Impact of Significant December 18, 2013 Tennessee Supreme Court Premises Liability Ruling, Cullum v. McCool

A very important Tennessee Supreme Court ruling was published yesterday, December 18, 2013.  I believe this new opinion, Jolyn Cullum v. Jan McCool, 2013 WL 6665074, No. E2012-00991-SC-R11-CV (Tenn. 2013), will be talked about for years to come.  I also believe it could cause the Tennessee legislator to consider legislation to address this expansion of the potential liability of a premises owner when dealing with an intoxicated individual.  Ironically, I very recently wrote an article about the other important case on this issue, West v. East TN Pioneer Oil Co., 172 S.W.3d 545 (Tenn. 2005) (See Tennessee Defense Litigation post “Negligence – Can a gas station be liable for selling gas to an intoxicated individual who later causes an accident in Tennessee?”).  This new Cullum decision, in my opinion, expands the holding in the West case and places additional burdens on premises owners to take affirmative actions when dealing with intoxicated individuals even if those individuals did not become intoxicated on the premises.

FACTS:

In the Cullum case the plaintiff was struck by a vehicle in a Wal-Mart parking lot by another Wal-Mart customer.  The plaintiff had just finished shopping and was placing her groceries inside the trunk when she was struck.  Just before the accident, defendant, Ms. McCool, is alleged to have been ordered to leave the store when she attempted to fill a medication prescription.  She was allegedly ordered to leave because Wal-Mart employees believed Ms. McCool was intoxicated.  The complaint further alleges that Wal-Mart knew Ms. McCool was someone who had been in the store intoxicated on prior occasions and they knew she was alone and would be operating a motor vehicle.  Allegedly, Wal-Mart did not take any action other than ordering her to leave the store.  The Wal-Mart employees did not call the police or try to restrain Ms. McCool in any way.  The plaintiff filed a premises liability cause of action against Wal-Mart who is a defendant in this matter.

PRIOR TRIAL COURT AND COURT OF APPEALS RULINGS:

This case was dismissed by the trial court because it found Wal-Mart did not have any duty to call the police, call a taxi, or to restrain Ms. McCool and therefore they could not be responsible for the harm caused to the plaintiff.  The Tennessee Court of Appeals reversed the trial court decision and found Wal-Mart had some duty to protect the plaintiff from the “known danger in the parking lot”.  This case was next appealed to the Tennessee Supreme Court. 

CULLUM SUPREME COURT RULING:

The Tennessee Supreme Court focused on the relationship between the parties to determine whether Wal-Mart had a duty to take further action other than simply ordering Ms. McCool out of their store when they knew she was intoxicated.  Cullum at 6, 7.  This case was decided at the motion to dismiss stage.  The Tennessee Supreme Court therefore had to accept, as true, all the allegations of the plaintiff in the complaint.   

The Tennessee Supreme Court found that based on the alleged facts, Wal-Mart “owed a duty of care to protect Ms. Cullum from the harm presented by an intoxicated patron operating a motor vehicle in Wal-Mart’s parking lot.” Cullum at 8.  Wal-Mart attempted to rely upon the West decision which held that a store did not have any duty to “physically restrain or otherwise prevent” an intoxicated person from driving. Cullum at 8.  In response the Court found the West decision is actually distinguishable because

West did not involve a special relationship between the business that sold gasoline to a third party and the driver who was injured by the third party's conduct.  In contrast, Wal–Mart had a special relationship with its customer, Ms. Cullum, and therefore, it had a duty to protect her from foreseeable risks of harm on its property provided that any action that its duty may have required was not overly burdensome. 

As a result, the Court basically found there is a heightened duty owed by businesses to their customers as opposed to third parties as discussed in the West decision.  In other words, if the intoxicated individual left Wal-Mart’s parking lot and instead struck some third-party, then it is unlikely they would have a viable cause of action under the West and Cullum decisions.  However, because the intoxicated individual struck a Wal-Mart customer, there was a heightened duty due to the “special relationship with its customer” that compelled Wal-Mart to take some additional action beyond simply removing Ms. McCool from the store. 

The Court noted that it was not ruling that businesses or their employees must “call 911 for every blowhard drunk.” Cullum at 7.  However, the Court noted that,

In some cases there may be a duty on the part of store employees to try to protect its patrons from known dangers.  A reasonable factfinder could determine that the specific foreseeability of harm posed by an intoxicated, belligerent patron certainly could outweigh the minimal burdens placed on store employees to call the police or take another alternative course of action, as opposed to doing nothing.

Cullum at 7.   This quote is very open-ended.  The phrase “another alternative course of action” leaves much to the imagination.  However, at the end of the day, simply removing an intoxicated person from the store could be found to be insufficient. 

IMPACT OF CASE:

I think ultimately this case greatly expands the potential liability for premises owners under Tennessee law when dealing with an intoxicated individual (or someone under the influence of drugs).  It is almost impossible for a premises owner to make forward thinking “spur of the moment” decisions on what actions to take when dealing with an intoxicated individual.  The Court seems to imply (although it does not state this explicitly) that calling the police would have sufficiently met the premises owners’ burden.  Ultimately, however, it is hard to believe the police would respond quickly enough to this type of call in order to be able to arrive on the scene before the person gets in a car and drives away.  I just do not see how calling the police would make any difference 99% of the time. 

This therefore begs the question as to what else Wal-Mart could have done?  West seems to imply that no physical restraint is required, but what else could they do?  Are they required to follow the person into the parking lot, risking their own physical safety with a possible confrontation, in order to “monitor” what happens and verbally warn people around the intoxicated person?  This seems to be an onerous burden. 

Ultimately, this case provides a disconcerting expansion of potential liability for premises owners.  I think this case now compels premises owners to develop policies on how to deal with intoxicated individuals in order to avoid the possibility of liability in this circumstance.  I think at a minimum, police should be called in most circumstances, likely to only provide litigation protection, not to actually solve the problem at hand.  It will be very interesting to see how other Court of Appeals decisions interpret this ruling.