IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 2, 2008 Session
EDWINA MONTGOMERY EX REL. THOMAS M. MONTGOMERY v.
KALI OREXI, LLC ET AL.
Appeal from the Circuit Court for Sevier County
No. 2006-0690-III Rex Henry Ogle, Judge
No. E2008-01207-COA-R3-CV - FILED MARCH 27, 2009
In this wrongful death action, Edwina Montgomery (“the Plaintiff”), individually and as the
surviving spouse of Thomas M. Montgomery (“the Deceased”), brought suit under the Tennessee
Dram Shop Act (“the Dram Shop Act” or “the Act”), Tenn. Code Ann. §§ 57-10-101 and 102
(2002). The Plaintiff also sued for negligence and negligence per se.1 The Plaintiff sued Kali Orexi,
LLC, which operates under the trade name of Gondolier Italian Restaurant and Pizza (“Gondolier”).
Gondolier moved for summary judgment, which was granted as to all theories of recovery. We
affirm the summary judgment on what appears to be an issue of first impression. We hold that Tenn.
Code Ann. §§ 57-10-101 and 102 (2002) apply to third parties and do not authorize an action against
a seller of an “alcoholic beverage or beer” by or on behalf of the supplied, or “first” party. Since the
Dram Shop Act does not address first parties, its enactment leaves the law as to first parties as it
existed before the Act’s enactment. In addition, under the circumstances of this case, the trial court
correctly held that the injuries to the Deceased were not foreseeable; thus, Gondolier owed the
Deceased no duty. Furthermore, even if a duty were owed, it was not breached. The question
whether the actions of the Deceased and a taxi driver, who was paid by Gondolier to take the
intoxicated Deceased home, were intervening and superseding causes that relieve Gondolier of
liability are not addressed since we hold that the Plaintiff had no cause of action under the Dram
Shop Act or for common law negligence. Accordingly, we affirm.2
Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and D. MICHAEL SWINEY , J., joined.
1
The Plaintiff made no argument in the trial court concerning negligence per se; nor did she address the
cause of action in her brief to this court; any issue concerning the allegation of negligence per se has been waived.
2
The trial court certified the summary judgment in favor of Gondolier as a final judgment under Tenn. R.
Civ. P. 54.02. The Plaintiff’s actions against the taxi cab company and its driver are presumably still pending in the
trial court.
Bryan E. Delius and Richard L. Burnette, Sevierville, Tennessee, for the appellant, Edwina
Montgomery.
Dana C. Holloway and Joshua A. Wolfe, Knoxville, Tennessee, for the appellee, Kali Orexi, LLC.
OPINION
I.
Viewing the evidence, and all reasonable inferences to be drawn from it, in the light most
favorable to the nonmoving party, i.e., the Plaintiff, we state the facts that are pertinent to this appeal
by quoting the Plaintiff, as follows:
On June 24, 2006, [the Deceased] was a customer at [Gondolier] in
Gatlinburg, Tennessee. While at [Gondolier], [the Deceased] was
served alcoholic beverages and became extremely intoxicated.
Gondolier staff later summoned Ken Kirkland, a local taxi cab driver,
to take the Deceased home from the restaurant.
Upon first contact with [the Deceased], Mr. Kirkland observed that
[the Deceased] was intoxicated. Mr. Kirkland testified that [the
Deceased] exhibited physical symptoms of intoxication, such as
“slurred speech, unable to stand, very wobbly when he moved.” Mr.
Kirkland described [the Deceased] as being “extremely intoxicated.”
* * *
Shortly after departing from Gondolier, [the Deceased] informed Mr.
Kirkland that he did not want to go home, and that he wanted Mr.
Kirkland to take him back to the Gondolier. As Mr. Kirkland
continued to drive towards the area [where the Deceased] resided,
[the Deceased] grabbed the steering wheel of the cab, causing the cab
to veer into the other lane of the roadway. Mr. Kirkland testified that
in response he “slapped his hand away” and “hit the brakes and
moved over to the side of the road.”
