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Do Gas Stations Owe a Duty to Abstain from Selling Gas to Drunk Customers?

July 26, 2022  Source: Rhodes, Hieronymus, Jones, Tucker & Gable, PLLC

Duty is crucial to the tort of negligence. The existence of a duty is the foundational element of a negligence claim that alerts potential defendants on how they must act to avoid liability. “Duty constrains and channels human behavior in a socially responsible way before the fact, and it provides a basis for judging the propriety of behavior thereafter. David Owen, Duty Rules, 54 Vand. L. Rev. 767 (2001). The assessment of duty balances the interests of potential victims against the interests of actors, evaluating societal harm versus individual freedom. Thus, when legislators establish a duty or courts assess the existence of a duty, they provide “an important screening mechanism for excluding types of cases that are inappropriate for negligence adjudication.” David G. Owen, The Five Elements of Negligence, 35 Hofstra L. Rev. 1671, 1675 (2007). When a duty does not exist to guide potential defendants’ conduct, negligence claims against the alleged conduct are barred or severely limited. Id.

Dram Shop Liability is Limited to the Sale or “Furnishing” of Alcohol

Dram shop is a legal term referring to a commercial establishment that furnishes alcoholic beverages. The term originates from 18th century Britain, where alcoholic beverages were traditionally sold by the dram, an English unit of liquid. Eric J. Handelman, Proof of Tavern Keeper’s Liability Under Dram Shop Act, 137 Am. Jur. Proof of Facts 3d 195 (2013). A majority of states have adopted dram shop statutes, but the scope of who may be held liable, who may sue, or what conduct is impermissible varies among jurisdictions. Steven M. Gursten, Theories of Liability and Fault, 1 Handling Motor Vehicle Accident Cases 2d § 1:28. Generally, dram shop rules allow a plaintiff to hold a commercial establishment liable that provided a visibly intoxicated individual with alcohol when the intoxicated individual later causes harm on the roadway. Richard Smith, A Comparative Analysis of Dramshop Liability and a Proposal for Uniform Legislation, 25 J. Corp. L. 553, 557 (2000). Some states have extended dram shop liability to commercial establishments that sell to minors; other states have gone even further than sales and allow social hosts to be held liable who “furnish” alcohol to visibly intoxicated individuals or who knowingly provide access to alcohol to minors. Id. at 560-62. While dram shop liability may vary in form among the states, one element of the tort is uniform, the substance of alcohol. Dram shop liability has not yet extended further than the sale or “furnishing” of any substance other than alcohol. Id. at 557.

Jurisdiction Determines Whether a Duty Exists

While the issue of whether a gas station owes a duty to abstain from selling fuel to intoxicated customers does not possess a breadth of case law, a few states have addressed the issue. For jurisdictions that have adopted Section 7 of the Restatement (Third) of Torts (Am. L. Inst. 2010), the New Mexico Supreme Court case, Morris v. Giant Four Corners, Inc., may be persuasive. 498 P.3d 238 (N.M. 2021).

In Morris, a heavily intoxicated driver ran out of gasoline while driving under the influence and walked to a gas station to refuel his vehicle. Id. at 241. Both the driver and his passenger were observed as clearly intoxicated. The driver purchased a gallon of water to serve as a gas can and a gallon of gas from the gas station clerk, who initially refused to sell gasoline to the driver based on his level of intoxication. Id. at 241-42. The driver and his passenger then walked to their vehicle and drove back to the gas station to purchase an additional nine gallons of gasoline. After returning to the highway, the drunk driver crossed the centerline and collided with an oncoming vehicle whose driver was killed upon impact. Id. at 242.

The deceased driver’s estate filed a wrongful death suit, which included a claim against the gas station for negligent entrustment of chattel. Id. at 242. The United States District Court for the District of New Mexico granted the gas station’s motion for summary judgment, declining to find that the gas station owed the deceased driver a duty “to refrain from selling gasoline to an allegedly intoxicated driver.”Id. The deceased driver’s estate appealed to the United States Court of Appeals for the Tenth Circuit, which certified the question to the New Mexico Supreme Court. Id.

