“Dram Shop” and “Social Host Liability” in Georgia
As a member of the Executive Steering Committee and a financial supporter of Mothers Against Drunk Driving (MADD), Charles Scholle is a strong advocate for victims injured in drunk driving accidents. His firm has always represented drunk driving victims and their families and has never and will never defend, civilly or criminally, drunk drivers. Charles Scholle considers drunk driving and drinking by underage drivers to be a true crisis in Georgia, and he has seen the tragic consequences in the lives of his clients and friends. All victims of intoxicated drivers should contact a Georgia civil DUI attorney to investigate whether there are valid claims against the driver or the party that supplied that driver with alcohol or drugs. By holding such persons accountable, claimants can help make a difference. Charles Scholle has extensive experience in DUI crash cases, having represented dozens of injured plaintiff all across Georgia, the Southeast and in several other states. He is considered a respected authority on the subject and consults and lectures other attorneys about dram shop and social liability litigation.
Statistically, accidents involving alcohol are more likely to result in serious injury or death than those not involving alcohol, and drivers who drink are more likely to cause accidents. Accordingly, the possibility of an individual being seriously injured or killed by an intoxicated driver is not far-fetched. Some of these intoxicated drivers may be driving without licenses because of previous offenses. They may not even have valid auto insurance. If not, it is important to investigate how this driver obtained the alcohol and the vehicle which caused the accident. Injured victims must be vigilant in investigating their case to insure that not only the drunk driver, but also that any unlawful supplier of the alcohol be held accountable.
Historically, the term “Dram Shop” refers to a bar, pub, tavern, restaurant, liquor store or other business licensed by the state to sell alcohol. Dram shops also include concert venues, convenience stores, grocery stores, nightclubs and any other business licensed to sell alcohol. The name of “dram shop” comes from the shops serving “drams,” which is a term for a small measure of alcohol, usually gin.
Generally, a dram shop can be held liable for selling alcohol to an underage consumer or to a consumer that was “noticeably intoxicated” if the alcohol seller knows that such a consumer will soon be driving.
“Social Host” liability refers to the civil liability of a person (including a business) who hosts a social engagement or a private event where that host serves or furnishes alcohol. If such a host serves an underage individual or an adult who is “noticeably intoxicated”, and that host knows or should know that that person is likely to be driving shortly thereafter, then the host can be liable to third parties injured by the intoxicated individual. The person held liable is typically someone that is hosting a party, holiday event, tailgate at a game, business event or other gathering in a private setting where drinks are provided on a gratuitous basis.
The victim in a dram shop or social host liability matter is often a third party injured or killed by a drunk driver. In addition to criminal charges, which can be brought by the state prosecutor against the drunk driver for violating the state’s criminal code, state statutes provide that victims of personal injury and property damage can pursue their own civil dram shop liability or social host liability claims against the licensed business or the private individual, respectively. Several states have these as separate claims of action that can be pursued, while other states, like Georgia, combine social host liability with dram shop liability.
Charles Scholle can counsel victims who choose to pursue dram shop or social host civil liability claims in bringing justice for the injuries or damages sustained or for the death of a family member. For nearly two decades, Atlanta Georgia injury lawyer Charles Scholle has represented clients and their families inwrongful death,catastrophic injury, dram shop liability,personal injury, and estate cases. His Atlanta, Georgia personal injury law firm serves clients in offices located in Duluth, Atlanta, Buckhead, Decatur and the Perimeter.
Drunk Driving Victims & Dram Shop Liability
Driving under the influence is a serious offense in Georgia. Although it is classified as a misdemeanor, if the intoxicated driver injures or kills another, including a passenger in his own vehicle, he is usually prosecuted for a felony. In addition to a criminal charge, a drunk driver could face civil liability claims from a multitude of victims where the intoxicated driver injured others or damaged property of others. The victim could be the driver or passenger of another car, if the accident involved more than one vehicle. The victim could be a pedestrian or even a person injured if the drunk driver hit a building and a person was injured inside the building or next to the building. In addition to personal injury victims of a drunk driver, victims of property damage from an accident involving a vehicle driven by an intoxicated driver can also pursue a claim against the drunk driver. The same victims of personal injury and property damages listed above can also pursue a civil claim against the person that served an underage driver or that continued to serve a noticeably intoxicated consumer knowing that the consumer would soon be driving.
