Riley v. H & H Operations, Inc., S93A1164
| Decision Date | 03 December 1993 |
| Docket Number | No. S93A1164,S93A1164 |
| Citation | 436 S.E.2d 659,263 Ga. 652 |
| Parties | Terry Dale RILEY et al. v. H & H OPERATIONS, INC., et al. |
| Court | Georgia Supreme Court |
David W. Boone, Leigh McCranie Smith, Atlanta, for Terry Dale Riley et al.
C. Bradford Marsh, Charles K. Reed, Long, Weinberg, Ansley & Wheeler, Atlanta, Albert B. Wallace, Jonesboro, for H & H Operations, Inc., et al.
Terry and Kristen Riley filed a personal injury claim against H & H Operations, Inc. and others seeking damages for injuries incurred in an automobile accident caused by a minor, Gary McQuithy, who was driving under the influence of alcohol purchased at a convenience store owned and operated by H & H. The trial court granted summary judgment in favor of the defendants. The Rileys appealed to the Court of Appeals; however, that court transferred the case to this Court because the trial court had raised the issue of the constitutionality of OCGA § 51-1-40 ("the Act"). On remand of the case by this Court for resolution of this issue, the trial court upheld the constitutionality of the Act and reiterated its grant of summary judgment. Although we reject appellants' challenge to the Act and find it is constitutional, we reverse as to the grant of summary judgment to H & H. 1
1. The Act insulates the provider of alcoholic beverages from liability to third persons. It also provides, however, that:
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 ... may become liable for injury or damage caused by or resulting from the intoxication of such minor ... when the sale, furnishing, or serving is the proximate cause of such injury or damage.
OCGA § 51-1-40(b). The trial court ruled the Act constitutional by interpreting it as requiring the provider of alcohol to have actual knowledge that the purchaser is a minor and that the minor will be driving soon. The court also interpreted "will be driving soon" to mean "imminent driving, i.e., that which is likely to happen without delay." See Manuel v. Koonce, 206 Ga.App. 582, 585(2), 425 S.E.2d 921 (1992). Thus construed, the trial court found the Act clear and specific enough to provide adequate notice to a provider of alcohol to satisfy due process requirements.
Appellee's sole contention as to the unconstitutionality of the Act is that the meaning of the words "driving soon" is not confined to "driving imminently," hence, a provider of alcohol is exposed to indeterminate liability because the driving, of which the provider is charged with knowledge, may occur hours after the sale (in this case, four and one-half hours later). Such uncertainty as to the extent of a provider's liability is claimed to violate the requirements of due process by being so vague that persons of common intelligence must guess at its meaning and differ as to its application. See Anderson v. Little & Davenport Funeral Home, 242 Ga. 751(1), 251 S.E.2d 250 (1978).
In deciding constitutional challenges to civil statutes based on vagueness, however, we need only determine whether the statute in question provides fair notice to those to whom it is directed and enables those persons to determine the motivating legislative intent from the provisions of the statute itself. Bryan v. Georgia Public Service Commission, 238 Ga. 572, 234 S.E.2d 784 (1977). We do not agree with appellee that the Act did not provide it with sufficient notice that it could be held liable for injuries occurring four and one-half hours after the sale of alcohol to a minor. Although "soon" does not have a fixed temporal meaning, in the context of the Act it is sufficiently definite and certain in meaning to give proper guidance to those bound by its terms. See In re Suggs, 249 Ga. 365, 291 S.E.2d 233 (1982). The dictates of due process do not demand that we construe "soon" as having so narrow a time frame as to exclude from the ambit of the Act an interval of four and one-half hours. Moreover, the intent of the legislature, as we note hereinbelow, is patently clear from a reading of the Act.
2. The trial court ruled that to be held liable under the Act, the provider of alcohol must have actual knowledge that the buyer is a minor who will be driving soon. We must disapprove this interpretation.
When the legislature enacted the Act in 1988, it abrogated the common law rule set forth in Sutter v. Hutchings, 254 Ga 194(1), 327 S.E.2d 716 (1985), and created a new cause of action. Under the common law rule, the provider of alcohol incurred no liability unless he or she actually knew the purchaser was under age and would be driving soon thereafter. Whelchel v. Laing Properties, 190 Ga.App. 182(3), 378 S.E.2d 478 (1989). In construing the Act, we "look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy." OCGA § 1-3-1(a). In OCGA § 51-1-40(a), the legislature declared that the cause of injuries and damage inflicted by intoxicated persons is the consumption of alcohol rather than its distribution. Specifically excepted from that finding are those instances where the recipient of alcohol is underage or noticeably intoxicated. It follows then that one of the evils sought to be avoided by the Act is the distribution of alcohol to minors who will be driving motor vehicles. With this policy in mind, a construction of the Act requiring actual knowledge would render the Act an ineffective sanction, since only when the defendant admitted its own knowledge could the plaintiff prevail. 2 Furthermore, this Act must be read in context with OCGA § 3-3-23, prohibiting the sale of alcohol to those under the age of 21. Subsection (h) imposes a duty upon the seller to request and see proper identification, where a "reasonable or prudent person could reasonably be in doubt as to whether or not the person to whom an alcoholic beverage is to be sold ... is actually 21 years of age or older." The failure to verify such a person's age may be considered by the trier of fact in determining whether the seller furnished the alcohol knowingly. Id. This section requires the plaintiff to show only implied knowledge. Accordingly, we find that the policy behind the statute requires a broader reading of "knowingly" and "knowing" than that urged by the appellee. If one in the exercise of reasonable care should have known that the recipient of the alcohol was a minor and would be driving soon, he or she will be deemed to have knowledge of that fact. 3
3. Appellants argue that the trial court improperly shifted the burden of proof to the nonmoving party on appellee's motion for summary judgment by requiring them to produce evidence of appellee's knowledge. We agree. McQuithy deposed that he drove to appellee's convenience store around 7:30 p.m. on September 24, 1988, parked in the parking lot, purchased a six-pack of beer from the sales clerk there, then drove away. He consumed about three and one-half cans of the beer before midnight. Later that same night while driving under the influence of alcohol he caused the accident that severely injured Mr. Riley. McQuithy's blood alcohol content was .08 two hours after the accident. It is uncontroverted that he had imbibed no alcohol other than the beer he purchased at the convenience store. McQuithy was charged with and pled guilty to driving under the influence.
In support of its motion, appellee relied on the affidavit of its employee, Diane Mayes, who averred she was the only employee on duty at the time in issue. She further stated:
The burden on summary judgment is on the movant to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. OCGA § 9-11-56(e); Meade v. Heimanson, 239 Ga. 177, 236 S.E.2d 357 (1977). Mayes' affidavit establishes...
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