The New Mexico Supreme Court overruled the district court’s judgment, finding that under New Mexico law, a commercial gasoline vendor owes a duty to third parties using the roadway “to refrain from selling gasoline to a driver the vendor knows or has reason to know is intoxicated.” Id. at 253. The Court based its decision on public policy considerations, including a review of the legislative intent of New Mexico’s dram shop liability statute to limit intoxicated driving. Id. at 248. The Court also evaluated Section 390 of the Restatement (Second) of Torts, which specifically applies to the doctrine of negligent entrustment:  

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Restatement § 390 (Am. L. Inst. 1965). Applying this section, the Court could not identify a significant difference “between a duty not to give an intoxicated person the keys to a vehicle and a duty to refrain from giving an intoxicated person gasoline to drive that vehicle.” Id. at 250. Addressing concerns of widespread applicability, the Court elaborated that instances where a gas station may not have the opportunity to observe a gasoline purchaser or instances involving unattended gas stations were questions of foreseeability, which New Mexico courts reserve for juries. Id. at 252. New Mexico has adopted Section 7 of the Restatement (Third) of Torts (Am. L. Inst. 2010), which states that ordinarily one “has the duty to exercise reasonable care when determining the actor’s conduct creates a risk of physical harm.” Consequently, the Court noted in the beginning of its analysis that it does not consider foreseeability when assessing the existence of a duty. Id. at 243.  

For jurisdictions that rely on a foreseeability analysis to determine the existence of a duty, the Oklahoma Court of Civil Appeals case, Snow v. TravelCenters of America LLC, Case No. 119143 (Okla. Civ. App. Jul. 12, 2022), may be persuasive.  In Snow, an intoxicated driver stopped at a gas station to refuel, and the gas station attendants observed that the driver appeared intoxicated but still proceeded with the sale of gasoline. Id. at ¶ 3. Almost four hours later in a different town, the intoxicated driver lost control of his vehicle and veered off the road, striking and killing a grandmother and her grandchild, who were both standing in the grandmother’s front yard. Id.

The estate of the deceased brought a civil lawsuit against the gas station for negligence and negligent entrustment. Id. at ¶ 5. The District Court of Oklahoma County granted the gas station’s motion to dismiss, finding that “gas stations owe no duty to abstain from selling gas to drunk customers.” Id. at ¶ 7. The estate of the deceased filed a motion to reconsider, which the district court overruled. The estate of the deceased appealed this judgment to the Oklahoma Court of Civil Appeals. Id. at ¶ 11.

The Oklahoma Court of Civil Appeals affirmed the district court’s judgment, holding that the Oklahoma legislature had not codified a duty to refrain from selling gasoline to intoxicated customers through an extension of dram shop liability, the creation of a separate tort claim, or by the adoption of the Restatement (Third) of Torts. Id. at ¶ 56-58. The Court reasoned that a close connection of conduct and injury, moral blame of the alleged conduct, and foreseeability assist in determining the existence of a duty. The significant lapse of time and distance between the sale of gasoline and the injury, as well as “the absence of moral blame in the legal sale of motor fuel” argued against the imposition of a duty. Id. at ¶ 38-39.

After examining Section 314A and B of the Restatement (Second) of Torts, which lists the special relationships sufficient to impose a duty, the Court determined that the relationship between gas stations and third parties unrelated to the sale of gasoline does not constitute a special relationship which would impose a duty. Id. at ¶ 41. The Court reasoned that while it is foreseeable that a drunk driver may cause harm while driving under the influence, in the absence of a special relationship between the gas station and the third party who suffered an injury from the drunk driver’s actions, gas stations do not owe a duty to protect a third party by refusing to sell gasoline to drunk customers. Id. at ¶ 40. The Court further elaborated that the gas station’s failure to act, or failure to refuse to sell gasoline to an intoxicated customer, did not violate a general duty to protect others from harm or criminal conduct because this duty does not exist absent a special relationship. Id. at 38, 40, 42. To reach this conclusion, the Court relied on Section 314 of the Restatement (Second) of Torts, which provides: “The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” The Court additionally relied on Section 315, which states: “There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another.” Consequently, because no duty exists in Oklahoma for gas stations to refrain from selling fuel to drunk customers, the Court affirmed the district court’s dismissal of the lawsuit. Id. at ¶ 60. 

