chevron-down Created with Sketch Beta.

Voice of Experience

Voice of Experience: May 2023

The House Wins Again

Norm Tabler

The House Wins Again
BlackJack3D via Getty Images

Jump to:

You might call it handicap auto racing. Servers at El Patio Mexican Grill & Cantina in Weatherford, Oklahoma, wagered Dave Megee $200 he couldn’t drive the 75 miles to Oklahoma City by a specified time. Dave’s handicap? He had downed twelve beers and five Tequila shots over the past few hours.

Two hundred dollars was a lot of money to Dave. And the straight roads of the Sooner State made driving pretty darn easy. He accepted the bet, got in his car, aimed it toward Oklahoma City, and hit the gas.

He got off to a good start, eating up the highway at speeds as high as 97 miles an hour. Unfortunately for Dave, the trip ended even faster than it began. He crashed into the rear end of a tractor-trailer with enough force to eject him from his car and send him through the air.

We can’t be sure whether Dave survived the impact of the of the car hitting the tractor-trailer, or of his body landing on the pavement. The issue was rendered moot when another automobile ran over him.

When the dust settled, Dave had lost his life, and the bet along with it.

Dave’s mom, Nancy Carol Megee, sued for wrongful death on behalf of his estate, naming El Patio and four servers as defendants. Her theories were that the defendants were liable (a) for overserving Dave (to put it mildly) and (b) for encouraging him to drive drunk with their $200 wager—a wager Dave was in no condition to evaluate competently. Call it negligent betting.

At first blush, Nancy Carol’s case may seem strong. Oklahoma has long had a dram shop law making restaurants liable to the victims of overserved drivers. And serving alcohol to an intoxicated person is prohibited by both the Oklahoma Constitutionand criminal statute.In fact, that statute had already resulted in a one-year prison sentence for one of Dave’s servers. Nancy Carol’s argument was that if a dram shop is liable to the victim of an overserved driver, surely it should also be liable to the overserved driver.

But there were obstacles to a win by Nancy Carol. First, while the dram shop law provides for liability to a third-party victim of the overserved person, and the criminal statute prescribes a penalty for the person who does the overserving, neither says anything about liability to the overserved person. 

What’s more, the court had already addressed the issue of dram shop liability to the overserved person. The court had resolved the issue by ruling that the dram shop law was designed to protect only third parties: innocent victims of drunk drivers. Ohio Casualty Insur. v. Todd.But, of course, Dave was neither a third party nor innocent. He was the drunk driver.

Nancy Carol’s case was clearly a sympathetic one. After all, the El Patio staff had knowingly actively abetted Dave in becoming falling-down drunk. They had not only allowed him to drive drunk, but also encouraged it with the $200 wager. On top of all that, their wager had specified a time limit, assuring that Dave would need to drive fast to win.  

The court was clearly torn, as reflected in the five-to-four vote by the justices: five for affirming the trial court’s dismissal of Nancy Carol’s case, four for reversing the dismissal.

In addition to producing the tightest vote possible, the case generated four separate opinions: two to affirm, two to reverse.

The majority was not callous to Nancy Carol’s position, as reflected in Justice Rowe’s concurrence: “The disregard for the life of the victim in this case rises to a level of inhumanity that shocks the conscience.”

Nevertheless, the majority felt bound by the text of the statutes and the precedent of Ohio Casualty. In their view, extension of liability for overserving a driver was a matter for the state legislature.

The dissenters pointed out that while the Constitutional and statutory provisions at issue don’t provide for liability to the person who is overserved, neither do they prohibit it. One dissent said Ohio Casualty was wrongly decided and should be overruled. The other insisted that Ohio Casualty was inapplicable because it was a case of allowing, not encouraging, drunk driving.

Nancy Carol lost her case as surely as Dave had lost his life. El Patio and its servers escaped civil liability for serving Dave 17 alcoholic drinks and then encouraging him to drive 75 miles within a specified time.

As the saying goes, the house always wins.

There’s no truth to the rumor that the servers counterclaimed for the $200.