code Ann. § 57-10-101(Acts 1986).
    25. 160 S. W. 3d 462 (Tenn. 2005).
    26. Biscan, supra.
    27. Biscan, supra.
    28. 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.”
    29. Tenn. Code Ann. §§55-10-401 — 416(2002).
    30. Biscan, supra
    31. 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).
    32. Biscan, supra.
    33. Biscan, supra.
    34. Biscan, supra.
    35. West v. East Tennessee Pioneer Oil, 172 S. W. 3d 545 (Tenn. 2005).

    • • •

    Mike Faulk is an attorney in Church Hill, Tenn., and is a civil trial specialist certified by both the National Board of Trial Advocacy and the Tennessee Commission on Continuing Legal Education and Specialization. Faulk graduated from the Cecil C. Humphreys School of Law at Memphis State University in 1979, when he received the school’s Kirby Bowling Labor Law award as the outstanding labor law student. He has extensive experience in both prosecuting and preventing alcohol-related injury claims. Substantial resources concerning prosecuting, preventing, and defending alcohol-related injury claims may be found at www.faulklaw.com.