If you are the victim or your loved one was the victim of a DUI accident, contact the Law Office of Charles Scholle for a free confidential consultation on filing a dram shop liability action and bringing justice to your injuries or damages, or for the wrongful death of your loved one.
Differences in State’s Dram Shop Liability Statutes
As mentioned above, some states have separate statutes for dram shop liability and social host liability. Other states, including Georgia, combine both theories of liability into one statute (O.C.G.A. §51-1-40), regardless of whether the alcohol provider is a business or private individual. While a majority of states have dram shop or social host liability statutory provisions (38 states as of 2010), some states have not enacted any laws to assist victims in pursuing civil claims against dram shops or social hosts. However, even states without stand-alone dram shop statutes may still hold alcohol providers liable pursuant to common-law, or judicial decisions.
Among states with dram shop or social host liability statutes, jurisdictions vary greatly on what is required to pursue a civil claim against a dram shop or a social host, as well as who may pursue such a claim. Some states only permit a dram shop civil liability claim if the intoxicated driver was a minor and only for injuries that the underage drinker sustained or that third parties sustained. These states, such as New Jersey and Texas, include the underage drinker as a permitted claimant in a civil action against a dram shop. Therefore, although the minor drank alcohol and violated the state’s drinking age, and can be criminally charged by the state, that same minor can sue the same establishment that served him alcohol. Similar to Georgia, New York does not permit the intoxicated driver to pursue a dram shop liability claim for injuries the driver incurred from driving under the influence. However, New York does permit the children of the intoxicated driver to file a claim against the dram shop for loss of parental services and affection should the children’s parent die in an accident after being served alcohol by the dram shop when the parent was visibly intoxicated.
Of the states permitting recovery under dram shop or social host liability, a majority require that offending driver be “visibly intoxicated” or “noticeably intoxicated” so as to reasonably put the alcohol provider on notice of the danger. Georgia follows this majority approach, except with respect to underage consumers. “Visibly or noticeably intoxicated” can be a difficult evidentiary standard prove for a plaintiff pursuing a case months or years later. Memories fade, witnesses move away and evidence disappears. How does one show that a driver was visibly or noticeably intoxicated before he or she got behind the wheel? Some states permit a showing of “significantly uncoordinated physical action or significant physical dysfunction” as the test for visibly intoxicated, while other states have a less demanding test of mere “drunk, loud and vulgar behavior.” Under this latter test, if the driver was drinking but quiet and without repulsive behavior, the dram shop would likely not be held liable. Other evidence would have to be established.
Another distinction of the Georgia Dram Shop Act is the requirement that the plaintiff pursuing a dram shop liability claim prove that the dram shop or social host knew the drinking consumer or social guest would soon be driving when the dram shop or social host served or continued to sell, serve or furnish the alcohol.
Georgia’s Dram Shop Liability Statute
The Georgia Dram Shop (O.C.G.A. §51-1-40) was enacted by the Georgia General Assembly in 1988 to codify the holding of the 1985 Sutter v. Hutchins Georgia Supreme Court decision. The decision in Sutter held that victims of a drunk driving accident may pursue a cause of action against a social host for serving alcohol to a person that is visibly intoxicated when the social host knew the person would be driving shortly after consuming the alcohol. Although the Sutter case involved an underage drunk driver and a social host, the Georgia General Assembly extended potential liability to these suppliers of alcohol.