After a brief discussion [in which Mr. Kirkland warned the Deceased
not to grab the steering wheel again], Mr. Kirkland resumed driving
towards the area in which [the Deceased] resided. Shortly thereafter,
[the Deceased] again stated that he did not want to go to his house,
and wanted to return to the Gondolier. At which time, [the Deceased]
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grabbed at the cab’s steering wheel a second time. Mr. Kirkland
testified that at that time he pushed [the Deceased] back towards the
passenger seat and pulled the cab over onto the side of the road and
turned off the vehicle’s engine.
Mr. Kirkland exited the cab and went to the passenger side to remove
[the Deceased] from the vehicle.
* * *
As he was driving away, Mr. Kirkland placed a telephone call to 911,
and informed the operator that he had put a “very drunk” man out of
his cab and left him on the side of the road. The Sevier County
Sheriff’s Department responded to the 911 call, but was unable to
locate [the Deceased] at the location described by Mr. Kirkland.
On June 26, 2006, [the Deceased’s] body was located by the Sevier
County Sheriff’s Department in a river underneath a bridge on
Highway 321 in Sevier County. . . .
Autopsy test results revealed that [the Deceased] was heavily
intoxicated at the time of his death. [The Deceased’s] blood alcohol
content was measured at .37%. The attending pathologist listed the
cause of death as blunt force trauma injuries sustained by [the
Deceased] when he fell from a bridge.
II.
The issues presented are as follows:
Whether a cause of action under Tenn. Code Ann. § 57-10-102
against a seller of an “alcoholic beverage or beer” is available to the
Deceased or his representative, who is not a third party, but was
himself the consumer of the alcohol.
Whether the enactment of Tenn. Code Ann. §§ 57-10-101 and 102
changed the common law with respect to liability of furnishers of
alcohol or beer to an intoxicated person who injures himself.
Whether the Trial Court was correct in holding as a matter of law that
the Deceased’s injuries were so unforeseeable that no legal duty arose
on the part of Gondolier.
Whether the Trial Court was correct in holding as a matter of law that
if Gondolier had a duty, it fulfilled it.
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Whether the Trial Court was correct in holding as a matter of law that
the actions of the Deceased and Mr. Kirkland constitute intervening
superseding acts that relieved Gondolier of liability.
III.
Our review of the matters on this appeal is de novo. Tenn. R. App. P. 13(d). See Blair v.
West Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). Our inquiry under Tenn. Code Ann. §§ 57-10-
101 and 102 involves a construction of those statutes. “‘[C]onstruction of [a] statute and application
of law to the facts [are questions] of law.’” Worley v. Weigels, Inc., 919 S.W.2d 589, 592 (Tenn.
1996) (quoting Beare Co. v. Tennessee Dept. of Rev., 858 S.W.2d 906, 907 (Tenn. 1993)). Thus,
no presumption of correctness attaches to the lower court’s judgment, and our task is confined to
reviewing the record to determine whether the requirements of Tenn. R. Civ. P. 56 have been met.
Id. (citations omitted). Rule 56.04 provides that summary judgment is appropriate where: 1) there
is no genuine issue with regard to the material facts relevant to the claim or defense contained in the
motion, and 2) the moving party is entitled to a judgment as a matter of law on the undisputed facts.
Tenn. R. Civ. P. 56.04; see Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000).
IV.
A.
The first issue we address is whether a person who purchases an “alcoholic beverage or beer”
and is injured or dies as a result of the consumption may sue the supplier of the alcohol under the
Dram Shop Act. This inquiry calls upon us to interpret the language of Tenn. Code Ann. §§ 57-10-
101 and 102, which comprise the entirety of the Dram Shop Act.
