Can Georgia bars, nightclubs and restaurants be liable for drunk driving accidents? What about party hosts?
When there is a drunk driving accident, the drunk driver might not be the only one held liable. In Georgia, the vendor or individual who provided the alcohol to the drunk driver could also be responsible for some of the victim’s damages.
How is it that a restaurant, bar, club, retail store, or an individual could be held responsible for a person injured by a drunk driver’s negligence?
Victims of intoxicated drivers deserve effective legal representation to properly investigate whether they have a valid claim against the driver as well as the business or host that supplied that driver with alcohol or drugs. By holding such persons accountable, claimants can help make a difference and take drunk drivers off our streets and highways.
Following a drunk driving car accident, it is important to investigate how the driver obtained the alcohol and the vehicle which caused the accident. Injured victims must be vigilant in consulting with experts like Scholle Law to investigate their case to ensure that not only the drunk driver, but also any unlawful supplier of the alcohol, be held financially accountable.
In addition to criminal charges, which can be brought by the state prosecutor against the drunk driver for violating the state’s DUI code, victims of personal injury and property damage can pursue their own civil dram shop or social host liability claims against the licensed business or the private individual who served alcohol to the drunk driver.
What is dram shop law?
Historically, the term “dram shop” refers to a bar, pub, tavern, restaurant, liquor store or other business licensed by the state to sell alcohol. Dram shops also include concert venues, convenience stores, grocery stores, nightclubs and any other business licensed to sell alcohol. The word “dram” means a small measure of alcohol, usually gin.
A dram shop can be held liable for selling alcohol to an underage consumer or to a consumer that was “noticeably intoxicated” if the seller knows that the customer will soon be driving. This rule is referred to as dram shop law, and currently 43 states (and the District of Columbia) have varying types of dram shop laws in effect.
Georgia dram shop law
Georgia’s Dram Shop Act was enacted by the Georgia General Assembly in 1988 to codify the holding of the 1985 Sutter v. Hutchings Georgia Supreme Court decision. The decision in the Sutter vs. Hutchings case held that victims of a drunk driving accident may pursue a cause of action against a social host for serving alcohol to a person who is visibly intoxicated when the social host knew the person would be driving shortly after consuming the alcohol. Although the Sutter case involved an underage drunk driver and a social host, the Georgia General Assembly extended potential liability to other suppliers of alcohol.
Georgia code (section 51-1-40) says that the seller of alcohol can also be held liable — along with the intoxicated driver — if the following statements are true:
- Alcohol was knowingly served to a person under the age of 21, or a person who was obviously intoxicated was served more alcohol, and
- The seller or server knew that the person whom they provided alcohol to would be driving soon
Drunk driving penalties and legal restitution
Driving under the influence is a serious offense in Georgia. Although it is generally classified as a misdemeanor, if the intoxicated driver injures or kills another — including a passenger in his or her own vehicle — then they are usually prosecuted for a felony.
In addition to a criminal charge, the intoxicated driver could face civil liability claims from multiple victims. The victims could be a driver or passenger in another car, a pedestrian or someone injured when the drunk driver struck a building. In addition to personal injury, a drunk driver could be sued for property damage.
The same plaintiffs of personal injury and property damages who sue the impaired driver can also choose to pursue a civil claim against the person or establishment that served an underage driver or that continued to serve a noticeably intoxicated person despite knowing that the patron or guest would soon be driving.
How Georgia’s dram shop law differs from other states
Some states have separate statutes for dram shop liability and social host liability. Georgia, however, combines both theories of liability into a single statutory scheme, regardless of whether the alcohol provider is a business or private individual. That said, different jurisdictions vary greatly on what is required to pursue a civil claim against a dram shop or a social host, and who may pursue a claim.
