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Birnbrey6/12/2000
atute carves out two exceptions, one pertaining to minors and the other when:
A person . . . who knowingly sells, furnishes, or serves alcoholic beverages to a 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.
See Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga. App. 890 (473 SE2d 213) (1996).
Thus, Birnbrey as a social host had no liability to a third party unless (1) when Campbell was in a state of noticeable intoxication, Birnbrey knowingly furnished alcoholic beverages to him; (2) it did so knowing that Campbell would soon be operating a motor vehicle; and (3) the act of supplying the alcoholic beverages was the proximate cause of the injuries sustained. Pretermitting whether Birnbrey knew that Campbell would soon be driving or any consideration of proximate causation, the determinative issue is whether the evidence demonstrated that Birnbrey furnished alcohol to a noticeably intoxicated Campbell. McElroy v. Cody, 210 Ga. App. 201, 202 (435 SE2d 618) (1993). We find that it did not.
Where direct and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant's evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.
(Citations and punctuation omitted.) Michelin Tire Corp. v. Irving, 185 Ga. App. 783, 784 (1) (366 SE2d 156) (1988).
Birnbrey offered direct evidence attesting that Campbell was not in a state of noticeable intoxication while at the Mansion and did not appear noticeably intoxicated when he left the luncheon. Firm member, Allen Landis, testified, " e certainly seemed to be normal acting, normally as he acts around the office." Wendy Minsk stated that she was sure that she talked with Campbell at the luncheon and did not recall anything out of the ordinary that Campbell did at the luncheon. Malcolm Minsk testified that he "didn't notice anybody acting out of line in any manner." Several other employees remembered seeing Campbell at the luncheon but no one testified that they recalled seeing anything unusual that day.
In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.
(Citation and punctuation omitted.) Withrow Timber Co. v. Blackburn, 244 Ga. 549, 553 (261 SE2d 361) (1979).
To attempt to create an inference that Campbell was in a state of noticeable intoxication, Tombassa offered circumstantial evidence. Officer John E. Fox, an off-duty officer, was working security at a nearby shopping center at the time of the incident but did not see it. After an unnamed person suggested that Fox proceed to investigate a man who was bleeding, Fox intercepted Campbell as he was exiting a drug store. Fox testified that " e did sway back and forth just a little bit because -- he did have a little -- a head injury." Although Fox only spent a few moments with Campbell before turning him over to another officer, Fox testified, "I had a very strong impression with my background and training, especially with all the arrests I do make on the STAR team, that this individual was well over a .10." B
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