                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                      May 14, 2004 Session

      GARY L. WEST, ET AL. v. EAST TENNESSEE PIONEER OIL CO.,
                d/b/a EXXON CONVENIENCE STORE

                        Appeal from the Circuit Court for Knox County
                          No. 2-390-01    Harold Wimberly, Judge



                    No. E2002-03039-COA-R3-CV - FILED JULY 19, 2004


Gary L. West and Michell B. Richardson (“Plaintiffs”) sued East Tennessee Pioneer Oil Co., d/b/a
Exxon Convenience Store (“Defendant”) asserting claims based on negligence, negligent
entrustment, and negligence per se. Plaintiffs allege that Brian Lee Tarver (“Tarver”) was visibly
intoxicated when he stopped at Defendant’s store to purchase beer and gasoline. Pursuant to
company policy, Defendant’s employees refused to sell Tarver beer because he was intoxicated, but
did sell him $3.00 of gasoline. One or more of Defendant’s employee then assisted Tarver with
operating the gasoline pump. Shortly after leaving Defendant’s store, Tarver was involved in an
automobile accident resulting in serious personal injuries to Plaintiffs. Plaintiffs offered expert proof
that had Tarver not obtained the $3.00 worth of additional gasoline, he would have run out of gas
before reaching the accident site. The Trial Court granted Defendant’s motion for summary
judgment on all three of Plaintiffs’ claims. We affirm the grant of summary judgment on Plaintiffs’
claims for negligent entrustment and negligence per se. We reverse the grant of summary judgment
on Plaintiffs’ negligence claim.


                Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit
                Court Affirmed in Part and Reversed in Part; Case Remanded


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR., J.,
and WILLIAM H. INMAN , SR. J., joined.


Gregory F. Coleman and Michael A. Myers, Knoxville, Tennessee, for the Appellants Gary L. West
and Michell B. Richardson.


Clint J. Woodfin and Gary T. Dupler, Knoxville, Tennessee, for the Appellee East Tennessee
Pioneer Oil Co., d/b/a Exxon Convenience Store.
                                                   OPINION

                                                  Background

                Plaintiffs sued Defendant for personal injuries arising from an automobile accident
which occurred on July 22, 2000, in Knox County.1 In the Complaint, Plaintiffs allege that Tarver
was about to run out of gasoline when he arrived at Defendant’s Exxon Convenience Store.
Plaintiffs claim that when Tarver arrived at the store, he was visibly intoxicated and had difficulty
walking. Tarver attempted to purchase beer, but Defendant’s employees refused to sell him any beer
in accordance with Defendant’s policy prohibiting the sale of beer to intoxicated customers.
According to Plaintiffs, Tarver then purchased $3.00 of gasoline and proceeded to the gasoline
pumps. Tarver allegedly was so intoxicated that one of Defendant’s employees had to assist him in
getting to the pumps. Plaintiffs then claim that “in his intoxicated state, Tarver was unable to
operate the gasoline pump on his own. The Defendant’s employee intervened and proceeded to
assist Tarver in pumping the gasoline into his vehicle.” After assisting Tarver, this employee
allegedly watched as Tarver drove away, heading the wrong way on Highway 11 with his headlights
off. Plaintiffs claim that none of Defendant’s employees attempted to contact law enforcement
personnel to apprise them that Tarver was driving while intoxicated. A few minutes after Tarver left
Defendant’s premises, he “crashed head-on into Plaintiffs’ automobile” causing serious personal
injuries to both Plaintiffs. Based on Requests to Admit filed by Plaintiffs with regard to medical
expenses they claim were causally related to the automobile accident, by September of 2002, Michell
Richardson had incurred medical expenses totaling $16,286.41, and Gary West had incurred medical
expenses totaling $190,905.83.

               In their Complaint, Plaintiffs claimed that the actions of Defendant’s employees in
selling Tarver the gasoline and in actively assisting an obviously intoxicated driver, Tarver, in
obtaining gasoline constituted negligence and that it was reasonably foreseeable that these actions
would result in a motor vehicle accident. Plaintiffs also claimed that these actions constituted
negligent entrustment. Plaintiffs further alleged that Defendant was negligent by not properly
training its employees and establishing safety procedures with regard to selling gasoline to
intoxicated drivers. Finally, Plaintiffs claimed Defendant was guilty of negligence per se by
violating Tenn. Code Ann. §§ 55-10-201 and 202. Plaintiff Michell Richardson sought
compensatory damages of $1,000,000, and Plaintiff Gary West sought compensatory damages of
$2,000,000. Plaintiffs demanded a jury.

