The answer, as usual, depends. According to a decision released July 19, 2021, Tennessee and New Mexico are the only two states in the country recognizing a “duty of care” for businesses to withhold fuel from drunk drivers due to the dangers associated with driving under the influence. The legal doctrine creating this duty is called “negligent entrustment.”
In the 2021 New Mexico case of Morris v. Giant Four Corners, Inc., No. S-1-SC-37997, a man walked up to a gas station and purchased a gallon of gasoline, using an empty water container. The driver then walked back to his vehicle, put the fuel in the vehicle, drove back to the gas station, and purchased additional fuel. Soon thereafter, he collided with another vehicle, killing the other driver.
According to a report in Newsweek, “[w]hile New Mexico has no law that would prohibit the sale of gasoline to intoxicated drivers, the court’s majority wrote that a duty not to sell gasoline to someone who is drunk is consistent with liability for giving that person alcohol or a vehicle.” The New Mexico Supreme Court stated, “Gasoline is required to operate most vehicles today. Providing gasoline to an intoxicated driver is like providing car keys to an intoxicated driver.”
However, as dissenting Justice Barbara Vigil wrote, the majority opinion could go well beyond the scope of this case. She wrote, “Thus auto parts stores, tire shops, mechanics, and others will be left guessing as to whether they are subject to the new duty and, if so, how to behave so as to avoid liability.” The dissent also questions how this rule is to be applied in the typical scenario when gasoline is purchased at the pump.
The Tennessee case addressing this issue is West v. East Tennessee Pioneer Oil Co., 172 S.W. 3d 545 (Tenn. 2005). In that case, the Tennessee Supreme Court ruled that the store owed duty of care to persons on roadways not to sell gasoline to clearly intoxicated motorist and not to assist such a motorist in pumping gas. According to the Court, a store has duty to act with reasonable care under all the circumstances. Acts of selling gas and assisting an intoxicated motorist in pumping gas creats foreseeable risk to people on roadways. In this case, the store had a safer alternative of simply not selling gas to the motorist.
About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,500 DUI defendants. Among the many honors bestowed upon him, Steve has served as Dean of the National College for DUI Defense, Inc. (NCDD) and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee. Steve was the first lawyer in Tennessee to be Board Certified as a DUI Defense Specialist by the NCDD.
He is the author of DUI: The Crime & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor of the national treatise, Drunk Driving Defense, 8th edition (Wolters Kluwer/Aspen). Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions. He is a popular international speaker, having spoken at legal seminars in 30 states, the District of Columbia and six foreign countries. After being named a Fulbright Scholar, Steve was honored to teach as an Adjunct Professor at the University of Latvia Law School in the capital city of Riga, Latvia during the Spring Semester of 2019. If you would like to contact the author, please visit his website at www.tndui.com.