Subsection (a) of Georgia’s Dram Shop Act includes a declaration by the Georgia General Assembly recognizing that the consumption of alcohol by an intoxicated consumer is the proximate cause of any injury, including death and property damage, inflicted by the intoxicated consumer upon himself or upon another and therefore the victim of such injuries, death or damages should pursue their claim for injuries against the drunk driver, unless the required elements in subsection (b) for a dram shop or social host liability claim are met. Subsection (b) is the heart of the Georgia Dram Shop Act as it covers the two kinds of dram shop or social host liability actions possible in Georgia in outlining what the plaintiff must prove to hold a dram shop or social host liable for injuries, death or damages. The two types of dram shop liability claims include (1) a claim against a dram shop or social host for selling, furnishing or serving alcohol to a minor consumer the dram shop or social host knew would soon be driving and (2) a claim against a dram shop or social host for selling, furnishing or serving alcohol to an adult consumer that was “noticeably intoxicated” and known to soon be driving. The last sentence of (b) includes a declaration by the Georgia General Assembly which restricts intoxicated consumers from pursuing a claim against the seller, furnisher or server of alcoholic beverages to the consumer for injuries suffered. As explained further below, this means the drunk driver cannot sue the dram shop or social host for injuries or damages the drunk driver suffers and the family of the drunk driver cannot pursue wrongful death damages against the dram shop or social host.
O.C.G.A. § 51-1-40(c) provides a defense to the dram shop or social host when a case against an underage driver is pursued. If the dram shop or social host can prove it was furnished with and acted in reliance on an ID tendered by the underage consumer, this shall be rebuttable proof that the alcoholic beverages were not furnished, sold or served to the underage consumer willfully, knowingly and unlawfully. This subsection (c) directs the reader of the statute to Georgia law O.C.G.A. § 3-3-23(d) for the definition of “proper identification.” This code section covers the law with regards to possession and drinking of alcohol by a person under the age of 21.
The last subsection of the Georgia Dram Shop Act, subsection (d), clarifies that the person who owns the property where the underage or noticeably intoxicated consumer was sold, furnished or served alcohol is not necessarily the same person that will be held liable under a dram shop or social host liability action. Only if the owner of the premises is present and consents to sell, furnish or serve alcohol to the minor or adult consumer, can the owner be liable under the Georgia Dram Shop Act, provided the other respective elements of “noticeably intoxicated” and/or “known to soon to be driving” are met. Excluded from this presence requirement is a business licensed to sell alcohol. If a business is licensed to sell alcohol, then the owner of the premises can still be liable under the Georgia Dram Shop Act regardless if the owner of the premises was present and gave consent. For example, if the hypothetical Bars Corporation owns several bars in the Atlanta area and all are licensed to sell alcohol, this business entity can be held liable under O.C.G.A. §51-1-40 insert hyperlink regardless if there was presence and consent of Bars Corporation to sell, furnish or serve alcohol to the minor or noticeably intoxicated consumer. If, however, John is the owner of a home where Jill furnished, sold or served alcohol to a minor and John was either not present or did not give his consent, or both, Jill would be held liable under the social host theory of the Georgia Dram Shop Act and not John.
For the full text of the Georgia Dram Shop Act, select the following link: O.C.G.A. §51-1-40.
Claimants in a Dram Shop or Social Host Liability Action
There are several possible claimants in a dram shop or social host liability action. The most obvious is the driver injured through the fault of the intoxicated driver. This driver could claim personal injuries suffered in the accident as well as property damage. If this victim driver died due to the accident or from injuries sustained in the accident, the family of the victim, or his estate, could bring a wrongful death claim. Of course, passengers in any car, whether or not their driver was drunk, can claim damages. If the passenger was in vehicle of the intoxicated driver, some states permit the defendant dram shop to raise an assumption of risk defense. This defense seeks to reduce or eliminate damages because the passenger is deemed to have assumed the risk of injuries or death by virtue of that passenger’s choice to ride with an intoxicated driver. As stated above, the Georgia Dram Shop Act prevents any dram shop or social host liability actions to be filed by the drunk driver himself, and family members of the drunk driver are prevented from filing file a dram shop or social host liability action on behalf of the drunk driver.
Required Elements for Dram Shop Claim in Georgia
Pursuing a dram shop or social host liability action in Georgia can be difficult, as there are multiple evidentiary requirements in either of the two types of Georgia claims. The four required elements necessary to prove a dram shop liability or social host liability claim in the state of Georgia are as follows:
- The dram shop or social host must have willfully and unlawfully sold, furnished or served alcohol to a person not of the lawful drinking age OR knowingly sold, furnished or served alcohol to a person of lawful drinking age that was noticeably intoxicated;
- The dram shop or social host must have known that the intoxicated or underage person would soon be driving a motor vehicle;
- The sale, furnishing or serving of alcohol must have been the proximate cause of injury or damage to the person seeking the dram shop claim; and
- The claimant must establish some form of injury, death or damage caused by the motor vehicle accident.
