Pirkle v. Hawley

• Decision Date: 06 March 1991
• Docket Number: No. A90A1870,A90A1870
• Citation: 199 Ga.App. 371,405 S.E.2d 71
• Parties: PIRKLE v. HAWLEY et al.
• Court: Georgia Court of Appeals

Page 71

405 S.E.2d 71

199 Ga.App. 371

PIRKLE v. HAWLEY et al.

No. A90A1870.

Court of Appeals of Georgia.

March 6, 1991.

Rehearing Denied March 28, 1991.

Certiorari Denied May 15, 1991.

Goodman & Bush, James E. Goodman, Norman Lee Smith, Atlanta, for appellant.

Murray, Temple & Dinges, William D. Temple, Decatur, Jeffrey P. Raasch, Stone Mountain, Daniel MacDougald, III, Albany, for appellees.

BEASLEY, Judge.

Plaintiff Pirkle appeals a judgment entered upon a jury verdict for defendant Gwinnett Daily News (a partnership) and against defendant Hawley for $50,000. She was injured on December 20, 1987, when her car was struck by an automobile driven by Hawley, who was intoxicated. Pirkle sued Hawley based upon his direct acts of negligence and sought recovery against the News for furnishing alcoholic beverages to a noticeably intoxicated person, knowing that person would soon be driving a vehicle, and for failing to take proper steps to prevent Hawley from driving after awareness of his intoxication.

The following appears from that version of the facts favorable to the verdict. The Advertising and Promotions Department of the Gwinnett Daily News planned a Christmas party for its employees, about 35 in number. The News subsidized the party in the amount of $350, about half the total expenses. The party was set for Sunday, December 20, and Bob Gruber, the retail sales manager, was delegated responsibility for it. He spent the money on room rental at the B & B Ranch on Old Peachtree Road, a keg of beer, food, and party supplies. He sent an invitation requesting that women bring a covered dish and men a quart of liquor. Attendance was optional and spouses or dates were included. Gruber was aided in facilitating the party by Sam Knox, an employee in the News' advertising department.

During the party preliminaries, Gruber and Sam Knox discussed how they would handle anyone who got drunk. They decided to be on the lookout and to use common sense in managing any situations which arose. The party was scheduled to begin at 3:30 p.m. Around that time, Hawley, a News employee, arrived driving his own car and drinking his own beer. Over the next few hours he consumed ten to twelve 16-ounce cups of beer. Witnesses who attended the party agreed that he became noticeably intoxicated but gave varying times when this occurred. Knox noticed that Hawley was too intoxicated to drive at around 6:30 p.m. and brought this to Gruber's attention. Having discovered another drinking problem, Gruber decided to take responsibility for the other person, so Sam Knox and his wife Patricia sought out Hawley and attempted to convince him to let them take him home. At first he declined. They finally prevailed upon him to let Sam drive him home in Hawley's auto and Patricia follow in the Knox car. Because the Knoxes needed to help with the clean-up, they asked Hawley to wait. He remained in that area, usually seated, while they finished their chores. When Sam asked Hawley directions to his home and Hawley responded only incoherently, Sam went to ask Gruber for directions. When they returned, Hawley had left. They went outside and saw the taillights of the Hawley vehicle as it pulled from the driveway out onto Old Peachtree Road. They discussed what to do but took no further action.

Drinking his own beer and driving erratically and rapidly, Hawley collided with the rear of Pirkle's auto on I-85. His car flipped over several times and he was thrown from it. Pirkle's car spun across the road and hit a guard rail on the driver's side. Other vehicles were also involved.

Pirkle was treated at the scene by paramedic Adcock and transported to Gwinnett Medical Center. She was admitted for injuries which included a dislocated kneecap, a fractured wrist, lacerations and bruises. Besides asking damages for those injuries, Pirkle also sought to recover for a closed head injury which she asserted resulted in losses of IQ, abstract reasoning ability and short-term memory. She supported her contentions with her testimony, the testimony of a friend, her mother and an expert. The expert's opinion was that she lost 16 IQ points and suffered from reasoning ability and short-term memory loss.

Two truck drivers who stopped at the scene testified that Pirkle was wedged down in her car, moaning, and that she appeared dazed but was able to respond to questions. Paramedic Adcock, when he first arrived, found her conscious and able to respond to questions but confused. According to Adcock, Pirkle was not sure whether she had lost consciousness. He found no evidence that her airway had been obstructed. Pirkle told the nurse at the hospital that she had not lost consciousness. The emergency physician did not treat her for a closed head injury because after standard medical examination there were no indications she had one.