               Defendant filed an Answer to the Complaint, essentially denying the pertinent
allegations contained therein. Defendant denied any liability to Plaintiffs and further claimed that
Tarver’s negligence was the proximate cause of Plaintiffs’ injuries.




        1
          Plaintiffs also sued Exxon Mobile Corporation and F.H. Shoemaker Distributors, Inc., but later voluntarily
dismissed these two defendants without prejudice.

                                                        -2-
                Defendant filed a Motion for Summary Judgment and attached deposition testimony
from several of its employees. Relying on this deposition testimony in its Statement of Undisputed
Facts accompanying the motion, Defendant claimed its employee, Dorothy Thomas (“Thomas”),
refused to sell Tarver any beer, but that she did sell him $3.00 of gasoline. Defendant further
claimed that Tarver may have been under the influence of alcohol. Defendant also claimed it was
undisputed that off-duty employees Candice Drinnon (“Drinnon”) and Roy Anrani (“Anrani”)
assisted Tarver in operating the gas pump “by pushing a button on the pump.” While Drinnon
smelled alcohol on Tarver’s breath, she was not aware he possibly was intoxicated until after she
assisted him with the gas pump. Defendant further claimed that due to the number of customer’s in
Defendant’s store at the relevant time, Thomas did not see Tarver pumping gas or the assistance
provided by Drinnon and Anrani. Finally, Defendant claimed Thomas was unaware that Tarver was
driving and thought he was accompanied by at least one other person. Based on these allegedly
undisputed facts, Defendant claimed it owed no duty to Plaintiffs and was entitled to summary
judgment as a matter of law on Plaintiffs’ claims of negligence, negligent entrustment, and
negligence per se.

               Plaintiffs responded to Defendant’s Motion for Summary Judgment and Statement
of Undisputed Facts. Plaintiffs took issue with Defendant’s characterization of Tarver’s physical
condition. Plaintiffs attached testimony from Thomas who described Tarver as “drunk,”
“staggering,” and “wasted.” Plaintiffs also claimed that Drinnon was aware of Tarver’s intoxicated
condition prior to assisting him at the gas pump. With regard to Defendant’s claim that Thomas
thought Tarver had someone else with him to drive, Plaintiff attached deposition testimony from
Thomas as well as portions of a recorded statement wherein she stated:

               “I was just ringing people up so fast I was lucky to have time to look
               up to see who I was waiting on.”

               “[W]e don’t know how he drove through there and didn’t hit any [of
               the cars in the parking lot]. But, he obviously in the back of his mind
               knew he needed gas because he pulled up to the pump.”

               “I looked to see if somebody was driving the car. Because I don’t
               know how he got through that maze of cars and pulled right up to the
               pump.”

                Plaintiffs set forth additional facts which they claimed were undisputed. Specifically,
Plaintiffs claimed that Thomas asked Drinnon to assist Tarver in operating the gas pump. Plaintiffs
also attached the expert affidavit of Dr. Jeffrey H. Hodgson (“Hodgson”), a Professor Emeritus of
Mechanical Engineering at the University of Tennessee. Hodgson stated that when Tarver arrived
at Defendant’s store, Tarver had enough gasoline in his vehicle to travel approximately only 1.82
miles, and the automobile accident occurred 2.8 miles from Defendant’s store. Thus, based on
Hodgson’s affidavit, Plaintiffs claimed that “had Tarver not stopped at the Exxon station and



                                                 -3-
purchased fuel, his car would have ‘run out’ of gasoline approximately one (1) mile before reaching
the accident scene.”

               The Trial Court granted Defendant’s Motion for Summary Judgment. The Trial Court
concluded that due to the peculiar facts of this case, Plaintiffs’ various claims for relief were not
recognized under Tennessee law “as it stands right now.” Plaintiffs appeal the grant of summary
judgment to Defendant, claiming that all three of their claims, i.e., negligence, negligent entrustment,
and negligence per se, are cognizable under Tennessee law when considering the relevant facts, and
the Trial Court, therefore, erred in granting Defendant’s Motion for Summary Judgment.

