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High court: DWI liability may apply to gasoline sales

A beer bottle lies beside the I-25 on-ramp at St. Francis Drive in Santa Fe. A Supreme Court ruling makes gas stations liable for selling gas to drunken customers. (Eddie Moore/Albuquerque Journal)

Copyright © 2021 Albuquerque Journal

In a case stemming from a fatal 2011 crash in McKinley County, the New Mexico Supreme Court ruled Monday that gas stations have a legal obligation not to sell fuel to an intoxicated driver.

A 3-1 majority of justices ruled that commercial gasoline vendors may be liable for selling gas to a drunken driver who injures others on the road.

“Providing gasoline to an intoxicated driver is like providing car keys to an intoxicated driver,” Justice C. Shannon Bacon wrote for the majority. Chief Justice Michael E. Vigil and Justice David K. Thomson concurred.

“A duty not to sell gasoline to an intoxicated person is consistent with liability for providing an intoxicated person with alcohol or a vehicle,” the majority opinion says.

Justice Barbara Vigil, who retired from the court in June, dissented.

The court’s decision comes in response to a request from the 10th Circuit Court of Appeals to settle a question of New Mexico law concerning liability in the McKinley County case.

The case stemmed from a December 2011 crash that killed Marcellino Morris Jr. on a roadway near Tohatchi, a Navajo Nation community about 25 miles north of Gallup.

Morris, 60, who was Navajo, was a deacon at St. Mary Church in Tohatchi and ministered in his native language at nearby missions in Naschitti and Coyote Canyon, according to a 2011 article published by the Catholic News Service.

Morris’ brother, Franklin Morris of Albuquerque, filed a wrongful death lawsuit in U.S. District Court in Albuquerque alleging that Giant Four Corners was liable for Morris’ death by selling gas to an intoxicated man identified as Andy Denny, the opinion says.

Denny drank heavily the night before the crash and drove his car until it ran out of gas near Tohatchi, according to facts of the case set out in the opinion.

Denny walked to a gas station in Tohatchi where he bought a gallon of gas, then returned to his car. He later drove back to the gas station and purchased 9 more gallons.

Denny then drove onto the highway, where his vehicle crossed the center line and collided head-on with Morris’ car, the opinion says.

A blood test performed four hours after the collision found that Denny had a blood alcohol content of 0.176 – more than twice the presumed level of intoxication in New Mexico, the opinion says.

Andrew Schultz, one of the attorneys representing Giant Four Corners, the defendant in the case, declined to comment Monday.

Sean McAfee, an attorney representing Franklin Morris, said he expects the 10th Circuit Court of Appeals to return the case to U.S. District Court in Albuquerque, where the suit will be tried. The ruling “is another step on the road to getting the result the family deserves,” McAfee said Monday in a phone interview.

The Supreme Court ruling means that gas stations are liable when they have “specific knowledge” that a customer is intoxicated and intends to drive, McAfee said.

“Gas stations have a duty to not to sell gasoline to people who are obviously intoxicated and they know intend to drive,” he said. “What it doesn’t do is impose a duty to investigate or guess whether they think someone was intoxicated.”

In her dissenting opinion, Vigil said the ruling “could have far-reaching consequences for retail businesses.”

Under the ruling, any vendor who sells products that enable drunken driving could be liable, Vigil wrote.

“Thus auto parts stores, tire shops, mechanics, and others will be left guessing as to whether they are subject to the new duty,” she wrote.

In the majority opinion, justices acknowledge that gas station employees may not be able to observe whether a customer is intoxicated.

“Similarly, we recognize that many gasoline purchases occur at unattended gas stations where an intoxicated purchaser might not interact” with an employee, the opinion says.

Those concerns are better left for the jury in individual cases, the opinion says.

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