Affirmative Acts May Alter the Existence of a Duty

Where a duty may not have been found originally in the sale of fuel to an intoxicated customer, a duty may arise when the gas station takes an affirmative action during the fuel transaction. In West v. East Tennessee Pioneer Oil Company, the Tennessee Supreme Court held that gas station employees owed a duty of reasonable care to third parties on roadways after they sold gasoline and assisted in fueling the vehicle of an obviously intoxicated driver. 172 S.W.3d 545 (Tenn. 2005). In West, an obviously intoxicated customer entered a gas station attempting to purchase alcohol. The gas station attendant refused to sell him alcohol because he appeared intoxicated. The intoxicated customer then paid for gas and left to refuel his vehicle. Id. at 548. The intoxicated customer could not operate the pump, so two gas station employees assisted the customer in fueling his vehicle. The drunk driver then exited the gas station without turning on his headlights and drove into the wrong lane of traffic. Less than three miles away from the gas station, the drunk driver collided head-on with a vehicle, seriously injuring both passengers. Id. at 548-49.

The injured passengers filed a civil lawsuit against the gas station, alleging that the gas station employees were negligent in selling gasoline to an obviously intoxicated driver and assisting him in fueling his vehicle. The Tennessee Circuit Court granted the gas station’s motion for summary judgment, holding that the gas station owed no duty to the injured passengers to refrain from selling gasoline to the intoxicated customer and that the sale of gasoline was not the proximate cause of the passengers’ injuries. Id. at 549. The Tennessee Court of Appeals affirmed the trial court’s judgment on two of the injured passengers’ claims, but reversed the trial court on the negligence claim, determining that “the affirmative acts of [the] employees in both selling gasoline to and in helping a visibly intoxicated [customer] pump the gasoline into his vehicle created a duty to act with care.” Id. at 549-50. The gas station filed for a review of the appellate court’s decision, which the Tennessee Supreme Court granted. Id. at 550.

The Tennessee Supreme Court affirmed in part the Tennessee Court of Appeals decision, holding that the affirmative acts of the gas station employees did create a legal duty. Id. at 556. The Court reasoned that a legal duty is a legal obligation “to conform to a reasonable standard of care for protection against unreasonable risks of harm.” Id. at 551. If a risk is foreseeable, the Court uses a balancing approach to determine if the probability and gravity of harm posed by the alleged conduct “outweigh the burden upon the defendant to engage in alternative conduct that would have prevented the harm.” Id. The Court refused to analyze whether a special relationship existed between the gas station and the injured passengers that would create a duty and instead focused on the gas station employees’ affirmative acts that contributed to the creation of foreseeable harm. With the general knowledge that drunk driving causes accidents, the Court weighed the burden of the gas station employees’ refusal to sell gas to an intoxicated driver or to assist him in fueling his vehicle against the strong likelihood of an injury resulting from drunk driving. Id. The Court concluded that gas station employees owe a duty to refrain from selling gasoline to intoxicated customers and to refrain from assisting intoxicated customers with fueling their vehicles. Addressing the essential element of foreseeability, the Court further analyzed that a gas station employee must have actual knowledge or reasonable indication of intoxication to establish a duty to refrain from selling gasoline, and whether or not the gas station employee was actually aware or reasonably informed of the drunk customer’s intoxicated state would be a fact question for a jury to determine. Id. at 552.

Conclusion

While case law for this issue remains limited, and state legislatures have not yet created a separate tort claim independent of dram shop liability for vendors who sell gasoline to intoxicated customers, plaintiffs may still seek the deeper pockets of gasoline vendors to finance their claims. Whether a gas station owes a duty to abstain from selling gas to drunk customers will depend on the jurisdiction and whether the gas station has performed an affirmative act during the fuel transaction that would assist a drunk customer in driving while under the influence.

Sources

David Owen, Duty Rules, 54 Vand. L. Rev. 767 (2001).