If any one of these requirements is unmet or if the plaintiff is not able to provide evidence with respect to any one requirement, then the victim will lose and the dram shop or social host will not be held liable. For example, if the dram shop or social host sells, furnishes or serves alcohol to a minor and the minor does not drive, the dram shop or social host cannot be held liable under the Georgia Dram Shop Act. The dram shop or social host could still face criminal charges for serving alcohol to a minor, however. Also, if a dram shop or social host sells, furnishes or serves alcohol to an adult consumer that was sober at the time, the dram shop or social host will not be held liable under this law because the adult consumer was not “noticeably intoxicated.” Likewise, the dram shop or social host will not be held liable if the dram shop or social host sells, furnishes or serves alcohol to an adult consumer that was noticeably intoxicated but where the consumer does not drive afterwards. Finally, if the dram shop or social host sells, furnishes or serves alcohol to a minor or adult consumer that was noticeably intoxicated but the dram shop had no reason to know the consumer would soon be driving, then the dram shop will not be liable.
Minor Sold, Furnished or Served Alcohol
The Georgia General Assembly did not give direction on how to interpret the Georgia Dram Shop Act. Accordingly, it is best to consult with an attorney experienced in dram shop and social host liability to determine whether your specific factual scenario meets the required standards. A victim, or the family of the victim in the case of a wrongful death, must prove in the case of an underage driver that he or she was not of the lawful drinking age and that the provider knew that such person would be driving shortly after the provision of alcohol. However, the victim plaintiff is not required to prove that the dram shop or social host had actual knowledge that the underage consumer was in fact underage. “Knowledge,” of course, is subjective. The plaintiff can establish knowledge through circumstantial evidence. The dram shop or social host has a possible defense to a dram shop claim if the dram shop or social host can prove it was furnished with and acted in reliance on a false ID provided by the minor consumer. This defense would raise a rebuttable presumption that the dram shop or social host did not serve the underage consumer with alcohol knowingly defeat liability under the Georgia Dram Shop Act. The victim plaintiff may be able to rebut this presumption with evidence to the contrary.
Lawful Age Person Sold, Furnished or Served Alcohol when “Noticeably Intoxicated”
The other possible claim under the first element of the Georgia Dram Shop Act relates to provision of alcohol to a person 21 years of age or older who was “noticeably intoxicated”. As mentioned above in the overview of different jurisdictional dram shop laws, “visibly or noticeably intoxicated” is a difficult standard to prove. Georgia case law holds that a plaintiff can prove the adult consumer was “noticeably intoxicated” by providing evidence of the adult consumer’s loud and obnoxious behavior at the time in question. Georgia does not require direct evidence of “knowledge” as this would be impossible. Georgia requires only that the plaintiff in a dram shop liability action prove that the defendant dram shop or social host should have known or should have been aware that the consumer was noticeably intoxicated.
The Georgia Supreme Court has held that one method to prove “noticeably intoxicated” is to have expert testify regarding the behavior and physical characteristics typically demonstrated by a person with certain blood alcohol content (BAC). In Northside Equities v. Hulsey (275 Ga. 364, 2002), the Georgia Supreme Court held that the BAC level of the drunk driver at the scene of the accident, combined with expert testimony on how that drunk driver would have acted can suffice to prove the adult consumer was noticeably intoxicated when the dram shop or social host provided alcohol. Georgia courts have held that the BAC level alone is not enough to prove that the adult consumer would have been “noticeably intoxicated.”
In Shin v. Estate of Camacho (302 Ga. App. 243, 2010), the Georgia Court of Appeals clarified that the tortious provision of alcohol to an adult consumer must take place after the dram shop or social host was aware that the adult is noticeably intoxicated. In Shin, the intoxicated defendant engaged in a fight with another guest at the social party, after which the social host did not serve the adult with alcohol. As a result, the court ruled that the Defendant could not be held liable under the Georgia Dram Shop Act. Consequently, this Georgia Court of Appeals decision interprets O.C.G.A. § 51-1-40(b) to read that a dram shop or social host must sell, furnish, served provide alcohol to the soon to be driver after the dram shop or social host should have been aware that the soon to be driver was already noticeably intoxicated.
