You Bet Your Life
The Oklahoma Supreme Court denied liability for serving alcohol to a patron who later died driving while intoxicated, with a twist
Plaintiff/Appellant Nancy Carol MeGee, as Personal Representative of and on behalf of the Estate of David Anthony MeGee, brought a wrongful death action against Defendants/Appellees El Patio, LLC and Dylan Scott Welch. Personal Representative alleges that Welch and other employees of El Patio over-served alcoholic beverages to David Anthony MeGee and then bet him $200 to drive from Weatherford, Oklahoma, to Oklahoma City. MeGee died in a motor vehicle accident on his way to Oklahoma City. The trial court granted El Patio and Welch’s motion to dismiss for failure to state a claim. Personal Representative appealed. We reaffirm our holding in Ohio Casualty Insurance Co. v. Todd, 1991 OK 54, 813 P.2d 508, that a voluntarily intoxicated adult does not have a cause of action against a commercial vendor for personal injuries or death resulting from his own intoxication. We also hold that, regardless of the sale of alcohol, an intoxicated adult who accepts a bet to drive a motor vehicle and is injured as a result of his own intoxication does not have a cause of action against the bettor.
Gambler’s risk
our analysis hinges on to whom the duty is owed, i.e., whether there is a duty to protect the plaintiff from injury. There may be a duty not to bet an intoxicated person to drive, but that duty is owed to innocent third parties, not the voluntarily intoxicated adult. MeGee was not an innocent third party. Rather, he was a voluntarily intoxicated adult who drove a motor vehicle and, tragically, died as a result of his own intoxication. El Patio employees may have had a duty not to bet MeGee to drive to protect third parties from injuries caused by MeGee, but they did not have a duty to protect MeGee from injuring himself.
We hold that a voluntarily intoxicated adult who accepts a bet to drive a motor vehicle and is injured or dies as a result of his own intoxication does not have a cause of action against the bettor. A voluntarily intoxicated adult is responsible for his condition and must be accountable for his own injuries. Allowing an intoxicated adult to be rewarded for his decision to drive does not deter drunk driving or further the public policy of protecting the innocent from the intoxicated. Echoing what this Court said in Ohio Casualty, in the absence of harm to a third party, betting an intoxicated adult to drive does not constitute a breach of duty actionable in common law negligence. Our holding does not ignore the conduct of the bettor. If a third party is injured, there may be a cause of action against the bettor as well as the driver.
We do not recognize a common law duty to protect a voluntarily intoxicated adult from injuring himself. The facts alleged are egregious, but, without the existence of a duty, Personal Representative has failed to state a claim upon which relief may be granted. No cognizable legal theory supports Personal Representative’s claims. The trial court properly dismissed the lawsuit.
Dissent
There are several material issues that should be resolved by the fact finder, such as whether or not the overconsumption by the decedent was voluntary; whether the decedent was noticeably intoxicated; and whether the establishment continued to serve the decedent after he was noticeably intoxicated. Further, the actions of a server who sells or furnishes alcohol to a noticeably intoxicated person should be imputed to the establishment if the restaurant manager or supervisor had knowledge, encouraged the behavior, or failed to supervise, under a theory of respondeat superior. Fox v. Mize, 2018 OK 75, 428 P.3d 314,¶ 8. El Patio is in the business of selling alcohol, so it only makes sense that increasing sales of liquor will increase profits. Tips for servers/bartenders also increase as a customer’s tab increases.
Under the facts of this case, the decedent was served seventeen alcoholic beverages by four different servers over seven hours. Eventually, employees of El Patio bet decedent $200.00 he could not drive from the restaurant location in Weatherford, Oklahoma, to a bar in Oklahoma City by a designated time. There are many reasons to reconsider our prior authority. Drunk drivers are a constant threat to the law-abiding users of our roads and highways. Encouraging noticeably intoxicated persons to drive by sellers of alcohol should be actionable. The trial court’s order should be reversed, vacated and remanded to allow the case to proceed.
A second dissent
To not protect the intoxicated driver from harm by allowing for potential liability upon the tavern cheapens that person’s life. To just say it was their choice, they should suffer the consequences alone, don’t burden the tavern with looking out for their safety is, in my opinion, off the mark.
Serving intoxicated patrons is a crime in Oklahoma, and prosecution for that crime is not dependent upon a resulting death or injury to anybody. Why then is the tavern’s civil liability dependent upon who gets hurt as a result of their wrongdoing? Possibly that is what the people of Oklahoma want; maybe not. The answer is not an easy one. The Oklahoma Legislature may want to set the parameters of the tavern’s liability. Personally, I find former Justice Opala’s suggestions to be the most logical and legally sound.
While I join in the court’s refusal today to disturb this principle to benefit the uncoerced sui juris consumer, I would extend Brigance to allow actionable claims for only three narrowly defined classes of intoxicated consumer–all comprised of persons clearly unable to exercise free will: (1) those sui juris claimants whose will was overborne by duress, coercion or other wilful or grossly reckless misconduct, (2) those who were induced into imbibing by false misrepresentations that the potion was nonalcoholic or harmless and (3) those under legal disability–minors and mentally disabled–i.e., persons whose will the law recognizes as impaired by definition.
(Mike Frisch)