Drunk driver’s ability to sue an establishment or individual for overserving them
Certain states only permit a civil liability claim against a dram shop if the intoxicated driver was a minor and only for injuries that the underage drinker sustained or that third parties sustained. These states, such as New Jersey and Texas, include the underage drinker as a permitted claimant in a civil action against a dram shop. Therefore, although the minor drank alcohol and violated the state’s drinking age and can be criminally charged by the state, that same minor can sue the establishment that served them alcohol.
In other states, such as New York and here in Georgia, the intoxicated driver is NOT permitted to pursue a dram shop liability claim for injuries they caused by driving under the influence.
Standard of proof for dram shop cases
Of the states with dram shop or social host laws, a majority require that the offending driver be “visibly intoxicated” or “noticeably intoxicated” so as to reasonably put the alcohol provider on notice of the danger. Georgia also follows this majority approach, except with respect to underage consumers.
“Visibly or noticeably intoxicated” can be a difficult standard of proof for a plaintiff pursuing a case months or years later. Memories fade, witnesses move away and evidence disappears.
So how do you show that a driver was visibly or noticeably intoxicated before he or she got behind the wheel?
Some states permit a showing of “significantly uncoordinated physical action or significant physical dysfunction” as the test for visibly intoxicated, while other states have a less demanding test of mere “drunk, loud and vulgar behavior.” Under this latter test, if the driver was intoxicated but quiet and without repulsive behavior, the dram shop would likely not be held liable. Other evidence would have to be established.
Another distinction of Georgia’s Dram Shop Act compared to other states with similar laws is the requirement that the plaintiff pursuing a dram shop liability claim must prove that the dram shop or social host knew that the intoxicated patron or guest would soon be driving, but continued to serve, sell or furnish the alcohol anyways.
How dram shop law works (an exmaple)
To understand more about how Georgia’s dram shop law works, let’s look at an example.
Say a regular patron at a bar is highly intoxicated and tells the bartender that they want one more drink before hitting the road. The bartender pours the drink, despite serving the patron for hours and knowing that he is going to “hit the road” after drinking.
Considering that the patron has never gotten into an accident before, the bartender thinks nothing of Georgia’s over-serving laws. Unfortunately, this is the night when the intoxicated patron gets into his truck and hits another driver head-on. Not only is he injured, but a passenger in the other vehicle is killed. While the drunk driver is personally liable for vehicular homicide due to driving under the influence of alcohol, Georgia law allows the family of the victim to sue the bar for wrongful death.
Because the bartender continued to serve the patron even though he was visibly intoxicated and because there was the knowledge that he was going to drive, a wrongful death claim would hold up in court.
The key to this scenario is that it must be proven that the bartender had knowledge that the patron was going to drive. If the bartender had no knowledge that the man was going to drive, then the bar couldn’t be held liable.
The only time that an alcohol seller or server can be held liable without knowledge that the patron or guest is getting behind the wheel of a vehicle is when that person being served is under 21.
Types of dram shop or social host cases
The Georgia General Assembly did not give direction on how to interpret the state’s Dram Shop Act. For this reason, it’s best to consult with an attorney who is experienced in dram shop and social host liability law in order to determine whether your specific case meets the required standards.
You might have a dram shop or social host liability case in Georgia if you were injured in a drunk driving accident and any of the following statements are true:
Case #1: A minor was sold, furnished or served alcohol
In dram shop cases involving adults, a victim (or the family of the victim in the case of a wrongful death) must prove that the alcohol server or provider knew that the person they were serving would be driving shortly after the provision of alcohol.
However, in the case of dram shop cases involving an underage driver, the victim is NOT required to prove that the dram shop or social host had actual knowledge that the underage consumer was, in fact, getting ready to get behind the wheel. “Knowledge,” of course, is subjective. The plaintiff can establish knowledge through circumstantial evidence.
One possible defense a dram shop or social host can argue is that it was furnished with, and acted in reliance on, a false or fake ID provided by the minor. This defense can raise a presumption that the dram shop or social host did not knowingly serve the underage consumer. To counter this defense, the plaintiff (victim) or their attorney will need to rebut this presumption with evidence to the contrary.