David G. Owen, The Five Elements of Negligence, 35 Hofstra L. Rev. 1671 (2007).

Eric J. Handelman, Proof of Tavern Keeper’s Liability Under Dram Shop Act, 137 Am. Jur.         Proof of Facts 3d 195 (2013).

Richard Smith, A Comparative Analysis of Dramshop Liability and a Proposal for Uniform         Legislation, 25 J. Corp. L. 553 (2000).

Steven M. Gursten, Theories of Liability and Fault, 1 Handling Motor Vehicle Accident Cases    2d § 1:28.

Nark is a Partner with Rhodes Hieronymus in Oklahoma. He concentrates his practice on Medical Mal-Practice Defense, Hospitality and Retail Defense, Specialty Panel Insurance Defense, Insurance Subrogation, Commercial Litigation, and Mold Litigation.

Kerry Lewis is a Partner with Rhodes Hieronymus in Oklahoma.  His primary emphasis involves trial and appellate litigation with experience in a variety of areas, including insurance coverage, bad faith, complex litigation, and professional malpractice matters. Mr. Lewis has been the primary brief writer in more than 30 appeals.

Nathan and Kerry would like to give special thanks to Lyric Clark, Law Student, for her superb assistance with this article.

 

Deliver the Best Outcomes for Your Clients with Litify 

July 25, 2022 • Source: Litify

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Driver Shortage, FMCSA's Young Driver Pilot Program and the Liability Complications

July 27, 2022 • Source: Joe Pappalardo, Gallagher Sharp LLP 

Chances are the majority of items you buy, or the parts to make them, were at one time on a truck. The importance of trucking to the economy is undeniable, as is a lingering problem facing the industry: a driver shortage that is only getting worse.

The American Trucking Association estimates that there is a truck driver shortage of 80,000 drivers, a historic high. And the shortage is estimated to surpass 160,000 by 2030. The fleet of current drivers is growing older. There are indications that, increasingly, current and eligible drivers are unwilling to do the job due to factors such as long and uneven hours, the grueling nature of driving in traffic, detention at shippers and receivers, and increasing regulatory demands.

Statistics show that the average age of a truck driver is 48. About 83% of drivers are men. Turnover is high and retention is low; about 40% of drivers stay on the job for less than one year and only 27% remain drivers for two years.

Motor carriers—in cooperation with trucking organizations, state and federal authorities, shippers, receivers, and other stakeholders—are attempting to address the problems with better pay and benefits, creative and flexible scheduling, use of team drivers, and increased dedicated routes. But it is clear that more needs to be done to address the driver shortage and attendant problems.

Looking to Younger Drivers

In response, part of Congress’ Infrastructure Investment and Jobs Act—signed into law by President Joe Biden in November 2021—mandated that the Federal Motor Carrier Safety Administration (FMCSA) establish an apprenticeship program for qualified 18-, 19-, and 20-year-old drivers, which would allow these drivers to operate commercial motor vehicles for interstate travel as long as certain conditions are met.

On Jan. 14, 2022, the FMCSA, in accordance with Congress’ mandate, established the Safe Driver Apprenticeship Pilot Program. For participating motor carriers and drivers, the normal requirement under Federal Motor Carrier Safety Regulation (FMCSR) 391.11(b)(1), restricting drivers under 21 years of age from interstate travel, will be waived, allowing qualified 18-20-year-old apprentice drivers that meet the program requirements to operate commercial motor vehicles in interstate travel.

In order to be part of the program, qualified motor carriers must apply on the FMCSA website, and the program will be limited to 3,000 drivers. It should be noted that the FMCSA currently does not restrict younger drivers from operating in intrastate commerce, though state laws vary in this regard.

In addition to having proper operating authority and minimum levels of insurance, the requirements for a motor carrier to be a part of the program include: not being classified as a moderate or high risk motor carrier by the FMCSA; a satisfactory safety rating from the FMCSA; no open enforcement actions; and below national average crash and driver/vehicle Operations Out-of-Service rates.