                                             Discussion

              In Blair v. West Town Mall, our Supreme Court recently reiterated the standards
applicable when appellate courts are reviewing a motion for summary judgment. Blair v. West Town
Mall, 130 S.W.3d 761 (Tenn. 2004). In Blair, the Court stated:

                      The standards governing an appellate court’s review of a
               motion for summary judgment are well settled. Since our inquiry
               involves purely a question of law, no presumption of correctness
               attaches to the lower court’s judgment, and our task is confined to
               reviewing the record to determine whether the requirements of
               Tennessee Rule of Civil Procedure 56 have been met. See Staples v.
               CBL & Assoc., Inc., 15 S.W.3 83, 88 (Tenn. 2000); Hunter v. Brown,
               955 S.W.2d 49, 50-51 (Tenn. 1997); Cowden v. Sovran Bank/Central
               South, 816 S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil
               Procedure 56.04 provides that summary judgment is appropriate
               where: 1) there is no genuine issue with regard to the material facts
               relevant to the claim or defense contained in the motion, and 2) the
               moving party is entitled to a judgment as a matter of law on the
               undisputed facts. Staples, 15 S.W.3d at 88.

                                               ***

                       When the party seeking summary judgment makes a properly
                       supported motion, the burden shifts to the nonmoving party
                       to set forth specific facts establishing the existence of
                       disputed, material facts which must be resolved by the trier of
                       fact.

                              To properly support its motion, the moving party must
                       either affirmatively negate an essential element of the
                       non-moving party’s claim or conclusively establish an
                       affirmative defense. If the moving party fails to negate a


                                                  -4-
                        claimed basis for the suit, the non-moving party’s burden to
                        produce evidence establishing the existence of a genuine issue
                        for trial is not triggered and the motion for summary judgment
                        must fail. If the moving party successfully negates a claimed
                        basis for the action, the non-moving party may not simply rest
                        upon the pleadings, but must offer proof to establish the
                        existence of the essential elements of the claim.

Blair, 130 S.W.3d at 763-64, 767 (quoting, in part, Staples, 15 S.W.3d at 88-89) (citations omitted)).

              Our Supreme Court also has provided instruction regarding assessing the evidence
when dealing with a motion for summary judgment, stating:

                        The standards governing the assessment of evidence in the
                summary judgment context are also well established. Courts must
                view the evidence in the light most favorable to the nonmoving party
                and must also draw all reasonable inferences in the nonmoving
                party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
                Hall, 847 S.W.2d at 210-11. Courts should grant a summary
                judgment only when both the facts and the inferences to be drawn
                from the facts permit a reasonable person to reach only one
                conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
                1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).

                The facts in the present case, when viewed in the light most favorable to Plaintiffs,
are as follows: (1) Tarver was visibly intoxicated when he arrived at Defendant’s store; (2) Tarver
was so intoxicated that Thomas, in accordance with Defendant’s policy, refused to sell him beer; (3)
Tarver nevertheless was sold $3.00 of gasoline; (4) Tarver was too intoxicated to pump the gasoline
without assistance; (5) Defendant’s employees affirmatively assisted Tarver with pumping the
gasoline; and (6) had Tarver not obtained the additional $3.00 of gasoline, he would have run out
of gas approximately one mile before reaching the accident site where he hit Plaintiffs’ vehicle head-
on.

                 Before we discuss whether any of Plaintiffs’ three claims are cognizable under
Tennessee law, we first emphasize what the issues before us do not involve. Specifically, and given
the record before us at this summary judgment stage, this case does not involve the issue of whether
a store can be held liable to third parties for negligence solely because it sold gasoline to a visibly
intoxicated driver who later was involved in an automobile accident, and we express no opinion on
that particular issue. Instead, as relevant to Plaintiffs’ negligence claim, this case involves potential
liability of a store owner for selling gasoline to an obviously intoxicated driver coupled with two
other important facts: (1) store employees affirmatively assisting the intoxicated driver with pumping


                                                  -5-
the gasoline and (2) evidence that had this additional gasoline not been obtained, the intoxicated
driver would have run out of gas before reaching the site of the accident.

                We first will address Plaintiffs’ claim that the Trial Court erred in dismissing their
negligence claim. In Tennessee, in order to prevail on a negligence claim, a plaintiff must establish
the following elements: “(1) a duty of care owed by defendant to plaintiff; (2) conduct below the
applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in
fact; and (5) proximate, or legal, cause.” Lett v. Collis Foods, Inc., 60 S.W.3d 95, 99 (Tenn. Ct.
App. 2001)(quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)).

