HOUSTON - A Texas appeals court has ruled in favor of a fuel wholesaler sued by the family of a high school student who purchased synthetic marijuana at a Houston convenience store.
The student, Emily Bauer, was taken by ambulance to a hospital after smoking the marijuana, according to the suit.
“At the hospital, Emily was disoriented, screamed for people who were not there, thrashed violently, and bit the side rails of her bed,” according to an appeals court synopsis of the case. “According to the medical evidence, Emily exhibited clinical signs and symptoms consistent with synthetic cannabinoid toxicity.”
Emily suffered multiple ischemic strokes, visual impairment and a seizure disorder, the court said. "Emily’s medical issues are ongoing," according to the ruling. "She requires near constant supervision and requires assistance to perform basic tasks."
Bauer’s mother sued Gulshan Enterprises, Inc. for negligence, claiming that as a wholesale distributor for ConocoPhillips oil company, it had a duty to make sure illegal drugs were not being sold at the convenience store.
A lower court dismissed the suit and on Feb. 27, the Texas First District Court of Appeals agreed.
“Because we conclude that there is simply no evidence to support the duty element of Bauer’s negligence claim against the gasoline distributor, we affirm the trial court’s judgment,” the appeals court said.
In a dissenting opinion, Judge Evelyn V. Keyes held that under a business agreement with ConocoPhillips, Gulshan promised not to “engage, permit, or cooperate in any conduct that reflects unfavorably on the reputation of ConocoPhillips in the community,” the dissent said.
The convenience store was “well known to Emily and the other teenagers in the neighborhood for selling illegal synthetic marijuana and drug paraphernalia throughout 2011 and 2012,” the dissent said. “The synthetic marijuana came in varying strengths and flavors such as grape, strawberry, and pineapple.”
According to evidence presented in the case, “bags or brands of synthetic marijuana, such as Kush, Klimax, Cloud 9 and Dopey, were taped to the inside of the dividing window by the cash register so customers could see what was available for purchase.”
Gulshan had a “duty of reasonable care” to prevent the sale of those drugs at the convenience store, Keyes wrote.
Bauer v. Gulshan Enterprises, Inc. Texas Court of Appeals, First District 01-18-00136-CV