Q&A WITH HAYLEY R. SCOTT
Alcohol retailers may have increased liability for customers’ criminal actions
Q: A recent Oklahoma Supreme Court case expanded alcohol purveyors’ liability when it comes to intoxicated customers committing criminal acts. What circumstances led to this decision?
A: In Boyle v. ASAP Energy, an individual began consuming alcohol in the morning and later purchased low-point beer from a convenience store for off-premises consumption at 5:17 p.m. He continued to consume alcohol throughout the evening, but no evidence indicated that he ever actually consumed the low-point beer bought at the convenience store. Almost six hours after buying the low-point beer, he left a party around 11 p.m. with a blood-alcohol level of .29 and ran a four-way stop sign, crashing with another vehicle. One individual was killed and two others were permanently injured. Presented with the question of whether the convenience store could be held liable for the aforementioned injuries to third parties, the Oklahoma Supreme Court determined that Oklahoma law recognizes a cause of action against a commercial vendor who sells alcohol to noticeably intoxicated adults for off-premises consumption when the sale results in an injury to an innocent third party.
Q: What was the court’s reasoning behind the ruling? A: The Oklahoma Supreme Court reasoned that liability may be imposed on a commercial vendor in the aforementioned circumstances because such a vendor is in a position to observe whether a customer is noticeably or visibly intoxicated. If that’s the case, it’s foreseeable that the customer will drive a vehicle and potentially injure a third party. Accordingly, these commercial vendors have a duty to exercise reasonable care in selling alcohol to noticeably intoxicated persons. The court also explained that this ruling is not surprising based upon prior Oklahoma precedent imposing a similar duty on parties selling or facilitating off-premises consumption of alcohol by minors, as well as selling or facilitating on-premises consumption of alcohol by adults.
Q: What potential problems does this ruling create for Oklahoma businesses?
A: This ruling imposes a burdensome duty on Oklahoma businesses selling alcohol for offpremises consumption. These businesses now are required to assess whether a customer attempting to purchase alcohol is drunk during the sales transaction interaction that likely lasts mere seconds. Moreover, unlike a bartender who has a grasp on the amount of alcohol patrons have already consumed, convenience store clerks don’t have this knowledge. And since they only can sell alcohol for consumption off-premises, convenience store clerks have no idea whether the customer will even be the individual consuming the alcohol — they could throw the alcohol just bought in the trash on their way out of the store, and if they were “noticeably intoxicated” and later injure a third party, some scenarios may render a convenience store liable.
This ruling also creates conflicting obligations imposed upon Oklahoma businesses that sell alcohol for off-premises consumption. It requires these businesses to assess whether a customer purchasing alcohol is drunk during the brief interaction between an employee and customer during a sales transaction. This obligation is in direct tension with their competing obligation not to make a false report of drunk driving. As the Boyle v. ASAP Energy dissent explains, these Oklahoma businesses are subject to a “liable-if-you-do-liable-if-you-don’t framework,” “caught between competing duties to ascertain who is drunk before selling them alcohol but never to report those they perceive to be driving drunk, lest they be wrong in that perception.”