The Plaintiff contends that Tenn. Code Ann. § 57-10-102 (“section 102”) permits what she
calls “first party causes of action.” She says that under section 102 “any party” who has suffered
personal injury or death may bring a cause of action against a commercial seller of an “alcoholic
beverage or beer” in circumstances in which the alcoholic beverage or beer was sold to an obviously
intoxicated person or a minor.
Gondolier contends that Tenn. Code Ann. § 57-10-101 (“section 101”) states a general rule,
i.e., that it is the consumption of the beverage and not the furnishing of it that is the proximate cause
of injuries to third parties by intoxicated persons, and that section 102 states two narrow exceptions
to the general rule of non-liability to third parties set out in section 101. These exceptions address
circumstances in which a purveyor of the beverage sells it to 1) a person known to be a minor or 2)
an “obviously intoxicated” person. According to Gondolier, on the other hand, section 102 applies
only in circumstances in which a third party is injured by the intoxicated person.
Section 101 provides:
The general assembly hereby finds and declares that the consumption
of any alcoholic beverage or beer rather than the furnishing of any
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alcoholic beverage or beer is the proximate cause of injuries inflicted
upon another by an intoxicated person.
Tenn. Code Ann. § 57-10-101 (2002). (Emphasis added.) Section 102 states:
Notwithstanding the provisions of § 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:
(1) Sold the alcoholic beverage or beer to a person known to be
under the age of twenty-one (21) years and such person caused the
personal injury or death as the direct result of the consumption of the
alcoholic beverage or beer so sold; or
(2) Sold the alcoholic beverage or beer to an obviously 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.
Tenn. Code Ann. § 57-10-101.
Interpreting sections 101 and 102, the Supreme Court has stated:
When the words of a statute are plain and unambiguous, the
assumption is “that the legislature intended what it wrote and meant
what it said.” The pertinent language must be [applied] “without any
forced or subtle construction extending its import.”
Worley, 919 S.W.2d at 593 (quoting McClain v. Henry I. Siegel Co., 834 S.W.2d 295, 296 (Tenn.
1992) (citations omitted)).
The Worley Court went on to note:
These statutes are models of clarity. Construction or interpretation of
their plain language would be an exercise in obfuscation.
Id. Section 101 states a general rule, and section 102 states two narrow exceptions to the general
rule. In Biscan v. Brown, a 2005 case interpreting sections 101 and 102, the Supreme Court noted
that the specific exceptions in section 102 “must be confined to their terms and cannot be read to
somehow limit the broad rule stated in section 101.” Biscan v. Brown, 160 S.W.3d 462, 473 (Tenn.
2005). Quoting Burns v. City of Nashville, the Supreme Court added, “ ‘Where a general rule has
5
been established by statute, with exceptions, the court will not curtail the former, not add to the latter
by implication.’ ” Id. (quoting Burns v. City of Nashville, 132 Tenn. 429, 435, 178 S.W.1053, 1054
(1915)).
The general rule stated at section 101 applies in circumstances in which a third party is
injured. The statute is silent about a circumstance in which an intoxicated person (i.e., a first party)
is injured. The Plaintiff asks this court, however, to interpret the generic language, “any person,”
in section 102 to bring intoxicated persons within the coverage of the statute.
We decline to read section 102 in isolation from section 101. Rather, we look to the statutory
scheme as a whole. Faust v. Metro. Gov’t of Nashville, 206 S.W.3d 475, 490 (Tenn. Ct. App.
2006). As this Court has said:
The rule relative to “pari materia” construction applies . . . with equal
force to separate provisions within a single statute. The different
parts of a statute reflect light upon each other, and statutory
provisions are regarded as in pari materia where they are parts of the
same act. Hence, a statute should be construed in its entirety, and as
a whole. All parts of the act should be considered and construed
together. It is not permissible to rest a construction upon any one part
alone, or upon isolated words, phrases, clauses, or sentences, or to
give undue effect thereto. The legislative intention, as collected from
an examination of the whole as well as the separate parts of a statute,
is not to be defeated by the use of particular terms.
