McGee v. Alexander

• Decision Date: 25 September 2001
• Docket Number: No. 94,931.,94,931.
• Citation: 2001 OK 78,37 P.3d 800
• Parties: Lee V. McGEE, an individual, surviving spouse, surviving next of kin of Devona A. "Dee" McGee, on behalf of himself and as father, and as next of kin and next friend, of Alexandria McGee, a minor child, Plaintiffs/Appellants, v. Neal E. ALEXANDER, Jr., an individual, Defendant and Hillcrest Health Center, Inc., an Oklahoma corporation, d/b/a Hillcrest Medical Center; and Hillcrest Golf & Country Club, Inc., d/b/a Willow Creek Golf and Country Club, and John Does, 1 through 9, Defendants/Appellees, Glenda Mitchell Branch, as Widow and next of kin of Walter A. Branch, Plaintiff, v. Neal E. Alexander, Jr., Defendant. Julian Branch, an individual, next of kin of Walter A. Branch, Plaintiff/Appellant, v. Neal E. Alexander, Jr., an individual, Defendant, and Hillcrest Health Center, Inc., an Oklahoma corporation, d/b/a Hillcrest Medical Center; and Hillcrest Golf & Country Club, Inc., d/b/a Willow Creek Golf and Country Club, Defendants/Appellees.
• Court: Oklahoma Supreme Court

37 P.3d 800

2001 OK 78

Lee V. McGEE, an individual, surviving spouse, surviving next of kin of Devona A. "Dee" McGee, on behalf of himself and as father, and as next of kin and next friend, of Alexandria McGee, a minor child, Plaintiffs/Appellants, v. Neal E. ALEXANDER, Jr., an individual, Defendant and Hillcrest Health Center, Inc., an Oklahoma corporation, d/b/a Hillcrest Medical Center; and Hillcrest Golf & Country Club, Inc., d/b/a Willow Creek Golf and Country Club, and John Does, , Defendants/Appellees, Glenda Mitchell Branch, as Widow and next of kin of Walter A. Branch, Plaintiff, v. Neal E. Alexander, Jr., Defendant.

Julian Branch, an individual, next of kin of Walter A. Branch, Plaintiff/Appellant, v. Neal E. Alexander, Jr., an individual, Defendant, and Hillcrest Health Center, Inc., an Oklahoma corporation, d/b/a Hillcrest Medical Center; and Hillcrest Golf & Country Club, Inc., d/b/a Willow Creek Golf and Country Club, Defendants/Appellees.

No. 94,931.

Supreme Court of Oklahoma.

September 25, 2001.

Robert L. Rainey and James R. Martin Oklahoma City, for Lee V. McGee, Plaintiff/Appellant.

Michael P. Merchant and Michael D. Lewis Oklahoma City, for Julian Branch, Plaintiff/Appellant.

Amy E. Kempfert, Thomas A. LeBlanc and Matthew B. Free, Tulsa, for Hillcrest Health Center, Inc., Defendant/Appellee.

Tom L. King and Leslie Meek Wileman Tulsa, for Hillcrest Golf and Country Club, Inc., d/b/a Willow Creek Golf and Country Club, Defendant/Appellee.

BOUDREAU, J.

¶ 1 On June 20, 1997, Walter Branch and his adult daughter, Devona McGee, were killed by an intoxicated driver, Neal Alexander, Jr., while changing a tire along an Oklahoma City highway near the Willow Creek Golf and Country Club. As a result of the accident, the surviving spouses and next kin of Branch and McGee filed suit against the intoxicated driver, as well as Hillcrest Health Center, Inc. (Hillcrest) and Willow Creek Golf and Country Club (Willow Creek) under a dram shop liability theory.

¶ 2 Prior to the accident which killed Branch and McGee, Alexander attended a golf scramble fund raiser and end of year party in honor of the interns and residents at Hillcrest Health Center. Hillcrest raised funds to pay for the event and fund raiser by charging a $60 tournament fee and soliciting sponsors whose logos or names were then displayed at various points throughout the tournament. Alexander was the guest of a Hillcrest physician who paid Alexander's tournament fee.

¶ 3 Alexander arrived for the tournament around 11:00 a.m. and left the reception and awards ceremony in the clubhouse sometime around 7:00 p.m. that evening. During those hours he consumed a number of beers.¹ Alexander indicated he consumed the majority of beer while on the golf course and acknowledged that he had too much to drink by the time he finished the 18th hole. Alexander apparently obtained two more beers in the clubhouse with drink coupons which were part of a hospitality package given to participants of the golf tournament.

¶ 4 Defendant, Hillcrest Health Center, supplied the beverages available on the course, which included beer as well as sodas and other non-alcoholic drinks. Hillcrest employees, including nurses, manned the beverage carts and served the drinks to the golfers from coolers. The beverage carts themselves were golf carts provided by Willow Creek for use in delivering drinks throughout the course. Willow Creek personnel were not involved in furnishing drinks to tournament participants on the golf course.

¶ 5 Willow Creek did staff the open bar at the clubhouse where the reception and awards ceremony took place at the conclusion of the tournament. While tournament participants could pay cash to purchase drinks at the bar, the club's records indicate no one paid, but instead patrons simply used their drink coupons. It was at this bar where Alexander traded in his two drink coupons for two beers toward the end of the evening. Willow Creek maintains that it has no record of who was working specifically at the clubhouse or the clubhouse bar on the evening of June 20, 1997 and can only provide a general list of who reported for work that evening.

