Delta Airlines, Inc. v. Townsend

• Decision Date: 16 June 2005
• Docket Number: No. S05G0251.,S05G0251.
• Citation: 614 S.E.2d 745
• Parties: DELTA AIRLINES, INC. v. TOWNSEND.
• Court: Georgia Supreme Court

614 S.E.2d 745

DELTA AIRLINES, INC. v. TOWNSEND.

No. S05G0251.

Supreme Court of Georgia.

June 16, 2005.

Reconsideration Denied June 30, 2005.

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Richard B. North, Jr., Clinton Fuller Fletcher, Nelson Mullins Riley & Scarborough, L.L.P., Atlanta, for Appellant.

Irwin W. Stolz Jr., Gene Mac Winburn, Winburn Lewis & Stolz, L.L.P., Athens, Richard B. Eason, Jr., Eason, Kennedy & Associates, Atlanta, for Appellee.

Benjamin F. Easterlin, IV, John P. Brumbaugh, Alan Anthony Stevens, King & Spalding, L.L.P., Atlanta, David A. Berg, Washington, DC, Amicus Appellant.

CARLEY, Justice.

Jack Townsend was injured when his vehicle was struck head-on by a car operated by William Serio. At the time of the collision, Serio was driving home from the Atlanta airport, where he had arrived on a Delta Airlines (Delta) flight from Milwaukee. Alleging that Serio became intoxicated by the consumption of wine served to him while on that flight, Townsend filed a tort action against him and Delta in the Superior Court of Fulton County. The claim against Delta was based upon the Georgia Dram Shop Act (GDSA), OCGA § 51-1-40, and common law negligence.

Asserting federal preemption, Delta removed the case to federal court. The district court concluded that there was no federal claim and no federal preemption of any state cause of action, and remanded the case to the superior court. After remand, Delta moved to dismiss for failure to state a claim. The trial court granted Delta's motion, holding that the air carrier was not subject to state tort liability for supplying alcohol to a passenger on an interstate flight. On appeal, the Court of Appeals upheld the dismissal of Townsend's common law negligence claim, but reversed as to the claim based upon the GDSA. The Court of Appeals held that, "[s]urely, the Georgia legislature intended our dram shop statute to apply in these circumstances. [Cits.]" Townsend v. Delta Airlines, 269 Ga.App. 645, 648(1), 605 S.E.2d 54 (2004). Delta applied for certiorari, which we granted to review the holding of the Court of Appeals that Townsend stated a viable claim for recovery under the GDSA.

1. "At common law there was no right of recovery for selling or furnishing intoxicating liquor to an intoxicated person. [Cit.]" Henry Grady Hotel Co. v. Sturgis, 70 Ga.App. 379, 385-386(1), 28 S.E.2d 329 (1943). "'"The common-law rule holds the man who drank the liquor liable and considers the act of selling it as too remote to be a proximate cause of an injury caused by the negligent act of the purchaser of the drink."'" Keaton v. Kroger Co., 143 Ga.App. 23, 26, 237 S.E.2d 443 (1977).

Thus, so long as the common-law rule is adhered to, it matters not whether the act of furnishing liquor may be considered as simple negligence or as negligence per se in violation of the criminal statute — it cannot, alone, leap the common law's chasm of causation. [Cits.] This is why the violation of liquor laws cannot be analogized to other types of negligence per se, and why legislation is required which directly imposes liability in derogation of the common law.

Keaton v. Kroger Co., supra at 27, 237 S.E.2d 443.

When the General Assembly enacted the GDSA "in 1988, it abrogated the common law rule ..., and created a new cause of action." Riley v. H & H Operations, 263 Ga. 652, 654(2), 436 S.E.2d 659 (1993). Because the statute is in derogation of common law, it is Townsend's "exclusive remedy [for seeking to impose liability on Delta] for damages arising from [Serio's] driving while intoxicated." Hulsey v. Northside Equities, 249 Ga.App. 474, 478(3), 548 S.E.2d 41 (2001). Not only is the GDSA the sole legal remedy available to Townsend,

it has always been a rule of construction of statutes that those in derogation of the common law, that is those which give rights not had under the common law, ... must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute. The legislature is presumed to act with knowledge of this rule of construction and with that body only lies the right and privilege to grant rights not given under the common law and to extend and broaden any rights so granted. Such is not the function of the courts.

