Day on Torts
Where plaintiff created issues of genuine material fact regarding the potential liability of various defendants in the death of his minor son, who was killed while drinking and driving, summary judgment for most defendants was reversed. Further, the Court of Appeals found that the question of whether the decedent was “at least 50% at fault for comparative fault purposes [was] a question not properly resolvable at this summary judgment stage under the facts of this case.”
In Benbow v. L&S Family Entertainment, LLC, No. M2022-00491-COA-R3-CV (Tenn. Ct. App. July 12, 2023), plaintiff brought suit after his minor son, who was 20-years-old, died while drinking and driving. Plaintiff asserted that various defendants were negligent in the course of the evening that decedent died.
Decedent was out with a friend on the night he died, and that friend was 21-years-old. Plaintiff presented evidence that at defendant restaurant the server carded the friend but not decedent, and then brought a pitcher of beer and two cups to the table; that decedent and his friend appeared intoxicated when they arrived at defendant bowling alley; that a worker at defendant bowling alley carded the friend but not decedent, yet provided a pitcher of beer and two cups; that decedent and his friend went to a bar after the bowling alley, and that at that bar decedent’s debit card was used to buy drinks; that the friend’s mother came to the bar and that video evidence showed her possibly buying drinks that were then given to decedent; that the mother helped decedent into a car to be driven home; that decedent and the friend ended up going to the friend’s house; and that the friend and his father got into an argument, whereupon decedent drove himself away from the house and got into the fatal accident.
The trial court granted summary judgment for all of the defendants except the friend. On appeal, those rulings were reversed as to all defendants except the friend’s father, with the trial court finding that there were genuine issues of material fact as to the other defendants’ potential negligence.
In its analysis, the Court of Appeals began by reiterating that Tennessee is a comparative fault state, so that “so long as the plaintiff’s negligence remains less than the defendant’s negligence the plaintiff may recover[.]” (internal citation omitted). Defendant restaurant asserted that decedent’s “actions were the sole cause of his injuries” under a previous Court of Appeals case, but the Court reasoned:
Initially, we are unpersuaded by the argument that Jacob’s decision to drink and drive is dispositive against Plaintiff’s claims. Dram Shop laws do not apply to first parties as in this case. Indeed, this is not a Dram Shop case. However, the Tennessee General Assembly has fixed the legal drinking age in this state to 21. This is a policy determination by the General Assembly. The General Assembly’s clear purpose in its policy decision to make age 21 the legal drinking age in Tennessee is to protect those under age 21 from their own poor choices related to alcohol. This Court does not have the ability to modify the General Assembly’s policy decision as to the legal drinking age in Tennessee by saying age 20 is “close enough.” Jacob was 20 when the events of this case unfolded. While not a minor, he was not old enough to legally drink alcohol. Montgomery does not stand for the proposition that one who sells alcohol to an underage or visibly intoxicated person is shielded from liability. Tennessee law does not preclude an underage first party, such as Jacob here through Plaintiff, from recovering against those who furnished him alcohol. We emphasize that Dram Shop laws are not implicated. The defendants’ alleged furnishing of alcohol to Jacob as an underage and/or visibly intoxicated person could constitute proximate cause for Jacob’s injuries and death. Whether Jacob was 50% or more at fault for comparative fault purposes is a question of fact; Tennessee no longer applies principles of contributory negligence. Montgomery cited to Jordan without addressing the difference in the standard. The record in this case is replete with competing evidence as to whether Jacob was furnished with alcohol by some defendants or whether certain defendants assumed and then breached a duty of care to him. That a jury might well find Jacob to have been at fault to some degree is not dispositive against Plaintiff’s case so long as Jacob’s percentage of fault was less than that of the combined fault of the defendants.
Having found that the decedent’s alleged negligence was not dispositive of the case, the Court then considered each defendant, ultimately finding that there were questions of fact regarding the potential negligence of the restaurant, bowling alley, and friend’s mother. Summary judgment for those three defendants was thus reversed. Only the father of the friend, who had very little if any interaction with decedent on the night in question, had summary judgment affirmed.
This was a very fact-dependent case, but it does serve as a reminder that issues of comparative fault are often not resolvable at the summary judgment stage.
This opinion was released 3.5 months after oral arguments in this case.
Note: Chapter 16, Section 21 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
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