Element 2 “Soon to be Driving”
The second requirement of a dram shop liability claim is that the dram shop (or social host) must have known, at the time he sold, furnished or served alcohol to the consumer, that the consumer would soon thereafter drive a motor vehicle. This “soon to be driving” element is required for both types of dram shop liability claims in Georgia: a minor consumer or a consumer 21 years of age or older and noticeably intoxicated. Georgia courts require a showing only that the dram shop (or social host) should have known the consumer would soon be driving. If a plaintiff in a dram shop liability action can show that the dram shop (or social host) should have known the consumer would soon be driving, the dram shop will be held to have that knowledge and therefore civilly liable for injuries, death or damages. The Law Office of Charles Scholle can assist in gathering evidence showing the dram shop or social host continued to sell, furnish or sell the consumer alcohol when they should have known the person would soon be driving.
The dram shop (or social host) can avoid liability under a dram shop liability action if the dram shop (or social host) provides evidence that the consumer did not indicate that he or she would soon be driving. Georgia case law has held evidence that the consumer put away his or her keys to a motor vehicle when asked to, or when there was no evidence that the consumer drove to the dram shop or social engagement, or that there was no reason for the dram shop to believe the consumer would soon be driving away from the dram shop or social engagement could be sufficient defense to the second element of a Georgia Dram Shop Act claim. The Law Office of Charles Scholle can assist you in protecting your dram shop liability action from these possible defenses by a dram shop or social host defendant.
Final Elements – Proximate Causation & Damages
The third and fourth elements, proximate causation and damages, are required in all civil tort claims. Courts require proof that the act for which the defendant should be held liable was the proximate cause of the injury or damage to the Plaintiff. Proximate cause is the event that can be linked to the cause of an injury.
The Georgia Dram Shop Act is clear on the requirement that there must be an injury, death or damage resulting from the acts of an intoxicated person to hold a dram shop or social host liable under O.C.G.A. § 51-1-40(b). In this subsection, Georgia law states that the dram shop or social host will be “[liable] for the injury, death or damage caused by or resulting from the intoxication of the person, including injury or death to other persons”. Strictly construing this statute clarifies that the dram shop or social host will only be liable if the injuries, death or damage to the plaintiff pursuing the dram shop liability action were the proximate cause of intoxication of the person the dram shop or social host sold, furnished or served alcohol to. The dram shop or social host will not be liable under a dram shop liability action if there were no injuries, death or damages resulting from the intoxication of the person that was served by the dram shop or social host.
The Law Offices of Charles Scholle, P.C. can represent you in your dram shop liability claim to prove your injuries or damages, or the death of your loved one, was the result of the intoxication caused by the dram shop or social host selling, furnishing or serving alcohol in a legally irresponsible manner.
Damages Recoverable in a Dram Shop Liability Claim
In addition to the dram shop or social host potentially being criminally charged with a misdemeanor for serving alcohol to a minor under the Georgia Criminal Code, if the dram shop or social host is found liable under the Georgia Dram Shop Act the dram shop or social host can be responsible for compensatory damages and other damages, including punitive damages, for his or her actions. The victim can recover for past present and future medical expenses, loss of income and pain and suffering. In addition, if the victim suffers from some type of disability or impairment, this can also be compensable. A property damage victim could be the owner of an automobile whose driver was not at fault, or the owner of real or personal property that was damaged as a result of the intoxicated driver’s actions.
In addition to damages recoverable for personal injuries, some states permit the recovery of punitive damages. Punitive damages are a type damages which are intended to punish the wrongdoer, as well as to deter the behavior of the offender or others in the future. Georgia courts statutorily have a cap on punitive damages in the amount of $250,000; however when alcohol or drugs are material to the punitive conduct, this $250,000 cap is waived and the amount of punitive damages recoverable is not subject to statutory limitation.