Thompson v. Watson, 186 Ga. 396, 405-406, 197 S.E. 774 (1938), overruled on other grounds, Walden v. Coleman, 217 Ga. 599, 605, 124 S.E.2d 265 (1962). Thus, the issue presented for resolution in this appeal is whether, under the GDSA, as strictly construed, Townsend has a cause of action against Delta for the injuries resulting from Serio's act of driving while intoxicated.

OCGA § 51-1-40(a) provides:

The General Assembly finds and declares that the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person, except as otherwise provided in subsection (b) of this Code section.

This provision represents a qualified codification of the common law rule that the act of consuming, rather than that of supplying, alcoholic beverages is the proximate cause of the injuries suffered or inflicted by the consumer thereof. The resulting legal effect is that "[a] provider of alcoholic beverages is insulated from liability to third parties except as provided in subsection (b). [Cit.]" Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga.App. 890, 893(2), 473 S.E.2d 213 (1996).

Subsection (b) provides, in relevant part, that one

who knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage [to a third party] caused by or resulting from the intoxication of such ... person when the sale, furnishing, or serving is the proximate cause of such injury or damage.

Thus, the GDSA applies only in the limited context of injuries that result from the operation of a vehicle by a driver who is under the influence. However, "nothing in that statute or any other provision of Georgia law mandates that a provider of alcoholic beverages must prevent an intoxicated person from driving." Armstrong v. State, 244 Ga.App. 871, 873(2), 537 S.E.2d 147 (2000). Instead, the unambiguous terms of the GDSA predicate liability upon whether the supplier of alcohol knew that the consumer posed a risk of driving while inebriated. For liability to attach, the provider must know that the intoxicated person to whom the alcohol is furnished "will soon be driving a motor vehicle." "Soon" means "[i]n the near future; shortly." The American Heritage Dictionary (2d College Edition), p. 1165. Therefore, the clear intent of the General Assembly is to impose civil liability only on that limited class of suppliers of alcohol who had reason to know that the consumer will be driving a vehicle shortly after being served.

[W]here one provides alcohol to a noticeably intoxicated [individual] knowing that he will soon be driving his car, it is foreseeable to the provider that the consumer will drive while intoxicated and a jury would be authorized to find that it is foreseeable to the provider that the intoxicated driver may injure someone.

Sutter v. Hutchings, 254 Ga. 194, 198(1), 327 S.E.2d 716 (1985). The GDSA

is analogous to the long established rule imposing liability upon the owner of an automobile who entrusts it to a person who is intoxicated.... [There is] no legal difference between supplying an automobile to a noticeably intoxicated [individual], [cit.], and supplying alcohol to a noticeably intoxicated ... automobile driver.

Sutter v. Hutchings, supra at 198(1), 327 S.E.2d 716.

In the commercial setting, the General Assembly certainly intended that the owners of bars, restaurants and similar businesses would be subject to potential liability under the GDSA. The customers of such purveyors of alcohol necessarily travel to and from the establishment by some land-based means of transportation, so that financial viability often depends on the accessibility of the premises by motor vehicle. A clear proximate connection thus exists between such businesses and motor vehicular traffic.

"[I]n light of the use of automobiles and the increasing frequency of accidents involving drunk drivers, ... the consequences of serving liquor to an intoxicated person whom the server knows or could have known is driving a car, is reasonably foreseeable." [Cit.]

Elsperman v. Plump, 446 N.E.2d 1027, 1030 (Ind.Ct.App.1983). Because the patrons of land-based establishments serving alcohol generally have direct and immediate access to their vehicles, liability should attach to an owner who knew or should have known that a departing intoxicated customer will shortly be driving. See Griffin Motel Co. v. Strickland, 223 Ga.App. 812, 814(2), 479 S.E.2d 401 (1996).

The proximate connection between the consumption of alcohol by an airline passenger during a flight and his subsequent act of drunk driving is much more remote and attenuated. An air carrier moves passengers collectively between airports, not from one airport to each individual passenger's ultimate destination. The on-board availability of alcoholic beverages is an amenity while flying, and is not the commercial objective of the flight. Any consumption of alcohol takes place prior to arrival at an airport and the passengers' exit from the aircraft. An airline has no control over its passengers' activities once they have deplaned, and many factors, such as customs and baggage claim, can affect the length of time between consuming alcohol on the plane and actually departing the airport. In fact, those passengers scheduled on connecting flights presumably will remain at the airport, whereas those who do leave have a variety of options...