Borders v. Board of Trustees, VFW , 231 Ga. App. 880 ( 1998 )

Birdsong, Presiding Judge,

dissenting.

Borders contends in her brief that the VFW should be liable to her, in part, because “Hawkins was in a state of intoxication which was obvious and noticeable to the VFW Club, and . . . despite this fact the defendant had furnished alcohol to him.” This argument amounts to a claim against the VFW for serving alcohol to an obviously intoxicated person with resulting injury to the plaintiff. Borders raised this claim in the trial court and the trial court ruled the “Dram Shop” Act does not apply to this case. Although Borders does not directly attack that ruling in her enumeration of error, she brings up the issue in this court and mixes it in with the negligence issues.

There is no particular duty of a proprietor towards those injured by one to whom he serves alcohol, and there is no general claim for negligence against such a proprietor for serving alcohol. See Kappa Sigma &c. v. Tootle, 221 Ga. App. 890 (2) (473 SE2d 213). Such claims are governed by OCGA § 51-1-40, known as the “Dram Shop Act.”

OCGA § 51-1-40 (a) acts as a bar to liability of providers of alcoholic beverages except in specified instances. Subsection (a) of § 51-1-40 provides: “(a) 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 and property damage, inflicted by an intoxicated person upon himself or upon another person, except as otherwise provided in subsection (b) of this Code section.” (Emphasis supplied.)

Subsection (b) of OCGA § 51-1-40 provides that one who furnishes alcohol to an adult (see Griffin Motel Co. v. Strickland, 223 Ga. App. 812, 815 (479 SE2d 401)) shall not be liable for injury caused by that person’s intoxication unless the person was “in a state of noticeable intoxication” and the provider furnished alcohol to him “knowing that such person will soon be driving a motor vehicle.”

The language and spirit of OCGA § 51-1-40 prohibit lawsuits against providers of alcohol except in narrow circumstances, viz., where an underaged person’s or a noticeably intoxicated person’s driving of a motor vehicle causes the claimed injuries or death. OCGA § 51-1-40 (a) and (b).

As the injury in this case was not caused by Hawkins’ driving of a motor vehicle, the case does not come within an exception named in subsection (b) to the declaration that an injury is deemed to be caused by the consumption of alcohol and not by the furnishing of alcohol. Ihesiaba v. Pelletier, 214 Ga. App. 721 (1) (a) (448 SE2d 920). Consequently, there is no causal connection between the actions of the VFW and Borders’ injuries.

The only ground on which Borders might seek to hold the defendant proprietor liable for injuries caused by another on VFW Club’s premises is founded under OCGA § 51-3-1, which establishes a proprietor’s general duty to protect invitees from the injurious consequences of a danger caused by a third person which the proprietor has reasonable cause to foresee. This applies even to criminal acts. See Confetti Atlanta, Ltd. v. Gray, 202 Ga. App. 241 (414 SE2d 265); McCoy v. Gay, 165 Ga. App. 590 (302 SE2d 130). As to non-criminal but dangerous acts of third parties, including fellow invitees, the owner’s liability is based on his reasonable cause to foresee such an incident as sued for by the plaintiff. Thus, the foreseeability to the owner of dangerous conduct must be superior to that of the plaintiff, for if the plaintiff could equally foresee such conduct or act and nevertheless enters onto the premises, she assumes the risks inherent. Sutton v. Sumner, 224 Ga. App. 857, 859 (482 SE2d 486); Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139 (351 SE2d 477); Telligman v. Monumental Properties, 161 Ga. App. 13, 14 (288 SE2d 846). The proprietor is not an insurer of the safety of his guests. Congleton v. Starlite Skate Center, 175 Ga. App. 438, 441 (333 SE2d 677). Where a proprietor has no notice of particular dangerous conduct on the part of a guest, he cannot be held liable for injuries to an invitee resulting from such conduct. Hackett v. Dayton Hudson Corp., 191 Ga. App. 442 (382 SE2d 180).

Decided March 20, 1998 Reconsideration denied April 2, 1998 Jeffrey G. Gilley, John E. Kardos, for appellant. McLeod, Benton, Begnaud & Marshall, Richard L. Brittain, Webb, Carlock, Copeland, Sender & Stair, Dennis J. Webb, for appellee.

There is no evidence giving rise to a reasonable conclusion that the VFW Club had superior actual or constructive knowledge or of the alleged danger which Borders contends caused her to fall. Further, the trial court found that Borders’ testimony in her affidavit as to Hawkins’ alleged drunkenness was inconsistent with her deposition testimony wherein she said her only knowledge of his intoxication was “hearsay” from an unnamed security guard. The trial court also found self-contradictory Borders’ deposition testimony as to how the incident occurred. Adjudging these inconsistencies against Borders as required in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) and Gentile v. Miller, Stevenson &c., 257 Ga. 583 (361 SE2d 383), the trial court construed Borders’ testimony least favorably to her and gave summary judgment to VFW Club.

Although the majority contends that there must have been an employee somewhere nearby who could have smelled alcohol on Hawkins or who could have seen his drunken behavior, there is no evidence to support such speculation. The majority cannot point to any such evidence because there is none. Speculation is not evidence and does not satisfy the requirement of pointing to evidence creating an issue of fact on whether the VFW had constructive knowledge of Hawkins’ intoxication. Also, the majority makes much of the VFW’s having evicted Hawkins after he fell on Borders, but this proves nothing as to what the VFW knew or should have known before he fell. Further, Borders must show that Hawkins’ allegedly drunken condition existed long enough for the VFW to have known of it or that an employee was in the immediate vicinity of Hawkins and could easily have noticed and had him removed from the VFW. See Deloach v. Food Lion, 228 Ga. App. 393, 395 (491 SE2d 845). The majority asserts that the VFW “failed to present any evidence to meet its burden on summary judgment to negate constructive knowledge of the hazard” but no such burden exists. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

Accordingly, I respectfully dissent.

I am authorized to state that Chief Judge Andrews and Judge Ruffin join in this dissent.