¶ 6 Willow Creek has a valid mixed beverage license, allowing it to operate the bar at the clubhouse. On the evening of June 20th, it served 255 drinks to approximately 150 tournament patrons. Willow Creek billed Hillcrest approximately $858.70 for the bar services at the clubhouse reception.² Willow Creek billed in excess of $14,000 for the entire event.

¶ 7 Alexander testified that he left the event between 6:45 and 7:00 p.m. Very shortly thereafter and within close proximity to the Willow Creek Golf Club, Alexander veered off the road and killed Branch and McGee who were changing a flat tire on the shoulder. Alexander stated he made no stops after leaving the country club and consumed no alcohol other than that which he consumed at the country club. Alexander was taken to the Hillcrest Hospital emergency room after the accident. The police report indicates that the attending officers suspected Alexander was intoxicated and as a result left a blood alcohol test kit to be conducted at the hospital. Testing revealed Alexander's blood alcohol level was .19, well above the legal limit for intoxication in Oklahoma.

¶ 8 Plaintiffs, the surviving spouses and next kin of the two victims, Branch and McGee, filed suit against Alexander, Hillcrest Health Center, Inc., Willow Creek Golf and Country Club and John Does 1 through 9 (who allegedly served the alcohol). Seeking to impose dram shop liability upon Defendant, Hillcrest, Plaintiffs included an allegation that Hillcrest and Willow Creek were joint venturers in the vending of alcohol for the tournament. Both Hillcrest and Willow Creek filed Motions for Summary Judgment. Hillcrest premised its summary judgment on a claimed status as a social host. Willow Creek also argued that it occupied the status of a social host because it was an agent of a social host, Hillcrest. In addition, Willow Creek argued that it did not know, nor have any reason to know Neal Alexander was intoxicated.

¶ 9 The trial court granted summary judgments in favor of both Hillcrest Health Center and Willow Creek Golf Club. Plaintiffs appealed to this Court. The Court of Civil Appeals affirmed the summary judgments with regard to both Defendants. This Court granted certiorari to examine whether the record on summary judgment demonstrates that dram shop liability applied to neither Hillcrest Health Center nor Willow Creek. For the reasons set out herein, the opinion of the Court of Civil Appeals is vacated and the trial court's judgment is affirmed in part and reversed in part and remanded for further proceedings. Specifically, the grant of summary judgment in favor of Hillcrest Health Center is affirmed, while the summary judgment in favor of Willow Creek Golf and Country Club is reversed.

I. STANDARD of REVIEW

¶ 10 Summary judgment is proper where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law. Daugherty v. Farmers Co-op. Ass'n, 1984 OK 72, ¶ 5, 689 P.2d 947, 949; Crockett v. McKenzie, 1994 OK 3, ¶ 3, 867 P.2d 463, 464. "[T]he inquiry on appeal concerning the propriety of the entry of summary judgment is limited to potential controversies concerning any issue raised by the pleadings." Wabaunsee v. Harris, 1980 OK 52, ¶ 9, 610 P.2d 782, 785. An order granting summary judgment disposes of legal issues. As a result, on appeal, the appellate court's review is de novo. Brown v. Nicholson, 1997 OK 32, ¶ 5 n. 1, 935 P.2d 319, 321 n. 1; Manley v. Brown, 1999 OK 79, 989 P.2d 448, 456 n. 30.

II. DRAM SHOP LIABILITY ASSERTED AGAINST HILLCREST HEALTH CENTER

A. Hillcrest is Not a Commercial Vendor of Alcohol

¶ 11 In Brigance v. Velvet Dove Restaurant, 1986 OK 41, 725 P.2d 300, 304, this Court rejected the common law rule of non-liability for tavern owners with respect to injured third parties, holding that "one who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person." Brigance clearly limited the liability exception to commercial vendors of alcohol. Id.

¶ 12 Plaintiffs argue that the teachings of Brigance and its progeny should be extended under the unique facts of this case to make a non-commercial provider of alcoholic beverages liable to injured third parties for serving liquor to one who was then known, or should have been known, to be intoxicated. Plaintiffs concede that Hillcrest did not hold a license to sell alcoholic beverages, but argue Hillcrest engaged in an activity on the day in question that was business-related, as well as social. Plaintiffs point out that Hillcrest intended to apply funds in excess of tournament costs, including donations, to its continuing medical education program. Plaintiffs also stress that Hillcrest charged each participant $60.00 to defray the costs of the tournament, including the alcohol. In essence, Plaintiffs argue that by sponsoring the golf tournament and reception, Hillcrest engaged in an activity that was sufficiently business-related in nature that Hillcrest should be considered a commercial provider for purposes of dram shop liability.

¶ 13 In support of its argument that it is not a commercial provider, Hillcrest points out that it is a hospital which does not hold a license to sell alcoholic beverages of any kind nor does it have the concomitant right of profit from the sale of alcohol. In Tomlinson v. Love's Country Stores, Inc., 1993 OK 83, 854 P.2d 910, 912, we acknowledged the profit potential for liquor vendors as one of the driving reasons for imposing dram shop liability against the commercial vendor of alcohol: "The Legislature has placed on every vendor who holds a license to furnish alcoholic beverages and a concomitant right of profit from its sale...