Pubdate: Thu, 23 Jun 2016
Source: Portland Mercury (OR)
Column: Ask a Pot Lawyer
Copyright: 2016 The Portland Mercury
Author: Vince Sliwoski


If a Customer Does Something Stupid, Are Business Owners to Blame?

I own a marijuana dispensary. Will I get in trouble if a customer 
does something stupid after visiting my shop?

I DON'T THINK SO, but anything is possible.

You may have been alarmed by the recent Colorado lawsuit where a man 
named Richard Kirk shot and killed his wife after consuming a 
cannabis edible. This happened in 2014, but the Kirks' kids and other 
family members recently sued two Denver-based marijuana companies: 
the processor that made the product, and the dispensary that sold it. 
As for Kirk, he was charged with first-degree murder and pled guilty, 
but switched his plea to not guilty by reason of insanity. Kirk 
claims that cannabis rendered him insane at the time of the slaying.

There is a lot to cover here, and the trial court has many facts and 
opinions to parse. We know that the edible in question contained 10 
servings of THC, with each serving containing 10 milligrams. We also 
know that a toxicology report showed that Kirk had just 2.3 nanograms 
of THC per milliliter of blood the night of the shooting. That ratio 
is well under the 5.0 nanogram legal limit for stoned driving in 
Colorado. (We don't have a limit yet in Oregon.) And there is 
backstory about how Kirk and his wife, Kristine, had been fighting 
and how Mr. Kirk was not doing so hot overall.

Still, Kirk's attorneys argue that the THC in his system may have 
triggered a psychotic break. And he did seem to be acting crazily-the 
night of the murder, Kirk ranted about the world's end and jumped in 
and out of windows. On those facts, the survivors are chasing the 
vendors for "failure to warn that edibles could lead to paranoia, 
psychosis, and hallucinations." They also allege that defendants 
"negligently, recklessly, and purposefully concealed vital dosage and 
labeling information... to make a profit." That sounds quite 
sinister, but may be hard to prove.

This type of litigation is not my bailiwick, but I can tell you that 
wrongful death suits are tough. To prevail, plaintiffs would need to 
show that the defendants' actions made it foreseeable that Kirk would 
murder someone; second, that the THC Kirk ingested was the cause 
("actual or proximate") of this tragedy. Generally speaking, 
causation is a bear in many injury and wrongful death actions: The 
Portland woman who just sued Bullseye Glass for her lung cancer 
affliction will face the same challenge. In the pot lawsuit, I will 
be very surprised if plaintiffs clear the bar.

As a dispensary, you can insulate yourself from these types of 
filings by following all state packaging and labeling requirements to 
a T, working with reliable suppliers, and training your staff to be 
discerning salespeople. You can also take solace in the fact that we 
don't hold bottle shops liable for drunk driving wrecks, and you can 
hope for similar, sensible outcomes in weed.
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MAP posted-by: Jay Bergstrom