Glenn Edward Smith probably never felt a thing. In the early morning hours of Sunday, March 20, 2011, as he lay asleep in his own bed, a Dodge Dakota pickup truck came crashing through the walls of his Johnson City, Tennessee apartment, killing him. The driver was Ashley Dawn Langworthy, a 26 year old resident of nearby Jonesborough. Ms. Langworthy had been out with friends earlier, drinking. Toward the end of the night, she found herself at a club called the Electric Cowboy. She waited in the parking lot for friends and drank two Smirnoff Ice Coolers. She eventually made her way into Electric Cowboy, where she found her friends and where a man purchased tequila shots for her and her friends. She drank the shot. And then another. And then another. She had not asked for, ordered, or paid for any of the drinks at Electric Cowboy. Nor were any of those drinks served to her by Electric Cowboy staff.
Before the bar closed, She and her friends decided to leave and get some breakfast. So Ms. Langworthy drove in her car to a nearby restaurant, but left there after the group decided to go home. The next thing she remembers is waking up inside her truck, covered in bricks. Her blood alcohol content tested as .18 percent. Forensics determined that her truck was traveling more than 80 miles an hour when it went airborne and crashed into Mr. Smith’s apartment.
Ms. Langworthy plead guilty to vehicular manslaughter and was sentenced to eight years in prison.
The legal story does not end there, however. The estate of Glenn Smith sued Ms. Langworthy and the Electric Cowboy. Ms. Langworthy settled with the estate. Electric Cowboy filed a motion for summary judgment.
Dram shop liability, as it is known, refers to the liability of establishments that serve alcoholic beverages for the harmful acts of its patrons. In Tennessee such liability is governed primarily by statute, primarily Tenn. Code Ann. § 57-10-101 and Tenn. Code Ann. § 57-10-102. Tenn. Code Ann. § 57-10-101 provides:
57-10-101. Proximate cause.
The general assembly hereby finds and declares that 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.
While that sounds pretty definitive, Tenn. Code Ann. § 57-10-102 provides in pertinent part:
Notwithstanding § 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… [s]old the alcoholic beverage or beer to a visibly 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.
It is significant to note that the statute requires a jury of 12 persons who must determine proximate cause “beyond a reasonable doubt”. This is a substantially higher burden of proof that the usual “preponderance of the evidence” standard found in most civil negligence cases. Indeed, meeting this standard may well prove very difficult to accomplish. The first part of the statute “does not merely provide immunity from suit where one has furnished alcohol to another; rather, the statute constitutes the legislative determination that persons who furnish alcohol are not at fault for injuries inflicted by an
intoxicated person. The second part of the statute carves out an exception to the first part. It provides that a seller of alcohol may be liable to a third party for injuries if the seller sold alcohol to a minor or if the seller sold alcohol to an obviously intoxicated person and the sale was a proximate cause of the injuries suffered by the third party.” Biscan v. Brown, 160 S.W.3d 462, 472 (Tenn. 2005)(emphasis added).
So, from the outset, the Court in Widner v. Chattanooga Entertainment, Inc., No. E2013-00192-COA-R3-CV (FEBRUARY 11, 2014), distinguishes between alcohol furnished to another, as in a social setting, and alcohol sold to another. The Court clearly finds that in the former situation, there can be no finding of liability. “[T]he starting point was that the mere furnishing of alcohol, whether gratuitously or for commercial gain, is not a basis for liability.” (citing Worley v. Weigels, 919 S.W.2d at 593-94).
Widner turned, then, on whether Electric Cowboy had sold any alcoholic beverages to Ms. Langworthy the night of Glenn Smith’s death. The Court turned to Temlock v. McGinnis, E2005-02646-COA-R3-CV, 2006 Tenn. App. LEXIS 481, at *13 (Tenn. Ct. App. July 20, 2006). In Temlock, the Court concluded that because the customer in that case entered the establishment, ordered the alcoholic beverage, which was delivered to him by the establishment’s staff with the expectation that the customer would pay in return, and then the customer consumed the beverage within the establishment, there was indeed a “sale”. The Widner court distinguished Temlock, finding that the Electric Cowboy did not sell to Ms. Langworthy any alcoholic beverages. “...[T]he fact that Ms. Langworthy consumed alcoholic beverages while at Electric Cowboy is insufficient by itself to show” that a sale had occurred. Widner at 13.
The lesson to be learned from Widner, in conjunction with Temlock, is that the circumstances of how alcohol has been furnished to a negligent third party will inform the framing of the defendant’s motion for summary judgment. Practitioners who represent either plaintiffs or the establishments that serve alcohol would do well to pay particular attention to all of the facts surrounding the sale of alcohol to an establishment’s patrons. Given the already difficult statutory burden, Widner simply makes the road to finding dram shop liability in Tennessee that much more onerous.