Id. (citations omitted). In this case, reading section 101 and 102 in pari materia, it is clear to us that
the isolated phrase “any person” in section 102 should not be read so as to defeat the legislative
intent that is stated as the general rule in section 101. We decline to construe section 102 in such
a way as to add to the overall ambit of the Dram Shop Act.
The Supreme Court has previously reviewed the history of sections 101 and 102 and
concluded that the statute was “intended to codify the common-law rule that an individual who
furnishes alcohol to another is not liable for any damages resulting from the other’s intoxication,
even if those damages are foreseeable.” Biscan, 160 S.W.3d at 473 (citing Cecil v. Hardin, 575
S.W.2d 268, 271 (Tenn. 1978)).
While recognizing the Supreme Court’s pronouncement in Biscan and other cases, the
Plaintiff, nevertheless, argues that some states allow first-party actions, and points out cases in Texas
and Florida. The Florida statute does not include the third-party language (“injuries inflicted upon
another by an intoxicated person”) of section 101, however. See Fla. Stat. § 768.125 (2003) (liability
“for injury or damage caused by or resulting from the intoxication of such minor or person”). The
same is true of the Texas statute. See Tex. Alco. Bev. Code Ann. § 2.02(b)(1) (1993) (refers to
person receiving alcohol who “was obviously intoxicated to the extent that he presented a clear
6
danger to himself and others”) (emphasis added). The Florida and Texas cases, based on statutes
with wording different from our own, are of no help to the Plaintiff.
Our job in interpreting statutory provisions is to determine and give effect to the legislature’s
intent. Kyle v. Williams, 98 S.W.3d 661, 664 (Tenn. 2003). By its clear language section 101
provides that the consumption of an alcoholic beverage or beer, and not the furnishing of it, “is the
proximate cause of injuries inflicted upon another by an intoxicated person.” (Emphasis added.)
The two exceptions to the general rule of non-liability of furnishers of alcohol must be read narrowly
and within the parameters set forth in section 101.
Since the general rule stated in section 101 deals with circumstances in which a third party
is injured by an intoxicated person, the exceptions to the general rule likewise were intended to apply
in circumstances in which a third party is injured by an intoxicated person – either when a sale was
knowingly made to a minor who injures another or when a sale is made to “an obviously intoxicated
person” who injures another. On this issue of first impression we hold that Tenn. Code Ann. §§ 57-
10-101 and 102 apply only to third parties and do not permit an action against a seller of an
“alcoholic beverage or beer” by or on behalf of the supplied party, i.e., a first party. We thus affirm
the trial court’s grant of summary judgment as to the Plaintiff’s suit predicated upon an alleged
violation of the Dram Shop Act.
B.
We now turn our attention to the Plaintiff’s suit for damages based upon the common law.
The General Assembly has plenary power within constitutional limits to change the common
law by statute. See Southern Ry. Co. v. Sanders, 193 Tenn. 409, 415, 246 S.W.2d 65, 67 (1952).
The “[r]ules of the common law are not repealed by implication, and if a statutes does not include
and cover such a case, it leaves the law as it was before its enactment.” Monk v. Ramsey, 223 Tenn.
247, 252, 443 S.W.2d 653, 655 (1969) (citation omitted).
The Plaintiff argues that the common law foreseeability inquiry set forth in Brookins v. The
Round Table, Inc., 624 S.W.2d 547 (Tenn. 1981), has been superseded by the Dram Shop Act. In
Brookins, the Supreme Court stated, “[W]hether the sale of intoxicants is the proximate cause of
subsequent injuries is essentially a question of foreseeability . . . .” 624 S.W.2d at 549 (adopting
Mitchell v. Ketner, 54 Tenn. App. 656, 666, 393 S.W.2d 755, 759 (1964)). In Worley, the High
Court explicitly stated: “Title 57, Chapter 10, of the Tennessee Code entitled ‘Alcohol-Related
Injuries’ [Tenn. Code Ann. §§ 57-10-101 and 102 (2002)] replaced the rule stated in Brookins.”