                Defendant’s primary argument on appeal is that it owed no duty to Plaintiffs, or any
other third party for that matter. The issue of whether one person owes a duty to another is a
question of law to be decided by the court. Lett, 60 S.W.3d at 99. The Lett Court discussed the duty
of care in a negligence case as follows:

                          To establish duty, a plaintiff must show that there exists a
                 "legal obligation owed by defendant to plaintiff to conform to a
                 reasonable person standard of care for the protection against
                 unreasonable risks of harm." [McCall v. Wilder, 913 S.W.2d at 153].
                 A risk of harm is unreasonable "if the foreseeable probability and
                 gravity of harm posed by defendant's conduct outweigh the burden
                 upon defendant to engage in alternative conduct that would have
                 prevented the harm." Id. In making this determination, several
                 factors are important: (1) the foreseeable probability of the harm or
                 injury occurring; (2) the possible magnitude of the potential harm or
                 injury; (3) the importance or social value of the activity engaged in by
                 the defendant; (4) the usefulness of the conduct to the defendant; and
                 (5) the feasibility, relative usefulness, relative safety, and relative
                 costs and burdens, of an alternative, safer course of conduct. Id.

Lett, 60 S.W.3d at 99.2

                 The facts in Lett involved a Waffle House employee, Lynda Mills, who reported to
work intoxicated and thereafter clocked in. The employer attempted without success to sober Mills
up so she could work. The manager then instructed the assistant manager to clock Mills out. After
Mills refused an offer of a ride home and drove herself, she was involved in an automobile accident
resulting in serious personal injuries to the plaintiff. Lett, 60 S.W.3d at 97. The plaintiff sued Mills’
employer claiming it had a duty to plaintiff to prevent Mills from leaving work and driving home
intoxicated. The trial court disagreed and granted the employer’s motion for summary judgment.
Id.


        2
          An application for permission to appeal was denied by the Tennessee Supreme Court in Lett, and the Supreme
Court recommended publication of this Court’s opinion.

                                                        -6-
                On appeal, this Court rejected the plaintiff’s assertion that the employer had a duty
to prevent Mills from driving while intoxicated. In so doing, we noted that, as a general rule, a
person does not have a duty to control the conduct of another so as to prevent that person from
injuring a third party. Id. at 99. A notable exception to this rule is when the defendant stands in a
special relationship either to the individual whose conduct threatens to cause harm, or to the
individual exposed to that harm. Id. The Lett Court observed that pursuant to the Restatement
(Second) of Torts § 315(a), there is no duty to control the conduct of a third person so as to prevent
him from doing harm to another unless “a special relation exists between the actor and the third
person which imposes a duty upon the actor to control the third person’s conduct.” Lett, 60 S.W.3d
at 99, 100 (quoting Restatement (Second) of Torts § 315 (1965)).3 Tennessee Courts have not found
a “special relation” as that term is used in § 315(a) unless the defendant had the means and ability
to control the conduct of the third party. Id. at 100.

                Finding no Tennessee authority addressing whether an employer-employee
relationship constituted a “special relation” for purposes of §315(a) of the Restatement, the Court
in Lett discussed relevant authority from other jurisdictions addressing this issue, in particular Otis
Engineering Corp. v. Clark, 668 S.W.2d 307 (Tex. 1983). In Otis, an employee consumed alcoholic
beverages in his car while on a dinner break and, upon his returning to work, it was suggested that
the employee go home. The employee was escorted to his car by his supervisor at which time the
supervisor inquired whether the employee could make it home. The employee responded that he
could. Shortly thereafter, the employee was involved in an automobile accident, killing the
plaintiff’s decedent. Otis, 668 S.W.2d at 308.

                A sharply divided Texas Supreme Court reversed a grant of summary judgment to
the employer. In so doing, the Otis Court discussed several cases where a defendant’s affirmative
acts ultimately prevented the granting of summary judgment or dismissal of the lawsuit. For
example, in Leppke v. Segura, 632 P.2d 1057 (Colo. Ct. App. 1981), the Colorado Court of Appeals
reversed a grant of summary judgment to the defendant tavern owner, stating that “by jump-starting
an automobile for an obviously drunken driver, thus giving him mobility which otherwise he would
not have had, one or both of the defendants set into motion a force involving an unreasonable risk
of harm to others.” Id. at 1059. The Leppke Court distinguished the facts then before it from
situations involving liability predicated solely upon a failure to stop an individual who was already
engaged in dangerous behavior. Id. See also Brockett v. Kitchen Boyd Motor Co., 70 Cal. Rptr. 136,
139 (1968) (the special relationship of employer and employee coupled with the affirmative acts of
the employer which involved guiding the intoxicated employee to his vehicle, placing the employee
into his vehicle, and directing him to drive home were sufficient to impose a duty of reasonable care
on the employer.).

