Northside Equities, Inc. v. Hulsey

• Decision Date: 11 July 2002
• Docket Number: No. S01G1307.,S01G1307.
• Citation: 567 S.E.2d 4,275 Ga. 364
• Parties: NORTHSIDE EQUITIES, INC. v. HULSEY.
• Court: Georgia Supreme Court

567 S.E.2d 4

275 Ga. 364

NORTHSIDE EQUITIES, INC. v. HULSEY.

No. S01G1307.

Supreme Court of Georgia.

July 11, 2002.

Reconsideration Denied July 26, 2002.

Savage, Turner, Pinson & Karsman, Brent J. Savage, C. Dorian Britt, H. Lehman Franklin, Jr., Savannah, for appellant. Browning & Tanksley, Charles B. Tanksley, Marietta, for appellee.

BENHAM, Justice.

The issue in this Dram Shop Act case is whether the plaintiff produced sufficient evidence to avoid the award of summary judgment to the defendant. The trial court ruled that the plaintiff had not sufficiently countered the evidence offered by the defendant in support of its motion for summary judgment, but the Court of Appeals reversed. Hulsey v. Northside Equities, 249 Ga.App. 474(2), 548 S.E.2d 41 (2001). This Court granted certiorari to consider whether scientific evidence of a driver's blood alcohol level, adduced in opposition to direct eyewitness testimony that the driver was not noticeably intoxicated, can create a question of fact whether the driver was noticeably intoxicated.

The suit arose from the death of the plaintiff's daughter who was struck by a car driven by Rebecca Greene, an employee at an adult entertainment establishment owned by Northside Equities, Inc. Greene, who had consumed five or six drinks during her work day and was on her way home when her car struck the victim, had a blood alcohol content of .18 grams percent two hours after leaving work. In support of Northside's motion for summary judgment in the suit filed by the victim's mother, it submitted affidavits from several of its employees averring that Greene was not noticeably intoxicated while at work. The importance of that evidence is that a defendant will not be liable for serving alcohol unless the consumer of the alcohol is noticeably intoxicated when served. OCGA § 51-1-40(b). To counter Northside's evidence, the plaintiff submitted the affidavit of an expert concerning the absorption and metabolism of ethyl alcohol by persons who drink alcoholic beverages. The expert calculated Greene's probable blood alcohol level at the time of the collision with the victim as being as much as .21 grams percent and opined that various manifestations of intoxication would appear at that level and that those manifestations would vary with the person's history of drinking.

The Court of Appeals, in Division 2 of its opinion, analyzed the evidence in this case and properly concluded that the evidence of Greene's blood alcohol level and the expert testimony regarding the impact of that blood alcohol level were sufficient to distinguish this case from those cases which deny probative value to inferences from circumstantial evidence which are opposed to uncontradicted direct evidence. See Birnbrey, Minsk & Minsk, LLC v. Yirga, 244 Ga.App. 726, 535 S.E.2d 792 (2000); McElroy v. Cody, 210 Ga.App. 201, 435 S.E.2d 618 (1993). The evidence that Greene was not noticeably intoxicated was not uncontradicted because the expert testimony was that a woman with Greene's blood alcohol level would have exhibited manifestations of intoxication. Since the direct evidence was not uncontradicted, the inference to be drawn from the circumstantial evidence had probative value and, coupled with the conclusive presumption in OCGA § 40-6-391(a)(5) that a person with a blood alcohol level less than half of Greene's is impaired, was sufficient to create a question of fact whether Greene was noticeably intoxicated when she was served alcohol at work.

Contrary to the dissent's assertion, the conclusion reached in this opinion was not the result of ignoring either the legislatively-established standard in Dram Shop Act cases or the decisions of courts in other jurisdictions, but was the result of applying Georgia law regarding summary judgment. It is important to remember that this case is not at a stage of presenting evidence to a fact-finder in order to resolve issues of fact. This case involves summary judgment, and the non-movant is not required to produce evidence demanding judgment for that party, but only to present evidence which raises a material issue of fact. While the evidence adduced by the plaintiff in this case might not have been sufficient to persuade a jury that Greene was noticeably intoxicated when last served a drink at work, that is not the standard to be applied. "`Where the evidence on motion for summary judgment is ambiguous or doubtful, the party opposing the motion must be given the benefit of all reasonable doubts and of all favorable inferences and such evidence construed most favorably to the party opposing the motion.' [Cit.]" Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 552, 181 S.E.2d 866 (1971). Furthermore, while a movant's evidence is to be carefully scrutinized, a respondent's evidence is to be treated with indulgence. Whitehead v. Capital Auto. Co., 239 Ga. 460, 238 S.E.2d 104 (1977). Applying those standards to the present situation, Hulsey's evidence regarding Greene's level of intoxication, taken together with expert testimony that such a level of intoxication would produce manifestations of intoxication, was sufficient to create a question of fact and, thereby, to avoid summary judgment. We conclude, therefore, that the trial court erred in granting summary judgment to Northside and the Court of Appeals was correct in reversing that judgment.

