Temlock v. McGinnis: Who Pays for the Beer Isn't Dispositive - Was There a Sale?

Tennessee’s Eastern Section Court of Appeals reversed a recent defendant’s summary judgment in a Knox County dram shop case on July 20, 2006. Temlock v. McGinnis et al., 2006 WL 2032501, No. E2005-02646-COA-R3-CV. To this author’s knowledge, this is at least the third time the issue of what constitutes a “sale” has arisen in the last three years in Tennessee trial courts.[1]

In McGinnis [the irony of the last name cannot be escaped], the intoxicated driver was a customer at Baileys in Knoxville on the night of the accident, directly ordered beer by the glass from the wait staff, was served beer by the glass by the Bailey’s wait staff, and consumed the beer ordered and served by the wait staff. But, McGinnis’ friend paid for the beer.

Baileys argued that the “sale” of beer was to McGinnis’ friend and not to McGinnis, the intoxicated driver, as is required under Tennessee’s Dram Shop law.[2] The trial court agreed with Baileys and granted summary judgment.

The Eastern Section distinguished Tennessee’s leading dram shop case, Worley v. Weigels, 919 S.W. 2d 589 (Tenn. 1996), where a third young man who drank the beer became intoxicated and lost control of his vehicle but was not in the store when his underage friends purchased the beer. In distinguishing Worley, the Court of Appeals held:

Our Legislature clearly intended to shield sellers from liability in situations such as in the Worley case where the intoxicated person was not even in the seller’s establishment when the sale of the alcoholic beverages occurred, did not order the beer from the seller, did not have the seller deliver the beer directly to him, and did not consume the beer while in the seller’s place of business. In such a situation, the seller has no control over who consumes the alcoholic beverage after the product leaves the store premises.


All relevant circumstances must be considered in answering the question of whether there was a “sale” within the terms and meaning of Tenn. Code Ann. §57-10-102. Who paid is but one of many circumstances to consider in determining whether there was a “sale.”.

With cogent forethought, the appellate court added:

To hold otherwise would mean that a business could adopt a policy that in serving any group of more than one individual, only one person in the group is to be allowed to ‘pay’ for the alcohol ordered and consumed by all the other members in that party even though those other individuals directly ordered the alcohol from the seller’s wait staff, had the alcohol delivered by the seller’s wait staff directly to them, and they consumed the alcohol on the seller’s premises, and, the seller then would have no potential liability under Tenn. Code Ann. §57-10-102 except as to the one person who paid. Such a decision would be contrary to the clear intent and purpose of the legislature . . ..[3]



[1] Joyner v. Buchanan and Cheddars, Hawkins County Circuit No. 5385J (2002) and Jones v. Gooch and South Street, Davidson County Circuit No. 04C-2530 (2006).

[2] 57-10-102 Standard of proof. Notwithstanding the provisions of § 57-10-101, no judge or jury may pronounce a judgment awarding damages to or on behalf of any party who has suffered personal injury or death against any person who has sold any alcoholic beverage or beer, unless such jury of twelve (12) persons has first ascertained beyond a reasonable doubt that the sale by such person of the alcoholic beverage or beer was the proximate cause of the personal injury or death sustained and that such person:

(1) Sold the alcoholic beverage or beer to a person known to be under the age of twenty-one (21) years and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold; or

(2) Sold the alcoholic beverage or beer to an obviously intoxicated person and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold. [Acts 1986, ch. 519, § 2.]

[3] McGinnis, supra.