               A five member majority of the Texas Supreme Court relied on Leppke, Brockett and
similar cases involving affirmative acts of an employer when holding that “when, because of an


        3
           The Lett Court noted that the Restatement (Second) of Torts § 315 has been adopted in Tennessee. Lett, 60
S.W .3d at 99 (citing Newton v. Tinsley, 970 S.W.2d 490, 492 (Tenn. Ct. App. 1997)).

                                                        -7-
employee’s incapacity, an employer exercises control over the employee, the employer has a duty
to take such action as a reasonably prudent employer under the same or similar circumstances would
take to prevent the employee from causing an unreasonable risk of harm to others.” Otis, 668
S.W.2d at 311. The majority in Otis then reversed the grant of summary judgment and remanded
the case for a trial on whether the employer acted in a reasonable and prudent manner. Id.

                Four Justices dissented from the majority opinion in Otis. The dissent concluded that
the employer had not taken any affirmative steps and its only act was a failure to take charge of its
employee and prevent him from driving home. The dissent further concluded that there must be a
custodial relationship in which the person charged with controlling the conduct of another
voluntarily assumes responsibility for that person. Id. at 313 (McGee, dissenting). The dissent
concluded that the grant of summary judgment to the employer should be affirmed because, as a
matter of law, the employer did not voluntarily take the employee into its custody or assume
responsibility for his conduct. Id.

               After discussing the differing views of the Texas Supreme Court in Otis, this Court
in Lett concluded as follows:

                       We are persuaded by the minority opinion in Otis. We find
               that the facts of the instant case likewise do not present affirmative
               acts sufficient to impose a duty upon Collis Foods to control the
               conduct of Mills, who was off-premises and off-duty as well. She
               arrived at work intoxicated, and Collis Foods did not contribute to,
               condone, or seek to accommodate, her intoxication. It did not require
               her to drive home; in fact, it attempted to find her safe passage home,
               but she refused. In sum, the employer did not provide her mobility
               she otherwise did not have; it did not encourage her to drive home;
               and it did not contribute to the condition that made it unsafe for her
               to drive. In effect, the employer "did no more than acquiesce in [her]
               determination to drive [her] own car." Cecil, 575 S.W.2d at 272.

Lett, 60 S.W.3d at 103 (footnote omitted).

                In the present case, admittedly there is no employer-employee relationship between
Tarver and Defendant. While it may be easier to establish a “special relation” in cases involving an
employer and employee, Restatement § 315(a) is not limited to that particular situation. In our
opinion, the affirmative acts of Defendant’s employees in selling gasoline to and in assisting an
obviously intoxicated Tarver with re-fueling his vehicle is similar to the defendant’s act in Leppke
when it jump-started an automobile for an intoxicated driver. In both situations, these affirmative
acts “set into motion a force involving an unreasonable risk of harm to others.” See Leppke, 632
P.2d. at 1059. This is even more apparent when considering that, without Defendant’s employees’
affirmative assistance which enabled Tarver to obtain more gasoline, he would have run out of
gasoline prior to arriving at the accident site. In other words, the acts of Defendant’s employees


                                                -8-
provided Tarver with mobility to travel 2.8 miles to the accident site, mobility he otherwise would
not have had. Plaintiffs’ negligence claim is not predicated on any alleged failure by Defendant to
control Tarver, but instead is based on these affirmative acts by Defendant’s employees.