The requirements to be an apprentice driver include not having the following in a two-year period preceding the driver’s date of hire: more than one license; license suspended/revoked; any conviction of a traffic violation (other than parking) in relation to a traffic crash; and any conviction of other enumerated violations related to drugs/alcohol or negligent/reckless driving.

Before the apprentice driver is allowed to operate a commercial motor vehicle alone, the program requires that the apprentice driver go through two probationary periods with the motor carrier: an initial 120-hour period of on-duty time (80 hours driving a commercial motor vehicle) and an additional 280-hour period of on-duty time (160 hours driving a commercial motor vehicle). During both of these probationary periods, the apprentice driver must be accompanied at all times by an experienced driver (as defined under the program), and the commercial motor vehicle being operated by the apprentice driver must have certain technologies installed, such as forward facing video cameras and a governed speed of 65 MPH. Additionally, the motor carrier is responsible during these probationary periods for ensuring the apprentice driver is competent in the categories enumerated under the program, including but not limited to speed and space management, safety awareness, hours of service compliance, backing and maneuvering in close quarters, and pre-trip inspections.

The program will last three years, and the FMCSA will report its findings to Congress. Participating motor carriers will have reporting requirements, including monthly reporting to the FMCSA on the apprentice driver’s activity. The FMCSA has not yet announced the application process for the program, however, interested motor carriers should not wait to begin reviewing and, if need be, implementing the necessary policies and procedures to participate and comply with the program.

Some in the industry are concerned about the idea of putting 18-20-year-olds in trucks that a significant segment of the population already perceives as larger, heavier, more difficult to drive, and, therefore, less safe than passenger vehicles. It is crucial that any pilot program or eventual permanent program be carefully designed to address these concerns.

Of course, there is risk to allowing younger drivers to operate commercial motor vehicles in interstate commerce. Surely, there will be claims and litigation implications—plaintiffs’ lawyers will argue that younger drivers are less safe. Negligent hiring, retention, and training claims will invariably be presented. Time will tell how these claims will be addressed by the defense. But it is evident that claims and lawsuits involving young drivers will need careful attention regarding training, monitoring of behavior, and witness preparation.

Meanwhile, the FMCSA, responding to a mandate from Congress, will launch this intriguing pilot program to address a serious issue facing the trucking industry and indeed the entire country. It will be interesting to see what develops.

 

Never Say Never: The Benefits of Video Data Recovery for Claim and Legal Professionals

Source: Jared Fegan, Senior Project Consultant, IT Hardware, Envista Forensics

The rise in popularity of security cameras on residential and commercial properties has led to a proliferation of video footage and other data. Fueled by their low cost and easy installation, along with smart phone enabled remote monitoring technologies, the home security system market is anticipated to be near $55 billion USD by 2026. With these systems now being ubiquitous, the data recorded by security cameras on private and public properties will inevitably grow to play a key role in providing integral evidence following vandalism, arson, and other criminal acts.

The recovery of data stored on various technologies, such as Digital Video Recorders (DVRs) or Network Video Recorders (NVRs), can be the difference between proving if a slip and fall occurred, where a fire started, how it was started, or what caused a structural collapse. Footage prior to the claimed event can also assist with providing what was located onsite or confirming contents in the impacted areas. Additionally, despite damage frequently occurring to the cameras and recording equipment itself, data can often be recovered to provide crucial evidence to support a claim or case.

Utilizing Video Data Recovery in Claim Investigations

Although many assume that all video footage is recorded in a readable format, there are a few key points to understand that may pose challenges when attempting to use this data in a claim investigation. First, it is important to know that video surveillance equipment does not have unlimited capacity, and when the storage is full, the data overwrites itself by default. This means that time is of the essence, and it is important to obtain all video evidence quickly and preserve it for extraction.

In addition, raw video data is in a proprietary format which often requires specialized decoding, called a CODEC, so that the information is readable and understandable. A CODEC, which is short for coder-decoder (think of it as a digital Rosetta Stone), translates the raw data into a format readable and understandable by a host computer. Without the CODEC or working recording equipment, the data will not be viewable. Add to that the possibility that data is encrypted and the equipment or a key is needed to decrypt the data. In these situations, it is important to partner with experts who are experienced with recovering critical data and converting it into a usable format.

