Nature of the Case
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Facts
D operates an Exxon convenience store that includes a convenience market and gas station, an ice cream counter, and a 'Huddle House' restaurant - each owned and operated by D. Tarver entered the convenience store. Tarver had been drinking alcohol and was obviously intoxicated. There was a large number of customers in the store at the time, with a long line of people waiting at the check-out counter. Tarver pushed his way to the front of the line and asked the clerk if she would 'go get [him] some beer.' Tarver smelled of beer and staggered as he walked. The clerk refused to sell him beer because, in her opinion, Tarver was intoxicated. Tarver began cursing loudly, talking to Thomas in a threatening manner, and generally causing a disturbance inside the store. Tarver pulled three crumpled one-dollar bills out of his pocket and laid them on the counter. He stated, 'we need gas' and then turned to leave. A customer opened the door for Tarver, who staggered out of the store and back toward the gas pump where his car was parked. A few moments later an alarm began 'beeping' inside the store, alerting the clerk that someone was attempting to activate the gasoline pumps outside. The clerk asked the other employees in the store if someone would 'go see who doesn't know what they're doing at the gas pump.' Two off-duty employees, Drinnon and Armani went to assist the customer at the pumps at the clerk's request. Tarver could not push the correct button to activate the pump. As they approached they could tell he had been drinking because she 'could smell it on him.' Tarver spoke normally, but, 'when we seen him walk away, [we] could tell he was drunk.' They pushed the correct button on the pump and Tarver proceeded to operate the nozzle himself, obtaining the gasoline without any further assistance. The employees then watched as Tarver, without turning on his vehicle's headlights, drove off the parking lot and into the wrong lane of traffic traveling southbound in the northbound lane. Before being informed of the departure, the clerk believed Tarver had been accompanied by another person and was not driving a vehicle himself. Tarver struck the vehicle head-on 2.8 miles from the store. Ps sued D. Without the three dollars’ worth of gas he obtained at the store, Tarver would have 'run out' of gasoline approximately one mile before reaching the accident scene. Ps contended it was reasonably foreseeable that the sale would result in an automobile accident. Ps alleged the employees were negligent per se, based upon statutory violations related to aiding an intoxicated driver. In addition, the complaint charged that furnishing gasoline to an intoxicated driver constituted negligent entrustment. P claimed it owed no duty of care to Ps while furnishing gasoline to Tarver and that its employees' actions were not a proximate cause of the accident. D argued that the tort of negligent entrustment was limited to situations involving a bailment and could not be applied to an outright sale of merchandise from a merchant to a customer. D contends that the criminal statutes cited by Ps were inapplicable to the present case. The court granted D summary judgment. The Court of Appeals affirmed but reversed the trial court on the negligence claim. This appeal resulted.
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