with whom Reif and Wyrick, JJ., join, dissenting:
¶ 1 I respectfully dissent. After the trial court granted summary judgment to ASAP Energy, Inc., and Fast Lane Stores, Inc., the Court of Civil Appeals, Division I, affirmed. That court concluded, “Oklahoma has not extended dram shop liability to cases involving the facts alleged here.” This is a correct statement. That court additionally commented on the factual allegations and their speculative nature, including the supposition that the intoxicated driver, Carothers, who caused death and injury must have also been visibly intoxicated to the clerk of the convenience store five hours earlier when he purchased 3.2 beer from that store.
I. DUTY OF CARE
¶ 2 In spite of the fact that one trial court judge and three appellate court judges concluded that Oklahoma law had not established a duty of care where a licensed vendor sells alcohol to a consumer for off-premises consumption, the majority opinion holds “Oklahoma recognizes a cause of action” in such a case. I see a real problem with notice to the public here. In Brigance v. Velvet Dove Restaurant, 1986 OK 41, ¶ 25, 725 P.2d 300, the Court adopted a new rule of liability creating a new civil cause of action. But the Court prospectively applied the new rule to causes of action accruing from and after the date mandate was issued.
¶ 3 An important function of an appellate court is to provide stability, predictability, and continuity for the community, including businesses, to know how to order their legal affairs.1 A change in a civil cause of action such as the one presently before us, should at least be prospective, certainly not retroactive. Society must be protected from legal action that at one point carried no penalty, but retrospectively carries a penalty.
II. ALLEGED FACTS PURPORTEDLY SUPPORTING DENIAL OF SUMMARY JUDGMENT
¶ 4 Even if the plaintiffs were to succeed in establishing a duty of care to injured parties against a convenience store that sold 3.2 beer to one who caused injuries five hours later, how is injury resulting from breach of the duty supported in this case? I see speculation after speculation.
¶ 5 The facts cited by the majority opinion reveal that Carothers does not remember purchasing beer from Fast Lane, yet the facts that this Court reviews for the purpose of summary judgment states he remembers how many beers and how much additional alcohol he consumed. Because beer cans were found on the roadway after the accident, the plaintiffs believe that fact supports an inference that those cans came from Fast Lane. For example, the convenience store owner must have noticed Carothers was intoxicated because an expert assumes the tested amount of alcohol in Carothers’s blood would result in a much higher level of alcohol in his blood five hours before. Therefore, because at the accident scene Carothers failed sobriety tests the plaintiffs assume his intoxication must have been substantially more visible five hours earlier. What if the expert was wrong about the time the tortfeasor consumed more alcohol? His intoxication level may have become higher subsequent to being in the convenience store. How much speculation must a trial court accept to be forced to deny a motion for summary judgment? Is an infinitesimal amount enough? Should the court deny summary judgment based on such creative speculation?
III. CONCLUSION
¶ 6 Finally, if duty of care is established, and breach of the duty is established, how is injury resulting from breach of the duty established? Is it through finding beer cans at the scene? Carothers supposedly remembers how much alcohol he drank and when, but does not remember buying the beer from the defendant convenience store. Did he even drink the beer he bought from the convenience store?
¶ 7 I recognize that this is summary judgment, but I do not believe that the speculation asserted by the plaintiffs rises to the level of facts that support a reversal of summary judgment under the law.2 Deferring to evidentiary materials submitted by the opposing party to a summary judgment is proper, but it should be limited to materials with some substance. Summary judgment procedure should not be changed to treat guesswork as an acceptable substitute for evidence.
¶ 8 Because this case is being remanded, I would think that unless the plaintiffs can prove more than what is presently asserted, a directed verdict is certainly appropriate.
“A motion for directed verdict raises the question of whether there is any evidence to support a judgment for the party against whom the motion is made, and the trial court must consider as true all the evidence and inferences reasonably drawn therefrom favorable to the non-movant, and disregard any. evidence which favors the movant. A demurrer to the evidence or motion for directed verdict should be granted only if the party opposing the motion has failed to demonstrate a prima fade case for recovery.”
Gillham v. Lake Country Raceway, 2001 OK 41, ¶ 7, 24 P.3d 858, 860. Inferences must be reasonably drawn. At some point mere speculation does not support denial of a motion for summary judgment, nor denial of a motion for a directed verdict.
¶ 9 I would affirm the Court of Civil Appeals opinion.
. Kenneth W. Clarkson, Roger LeRoy Miller & Frank B. Cross, Business Law Text and Cases, 2, (14th ed. 2018).
. Rules for District Courts of Oklahoma, 12 O.S.Supp.2016, Appendix, Rule 13, Amended by order of the Supreme Court, 2013 OK 68, eff. August 1, 2013.