Judgment affirmed.

All the Justices concur, except FLETCHER, C.J., SEARS, P.J., and HINES, J., who dissent.

FLETCHER, Chief Justice, dissenting.

By its plain language, Georgia's Dram Shop Act, OCGA § 51-1-40, shields servers of alcohol from liability for harm caused by an intoxicated person unless the intoxicated person was noticeably intoxicated at the time she was served alcohol.¹ The majority ignores this legislatively-established standard and effectively replaces it with a new standard: whether the person who caused the harm was, in fact, intoxicated at the time she was served. Because the majority has changed the statutory duty from observing a person's appearance to determining a person's actual blood alcohol level, I respectfully dissent.

1. Although this Court has not previously considered whether expert testimony based on the tortfeasor's blood alcohol content hours after she was served alcohol can create a jury issue regarding the tortfeasor's appearance at the time she was served, we do not approach the matter without guidance. Courts in other states have considered this issue, but the majority fails to address these cases or the ways in which states with dram shop statutes similar to Georgia's have handled the use of expert testimony. Instead, the majority says that Georgia's law on summary judgment means a jury issue exists. Georgia law, however, requires entry of summary judgment when there is no genuine issue for the jury to resolve regarding a dispositive part of the case.² Here, Hulsey's evidence, at most, addresses the average person's reaction to alcohol, but as demonstrated by the weight of authority from other states, the average person's reaction to alcohol does not create a genuine issue regarding whether the tortfeasor was noticeably intoxicated, which is a dispositive issue in this case.

Courts from other states have reached varying results in deciding the role of expert testimony in dram shop cases. Several courts have rejected attempts to use expert testimony to link the tortfeasor's blood alcohol level later in the day to a point earlier in the day,³ whereas other courts have permitted expert testimony provided it focused on the tortfeasor's reaction to alcohol,⁴ as opposed to the average person's reaction.⁵ Only a few courts have not required expert testimony to explain the significance of a person's blood alcohol level,⁶ and they have done so with little analysis.

Having considered the reasoning in the various cases, I would adopt a rule that permits plaintiffs to proceed to trial when the plaintiff's expert focuses on the tortfeasor's reaction to alcohol, but not allow a case to go forward based simply on generalized statements regarding the average person's reaction. This balanced approach is consistent with the rationale of the vast majority of courts that have considered the issue.

Under this proposed test, when the non-moving party relies solely on the tortfeasor's blood alcohol content to raise a genuine issue regarding whether the tortfeasor was noticeably intoxicated, an expert witness must explain what the tortfeasor's blood alcohol level later in the day shows about the tortfeasor's appearance earlier in the day. If an expert testifies that, given the tortfeasor's blood alcohol level, the tortfeasor, or someone with similar characteristics, would have exhibited noticeable signs of intoxication when the defendant served her alcohol, then the jury must decide whether the tortfeasor was, in fact, noticeably intoxicated when the defendant served her. If, however, an expert cannot testify that a person with characteristics similar to the tortfeasor's characteristics, including tolerance for alcohol, would have exhibited noticeable signs of intoxication when the defendant served her, then there is no way for a reasonable jury to find that the tortfeasor was noticeably intoxicated when served.

Requiring some connection between a subsequently obtained blood alcohol level and the tortfeasor's appearance when served alcohol protects the legislature's intent in passing the Dram Shop Act, while also ensuring plaintiffs will have their day in court if the evidence warrants it. Restricting the question of noticeable intoxication to eyewitness testimony would leave injured third parties without recourse when the eyewitnesses may potentially be biased in favor of the defendant, such as when all eyewitnesses are the defendant's employees or the tortfeasor's friends and co-workers. On the other hand, permitting a plaintiff to reach a jury based solely on a tortfeasor's...