Have you handled a case where there was a tort-based allegation that a liquor store (not beer/convenience) sold to a minor resulting in injuries to the minor buyer? Do you know of any authority for extending dram shop liability to a liquor store? I have a liquor store licensee claiming that there is no vicarious liability for acts of licensee's employee. I haven't found any case law on it. If I'm going to make new law, would at least like to know that's what I'm dealing with. All the authority I've found is either for convenience store beer sales or on-premises restaurants/clubs/bars. It makes no sense to me that our public policy would hold beer and restaurant sales to a higher standard than liquor stores, but the statutes do draw a difference and the defendant is relying on that to say there is no dram shop liability here.
Answer: I would cite to them Ada-Konawa Bridge Co. v. Cargo, 1932 OK 790, 21 P.2d 1: Toll-taker on toll bridge in scope of agency where he shot driver trying to cross toll bridge without paying. Rodebush v. Okla. Nursing Homes, Ltd.,1993 OK 160, 867 P.2d 1241: Employer liable for nursing home attendant who slapped patient.
While the Oklahoma cases above don't use the term, it seems to me they indicate Oklahoma follows the "motivation to serve" test, which says so long as the employee perceived what he was doing was in the interest of the employer, he is within the course and scope. See:Doe v. Samaritan Counseling Center, 791 P.2d 344 (Alaska 1990): Therapist having sex with patient was in scope of employment with counseling center. The "motivation to serve" test is satisfied if act was incidental to legitimate work activities. Contra:Andrews v. U.S., 732 F.2d 366 (4th Cir. 1984). Contrasts MTS test with the "technical control" test, qv.
Andrews v. U.S., 732 F.2d 366, 370 (4th Cir. 1984): Adopts "technical control" test, which requires that the employee's act be committed with implied authority, acquiescence, or subsequent ratification of the employer. Accord:Hoover v. University of Chicago Hospitals, 366 N.E.2d 925 (Ill.Ct.App. 1977);Cosgrove v. Lawrence, 214 Super.Ct. 670, 520 A.2d 844 (1986), aff'd 522 A.2d 483 (1987).
There is commercial dram shop liability:Busby v. Quail Creek Golf and County Club, 1994 OK 63, 885 P.2d 1326: Vendor liable for injury to intoxicated minor illegally sold booze. However, I'm unaware of any extension of social host liability to injury to the drunk minor. The Oklahoma courts have rejected social host liability in other contexts.Troxell v. Bingham, 1989 OK CIV APP 27, 774 P.2d 1073: No social host D-S liab. where drunk guest became violent toward another guest.McGee v. Alexander, 2001 OK 800, 37 P.3d 78: Social host liability rejected as to hospital throwing a business-related party at a country club.