Worley, 919 S.W.2d at 592. The portion of the holding in Brookins that was replaced was the rule
as to proximate cause in third-party actions. Section 101 provides that it is the consumption of the
beverage, not the furnishing of it, that is the proximate cause of any injury to a third party, thus
rejecting the notion that proximate cause is an inquiry of foreseeability under the Act.
In this opinion, we have held that the Dram Shop Act does not apply to first parties, such as
the Plaintiff’s decedent in this case. Since the statute does not cover first party actions against
furnishers of an alcoholic beverage or beer, it leaves the law concerning first-party actions as it
7
existed before the Act’s enactment. As we have previously noted, the common law is not repealed
by implication. Our holding regarding the common law is further bolstered by appellate decisions
since the enactment of the Dram Shop Act. For example, in Cook v. Spinnaker’s of Rivergate, Inc.,
878 S.W.2d 934 (Tenn. 1994), which was a post-Dram Shop Act decision of the Supreme Court, the
Court analyzed a case in which a minor sued a restaurant that had served her alcohol shortly before
she drove and was injured in a one car accident. Id. at 936. There was no mention of, citation to,
or discussion of the Dram Shop Act.
We conclude and hold that the enactment of the Dram Shop Act did not affect the common
law rules applicable to first-party actions against a furnisher of an alcoholic beverage or beer.
C.
We hold that the trial court correctly applied common law principles to the Plaintiff’s cause
of action for negligence. That court noted as follows: “The Court also finds that the [Deceased’s]
injuries were not reasonably foreseeable and, as such, no duty arose on the part of Gondolier to
protect against them.” To establish a negligence claim at trial a plaintiff must show the following
elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant
falling below the applicable standard of care that amounts to a breach of that duty; (3) an injury or
loss; (4) causation in fact; and (5) proximate, or legal causation. See White v. Lawrence, 975
S.W.2d 525, 529 (Tenn. 1998) (citations omitted); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
1995) (citations omitted).
At early common law there was no cause of action for first-party claims. For example in a
1940 case, the Supreme Court said:
It was not a tort at common law to either sell or give intoxicating
liquor to a strong and able-bodied man, and it can be said safely that
it is not anywhere laid down in the books that such act was even held
at common law to be culpable negligence that would impose legal
liability for damages upon the vendor or donor of such liquor.
Tarwater v. Atlantic Co., 176 Tenn. 510, 144 S.W.2d 746 (1940) (quoting Cruse v. Aden, 127 Ill.
231, 233, 20 N.E. 73,74 (1889)). Refusal to impose liability on the furnisher of an alcoholic
beverage or beer was found on two bases. One was that the person who voluntarily became
intoxicated was the proximate cause of the injury. Id. at 176 Tenn. at 513, 144 S.W.2d at 748. The
second basis was that the intoxicated person’s acceptance of the alcohol was an independent
intervening cause that cut off liability. Tarwater, 176 Tenn. at 511-12, 144 S.W.2d at 747.
This bright-line approach began to change with the decision in Mitchell v. Ketner, 54 Tenn.
App. 656, 393 S.W.2d 755 (Tenn. Ct. App. 1964). In Mitchell, this court stated that it was
“unwilling to hold that, no matter what the circumstances, the act of the purchaser and not the sale
constitute the proximate cause of injury to third persons or that consumption of the intoxicant is
always an independent, intervening act which breaks the chain of causation.” 54 Tenn. App. at 665,
393 S.W.2d at 759 (citation omitted). Some years later, in Brookins, the Supreme Court adopted
8
the analysis of Mitchell, quoting that decision and concluding that whether the sale of intoxicants
is the proximate cause of subsequent injuries is essentially a question of foreseeability. Brookins,
624 S.W.2d at 549. In 1986, the legislature expressed its concern that the courts had moved away
from the traditional common law approach; as a consequence, it passed the Dram Shop Act.
