Copeland v. Tela Corp.

Copeland v. Tela Corp.
1999 OK 81
996 P.2d 931
70 OBJ 2846
Case Number: 92283
Decided: 10/05/1999
Supreme Court of Oklahoma

Roy COPELAND, Appellant,

v.

TELA CORPORATION, d/b/a Red Dog Saloon And Café, and Donald E. Mackey, individually, Appellees.

[996 P.2d 932]
ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I.

¶0 The appellant, a pedestrian, was injured when he was struck by an automobile driven by a customer of the Red Dog Saloon and Caf©, where the customer had been drinking alcoholic beverages. When the appellant sued the appellee for negligence pursuant to Brigance v. Velvet Dove Restaurant, Inc.,

CERTIORARI PREVIOUSLY GRANTED;
OPINION OF THE COURT OF CIVIL APPEALS VACATED;
JUDGMENT OF THE DISTRICT COURT REVERSED.

Doug Friesen, Oklahoma City, Oklahoma, for Appellant,

Michael P. Rogalin, Oklahoma City, Oklahoma, for Appellees.

HODGES, J.

¶1 The question in this case concerns whether the trial court properly granted summary judgment in favor of the appellees, Tela Corporation and Donald Mackey. We answer that summary judgment under these facts was improperly granted.

¶2 On December 31, 1993, the appellant, Roy Copeland, was walking next to the curb in the 4700 block of N.W. 10th Street in Oklahoma City, when he was struck by Ronald Barnes' vehicle. Barnes was traveling about 45 miles per hour when he struck Copeland, who was thrown approximately 55 feet from the point of impact. Barnes, who had a blood alcohol content of .12%, was taken into custody for Driving Under the Influence of Alcohol. Subsequent investigation revealed that Barnes had arrived at 11:00 p.m. at the Red Dog Saloon and Caf©. He had not consumed any alcohol in the past twenty-four hours. While at the Red Dog, Barnes consumed between one and two pitchers of beer, drinking beer until it closed. The accident occurred immediately after leaving, within one and one-half mile of the Red Dog. Copeland sued the appellees for negligence, pursuant to our holding in Brigance v. Velvet Dove Restaurant, Inc.,

¶3 Summary judgment was granted to the appellees because the trial court found Copeland could not present evidence that the vendor had served alcohol to a "noticeably intoxicated person." This finding appears to be based on an admission in the "Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment and Brief in Support," that employees of the defendant, Tela Corporation, who were on duty the night Barnes was at the Red Dog, and who were in a position to view the area in which Barnes was drinking, all swore under oath that no patron of the Red Dog was served any beer while the patron was visibly or noticeably intoxicated. The Court of Appeals affirmed the trial court and this Court granted certiorari.

¶4 We must decide if summary judgment is proper where Copeland was unable to obtain a witness to testify that alcohol was served to a noticeably intoxicated person at the Red Dog during the time Barnes was drinking there. Summary judgment is appropriate only when there is no substantial controversy as to any material fact. Rule 13, Rules for District Courts of Oklahoma, Okla. Stat. tit. 12, ch. 2, app. (Supp.1998). The purpose of summary judgment is to avoid unnecessary jury trials, by allowing the trial [996 P.2d 933] court to look beyond the pleadings to various evidentiary materials to determine whether there is an issue of fact to be submitted to the jury. Flanders v. Crane Co.,

¶5 The elements of common law negligence summarized by this Court in Sloan v. Owen,

¶6 Prior to Brigance, a tavern owner could not be held liable for furnishing alcoholic beverages to one who, after becoming intoxicated, injured either himself or another. Tomlinson v. Love's Country Stores, Inc.,

¶7 The Court of Civil Appeals in this matter relied upon Battles v. Cough,

¶8 The material fact at issue in this case is whether the Red Dog knew or should have known that Barnes had become noticeably intoxicated while being served alcoholic beverages on its premises. While the appellant could find no employee to testify that a patron of the Red Dog was served an alcoholic beverage while noticeably intoxicated, the appellant is still entitled to use inference and circumstantial evidence to prove during trial that Barnes was served when noticeably intoxicated. Barnes was found to have a blood alcohol level of .12%, he ran over a pedestrian, and the investigating [996 P.2d 934] police officer had a strong enough suspicion of Barnes' sobriety, that the officer had Barnes tested. Enough evidence exists that a reasonable person might reach the conclusion the employees of the Red Dog either knew or should have known that Barnes was intoxicated as he continued to drink there. In addition, the policies, procedures, training, and environment at the Red Dog operated to prevent its employees from recognizing when a patron had become "noticeably intoxicated."

¶9 In his deposition, Donald Mackey stated that:

1. A strong odor of alcohol would be difficult to detect on a patron due to the smell of cigarette smoke in the bar.

2. Due to the volume of music in the bar, a loud patron would not necessarily indicate an intoxicated patron.

3. A patron may purchase 3.2 beer from a waitress, a table dancer, or the bartender.

4. No running tab is kept for patrons in order to keep a tally of how much beer has been served.

5. The Red Dog does not train its employees to keep track of the rate at which its patrons consume alcoholic beverages and employees are not required to do so. There is no training for recognizing intoxicated patrons.

6. The Red Dog has no policy about how much beer can be served to a patron.

7. Waitresses are not assigned a specific section of tables. Therefore, a patron might not have the same waitress each time beer is ordered.

8. Dancers also serve beer to customers. Dancers are allowed to drink while working and the Red Dog sets no limit to how much dancers can drink.

9. The bar is sunken into the floor such that the bartender can see only the tables just in front of him.

10. Intoxicated patrons may leave unobserved through a side exit.

¶10 A commercial vendor's self-imposed ignorance concerning the intoxication of its patrons should not operate in its favor to prevent a jury determination of that issue. Because the material fact concerning whether the Red Dog knew or should have known whether Barnes was noticeably intoxicated while being served alcohol at the Red Dog is still an issue, the trial court erred in granting summary judgment.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT REVERSED.

¶11 All Justices concur.