Jones v. BP Oil Co., Inc.

Decision Date12 November 1993
Citation632 So.2d 435
PartiesHoward L. JONES, individually and as administrator of the Estate of Mark Howard Jones, deceased v. BP OIL COMPANY, INC. 1920954.
CourtAlabama Supreme Court

John A. Taber, Donald E. Fazekas and Maston E. Martin, Jr. of Taber, Dansby, Fazekas & Martin, and Kenneth L. Mendelsohn of Jemison & Mendelsohn, Montgomery, for appellant.

C. Peter Bolvig of McDaniel, Hall, Conerly & Lusk, P.C., Birmingham, for appellee.

PER CURIAM.

The plaintiff, Howard Jones, appeals from a summary judgment in favor of the defendant BP Oil, Inc., in his action seeking damages based on the personal injury and resulting death of his son, Mark Jones. We affirm.

In reviewing a summary judgment, we use the same standard as the trial court in determining whether there are any genuine issues of material fact and whether the movant is entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988); Rule 56(c), A.R.Civ.P. If the movant has made a showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to show by "substantial evidence" that such an issue exists. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870 (Ala.1989). Finally, this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts in favor of the nonmovant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). Construed in this manner, the evidence suggests the following facts:

Mark Jones was killed on June 12, 1990, at approximately 11:30 p.m., when his automobile was struck by another vehicle driven by Blake Dettwiler. Michael Kelly was a passenger in Dettwiler's car. Both Dettwiler and Kelly were 17 years old on the date of the accident.

In the early evening of June 12, Dettwiler and Kelly had driven to the Gulf Gas Mart convenience store operated by BP Oil on Vaughn Road in Montgomery, Alabama. Dettwiler parked his car in a position where he and Kelly could not be observed by the clerk inside the store. Kelly entered the store with money supplied by Dettwiler for the purpose of purchasing beer for Dettwiler and himself. The Gulf Gas Mart had illegally sold beer to Kelly several times before and had a reputation of selling beer to minors. Kelly had a fake identification card in his possession at the time of the purchase, but the clerk sold him three refrigerated six-packs of beer without asking to see identification to verify that Kelly was of legal age to purchase alcoholic beverages. Later that evening Kelly reimbursed Dettwiler for his portion of the purchase price.

Dettwiler and Kelly consumed the beer between approximately 7:00 p.m. and the time of the accident. At approximately 11:30 p.m., Dettwiler was driving his car on Vaughn Road at a high rate of speed; it collided with the car driven by Mark Jones. Dettwiler's blood alcohol level, measured after the accident, was 0.136 percent.

Howard Jones filed this action individually and as representative of the estate of Mark Jones, naming Dettwiler, Kelly, and BP Oil as defendants; he stated claims against BP Oil under Alabama's "Dram Shop Act," Ala.Code 1975, § 6-5-71, and under negligence and conspiracy theories. Jones reached a settlement with Dettwiler. On February 11, 1992, the court entered a summary judgment in favor of BP Oil on Jones's negligence claim, and on February 4, 1993, it entered a summary judgment in favor of BP Oil on Jones's remaining claims. On February 18, 1993, the court made the summary judgments final pursuant to Rule 54(b), Ala.R.Civ.P.. Jones's claims against Kelly are still pending.

Jones contends that the trial court erred by basing its judgment in favor of BP Oil on the fact that there was no illegal sale of alcohol by Gulf Gas Mart to the minor driver, Dettwiler, but rather only to the minor passenger, Kelly. Thus, the primary issue on this appeal is whether a retailer of alcoholic beverages may be held liable when it illegally sells alcohol to one minor, who shares it with another minor, who then becomes intoxicated and injures a third party.

I. The Dram Shop Act

Jones asserted a claim against BP Oil pursuant to § 6-5-71, Alabama's Dram Shop Act. That section provides in relevant part:

"(a) Every wife, child, parent or other person who shall be injured in person, property, or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving, or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages."

(Emphasis added.)

