MeGee v. El Patio, 2023 OK 14

Opinion:MeGee v. El Patio, 2023 OK 14
Subject Matter:Civil Litigation
Date Decided:February 14, 2023
Trial Court:District Court of Custer County; J. Weedon
Route to this Court:Appeal of trial court’s grant of motion to dismiss; Retained by OKSCT on its own motion. 
Facts:David MeGee was drinking heavily at the El Patio restaurant in Weatherford, Oklahoma. He was served and consumed twelve (12) beers and five (5) shots of tequila over the course of seven (7) hours. Several servers at El Patio then bet him $200.00 that he would not drive himself to Oklahoma City to meet them at a bar later that night. Mr. MeGee left El Patio in his vehicle and died when he collided with the back of a semi-trailer on I-40 near El Reno on his way to the bar in Oklahoma City. The Personal Representative of Mr. MeGee’s estate filed a wrongful death action against El Patio and an individual server at the restaurant, alleging that Mr. MeGee was intentionally and negligently over-served and “negligently bet” to drive to Oklahoma City. The defendants filed a Motion to Dismiss for failure to state a claim, which was granted by the trial court. The Personal Representative timely appealed. Of note, a defendant server at El Patio pled guilty to a misdemeanor violation of XX § 572(A)(2) for serving Mr. Megee in his state of intoxication. 
Standard of Review:De novo
Analysis:The Personal Representative is advancing two theories of liability (1) negligently selling alcohol to a noticeably intoxicated person (so called “dram shop liability”), and (2) betting an intoxicated person to drive. 

The Court first recognized dram shop liability in Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41. Since Brigance, a third party may state a cause of action against the commercial vendor that over-served the driver. The Court in Brigance explained that the vendor’s duty not to serve intoxicated persons is to protect innocent third parties, not to protect the voluntarily intoxicated adult from injuring himself. Nothing in the applicable statutes regulating the sale of alcohol indicate that the legislature intended to protect the intoxicated adult from his own actions. No public policy concerns demand extension of dram shop liability to protect the intoxicated driver in this case. 

To decide the issue of negligent betting the Court must determine whether a duty exists to not bet an intoxicated person to drive. There may be such a duty, but it is owed to innocent third parties, not the voluntarily intoxicated adult. A voluntarily intoxicated adult who accepts a bet to drive a motor vehicle and is injured or dies as a result of his own intoxication does not have a cause of action against the bettor. 
Vote:5-4; Concur: Kane, C.J. (author), Rowe, V.C.J. (separate writing), Winchester, and Kuehn, JJ. and Mitchell, S.J. (J. Combs disqualified). Dissent: Kauger, Edmonson, Gurich (separate writing) and Darby (separate writing).
Other:V.C.J. Rowe writes to say he concurs in the Court’s judgment but would have gone farther and potentially overturned Brigance to do away with dram shop liability.