Sutter case

Topics: Alcoholic beverage, Supreme Court of the United States, Circumstantial evidence Pages: 5 (3232 words) Published: August 28, 2014


282 Ga.App. 229


tained in automobile accident with intoxicated bar patron in the absence of evidence that bar owner knew that patron was going to
drive home. West’s Ga.Code Ann. § 51–1–

No. A06A1149.
Court of Appeals of Georgia.
Nov. 2, 2006.
Certiorari Denied Feb. 5, 2007.

Background: Motorist brought action
against bar owner under Dram Shop Act
for injuries she sustained in automobile
accident with intoxicated driver. The State
Court, DeKalb County, Carriere, J., denied bar owner’s motion for summary judgment. Bar owner appealed.
Holding: The Court of Appeals, Mikell, J.,
held that bar owner was not liable under
the Dram Shop Act in the absence of
evidence that he knew that intoxicated patron was going to drive home. Reversed.

1. Intoxicating Liquors O285
Dram Shop Act does not require that
the person selling, furnishing, or serving alcohol have actual knowledge that the patron was soon to drive; rather, if a provider in the
exercise of reasonable care should have
known both that the recipient of the alcohol
was noticeably intoxicated and that the recipient would be driving soon, the provider will be deemed to have knowledge of that fact.
West’s Ga.Code Ann. § 51–1–40(b).
2. Intoxicating Liquors O285
Bar owner was not liable under the
Dram Shop Act for injuries motorist sus3.


Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979). See Barnett, supra
at 466(1), 620 S.E.2d 663; Helton, supra at 274–
275(a), (b), 609 S.E.2d 200.
OCGA § 51–1–40.

Gregory L. Mast, Paul L. Fields, Jr.,
Fields, Howell, Athans & McLaughlin, for
Peter A. Law, James E. Lee II, Ernest M.
Moran, for appellee.
Butler, Wooten & Fryhofer, James E. Butler, Jr., amicus curiae. MIKELL, Judge.
On April 13, 2002, after consuming alcohol
at Jay’s Place Sports Bar and Lounge (the
‘‘Bar’’), Jeffery Fleming fell asleep while
driving, and his vehicle crossed the median
and struck an oncoming vehicle in which
Mary Pierce was a passenger. Pierce
brought an action against Gerald Becks d/b/a
the Bar, alleging that the Bar was liable to
her for injuries and damages caused by or
resulting from Fleming’s intoxication under
the Dram Shop Act (the ‘‘Act’’).1 Becks filed
a motion for summary judgment, which the
trial court denied. The trial court issued a
certificate of immediate review, and we
granted Becks’s application for interlocutory
‘‘When reviewing the grant or denial of a
motion for summary judgment, this Court
conducts a de novo review of the law and the
evidence, construing that evidence and all
reasonable inferences and conclusions therefrom in the light most favorable to the nonmovant.’’ 2 Additionally, 2. (Footnote omitted.) Hulsey v. Northside Equities, 249 Ga.App. 474, 475(1), 548 S.E.2d 41 (2001), aff’d, Northside Equities v. Hulsey, 275

Ga. 364, 567 S.E.2d 4 (2002).

Cite as 638 S.E.2d 390 (Ga.App. 2006)

a party who will not bear the burden of
proof at trial need not conclusively prove
the opposite of each element of the nonmoving party’s case. Rather, that party must demonstrate by reference to evidence
in the record that there is an absence of
evidence to support at least one essential
element of the non-moving party’s case.3
Because we conclude that there is an absence
of evidence to satisfy the statutory requirement that the appellant knew that Fleming was soon to drive, we reverse the trial court’s
denial of Becks’s motion for summary judgment.
The record in this case shows that Fleming
arrived at the Bar between 9:30 and 10:30
p.m. on April 12, 2002, where he met his
friends George Blunt and Devon Hood.
Fleming deposed that he was at the Bar for
approximately five to five-and-a-half hours
and that during that time, he consumed two
or three glasses of vodka with cranberry
juice and two cups of beer. Fleming stated

Citations: Nov. 2, 2006.
Certiorari Denied Feb. 26, 2007.
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