Defendants, in an effort to show at trial that any brain damage to Pirkle was not the sole result of injuries sustained in the collision, introduced evidence that Pirkle had a past history of drinking and drug use. She admitted she had a problem about nine years before. As further proof of other causes of any brain damage, defendants showed that she suffered from depression and other emotional factors resulting from her involvement in a 1967 serious wreck, and that she had a series of unsatisfactory relationships with alcoholic or drug-addicted men.

There are 14 enumerations of error.

1. Enumerations one and two assert error in the failure to grant Pirkle's motions for directed verdict, judgment n.o.v. and new trial. They all assert that the evidence demanded a finding for her against the News on the issue of liability, in that the evidence shows Hawley was intoxicated at the party, that those representing the News became aware of his condition, and that they failed to preclude further drinking. Thus, she argues that regardless of any efforts made to keep Hawley from driving, the News was liable as a matter of law.

Because enumeration four challenges the trial court's charge on this issue, its resolution governs enumerations one and two.

The court instructed the jury that the alcohol provider first has a legal duty not to furnish alcohol to a noticeably intoxicated person knowing that person is soon to drive, and if that duty is breached, the provider has a duty "to exercise ordinary care to prevent an unreasonable risk of harm to the public highway users from the intoxicated driver." It was defendant News' request five verbatim. A little later the court reiterated: "If alcohol is furnished to a noticeably intoxicated person that (sic) is known to soon be driving a vehicle, then and in that event the provider has the duty of exercising ordinary care to prevent an unreasonable risk of harm to public highway users from the intoxicated driver."

When offered an opportunity to voice objection, which was done after the charge was given, Pirkle's counsel stated: "I object to ... charge ... number five of defendant News Company. I believe two things. One is when you said in other words, you repeated and emphasized something I think that was detrimental." The court interjected, "It didn't help your case, did it?" Counsel acknowledged, "no, it didn't," and moved on to: "Secondly, I don't believe ordinary care is the standard. I believe that is too low of a standard." The court stated: "You don't have to argue it right now because I am not going to change it," to which counsel replied, "all right." At the charge conference, counsel had objected to defendant's charge five but, without hearing the reasons, the court said the objections could be made after charge was given.

The "in other words" objection related to a restating of the initial duty, imposed by OCGA § 3-3-22, Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985); Southern Bell Tel. etc. Co. v. Altman, 183 Ga.App. 611, 359 S.E.2d 385 (1987); and Divecchio v. Mead Corp., 184 Ga.App. 447(1), 361 S.E.2d 850 (1987). Repeating a legal principle in other language so as to clarify it for the jury is not error. Jackson v. Rodriquez, 173 Ga.App. 211, 213(2), 325 S.E.2d 857 (1984); Dixie Mfg. Co. v. Riggs, 30 Ga.App. 433, 434(4), 118 S.E. 452 (1923).

Appellant argues that request five as given was a misstatement of the law because breaching the initial duty may not be defended by proving that a subsequent duty was fulfilled. Assuming arguendo that this was properly raised below, it fails on the merits. It is not that the fulfillment of the duty which follows breach of the statutorily-based duty excuses the breach. Quite the contrary. The breach gives rise to the subsequent duty, a duty which does not even exist if the law against furnishing is complied with.

If the alcohol provider stops serving a noticeably intoxicated person, he is not liable for the damages that person later inflicts. If the alcohol provider continues to serve and knows the intoxicated person is about to drive, the provider creates for himself or herself "a duty not to subject third parties to an unreasonable risk of harm caused by the intoxicated driver." Southern Bell, supra at 612(2), 359 S.E.2d 385, citing Sutter, supra. Fulfillment of the additional duty acts to remove the breach of the earlier, initial duty as the proximate cause of the injury.

Pirkle next argues that even if fulfillment of the subsequent duty can give escape from liability, the standard of ordinary care is too low. ¹ According to Pirkle, the breaching provider's reacting by taking "reasonable measures" to prevent the intoxicated person from driving is not sufficient, because the circumstance which placed on defendant the duty to react was a breach of legal duty on his part in the first place. Thus, the argument projects, the standard should be higher.

This fleshes out the objection made in the trial court. It is not persuasive because the controlling cases, which have been cited above, do not establish or refer to any standard other than,...