Can You be Sued for Failing to Report Intoxicated Patrons to the Police?

This week the Tennessee Supreme Court handed-down a decision that may open the door for new lawsuits. In Cullum v. McCool, a customer sued Wal-Mart after she was run-over in the parking lot by another patron. It so happened that the woman who struck her was intoxicated, and had just been kicked-out of the store by Wal-Mart employees for belligerent conduct. So after sustaining personal injuries, Ms. Cullum sued the woman who had struck her in the parking lot—Ms. McCool—as well as the store. But, there was a major question as to whether Cullum could advance her lawsuit against Wal-Mart because the store was not responsible for McCool’s actions.

Cullum argued that Wal-Mart knew—or should have known—that McCool was intoxicated when it expelled her from the store. She argued that the employees should have done something to prevent McCool from driving under the influence, or that—at the very least—the employees should have reported their concerns to the police.

When the case worked its way up to the Tennessee Supreme Court, NFIB Legal Center filed an amicus brief out of concern that a bad decision could pave the road for new lawsuits, or worse—place small business owners in a catch-22, wherein they might face lawsuits no matter what they do when dealing with intoxicated patrons. We primarily argued that businesses should not be held liable for the actions of a drunken patron when the business in no way contributed to the customer’s intoxication. Such a rule is consistent with common law principles in our view. But, in handing-down its decision yesterday, the Court held that there may be special cases where a business owner might owe its customers a duty to guard against the actions of another patron. Specifically, such a duty exists when the business knows—or should know—that another patron poses a likely threat of harm to others.

While we were disappointed that the Court left the door open for plaintiffs to bring suits against businesses failing to report potentially intoxicated employees to the authorities, the truth is that this was a mixed-bag decision. Though disappointed that the opinion has allowed this lawsuit to move forward, we were pleased that the Court responded to some of our essential policy concerns. In fact, the Court made clear that businesses have only limited obligations when dealing with intoxicated patrons.

We were especially concerned that an overly broad rule, requiring employers to restrain intoxicated patrons from driving, would put business owners in a catch-22. On the one hand, they would risk being sued if they failed to prevent a drunken customer from leaving the store; but they might also face potential lawsuits for false imprisonment if they tried restraining a customer whom they thought to be intoxicated. Moreover, a rule requiring businesses to restrain potentially intoxicated patrons would also likely put businesses in a difficult position because of the potential for injuries in altercations between employees and belligerent customers. So, we sought to emphasize these practical concerns, and the Court responded by making clear that business owners are not required to restrain customers from leaving, and are under no duty to assess whether a customer is intoxicated either. In a footnote the Court emphasized that it was giving a very narrow opinion:

“We are not holding in this case that retailers must install the safety-screening procedures adopted by the Transportation Security Administration (TSA) for airline passengers at airports. We are not holding that retailers must ask patrons entering their businesses to submit to Breathalyzer tests. We also are not requiring retailers to conduct thorough security screenings of all patrons, similar to what fans encounter at sports stadiums or music concerts. Such procedures could impose burdens on business owners.”

While we are somewhat relieved that the Court made clear that businesses cannot be sued for failing to take these sort of security precautions, or in failing to restrain belligerent patrons, there is still some cause for concern that the decision leaves room for plaintiffs to name businesses as defendants whenever they fail to report concerns over intoxication to the police. Though the opinion makes clear that businesses can only be held liable for failing to do so where they know, or reasonably should know, that the patron poses a significant threat to others, that is easy enough to allege. And the reality is that—once hit with a lawsuit—businesses owners are sucked into a black-hole of litigation, which becomes costly very quickly, regardless of whether you are in the right. So again, the decision in Cullum v. McCool was a mixed-bag. It does nothing to discourage frivolous legal claims, but it could have been worse. 

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About Luke Wake

Luke A. Wake is a senior staff attorney at the NFIB Small Business Legal Center. Wake has particular expertise on environmental and land use issues, and has worked on numerous other constitutional issues and matters of importance to small business owners. He is an ardent defender of private property rights, which he believes are essential to the free enterprise system and the foundation of American liberty. As a strong advocate of individual rights and economic liberties, he has built his career defending small business interests. Since joining the NFIB Legal Center, Wake has focused on a whole host of issues, from employment law matters to regulatory compliance. In addition to serving as a resource for small business owners, Wake remains committed to the Legal Center’s pledge to ensure that the voice of small business is heard in the nation’s courts. He is also working to advance small business interests in law review articles, including publications in the Berkeley Journal of Law & Ecology, the Texas Journal of Law and Politics, and Competition Magazine. See R.S. Radford & Luke A. Wake, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q. 731, 746-747 (2011); Damien M. Schiff, Luke A. Wake, Leveling the Playing Field in David v. Goliath: Remedies to Agency Overreach, 17 Tex. L. Rev. & Pol. 97 (2012); Jarod M. Bona and Luke A. Wake, The Market-Participant Exception to State-Action Immunity From Antitrust Liability, J. of Antitrust and Unfair Competition of the State Bar of Ca., Vol. 23, No. 1, 156 (Spring 2014); James S. Burling and Luke A. Wake, Takings and Torts: The Role of Intention and Foreseeability in Assessing Takings Damages, in Condemnation 101: Making the Complex Simple in Eminent Domain 449-51 (ALI-ABA Committee on Continuing Professional Education eds. 2011). Before joining the Legal Center’s team, Wake completed a prestigious two-year fellowship as an attorney in the Pacific Legal Foundation’s (PLF) College of Public Interest Law. Wake is a graduate of Case Western Reserve University School of Law in Cleveland Ohio. He is a member of the California Bar, the District of Columbia Bar, and the U.S. Supreme Court Bar. He completed his undergraduate studies at Elon University in North Carolina in 2006 where he focused on political theory and corporate communications.
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