With the holidays rapidly approaching, a sober review of ‘s liquor liability law is appropriate for any server of alcohol, whether the server is a bar, a restaurant, or even a neighbor.
With the holidays rapidly approaching, a sober review of ’s liquor liability law is appropriate for any server of alcohol, whether the server is a bar, a restaurant, or even a neighbor.
A. ANY SOCIAL HOST CAN BE LIABLE FOR SERVING ALCOHOL IN CONNECTION WITH OPERATING A VEHICLE.
In essence, the general elements of a liquor liability claim are that the provider sells, furnishes, or serves an alcoholic beverage to a person over 21 who is in a noticeable state of intoxication, knowing that the person will soon be driving a motor vehicle. O.C.G.A. § 51‑1‑40(b) a/k/a “The Dram Shop Act” [emphasis added]. The same statute also states that a person who serves alcohol to a minor will be liable for injuries, death, or damage to third parties if that server knew the minor would soon be driving a motor vehicle. The minor does not have to be noticeably intoxicated for the server to be held liable. Over the years, the Dram Shop Act has survived various constitutional attacks for vagueness, and in the process, the courts have had to define the meaning of the words “knowing” and “soon” within the statute in order .
B. WITHIN THE DRAM SHOP STATUTE, “SOON” MEANS IMMINENT.
In 1993, the Dram Shop Act passed constitutional muster when plaintiffs injured in a motor vehicle accident with an intoxicated minor sued a convenience store for selling alcohol to the minor. Riley v. H&H Operations, Inc., 263 652, 654, 436 S.E.2d 659 (1993). The motor vehicle accident between plaintiff and the minor occurred four and a half hours after the convenience store sold the minor alcohol. The convenience store attacked the Act for vagueness and argued that the Act did not adequately define “soon be driving a motor vehicle” within the meaning of the Act. The trial court granted summary judgment to the convenience store, and the plaintiffs appealed to the Georgia Supreme Court.
The Georgia Supreme Court reversed summary judgment on other grounds, yet upheld the Act, noting that “[a]lthough "soon" does not have a fixed temporal meaning, in the context of the Act it is sufficiently definite and certain in meaning to give proper guidance to those bound by its terms.” Riley at 654. The Court affirmed the trial court’s interpretation that “soon to be driving a motor vehicle” means “imminent driving, i.e., that which is likely to happen without delay." The Court looked to the intent of the legislature and held that “[t]he dictates of due process do not demand that we construe "soon" as having so narrow a time frame as to exclude from the ambit of the Act an interval of four and one-half hours.” Nevertheless, the Court never set a time frame beyond four and a half hours that would not be, as a matter of law, “imminent driving”, and no Georgia case since Riley has commented or ruled on this particular issue.
C. WITHIN THE DRAM SHOP ACT, “KNOWINGLY” MEANS SHOULD HAVE KNOWN.
The Riley court also broadly interpreted the Dram Shop Act to mean that one who “knowingly” furnishes alcohol to a minor or a noticeably intoxicated person who will soon be driving an automobile will be liable even if the provider did not have actual knowledge that the consumer will soon be driving. The Rileycourt stated that “we find that the policy behind the statute requires a broader reading of "knowingly" and "knowing" than that urged by the appellee. If one in the exercise of reasonable care should have known that the recipient of the alcohol was a minor and would be driving soon, he or she will be deemed to have knowledge of that fact.” However, there is no affirmative duty on furnishers of alcohol “to determine the method by which a patron plans to depart the business establishment, and how that patron plans eventually to get home. That affirmative duty exceeds the duty established by the legislature.” Sugarloaf Café, Inc. v. Willbanks, et al., 279 Ga. 255, 256-257, 612 S.E.2d 279 (2005) (held that evidence failed to establish that bartender knew that intoxicated patron would be driving shortly after being served alcohol even when bar was arguably in a “remote” location only accessible by car and evidence showed that the intoxicated patron’s place of employment was only a “two minute” walk away).
The most recent Georgia case discussing the “Dram Shop Act” is Becks v. Pierce, 282 Ga. App. 229; 638 S.E.2d 390 (2006). In that case, the court held that a bar owner was not liable under the Dram Shop Act in the absence of evidence that the owner knew the intoxicated patron was going to drive home. A bar customer fell asleep while driving, and his vehicle crossed a median and struck an oncoming vehicle in which the plaintiff was a passenger. The plaintiff sued the bar, alleging the bar was liable for her injuries and damages caused by or resulting from the bar customer’s intoxication.
The court found that the bar customer arrived at the bar during the evening hours and met friends. The customer testified that he was at the bar approximately 5 to 5½ hours and that during that time he consumed two or three liquor drinks along with two cups of beer. The customer left the bar at approximately 3:30 a.m., walking past a security guard and two police officers. The customer stated that he did not consume any alcohol during the hour before he left the bar because he started to feel as if he had had too much to drink. He nevertheless testified that he was “a little buzzed.” Friends of the customer testified that they had played pool with the customer and indicated his appearance was normal and his speech was not slurred and he was not sweating profusely.
The owner of the bar testified they employed security officers, bartenders, servers, and police officers. It was the policy that if it was determined that a patron had consumed too much alcohol, it was the person’s responsibility to prevent the individual from leaving the bar by driving. The bar filed a motion for summary judgment, contending it had no notice that the customer was noticeably intoxicated. The trial court denied the bar’s motion for summary judgment, but the Court of Appeals reversed. On the motion, the bar did not dispute the conclusions that there was an issue of fact whether the customer was noticeably intoxicated and that his intoxication caused the accident. However, the bar contended there was no evidence that the bar knew that the customer would soon be driving.
The court found that, under Riley, discussed supra, the state of the law is that if a provider of alcohol in the exercise of reasonable care should have known both that the recipient of the alcohol was noticeably intoxicated and that the recipient of the alcohol would be driving soon, the alcohol provider would be deemed to have knowledge. The court found it important that there was no evidence that the customer displayed his keys at any time or otherwise did anything to indicate that he might be driving. The recipient of the alcohol was not a regular customer of the bar. The court rather narrowly construed the statute to state that it required that the person serving the last drink know that the patron was soon to drive.
D. PUNITIVE DAMAGES ARE AVAILABLE
The dram-shop type of case is one that is very dangerous because of the potential for punitive damages. ’s cap on punitive damages is $250,000. O.C.G.A. §51-12-5.1. However, the $250,000 cap is lifted if the court finds that a defendant acted with the “specific intent to cause harm.” In Riley,, the plaintiff sought $250,000 in punitive damages. It could be contended, however, that the conscious indifference of an alcohol provider was such that the cap on punitive damages should be non-existent, and plaintiffs often argue that their claims for punitive damages should be unlimited.