Jones contends that Gulf Gas Mart's sale of beer to the minor Kelly, in violation of Ala.Code 1975, § 28-3A-25(a)(3), and which was purchased with Dettwiler's funds, was "otherwise disposing of" the beer to the minor Dettwiler. Thus, argues Jones, there was a sale or disposition of alcoholic beverages to Dettwiler by BP Oil, contrary to the provisions of law, and a cause of action against BP Oil should lie under § 6-5-71. Jones contends that it was clearly foreseeable that the beer purchased by the minor Kelly was either to be consumed by Kelly while he drove an automobile or to be shared with another minor who was driving, because, he argues, if the driver of the car had been an adult, he would have purchased the beer himself.

In response to this claim, the trial court ruled that our opinion in Espey v. Convenience Marketers, Inc., 578 So.2d 1221 (Ala.1991), was controlling. The trial court was correct. In Espey, a minor passenger of an automobile, Jimmy, illegally purchased two six-packs of beer from Convenience Marketers and shared it with the minor driver, Connie. Connie became intoxicated, drove at an excessive rate of speed, and crashed into a utility pole. Connie was killed in the accident and her estate brought an action against Convenience Marketers based on § 6-5-71. The trial court entered a summary judgment in favor of Convenience Marketers and, on appeal, this Court stated:

"Convenience sold the beer to Jimmy, not Connie; that is undisputed. The sale to Jimmy was contrary to the provisions of law, but the claim involved in this appeal involves the alleged disposition of beer to Connie. Although it may be argued with some merit that Convenience 'otherwise dispos[ed]' of the beer to Connie, we will not hold that Convenience's sale of the beer to Jimmy, who then gave it to Connie, was a disposition of the beer to Connie by Convenience that was 'contrary to the provisions of law.' "

578 So.2d at 1232.

The facts of this case are analogous to Espey in that there was no direct sale of alcoholic beverages to the minor driver who became intoxicated and caused the accident resulting in the death of Mark Jones. We explained in Espey that a direct, rather than an indirect, sale of alcoholic beverages to the person causing the injury is required in order to create a claim under § 6-5-71. Id. Further, we ruled that the "totality of the circumstances" test available under the Civil Damages Act, Ala.Code 1975, § 6-5-70, is inapplicable in actions based on the Dram Shop Act. Id. at 1233, n. 4. See Moreland v. Jitney Jungle, Inc., 621 So.2d 285 (Ala.1993); Parker v. Miller Brewing Co., 560 So.2d 1030 (Ala.1990). However, even if such a test was applicable under § 6-5-71, there is no evidence in the record to suggest that the BP Oil employee was aware that the beer purchased by Kelly was to be shared with another minor. Accordingly, because Gulf Gas Mart sold the beer to the passenger, Kelly, rather than to the driver, Dettwiler, Jones has no action under § 6-5-71.

We find no significance in the fact that Dettwiler supplied all or a portion of the funds used by Kelly to purchase the beer. The sale by the BP Oil employee was to Kelly, not Dettwiler, regardless of the origin of the money used for the purchase. Thus, the trial court properly entered the summary judgment in favor of BP Oil as to Jones's claim under § 6-5-71.

II. Negligence

Jones contends that if a statutory remedy under § 6-5-71 is unavailable under the facts of this case, then the common law remedy of a negligence action against BP Oil must be available. Jones argues that given the fact that an innocent third party was killed as a result of BP Oil's illegal sale of alcohol to a minor, a remedy against BP Oil must exist. We disagree.

For over a century, Alabama law has refused to recognize an action based on negligence in the distribution of alcohol. In King v. Henkie, 80 Ala. 505 (1886), this Court held that even though the defendant had committed a misdemeanor by selling alcohol to an intoxicated person, no cause of action existed at common law. This Court ruled, in effect, that it is the consumption of alcohol--not the purchase of it--that is the proximate cause of injuries resulting from the purchaser's intoxication. King, supra, at 510. This principle has been reaffirmed by this Court many times, including recently in Parker v. Miller Brewing Co., 560 So.2d 1030 (Ala.1990). See Ward v. Rhodes, Hammonds & Beck, Inc., 511 So.2d 159 (Ala.1987); DeLoach v. Mayer Electric Supply Co., 378 So.2d 733 (Ala.1979).

In Parker, we plainly stated: "Plaintiff urges us to adopt a common law cause of action that would impose liability for the distribution of alcoholic beverages to minors. We decline to do so. It has been a principle of long standing in Alabama that one cannot recover for negligence in the dispensing of alcohol." 560 So.2d at 1034. It could hardly be clearer that Alabama recognizes no...

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