Our review of the case law leads us to conclude that no Tennessee case has altered the
common law rule in relation to first-party claims by adults3 who are injured while intoxicated and
seek to recover damages directly from the furnisher of the beverage. Indeed, in the same year the
Dram Shop Act was passed, this court considered a case in which a “grossly intoxicated” 27-year-old
plaintiff was injured in a single-car accident after drinking at the defendant’s bar. Jordan v. The
Krystal Co., 1986 WL 11218, at *1 (Tenn. Ct. App. W.S., filed October 7, 1986). This court
affirmed the trial court’s dismissal of the case for failure to state a claim for which relief can be
granted, noting that “one cannot recover damages when he actively contributes to his own
intoxication, which is the proximate cause of his injury.” Id. at *3.4
We recognize that if a person drives while intoxicated there is a foreseeable risk that
accidents, injuries and deaths may result. See West v. East Tenn. Pioneer Oil Co., 172 S.W.3d 545,
552 (Tenn. 2005) (common knowledge that drunk driving directly results in accidents, injuries, and
deaths). In this case, however, the Deceased did not drive. Rather, a Gondolier staff person called
a taxi, assisted the Deceased into the taxi and paid for the Deceased’s trip home. She also moved
the Deceased’s car, which was not parked on Gondolier’s premises, so that it would not be towed.
These facts are undisputed.
The Plaintiff refers this court to McClenahan v. Cooley, 806 S.W.2d 767 (Tenn. 1991). The
Plaintiff quotes McClenahan, as stating that “[t]he foreseeability requirement is not so strict as to
require the tortfeasor to foresee the exact manner in which the injury takes place . . . .” Id. at 775.
The Plaintiff omits an important qualification to the rule stated, however. The complete sentence
reads, “The foreseeability requirement is not so strict as to require the tortfeasor to foresee the exact
manner in which the injury takes place, provided it is determined that the tortfeasor could foresee,
or through the exercise of reasonable diligence should have foreseen, the general manner in which
the injury or loss occurred.” Id.
Questions regarding foreseeability are ordinarily questions of fact for a jury. However, even
this question may be decided at the summary judgment stage if the evidence is uncontroverted and
if the facts and the inferences reasonably drawn from them permit reasonable persons to reach only
one conclusion. See McCall, 913 S.W.2d at 153; Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995); Staples, 15 S.W.3d at 89. This is such a case.
Based on the facts, and considering the inferences to be drawn from the facts favorable to the
Plaintiff, we hold that a reasonable person can reach only one conclusion and it is that Gondolier
3
The courts treat minors differently. See Jordan, 1986 W L 11218, at *3.
4
Jordan was decided pre-McIntyre v. Balentine, 833 S.W .2d 52 (Tenn. 1992).
9
could not have foreseen the general manner in which the Deceased’s injuries occurred; nor through
the exercise of reasonable care should Gondolier have foreseen that once the Deceased was safely
in a taxi to be driven home, he would grab the steering wheel of the taxi turning it into the oncoming
lane, be warned, repeat the same conduct, and be put out of the taxi onto the roadside by the taxi
driver, following which he would fall off a bridge to his death.
We affirm the trial court’s holding that the Deceased’s injuries were not reasonably
foreseeable and, as such, no duty arose on the part of Gondolier to protect against them. Giggers
v. Memphis Housing Auth., __ S.W.3d __, 2009 WL 249742, at *6 (Tenn. 2009); Satterfield v.
Breeding Insulation Co., 266 S.W.3d 347, 366 (Tenn. 2008). Given the undisputed facts, Gondolier
negated an element of the Plaintiff’s prima facie case for negligence, i.e., that the defendant owed
a duty to the Deceased. Summary judgment was thus properly granted on the basis that Gondolier
did not owe the Deceased a duty.
