Until recently, there was no duty in Tennessee to prevent patrons from driving drunk. However, a recent Court of Appeals decision calls into question whether premises owners have a duty to take action when a patron is obviously drunk and likely to leave the premises in a vehicle. See JOLYN CULLUM, ET. AL. v. JAN McCOOL, ET. AL. In this case, the defendant, McCool, entered Wal-Mart and attempted to buy prescription medication. The Wal-Mart employees refused to sell McCool prescription drugs because McCool was obviously inebriated. McCool then lost her cool, became belligerent, and was ordered her to leave the premises. She subsequently backed her car into an unsuspecting patron who was loading groceries into the back of her vehicle.
The plaintiff sued Wal-Mart claiming the employees failed to protect her from the foreseeable criminal conduct of McCool, i.e. drinking and driving. The plaintiff claimed Wal-Mart failed to call the police despite McCool’s intoxicated state and disorderly conduct. The danger was apparent, according to plaintiff, because the employees knew McCool was alone and that she would have to drive herself off the premises. Plaintiff also alleged the employees were familiar with McCool’s “habitual intoxication.” Wal-Mart argued it had no legal right to prevent McCool from getting into her vehicle and driving away and that there is no case law imposing a duty on a retail establishment to contact the police when a customer comes to the store in a potentially intoxicated state.
The trial court in Chattanooga agreed with Wal-Mart that the foreseeable probability and gravity of harm posed by Wal-Mart’s conduct did not outweigh the burden on Wal-Mart to stop McCool from leaving. Citing Lett v. Collins Food, Inc., 60 S.W.3d 95, 99 (Tenn. Ct. App. 2001). The trial court also found that there was no “special relationship” because none of the actions taken by Wal-Mart would qualify as the means and ability to control McCool’s conduct to the extent that they give rise to the duty to control her.
The Court of Appeals reversed, finding the trial court’s reliance on Lett was misplaced. Instead, the trial court should have focused on Wal-Mart’s potential duty to protect the plaintiff as opposed to its ability to control a third party. The lower court should have considered whether plaintiffs alleged sufficient facts to establish that Wal-Mart owed its customer a duty to protect her from the criminal acts of third parties in its parking lot. Citing McClung v. Delta Square Ltd. Partn., 937 S.W.2d 891, 899 (Tenn. 1996). The Court of Appeals also found the injury sustained by the plaintiff was clearly foreseeable due to the fact that Wal-Mart had actual knowledge of a specific danger on its premise when the employees expelled McCool. In discussing what else Wal-Mart could have done, the Court of Appeals opined the employees could have either refrained from expelling the inebriated customer or could have informed the police that an inebriated customer left the store and was about to drive in the parking lot. The Court stated “… while Wal-Mart’s employees may not have a legal right to prevent Ms. McCool from leaving the store because she was inebriated, the employees did not have to actively expel her from the store without undertaking some measures to ensure the safety of the customers in the parking lot.” In closing, the Court of Appeals noted that ultimately the question for the trier of fact was to determine whether Wal-Mart breached its duty to the plaintiff by taking or not taking certain actions based upon proof presented at trial. Citing McClung and Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 91 (Tenn. 2000).
The Tennessee Supreme Court recently agreed to review this decision of the Court of Appeals. In my humble opinion, the Supreme Court will reverse this decision and reaffirm the legal precedent that there is no legal duty to prevent intoxicated patrons from driving drunk. For example, in the case of East Tennessee Pioneer Oil Company, 172 S.W.3d 545 (Tenn. 2005), the Tennessee Supreme Court affirmed that there is no duty in Tennessee to restrain or otherwise prevent intoxicated persons from driving. This decision was subsequently discussed in the case of Collins v. Arnold case, 2007 WL 4146025 (Tenn. App. 2007). In Collins, the Court of Appeals noted there is no general duty of care to control the conduct of a third party. Even under the so-called “special relationship” theory of liability, the court could find no authority for the proposition that the owners or employees of a commercial establishment have a special relationship with a customer or with the public that would impose a duty to control the conduct of an adult customer to prevent her leaving the premise or driving while intoxicated. The Collins Court cited Lett v. Collins Foods, Inc. for the premise that a restaurant employee has no duty to prevent an intoxicated employee from leaving in her own car. This reasoning, the court stated, is “… consistent with the general principal that a defendant’s duty to control the conduct of another depends in part on the defendant having the means and ability to control the third party.” The means and ability include not just the physical means and ability but also the legal right to impose physical restraint.
If the Court decides that there can be some limited situations in which premise owners do have a duty to take action, like follow the drunken patron into the parking lot, attempt to warn other patrons, or call the police, this could mean protracted litigation and policy changes for premise owners across the State. If you have questions on how this case may affect your policies and procedures, feel free to give me a call or write me at the e-mail provided.