For a wrongful death resulting from dram shop or social host liability under O.C.G.A. § 51-1-40, the family of the victim can recover for the loss of the life of the loved one, loss of income, loss of services, loss of consortium or parental consortium, as well as medical and other expenses incurred from the time of injury to the time of death. Funeral expenses and other estate costs are also recoverable. Punitive damages are generally not recoverable in a wrongful death action. With our wrongful death,catastrophic injury, dram shop liability,personal injury, andestate case experience, The Law Offices of Charles Scholle, P.C. can represent you in your dram shop liability claim and ensure you, or the estate of your loved one, recover fully for the injuries, damages or wrongful death resulting from the liability of the dram shop or social host.
Business Owner Is Not Always the Liable Party in Dram Shop Action
Only if a business is licensed to sell alcohol can the owner be held liable for injuries, death or damages under a dram shop liability action, even if the business owner was not present or did not give consent to the provision of alcohol to a minor or a noticeably intoxicated consumer 21 years of age or older. If a business is not licensed to sell alcohol, the owner of the premises can only be held liable under the Georgia Dram Shop Act if the owner was present and gave consent to selling, furnishing or serving alcohol to the minor or the noticeably intoxicated consumer 21 years of age or older. This protects the homeowner that may not be present when another person hosts a social engagement at the home or if the homeowner is present but does not consent to selling, furnishing or serving alcohol to a minor or a noticeably intoxicated consumer 21 years of age or older. This protection can also extend to a business owner where the business is not licensed to sell alcohol but an employee of the business serves or furnishes alcohol to their consumer without the owner’s consent or when the owner is not present.
Insurance Does Not Preclude Dram Shop Liability Claims
One limiting aspect of Georgia dram shop laws is the absence of any requirement that a business licensed to sell alcohol have specific liability insurance which would pay damages for a dram shop liability claim. Unlike drivers that are required to maintain (at the minimum) liability insurance, a dram shop can sell, serve and furnish alcohol without any insurance to pay for any damages caused by the intoxication of their consumer. While most such businesses have general liability insurance protecting them if a consumer falls in their restaurant or if a fire or flood occurs, such insurance typically excludes dram shop liability. Therefore, a business would have to purchase an “alcohol liability rider” to cover these claims. Ultimately, this means that if the business did not have insurance, then victim may never recover for damage even if found liable because the business may not have the financial ability to pay the damages awarded to the victim. Further, if the victim was killed in the DUI accident, the family of the loved one and the estate might not recover for wrongful death damages awarded by a jury.
If insurance was required, the business would pay the policy premiums and the insurance company, pursuant to the insuring agreement, would be required to pay any verdict the victim was awarded (though some insurance policies may still have a cap on the pay out amount). Fortunately, most reputable establishments licensed to sell alcohol take it upon themselves to procure alcohol liability insurance, particularly those that are corporately owned and operated. The Law Offices of Charles Scholle, P.C. strongly supports a state law requiring businesses licensed to sell alcohol to maintain liability insurance policies and for such insurance policy to include liquor liability claims.
Dram Shop is the Exclusive Remedy to Injured Third Parties
The Georgia Dram Shop Act is the exclusive remedy an injured third party has against the dram shop or the social host that provided alcohol to the intoxicated driver. For this reason alone, you need an experienced dram shop attorney representing you in your dram shop liability action. The Law Offices of Charles Scholle, P.C. can counsel you in pursuing a dram shop or social host liability civil claim and assisting you in bringing justice for the injuries to your family member or the loss of your family member. For nearly two decades, Gwinnett County Georgia injury lawyer Charles Scholle has represented clients and their families inwrongful death, catastrophic injury, dram shop liability,personal injury, and estate cases. Charles Scholle has also represented the victims of drunk drivers. His Atlanta, Georgia personal injury law firm, The Law Offices of Charles Scholle, P.C., serves clients through a main office located in Duluth, Georgia in Gwinnett County as well as from offices in Atlanta, Buckhead, Decatur and the Perimeter. We offer a free confidential consultation to injured victims of drunk drivers as well as to the families of a wrongful death victim, or to an executor or personal representative of the estate. To set up your free consultation, send the firm a message online or call toll-free 1-866-972-5287 or in Atlanta call 770-717-5100.