Question: Does a gas station have a duty of care to third parties to refrain from selling gas to obviously intoxicated drivers?
Answer: In New Mexico, they now do under the recent New Mexico Supreme Court case of Morris v. Giant Four Corners, Inc.
Facts of Case
Basically, two intoxicated patrons entered a Tribal gas station. They arrived at the gas station without a vehicle or even a gas can to fill. Instead, in the presence of the clerk, they emptied a gallon of water so they could fill it with gas. Initially, knowing the two were intoxicated, the clerk refused to sell them anything but later relented selling them the gallon of gas with which they returned to their vehicle on foot. The two intoxicated individuals then returned to the same gas station and purchased additional gasoline. After dropping off his passenger, the driver then had a head-on collision with another vehicle killing the driver of that vehicle.
A lawsuit was filed in federal court because the defendant was a tribally owned entity. The federal court recognized New Mexico’s doctrine on negligent entrustment of chattel property. Chattel property is simply property that is not land or real estate. Under negligent entrustment, an owner or controller of chattel has “a duty to others not to give control of a dangerous instrumentality to a person incapable of using it carefully.” The federal court recognized also that there was no clear New Mexico law on whether the sell of gasoline fell under the doctrine and sent the case to the New Mexico Supreme Court for a ruling on the issue.
Negligent Entrustment of Chattel
New Mexico has long recognized the doctrine of negligent entrustment of chattel as a viable legal claim. Thus, the key element is negligence, and it is clearly negligent to allow someone to use your property knowing that the person will use it negligently or recklessly creating an unreasonable risk of harm to others.
There is a general doctrine of reasonable care which places a duty on individuals, entities and groups to exercise reasonable care in dealings and activities with the public. Until Morris v. Giant, there was no specific law or case-law finding a duty not to sell gasoline to intoxicated drivers. The Court In Morris v. Giant reiterated prior case-law recognizing that a duty of care should be found only when public policy considerations suggest the necessity of the duty. Moreover, the existence of a duty is not determined by foreseeability of harm which is a question for the jury. Instead, the existence of the duty must be determined as a matter of law which in turn is a matter of public policy.
There are numerous cases expressing public policy on the matter of negligent entrustment. In automobile cases, it is negligent, and one may be held liable for any automobile accident allowing someone that the owner of the vehicle knows to be drunk, reckless or otherwise incompetent to operate a vehicle. Dram shop laws prohibit bar and restaurant staff from serving obviously intoxicated patrons. These same laws apply to homeowners hosting parties with alcohol. In fact, the cases go so far as to provide for claims by the drunk patron or guest himself if he gets in a car accident. New Mexico has clearly expressed a public policy of reducing DWI accidents in the State. In fact, dram shop laws are extremely broad allowing for numerous possible claims for service of drunk patron or guest.
No Duty to Investigate
It is important to note that there is no duty to investigate whether a customer or patron is intoxicated. In other words, neither bar, restaurant, homeowners nor gas station attendants must test the customer’s blood alcohol or conduct field sobriety tests on the customer. However, it is pretty well established both by common sense and law that one need not be police officer or other professional to tell when someone is showing signs intoxication. Whether or not the gas station attendant, just like bartenders, wait staff or homeowners, knew or should have known the person was intoxicated will be a fact question for the jury. If a person is drunk and gets behind the wheel, it is beyond debate that this would present a foreseeable risks of harm to others.
Common Sense Suggest the Sale of Gasoline
There has already been a bit of an uproar over the decision. Basic common sense and law suggests the outcome of the case is proper and justified. With the law as stated, it seems clear that the entrustment of gasoline which is chattel would be covered. Why should gas stations be immune from the doctrine of negligent entrustment? The burden is not great. It simply requires that an attendant not sell gasoline to an obviously drunk driver. The pushback will come primarily from the oil and gas industry along with its retail gasoline outlets. So perhaps, it is the sale of gasoline that is sacred and somehow immune from the rules that the rest of society must follow. In the case of gasoline, would it not be negligent and actionable to sell gasoline to a known arsonist? So too is it negligent to sell gasoline to someone who is clearly intoxicated as the risks are equally grave.
Morris v. Giant is a good and long overdue decision. It should in some measure lead to safer roads for everyone in New Mexico.