Why Is Conversion Needed and Why Do You Need an Expert?

The proprietary format used by recording devices can make the data images that comprise a "video" only viewable by using specific software, typically video player software provided by the manufacturer. Other generic video software may not play the data at all, return errors that need to be resolved, or the software may open the initial image file but not play any video. Without data conversion, the video quality and one's ability to review footage will be extremely restricted.

For claim and legal professionals involved in investigations where data plays a critical role, having properly recovered and converted video footage can greatly aid in providing the cause of an event, establish a non-biased timeline, and afford supporting evidence to what occurred. The data can verify statements, confirm contents prior to the event, and often show what caused the loss or transpired that led up to the event.

Damaged Digital Video Recorder Devices

Depending on the type of incident that may have occurred, the recording equipment may be visibly damaged and thought to be unrecoverable. For example, following fires or extreme vandalism, if cameras are damaged but the data is stored elsewhere, or the recording devices are retrievable, experienced video forensic experts can assist with locating the equipment and making the determination if data recovery is possible. Obtaining data from a damaged recording device may require equipment restoration, obtaining an exemplar recording device to transplant the storage media into, or adapting to the situation to retrieve the data.

Digital Video Enhancement Requirements

Sometimes, in addition to recovery and converting data, video evidence requires enhancement to provide the necessary answers. Not all video or photo evidence can be enhanced and as a general rule, the higher the resolution of the raw data, the better the end result. Resolution is a measurement of the output quality of an image, usually in terms of pixels, dots, or lines per inch. Most commonly, this is expressed in Dots Per Inch (DPI) or Pixels Per Inch (PPI).

Utilizing Video Data Recovery

The best way to understand the value of utilizing video data recovery is to walk through a common claim scenario. Using a commercial fire loss as an example, you will often have expert fire cause and origin investigators arrive at the scene shortly after law enforcement opens the scene. In their initial scan of the evidence, the fire investigation team notices a smoke-damaged DVR and power cord. The evidence is tagged and retained for further analysis, with the DVR and Hard Disk Drive (HDD) being stabilized. Because the video footage was quickly flagged as evidence, video forensic experts were able to access the data and extract the footage. Further, as the data was not in a viewable format, conversion was necessary.

Another situation where video evidence can be extremely valuable is when looking to gain insights into suspicious fires or events. Take for example a small fire in a physician's office where an employee is suspected of arson. Forensic fire investigation staff conduct their investigation and locate a fire-damaged DVR containing surveillance footage. Following professional decontamination and restoration to stabilize the HDD, including sourcing an exemplar DVR to install the HDD into, expert video forensics professionals were able to access data on the drive and extract the footage. Still shots taken from the video show an individual, the suspected employee, entering prior to the time the fire was initially observed. Key features of the suspect were provided, verifying identity, and video of the suspect's activities onsite at the location and time of departure was provided on portable media, directly aligning with the timeline of the fire.

In summary, video footage is widely available today due to the popularity of low-cost, mobile-friendly security monitoring systems. This data, while extremely valuable to claim and legal professionals must be properly and promptly handled by skilled forensic data recovery experts. Even if there is visible damage to the equipment, expert data analysts can recover and preserve the data.

 

Perrier & Lacoste, LLC Hires New Attorneys, Sean M. McCallister and Paul W. Freese

April 5, 2022 • Source: Perrier & Lacoste, LLC

Perrier & Lacoste, LLC is pleased to announce that Sean M. McCallister and  Paul W. Freese have joined its firm. 

Sean has a Bachelor of Science in Psychology and Juris Doctor from Louisiana State University. Sean has experience managing insurance claim files from inception to trial, with a specific focus on defending claims involving trucking and commercial insurance policies. 

Paul was born and raised in New Orleans, Louisiana and received his law degree from Loyola University New Orleans College of Law. Paul serves as counsel for insurance carriers and corporations in the fields of transportation, personal injury, wrongful death and premises liability. 

P&L is thrilled to have Sean and Paul as part of their team. Please join in welcoming them to the firm. 

 
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