                 In assessing whether a duty is owed, courts must utilize a balancing approach based
upon principles of fairness and identify whether the risk to the plaintiff was unreasonable. Staples
v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000). A “risk is unreasonable and gives rise
to a duty to act with due care if the foreseeable probability and gravity of harm posed by defendant’s
conduct outweigh the burden upon defendant to engage in alternative conduct that would have
prevented the harm.” Id. (quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)). We do
not hold that convenience store employees have a duty to physically restrain or otherwise prevent
an intoxicated customer from driving away. Neither do we hold that solely the sale of gasoline to
a visibly intoxicated driver does or does not create a duty owed by the seller. What we do hold is
that the affirmative acts of Defendant’s employees gave rise to a duty to act with due care when
considering the serious risk created by those acts. Specifically, we believe the affirmative acts of
Defendant’s employees in both selling the gasoline to and in helping a visibly intoxicated Tarver
pump the gasoline into his vehicle created a duty to act with due care. We hold that, under the
specific facts of this case, Plaintiffs have at this summary judgment stage set forth a cause of action
against Defendant for negligence, and there are genuine issues of material fact regarding whether
Defendant breached a duty to Plaintiffs. Accordingly, we reverse the Trial Court’s grant of summary
judgment on Plaintiffs’ negligence claim.

               As to Plaintiffs’ claim based on negligent entrustment, the four elements of that claim
are: (1) an entrustment of a chattel, (2) to a person incompetent to use it, (3) with knowledge that
the person is incompetent, and (4) that is the proximate cause of injury or damage to another.
Nichols v. Atnip, 844 S.W.2d 655, 659 (Tenn. Ct. App. 1992).

                Defendant argues the tort of negligent entrustment is inapplicable in the present case
because there was a sale of gasoline, not an entrustment. Defendant relies heavily on Brown v.
Harkleroad, 287 S.W.2d 92 (Tenn. Ct. App. 1955). In Harkleroad, a father purchased a vehicle for
his son, whom the plaintiff claimed was a known drunk and reckless driver. Less than four months
later, the son was involved in an accident with the plaintiff and the son later was found guilty of
reckless and drunk driving. Harkleroad, 287 S.W.2d at 94. The Harkleroad Court concluded the
father could not be held liable for negligent entrustment because he gave the car to his son, as
opposed to loaning it to him. A policy concern given by the Harkleroad Court for limiting a
negligent entrustment claim to a bailment situation was the following:

                      If a father incurs liability by giving an automobile to his son,
               knowing him to be drunken or incompetent driver, when would it
               end? Would it last for the life of the automobile? Would it apply to
               a new automobile in the event of a trade-in? Or would liability attach
               to a dealer who sold an automobile to a known incompetent or



                                                 -9-
               drunken driver? Or to a filling station operator who sold such a
               person gas, knowing of his propensity?

Harkleroad, 287 S.W.2d at 96.

               Thirty-seven years after Harkleroad was decided, this Court in Nichols v. Atnip, 844
S.W.2d 655 (Tenn. Ct. App. 1992) declined to address the continuing validity of Harkleroad, but
did note that Harkleroad was contrary to the Restatement (Second) of Torts § 390 “and has been
criticized by many courts and legal scholars.” Nichols, 844 S.W.2d at 660. Likewise, in Brown v.
Wal-Mart Stores, Inc., 976 F. Supp. 729, 734 n.2 (W.D. Tenn. 1997), the United States District
Court for the Western District of Tennessee stated that Harkleroad has been “fiercely criticized” and
set forth some of the authority which disagreed with that opinion.

                By definition, one would think that in order to establish a claim of “negligent
entrustment,” the entrustor must retain some form of ownership or control over the chattel
improperly entrusted. Black’s Law Dictionary 1058 (7th ed. 1999) defines “negligent entrustment”
as “[t]he act of leaving a dangerous article (such as a gun or car) with a person who the lender
knows, or should know, is likely to use it in an unreasonably risky manner.” (emphasis added). It
is not, unfortunately, that simple.

                 On July 31, 2003, the Middle Section of this Court issued its decision in Rains v.
Bend of the River, 124 S.W.3d 580 (Tenn. Ct. App. 2003). The Tennessee Supreme Court denied
a Rule 11 application for permission to appeal in Rains on Nov. 24, 2003. Rains involved, inter alia,
a negligent entrustment claim against the defendant who sold the plaintiffs’ minor son ammunition.
The plaintiffs’ son later committed suicide. The Rains Court ultimately concluded that the parents
failed to state a claim for negligent entrustment because there was no evidence that the defendant
should have suspected the decedent was not competent when he purchased the ammunition, and no
evidence that his suicide was reasonably foreseeable. Id. at 597. However, as pertinent to this
appeal, the Rains Court concluded that a claim for negligent entrustment can arise from the sale of
a chattel, stating:

