In most states, bars and restaurants can be legally liable for serving alcohol to people who have had too much to drink.

It’s called “social host liability” or “dram shop liability,” and it means that if an intoxicated customer gets behind the wheel and causes an accident resulting in death, injury, or property damage, the bar or restaurant could be in legal hot water if there’s evidence that the driver should have been cut off.

Should a similar legal obligation be placed on gas stations that sell gas to obviously intoxicated drivers?

The New Mexico Supreme Court recently said yes.

While any reasonable step to discourage drunk driving is certainly wise, the ruling in New Mexico has raised questions about its sensibility. Most modern gas stations are self-service operations involving minimal human contact. Can employees behind the counter there be expected to discern inebriation of people out at the pumps as keenly as a liquor server with a close-up perspective?

The Facts of the Case

The New Mexico incident occurred in 2011. An intoxicated man drove his car until it ran out of gas, then went to a gas station, where he tried to buy a one-gallon jug of water to empty and fill with gas. A clerk initially refused but then relented.

The man went back to his car, fueled it, and then returned to the gas station, pumping in nine more gallons. Driving out onto the highway, he crossed the center line and crashed into an oncoming vehicle, killing its driver.

The estate of the deceased driver, Marcellino Morris Jr., filed the lawsuit in New Mexico state court. The defendant gas station, Giant Four Corners, Inc., then removed it to federal court. The New Mexico Supreme Court ruled on a certified question from the 10th U.S. Circuit Court of Appeals in Denver to resolve a question of state law regarding the liability of the defendant.

The court ruled, 3-1, that vendors have a “duty of care” to refuse the sale of gasoline to drunk drivers. In reaching that conclusion, the court relied on the legal concept of “negligent entrustment,” which means that owners of potentially dangerous goods have a duty to supply those goods only to people who are competent to use them safely.

A Strong Dissent

Justice Barbara Vigil (now retired) dissented from the majority, saying that “this sea change in the law could have far-reaching consequences for retail businesses.” Prior to this decision, she said, negligent entrustment was restricted to “bailment,” which is a legal term for when an owner transfers physical possession of personal property to another but retains ownership.

With its recent ruling, she wrote, the court has for the first time extended the bailment concept to commercial transactions. In Vigil’s estimation, this could open the door to greater liability by a wide range of commercial vendors.

“(U)nder the majority’s reasoning, vendors of any item that enables DWI – not only gasoline – could now be liable for a customer’s DWI-related torts,” 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.”

For operators of gas stations in New Mexico, meanwhile, the Supreme Court ruling leaves less room for guesswork. The court said they have an obligation to not sell gasoline to drivers who are believed to be intoxicated.

How Vigilant Should Gas Station Now Be?

The court noted that there’s no law in New Mexico that specifically prohibits gas stations from selling to intoxicated drivers. Their ruling is focused on when the vendor “knows or has to reason to know” that a driver is intoxicated. So, will gas stations be legally safer by not paying attention to the pumps? Or monitoring them closely?

Only two states, New Jersey and Oregon, don’t allow self-service gasoline. In the other 48 and the District of Columbia, it could be difficult for a busy clerk ringing up purchases of Slim Jims and slushies to notice that one of the patrons gas pumpers might be stumbling a bit – if they’re even visible.

What kind of duty do gas stations in New Mexico now have to take greater care in observing all gas purchasers? Should they start requiring Breathalyzer tests for a purchase just to be safe?

New Mexico Is Not the First

In reaching its decision, the justices in New Mexico made the Land of Enchantment the second state to place this duty of care on gas stations. But it’s been 17 years since Tennessee became the first state to do it, so it doesn’t appear that we’re in the beginning stages of a groundswell.

Will there be more?

Maybe.

Candace McCoy, an attorney and professor at the John Jay College of Criminal Justice in New York, told Pew Stateline, “People in other states with similar cases might look at it and say they’re going to bring one in their state.”

Advocates for tougher measures on drunk driving applaud the ruling. Lindsey Valdez, regional executive director for Mothers Against Drunk Driving (MADD) in New Mexico, Arizona, and Nevada, told Pew Stateline, “From the victim’s perspective, this is absolutely a win to help them achieve full justice.”

But Doug Kantor, general counsel for the National Association of Convenience Stores, had a different take, saying it “sets a new precedence and a troubling one.”

“(S)tore clerks who sell gas just aren’t in a position to police whether people have been drinking or not, or whether their mental state is impaired or not,” he said.

Meanwhile, what about the growing presence of electric cars and public charging stations? Who’s accountable there? Should Tesla be responsible if a drunk driver using one of its superchargers places too much reliance on the vehicle’s autopilot and causes an accident?

Now that New Mexico has broadened the duty of care required of gas stations – and possibly other retailers – it does seem that we’ll be seeing more legal disputes along these lines.

Gas-station Breathalyzers, anyone?



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