Gas company may be liable for station's sale of fuel to drunk driver.

The corporate owner of a gas station can be held liable for injuries caused by a drunk driver, because the station's employees sold him gas despite seeing that he was inebriated, the Tennessee Court of Appeals has ruled. (West v. East Tenn. Power Oil Co., 2004 WL 1606983 (Tenn. Ct. App. July 19, 2004).)

Brian Lee Tarver was almost on empty when he stopped at a gas and convenience store late one night in 2000. Witnesses said he was "visibly intoxicated" and barely able to walk.

The station's employees refused to sell him beer, but they did sell him $3 worth of gas and helped him pump. They then watched Tarver drive away--with his lights off, in the wrong direction.

Within a few minutes, he crashed head-on into a car driven by Gary West. He and passenger Michell Richardson suffered serious, possibly permanent injuries, said their lawyer, Gary Coleman of Knoxville. West and Richardson sued the station's corporate owner, East Tennessee Power Oil, for giving Tarver the means to drive.

"My first reaction to this case was, 'Oh no, it's a drunk driver with no insurance--no case here,'" said Coleman. "But as I started to investigate, I realized that there was more to it than met the eye."

He noted that Tennessee courts had dismissed similar cases because the plaintiffs could not prove the defendant's duty of care. There were three elements to establish duty in this case, Coleman said. First, witnesses testified that Tarver was obviously drunk. Second, the employees' actions were "affirmative acts"--Tarver could not have driven without those actions. Third, there was proximate cause, which Coleman said "was key, it's what connected it all up. But for the affirmative act of the employees providing the gas, Tarver would not have gotten into the accident. That is the whole case in a nutshell."

To prove it, Coleman took an unusual tack: He had the gas tank of Tarver's car preserved as part of the evidence. A professor of mechanical engineering from the University of Tennessee examined the tank and signed an affidavit stating that the amount of gas in Tarver's car was enough to allow Tarver to fuel the car for 2.8 miles, to where the accident occurred. Without the additional gas, the expert said, Tarver could have driven only 1.82 miles.

The court was convinced. Judge D. Michael Swiney wrote for the majority that "this case does not involve the issue of whether a store can be held liable to third parties for negligence solely because it sold gasoline to a visibly intoxicated driver who later was involved in an automobile accident, and we express no opinion on that particular issue." Citing a Colorado case, Leppke v. Segura, in which a bar owner was held liable for jump-starting the car of a drunk driver who then drove off and crashed, the court ruled that "the affirmative acts of defendant's employees in selling gasoline to and in assisting all obviously intoxicated Tarver with refueling his vehicle [are] similar to the defendant's act in Leppke when it jump-started an automobile for an intoxicated driver. In both situations, these affirmative acts 'set into motion a force involving an unreasonable risk of harm to others.'" (632 P.2d 1057 (Colo. Ct. App. 1981).)

"In other words," the court concluded, "the acts of defendant's employees provided Tarver with mobility to travel 2.8 miles to the accident site, mobility he otherwise would not have had. Plaintiffs' negligence claim is not predicated on any alleged failure by defendant to control Tarver, but instead is based on these affirmative acts by defendant's employees."

The appeals court's careful distinction is important, said Coleman, because it limits the ruling to cases that meet these strict criteria.

The case was remanded back to the trial level for further proceedings; the defendant has applied for permission to appeal to the Tennessee Supreme Court.

Coleman hopes the case will "make people think" when they consider whether to help a drunk driver: "You have to use common sense."