                       While negligent entrustment claims usually arise in the
               context of a bailment, it is now widely agreed that the merchants may
               be considered to be suppliers of chattels. Ireland v. Jefferson County
               Sheriff's Dep't, 193 F. Supp.2d 1201, 1229 (D. Colo. 2002); Brown
               v. Wal-Mart Stores, Inc., 976 F. Supp. 729, 734 (W.D. Tenn. 1997);
               Herndon v. Hughes, No. 02A01-9706-CV-00128, 1998 WL 90745,
               at *3 (Tenn. Ct. App. Mar. 4, 1998) (No Tenn. R. App. P. 11
               application filed); Restatement (Second) of Torts § 390, cmt. a.
               Accordingly, state and federal courts have not hesitated to recognize
               that negligent entrustment claims may be asserted against persons
               who sell firearms and ammunition. Morin v. Moore, 309 F.3d 316
               324 (5th Cir. 2002) (assault rifle); Ireland v. Jefferson County


                                                -10-
               Sheriff's Dep't, 193 F. Supp.2d at 1227-28 (shotgun); Brown v.
               Wal-Mart Stores, Inc., 976 F. Supp. at 734 (ammunition); Knight v.
               Wal-Mart Stores, Inc., 889 F. Supp. at 1539 (firearms and
               ammunition); Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727
               N.Y.S.2d 7, 750 N.E.2d 1055, 1064 (2001) (firearms); Wal-Mart
               Stores, Inc. v. Tamez, 960 S.W.2d at 130 (ammunition).

Rains, 124 S.W.3d at 597.

                Approximately five months after Rains was decided, the Western Section of this
Court issued its decision in Concklin v. Holland, No. W2003-00334-COA-R3-CV, 2003 Tenn. App.
LEXIS 934 (Tenn. Ct. App. Dec. 29, 2003), appl. perm. appeal denied June 1, 2004. One of the
issues in Concklin was whether a co-owner of a house could negligently entrust that house to another
co-owner. In resolving this issue, the Concklin Court stated:

               The Second Restatement of Torts offers a similar definition by
               stating:

                               It is negligence to permit a third person to use a thing
                       or to engage in an activity which is under the control of the
                       actor, if the actor knows or should know that such person
                       intends or is likely to use the thing or to conduct himself in
                       the activity in such a manner as to create an unreasonable risk
                       of harm to others.

               Restatement (Second) of Torts § 308 (1965). Comment (a) further
               explains:

                       The words "under the control of the actor" are used to indicate
                       that the third person is entitled to possess or use the thing or
                       engage in the activity only by the consent of the actor, and
                       that the actor has reason to believe that by withholding
                       consent he can prevent the third person from using the thing
                       or engaging in the activity.

               Restatement (Second) of Torts § 308 cmt. a. (1965). Implicit in these
               definitions of negligent entrustment is the owner's act of lending his
               possession to a third person. See Restatement (Second) of Torts §
               308 & cmt. a. (1965). Such an act cannot be accomplished when the
               thing or activity at issue is being lent to a co-owner rather than a third
               party.




                                                 -11-
Concklin, 2003 Tenn. App. LEXIS 934, at ** 14, 15 (emphasis added). Thus, the defendant did not
have to give consent to a co-owner to occupy the house and could not be deemed to have entrusted
the house to a co-owner.4 See also Broadwater v. Dorsey, 688 A.2d 436, 441 (Md. 1996)(“[W]e
hold that the doctrine of negligent entrustment is generally limited to those situations in which the
chattel is under the control of the supplier at the time of the accident. Ordinarily, without the right
to permit or prohibit use of the chattel at the time of the accident, an individual cannot be liable for
negligent entrustment.”).

                 Concklin certainly seems to support the conclusion reached forty-eight years earlier
in Harkleroad that a negligent entrustment claim requires some sort of a bailment, which is not the
situation when a chattel is sold and all control over that chattel is transferred to the buyer. We
acknowledge that there is authority from this Court holding to the contrary. After reviewing the
conflicting authorities from this Court as well as other jurisdictions, we respectfully conclude that
a bailment relationship rather than a sale of chattel is a prerequisite to establishing the tort of
negligent entrustment. We hold that the “sale” of a chattel simply is not an “entrustment” of a
chattel. This is not to say that a claim for negligence never can be made against a seller when it sells
a chattel to someone whom the seller knows or reasonably should know is likely to use the chattel
or conduct himself in such a manner as to create an unreasonable risk of harm to others. Negligence,
with all its necessary elements and allocation of comparative fault, rather than negligent entrustment
would be the basis for any such claimed liability. As already discussed in this Opinion, that is an
issue for another day given the posture of the case now before us. We simply hold that a claim for
negligent entrustment cannot be based on an outright sale of the chattel. In light of the foregoing,
we affirm the grant of summary judgment to Defendant on Plaintiffs’ negligent entrustment claim.

