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Willbanks v. Sugarloaf Cafe, Inc.1/23/2004
Rebecca Willbanks, individually and as parent as well as next friend of Amanda Paige Lawrence, formerly a minor, and Amanda Paige Lawrence appeal from the grant of summary judgment for Sugarloaf Café, Inc. d/b/a Buffalo's Café under the Georgia "Dram *427 Shop" Act. Finding the existence of material issues of fact for jury determination, we reverse.
On April 11, 2000, Jennifer Leigh Phillips, while visibly intoxicated after being served with alcohol at Buffalo's Café, had a collision with the car occupied by Willbanks and Lawrence. The evidence gives rise to the inference that, while in a visibly intoxicated state, Phillips was served alcohol at Buffalo's Café and that she was driving while intoxicated at the time of the collision. Phillips was convicted of drunk driving in causing the serious injuries.
Willbanks and Lawrence sued Phillips and Buffalo's Café for negligence under the Dram Shop Act. [FN1] Buffalo's Café moved for summary judgment, which was granted. On appeal, this grant of summary judgment is reviewed de novo to determine whether any evidence or reasonable inference creates a material issue of fact for jury determination. "Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case." [FN2] In this case, we find that the circumstantial evidence and the reasonable inferences raise material issues of fact for jury determination under both elements of OCGA § 51-1-40.
FN1. OCGA § 51-1-40(b).
FN2. (Citations and punctuation omitted.) Rubin v. Cello Corp., 235 Ga.App. 250, 251, 510 S.E.2d 541 (1998).
Buffalo's Café was located in an area accessible only by vehicle, and Heidi Sarnese, a co-worker, drove Phillips there, because Phillips left her car parked at work while they went to Buffalo's Café. Phillips, Sarnese, Todd Dickens, and other co-workers were at Buffalo's Café for an after-work party. Phillips was served approximately ten glasses of wine by the bartender. Also, Dickens was served ten glasses of wine. On testifying, the bartender could not remember the night in question or what he had served Phillips or to others at the party. The toxicologist who testified gave the opinion that all the partiers who had continued to drink until 10:00 p.m. would have had a blood alcohol level well above the legal driving limit and would be visibly intoxicated, which was sufficient to create a jury question, because no one was capable of driving. [FN3] The toxicologist further testified that, in his opinion, the perception and judgment of all of the partiers were so affected by their intoxication that they could not determine if Phillips was visibly intoxicated. While intoxicated, Dickens drove Phillips back to work to pick up her car so that she could drive home. While attempting to drive home, Phillips crossed over the centerline and hit *428 the Willbanks and Lawrence vehicle head-on, causing them serious injuries. Phillips has a total memory loss as to that night due to the collision.
FN3. Northside Equities v. Hulsey, 275 Ga. 364, 365, 567 S.E.2d 4 (2002).
Under the Dram Shop Act, if two conditions are met, then the common law of **412 supervening proximate cause is changed and the seller or provider of alcohol can be held jointly liable with the intoxicated driver:
[A] person who willfully, knowingly, and unlawfully 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 ... pe
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