D.
When a risk of injury is not generally foreseeable, no duty arises. If no duty arises, there can
be no breach of duty. The trial court held that even if there had been a duty, however, Gondolier
fulfilled that duty as a matter of law. We agree.
The Plaintiff analyzes the issue of breach of duty with reference to the Dram Shop Act. The
Plaintiff asserts that Gondolier had a duty not to serve alcohol to an obviously intoxicated person,
but the only law the Plaintiff cites is section 102 of the Dram Shop Act.5 Since we have held that
sections 101 and 102 are not applicable to a first-party action such as the one the Plaintiff has
brought, this analysis is inapposite. Going beyond the Act, we hold that the Plaintiff’s position is
at odds with the common law.
“At common law, an individual who sold or furnished alcohol to another generally was held
not to be liable for damages resulting from the other’s intoxication, even if those damages were
foreseeable . . . .” Brookins, 624 S.W.2d at 549 (citations omitted). For example, the Supreme Court
has specifically declined to impose a duty on a commercial business to physically control an
intoxicated driver by preventing him or her from leaving the premises. East Tenn. Pioneer Oil Co.,
172 S.W.3d at 522 (“[W]e do not hold that convenience store employees have a duty to physically
restrain or otherwise prevent intoxicated persons from driving.”); Biscan, 160 S.W.3d at 482
(“Reasonable care [of adult social host] under the circumstances may not have included physically
restraining his guests”).
In Collins, this court noted that the reasoning of Biscan “is consistent with the general
principle 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.” Collins v. Arnold, No. M2004-02513-COA-
5
The penalty for serving an “obviously intoxicated” person is set forth at Tenn. Code Ann. § 57-4-203(c)
(Supp. 2008). A violation is a Class A misdemeanor. In addition, a vendor’s permit or license can be suspended or
revoked. See Tenn. Code Ann. § 57-5-108(c) (Supp. 2008).
10
R3-CV, 2007 WL 4146025, at *11 (Tenn. Ct. App. M.S., filed November 20, 2007) (citing Biscan,
160 S.W.3d at 481; Puckett v. Roberson, 183 S.W.3d 643,652 (Tenn. Ct. App. 2005)). In this case
Gondolier controlled the Deceased’s conduct to the extent of seeing that he did not pose a danger
by driving while intoxicated. But just as in the cases where the courts have found no duty to control
an intoxicated person who chooses to drive, so Gondolier had no means and no ability to control the
Deceased once he left the restaurant in a taxi.
The Plaintiff argues that the seller is not relieved of its duty to an intoxicated patron by
calling a taxi or otherwise removing the individual from the premises. However, “[t]he general duty
of care does not include an affirmative duty to act for the protection of another . . . .” Biscan, 160
S.W.2d at 478. In the circumstances of this case, if Gondolier can be said to have any duty to the
Deceased, which we assert it did not, it did not breach it as a matter of law. The facts and the
inferences from the facts in this case are such that a reasonable person can reach only one
conclusion: by calling a cab, seeing the Deceased safely into it as a passenger and paying the
Deceased’s fare, Gondolier fulfilled any duty it might have. Gondolier negated a second necessary
element (breach of duty) of the Plaintiff’s common law claim of negligence. Summary judgment
was thus appropriate.
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E.
In the Judgment, the trial court also found that “the actions of the [Deceased] and Mr.
Kirkland constitute intervening [superseding] acts in this case.” We have held that the Plaintiff has
no cause of action under Tenn. Code Ann. §§ 57-10-101 and 102 (2002) and that she cannot proceed
under a common law theory of negligence. Thus, whether intervening actions by the Deceased
and/or Mr. Kirkland were superseding causes that relieved Gondolier of liability need not be decided.
V.
The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Edwina Montgomery. This case is remanded to the trial court for further proceedings, consistent
with this opinion.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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