             The final issue involves whether the Trial Court erred in granting Defendant summary
judgment on Plaintiffs’ negligence per se claim. In Cook v. Spinnaker’s of Rivergate, Inc., 878
S.W.2d 934, 937 (Tenn. 1994), our Supreme Court stated:

                          The standard of conduct expected of a reasonable person may
                  be prescribed in a statute and, consequently, a violation of the statute
                  may be deemed to be negligence per se. See McIntyre v. Balentine,
                  833 S.W.2d 52, 59 (Tenn. 1992). "When a statute provides that under
                  certain circumstances particular acts shall or shall not be done, it may
                  be interpreted as fixing a standard of care . . . from which it is
                  negligence to deviate." Prosser and Keeton on Torts § 36, p. 220 (5th
                  ed. 1984). In order to establish negligence per se, it must be shown
                  that the statute violated was designed to impose a duty or prohibit an
                  act for the benefit of a person or the public. Smith v. Owen, 841
                  S.W.2d 828, 831 (Tenn. Ct. App. 1992) (citing Nevill v. City of



        4
           The Concklin Court also concluded that the negligent entrustment claim must fail because the case involved
real property rather than a chattel.

                                                        -12-
                Tullahoma, 756 S.W.2d 226 (Tenn. 1988)). It must also be
                established that the injured party was within the class of persons that
                the statute was meant to protect. Smith, 841 S.W.2d at 831.

Spinnaker’s, 878 S.W.2d at 937.

                In general terms, Tenn. Code Ann. § 55-10-401 prohibits a person from driving an
automobile while intoxicated. Tenn. Code Ann. § 55-10-202 makes it unlawful for persons owning
or controlling vehicles from requiring or knowingly permitting a driver to operate such vehicle in
a manner contrary to law. Tenn. Code Ann. § 55-10-201 provides as follows:

                        55-10-201. Parties to a crime. – Every person who
                commits, attempts to commit, conspires to commit, or aids or abets
                in the commission of any act declared in chapter 8 or parts 1-5 of this
                chapter to be a crime, whether individually or in connection with one
                (1) or more other persons, or as a principal, agent or accessory, is
                guilty of such offense, and every person who falsely, fraudulently,
                forcibly or willfully induces, causes, coerces, requires, permits or
                directs another to violate any provision of chapter 8 or parts 1-5 of
                this chapter is likewise guilty of such offense.

               Although not entirely clear, the gist of Plaintiffs’ argument appears to be that
Defendant’s employees aided and abetted Tarver with driving while intoxicated, a violation by
Tarver of Tenn. Code Ann. § 55-10-401. Tenn. Code Ann. § 55-10-202 speaks to owners of vehicles
or any other person who employs or otherwise has the authority to direct the actions of a driver.
Clearly, neither Defendant nor any of its employees had such authority over Tarver.

                 Our Legislature has not hesitated in establishing guidelines for the sale of alcohol and
expressly prohibits the sale of alcohol to intoxicated persons. See, e.g., Tenn. Code Ann. § 57-4-
203(c)(1). Since the Legislature has clearly regulated the sale of alcohol to intoxicated persons, we
trust it will regulate the sale of gasoline to intoxicated drivers when, and if, it feels the need to do
so. We cannot conclude that the sale of gasoline to an intoxicated driver is negligence per se under
the statutes relied on by Plaintiffs because they do not clearly define the claimed prohibited conduct.
In fact, the sale of gasoline is not even mentioned. In the absence of a statute clearly defining what
is prohibited, we must affirm the Trial Court’s grant of summary judgment on Plaintiffs’ claim based
on negligence per se.




                                                  -13-
                                           Conclusion

               The Judgment of the Trial Court is affirmed in part and reversed in part. This cause
is remanded to the Trial Court for further proceedings consistent with this Opinion. Costs on appeal
are assessed one-half against the Appellants Gary L. West and Michell B. Richardson and their
surety, and one-half against the Appellee East Tennessee Pioneer Oil Co., d/b/a Exxon Convenience
Store.



                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




                                               -14-
