Flores v. Exprezit! Stores 98-Georgia, LLC

• Decision Date: 05 March 2012
• Docket Number: No. A10A0703.,A10A0703.
• Citation: 724 S.E.2d 870,12 FCDR 874,314 Ga.App. 570
• Parties: FLORES et al. v. EXPREZIT! STORES 98–GEORGIA, LLC et al.
• Court: Georgia Court of Appeals

12 FCDR 874

314 Ga.App. 570

724 S.E.2d 870

FLORES et al.

v.EXPREZIT! STORES 98–GEORGIA, LLC et al.

No. A10A0703.

Court of Appeals of Georgia.

March 5, 2012.

Edward J. Bauer, Brandon Robert Day, Mary Katherine Durant, for appellants.

Fain, Major & Brennan, Gene A. Major, Young, Thagard, Hoffman, Smith & Lawrence, John Holder Smith, Jr., Weinberg, Wheeler, Hudgins, Gunn & Dial, Y. Kevin Williams, John Busbin Jackson, Michael Anthony Sexton, Charles L. Clay, Jr., Buckley Brown, Robert C. Semler, Douglas Lamar Gibson, for appellees.

ANDREWS, Judge.

In Flores v. Exprezit! Stores 98–Georgia, LLC, 304 Ga.App. 333, 696 S.E.2d 125 (2010), we affirmed the trial court's grant of summary judgment dismissing a Georgia dram shop act (OCGA § 51–1–40) claim brought against defendants owning or operating a convenience store on the basis that the dram shop act did not apply to a convenience store's sale of closed or packaged containers of alcohol to an adult. In Flores v. Exprezit! Stores 98–Georgia, LLC, 289 Ga. 466, 713 S.E.2d 368 (2011), the Supreme Court reversed our judgment and held that OCGA § 51–1–40 did apply to that claim. Accordingly, the judgment of the Supreme Court is made the judgment of this Court. In light of the Supreme Court's ruling that OCGA § 51–1–40 applies to the claim, we now address additional enumerations of error raised in Flores, 304 Ga.App. 333, 696 S.E.2d 125 asserting that the trial court erred by granting summary judgment for other reasons and by denying a motion seeking sanctions for spoliation of evidence.

The complaint pursuant to OCGA § 51–1–40 was brought by Elias Flores and Maria Flores Vazquez individually and on behalf of their minor child, Nancy Flores, for injuries suffered by the child in a collision between a van in which the child was a passenger and a car driven by 24–year–old Billy Joe Grundell. The Floreses alleged that Grundell lost control of his car, crossed the centerline of the road, and caused a head-on collision with the approaching van in which their child was injured and six people were killed including Grundell. Flores, 304 Ga.App. at 333, 696 S.E.2d 125. There was evidence that “[a] post-collision analysis of Grundell's blood showed that he was driving with a blood alcohol concentration of 0.181 grams per 100 milliliters, an amount in excess of the legal limit.” Id. In support of their claim pursuant to OCGA § 51–1–40, the Floreses contend that, about four hours before the collision, Grundell drove to a convenience store owned or operated by Exprezit! Stores 98–Georgia, LLC and others; ¹ that Grundell entered the store and purchased packaged beer while noticeably intoxicated; and that he drove off and later consumed the beer before he caused the collision.

The dram shop act (OCGA § 51–1–40) provides in relevant part:

(a) 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.

(b) A person who sells, furnishes, or serves alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury, death, or damage caused by or resulting from the intoxication of such person, including injury or death to other persons; provided, however, a person who willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age, knowing that such person will soon be driving a motor vehicle, or 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 caused by or resulting from the intoxication of such minor or person when the sale, furnishing, or serving is the proximate cause of such injury or damage....

1. Under these provisions, the Floreses sued to establish Exprezit!'s liability for injuries their child suffered in the collision on the following contentions: (1) that, prior to the collision, Exprezit! knowingly sold packaged beer to Grundell, a person of lawful drinking age; (2) that Exprezit! sold the beer to Grundell while he was in a state of noticeable intoxication; (3) that Exprezit! knew Grundell would soon be driving a motor vehicle; (4) that, prior to the collision, Grundell was intoxicated as a result of consuming beer Exprezit! sold to him; and (5) that the collision and resulting injuries were caused by or resulted from Grundell's intoxication, and therefore Exprezit!'s sale of the beer to Grundell about four hours prior to the collision was a proximate cause of the collision and the injuries. The trial court granted Exprezit!'s motion for summary judgment on the basis that the Floreses failed to produce sufficient evidence to create a factual question on two elements of the claim: (1) that Exprezit! sold beer to Grundell and (2) assuming Exprezit! sold beer to Grundell, that the sale was a proximate cause of the collision and injuries. We find that the evidence was sufficient to create a jury issue and reverse the trial court's grant of summary judgment to Exprezit!.

The only Exprezit! employee working at the store testified that she saw Grundell drive up to the store, enter the store and stay near the cash register area, and then leave the store and drive away, but she denied selling beer or any alcoholic beverage to Grundell. The Floreses produced evidence from other witnesses who saw Grundell enter the store and then exit the store carrying packaged beer.² Because none of the witnesses produced by the Floreses could testify that they actually saw Grundell purchase the beer inside the store, the trial court ruled that this was insufficient to create a factual issue in the face of direct testimony from the Exprezit! employee that there was no sale of...