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LegaL Memo

VIEWS: 91 PAGES: 4

									To: Ronald Smith, Esq.

From: Kelley Baker

Re: Martha and David Jones

Date: April 03, 2010



                                             Issue No. One



          Can Joe’s Pub, the owner Joe Brees or Mickey Dalton be held liable to David Jones (or

Martha should he pass away) for injuries sustained in the car accident allegedly resulting from

drunk driving after being forcefully ejected from Joe’s Pub?



                                               Discussion



          David Jones is currently in critical condition due to injuries sustained in a car accident

after being ejected from Joe’s Pub for participating in a bar fight. Jones was driving under the

influence of alcohol at the time of his accident. Under Georgia’s Dram Shop Act “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 or

property damage, inflicted by an intoxicated person upon himself or upon another person.” GA

CODE ANN. § 51-1-40(a). See Mowell v. Marks, 269 Ga. App. 250, 603 S.E.2d 702,703-04

(2008).

          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; provided, however, a person
          who willfully, knowingly …sells, furnishes, or serves alcoholic beverages to a

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     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 person when the sale, furnishing, or
     serving is the proximate cause of such injury or damage. Nothing in this Code
     section shall authorize the consumer of any alcoholic beverage to recover from
     the provider of any alcoholic beverage to recover from the provider of such
     alcoholic beverage for injuries or damages suffered by the consumer.
GA CODE ANN. § 51-1-40(b).

 In Sugarloaf Café v. Willbanks, 279 Ga. 255, 612 S.E.2d 279,281 (2005), the Court
concluded that “ circumstantial evidence that an alcoholic beverage server does business
in a “remote” location and that most customers drive to the server’s place of business is
insufficient to show that the server knew a customer would soon be driving.” Becks v.
Pierce, 282 Ga. App. 229, 638 S.E.2d 390, 394 (2006).
        No person who owns, leases, or otherwise lawfully occupies a premises…shall be
        liable to any person who consumes alcoholic beverages on the premises in the
        absence of and without the consent of the owner, lessee, or lawful occupant or to
        any other person, or to the estate or survivors of either, for any injury or death
        suffered on or off the premises…caused by the intoxication of the person who
        consumed the alcoholic beverages.
 GA CODE ANN. § 51-4-40(d) (West 2000).
If it can be proven that there was foreseeable knowledge that David Jones was to drive himself

home and was noticeably intoxicated at the time, there may be grounds for a complaint.

       It is a long-standing rule that the [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. Baxley v. Hakiel Indus., 280 Ga. App. 94,
       95(2), 633 S.E.2d 360 (2006).”
Becks, 638 S.E.2d at 393.

                                               Conclusion



       Due to the fact that David Jones is of legal drinking age and was voluntarily intoxicated

during the time of the incident in question, it is unlikely that the owner of the bar, the bartender

and servers, or the establishment itself would be held liable for any injury or death from the

accident resulting from Jones’ drinking and driving. Supra.

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                                                  Issue No. Two



       What possible recourse is there for David or Martha Jones against Dylan Robinson for

the injuries that David sustained in the fight?



                                                   Discussion



       While at Joe’s Pub, David Jones was involved in a physical altercation with Dylan

Robinson. Jones allegedly sustained a black eye, bruised ribs, and a broken arm in this

altercation. It would need to be proven that these injuries were sustained from the fight and not

from the accident resulting from alleged drinking and driving accident to file complaint against

Robinson.

       A person commits the offense of battery when he or she intentionally causes
       substantial physical harm or visible bodily harm to another. GA CODE ANN. § 16-
       5-23.1(a-b) (West 2000). “As used in this Code section, the term “visible bodily
       harm” means bodily harm capable of being perceived by a person other than the
       victim and may include, but is not limited to, substantially blackened eyes,
       substantially swollen lips or other facial or body parts, or substantial bruises to
       body parts”
Id.

Even then, it is probable that Robinson would allege similar charges against Jones. Jones

assumed some fault when he engaged in a physical altercation. Jones may have recourse against

Robinson only if he can prove he was defending himself from an attack and if the injuries he

sustained were a result of his defense.

        O.C.G.A. § 16-3-21(a) provides in part that “[a] person is justified in threatening
       or using force against another when and to the extent that he reasonably believes
       that such threat or force is necessary to defend himself…against such other’s

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     imminent use of unlawful force…” This criminal statute supplies the basis of
     justification that a person who has committed a battery may assert as a defense in
     a civil suit over the battery. Exposition Cotton Mills v. Crawford, 67 Ga. App.
     135, 145, 19 S.E.2d 835 (1942). This doctrine of self defense, however, may not
     be invoked where the defendant’s own acts of aggression brought about the
     difficulty with the plaintiff, unless the defendant has retreated in good faith
     intending to abandon the confrontation.
McNeil v. Parker, 169 Ga. App. 756, 315 S.E.2d 270, 271 (1984).


                                             Conclusion



It is possible that the Court would find in favor of David and/or Martha Jones in a suit for an

intentional tort, but the damages recovered would probably be insubstantial or nil due to the fact

that Jones consented to the tort by engaging in a fist fight. The possibility of a counter-claim by

Robinson based on the same law is more likely than a favorable result for the Jones.




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