Edwina Montgomery ex rel. Thomas M. Montgomery v. Kali Orexi, LLC, et al.

In this wrongful death action, Edwina Montgomery (“the Plaintiff”), individually and as the surviving spouse of Thomas M. Montgomery (“the Deceased”), brought suit under the Tennessee Dram Shop Act (“the Dram Shop Act” or “the Act”), Tenn. Code Ann. §§ 57-10-101 and 102 (2002). The Plaintiff also sued for negligence and negligence per se.¹ The Plaintiff sued Kali Orexi, LLC, which operates under the trade name of Gondolier Italian Restaurant and Pizza (“Gondolier”). Gondolier moved for summary judgment, which was granted as to all theories of recovery. We affirm the summary judgment on what appears to be an issue of first impression. We hold that Tenn. Code Ann. §§ 57-10-101 and 102 (2002) apply to third parties and do not authorize an action against a seller of an “alcoholic beverage or beer” by or on behalf of the supplied, or “first” party. Since the Dram Shop Act does not address first parties, its enactment leaves the law as to first parties as it existed before the Act’s enactment. In addition, under the circumstances of this case, the trial court correctly held that the injuries to the Deceased were not foreseeable; thus, Gondolier owed the Deceased no duty. Furthermore, even if a duty were owed, it was not breached. The question whether the actions of the Deceased and a taxi driver, who was paid by Gondolier to take the intoxicated Deceased home, were intervening and superseding causes that relieve Gondolier of liability are not addressed since we hold that the Plaintiff had no cause of action under the Dram Shop Act or for common law negligence. Accordingly, we affirm.²