In September, the Oklahoma Supreme Court issued the latest in a series of decisions analyzing “dram shop” liability. In Murrow v. Penney, the court declined to extend such liability to a defendant that neither served nor overserved alcohol to someone who attended an event at the defendant’s venue when that person left the event intoxicated, drove an automobile, and was involved in an automobile accident.
The facts of Murrow are tragic. On October 2, 2020, Malcolm Penney (Penney) attended a wedding reception at The Springs Event Venue (Springs) in Edmond, Oklahoma. Penney had stopped at a liquor store before the reception, and obtained additional alcohol from an ice chest brought to the reception by groomsmen. He left the event intoxicated after taking car keys from his ex-wife’s purse. Penney then drove his ex-wife’s vehicle in the wrong direction on the Kilpatrick Turnpike near Yukon, Oklahoma. He crashed head-on into an automobile driven by 19-year-old college sophomore Marissa Murrow (Murrow), killing her. Penney’s blood was tested several hours after the accident and revealed a blood-alcohol content of more than twice the legal limit.
Murrow’s parents (Murrows) sued Penney for negligence and for failing to help the victim from harm because he fled the scene of the accident. Murrow’s parents also sued Penney’s ex-wife for negligent entrustment of the automobile he was driving, and sued Springs for negligence. The Murrows later asserted claims against the security company that worked the reception and the commercial vendor that bartended at the reception. Eventually, the Murrows dismissed all the defendants with prejudice except Springs.
Notably, the event rental contract for the reception prohibited alcohol consumption on the premises unless it was served by a licensed bartender. Also notably, and critically, the Murrows did not allege Penney was overserved alcohol by the bartender hired to work the reception. Rather, the Murrows’ negligence claim sought to hold Springs liable for, among other things, allowing personal alcohol to be brought onto and consumed on the premises, allowing the consumption of alcohol on the premises before a licensed bartender had arrived, and failing to restrict the serving of alcohol to the bartending company.
The Springs moved for summary judgment, arguing that it owed no duty to third parties such as Marissa Murrow. The trial court granted the motion, agreeing that the Springs owed no such duty and that the case did not fall within the exceptions to the common law rule, articulated in Brigance v. Velvet Dove Restaurant, Inc., that a person has no duty to prevent a third person from causing physical injury to another. The Murrows appealed.
The Oklahoma Supreme Court affirmed the trial court’s decision. In doing so, the court noted that before Brigance, tavern owners were not civilly liable under Oklahoma common law for injury to third parties caused by the acts of a voluntarily intoxicated person because such injuries were proximately caused by the intoxicated person’s voluntary consumption of alcohol. Brigance changed that, however, by holding that a vendor selling intoxicating drinks for on-the-premises consumption has a duty of reasonable care to not sell alcohol to a noticeably intoxicated person. The Brigance court concluded it was not unreasonable to expect such a vendor to foresee the unreasonable risk of harm to others.
The Murrow court further noted that while Brigance involved the sale of alcohol to a noticeably intoxicated minor, subsequent Supreme Court decisions have held that a vendor of alcohol for on-the-premises consumption does not owe a duty of care to a voluntarily intoxicated adult who is injured in a one-car accident caused by his own intoxication. Against that backdrop, key elements were missing from the Murrows’ claim, the court observed.
First, Springs did not serve alcohol, as did the defendants in Brigance and its progeny. Instead, Springs is merely an event center. Second, as noted, the Murrows did not allege Penney was over-served alcohol by Springs. Third, there was no indication anyone associated with Springs knew Penney had access to a car, was driving when he left the center or was visibly intoxicated when he left. Lastly, the court found that Springs’ alcohol and safety policies prohibiting unauthorized and on-premises alcohol use created no duty to third persons such as Marisa Murrow. The court stated that holding entities such as Springs to such a duty:
would require of such businesses the onerous burden to control guests both before arrival, during visits to their property, and after leaving the facility. If a duty were created merely by event venues or other non-alcohol selling businesses implementing alcohol or safety measures without selling or serving alcohol, they would be better off not to implement any such measures.
The court’s holding in Murrow does not change Oklahoma’s common law rule of “dram shop” liability first articulated in Brigance and refined in subsequent cases. But it does help to further define the contours of that liability by declining to extend it to an entity that hosts an event, but does not overserve alcohol to a driver who leaves the event and injures a third party when driving while intoxicated, even when that entity has in place policies related to the use of alcohol on the premises.