Case #2: A person of lawful drinking age was sold, furnished or served alcohol when “noticeably intoxicated”
Another possible claim under Georgia’s Dram Shop Act relates to provision of alcohol to a person 21 years of age or older who was “noticeably intoxicated.” As mentioned above, the term “visibly or noticeably intoxicated” is a difficult standard to prove. Georgia case law holds that a plaintiff can prove that an adult consumer was “noticeably intoxicated” by providing evidence of the adult consumer’s loud and obnoxious behavior at the time in question.
Georgia doesn’t require direct evidence of “knowledge,” as this would be impossible in many cases. Georgia requires only that the plaintiff in a dram shop liability action prove that the defendant should have known or have been aware that the consumer was noticeably intoxicated.
The Georgia Supreme Court has held that one method to prove the “noticeably intoxicated” standard is to have experts testify regarding the behavior and physical characteristics typically demonstrated by a person with certain blood alcohol content (BAC).
In Northside Equities v. Hulsey (275 Ga. 364, 2002), the Georgia Supreme Court held that the BAC level of a drunk driver at the scene of the accident, combined with expert testimony on how an average driver with that level of impairment might act, can suffice to prove the adult consumer was noticeably intoxicated when the dram shop or social host provided alcohol. Georgia courts have held that a person’s BAC level alone isn’t enough to prove that the adult consumer should have been “noticeably intoxicated.”
In addition, in Shin v. Estate of Camacho (302 Ga. App. 243, 2010), the Georgia Court of Appeals clarified that the tortious provision of alcohol to an adult must take place after the dram shop or social host was aware that their patron or guest was noticeably intoxicated. In this case, the intoxicated defendant got in a fight with another guest at the social party, after which the social host did not serve the adult with any more alcohol. As a result, the court ruled that the defendant could not be held liable under the Georgia Dram Shop Act.
This Georgia Court of Appeals decision interprets the Act to read that a dram shop or social host must sell, furnish, serve or provide alcohol to the “soon to be” driver after they became (or should have become) aware that the driver was already noticeably intoxicated.
Georgia courts require plaintiffs to show that the dram shop or social host should have known the consumer would soon be driving. If this standard can be proven, the dram shop or social host will be considered to have that knowledge and therefore civilly liable for injuries, death or damages.
Proximate causation & damages after a drunk driving accident
Proof of proximate causation and damages are also required in all civil tort claims. Georgia courts require proof that the act for which the defendant should be held liable was the proximate cause of the injury or damage to the plaintiff. Proximate cause is the event that can be linked to the cause of an injury.
Georgia’s Dram Shop Act is clear on the requirement that there must be an injury, death or damage resulting from the acts of an intoxicated person in order to hold a dram shop or social host liable. The law states that the business or person who provided the alcohol or drugs will be “[liable] for the injury, death or damage caused by or resulting from the intoxication of the person, including injury or death to other persons.”
This statute clarifies that the dram shop or social host will only be liable if the injuries, death or damage to the plaintiff pursuing the dram shop liability action were the proximate cause of intoxication of the drunk driver. The dram shop or social host will not be liable under Georgia law if there were no injuries, death or damages resulting from the drunk driver.
Dram shop FAQ: commonly asked questions
Can social hosts be held liable for their guests’ drunk driving?
Social host liability refers to the civil liability of a person (including a business) who hosts a social engagement or a private event where that host serves or furnishes alcohol. Georgia’s dram shop laws also hold social hosts responsible. In other words, if John serves alcohol to his friends knowing that they are going to drive once the party is over, he could be held liable for any accidents that occur.
If a host serves an underage individual, or they serve an adult who is “noticeably intoxicated” and they know (or should know) that the person is likely to be driving shortly thereafter, the host can be liable to third parties who are consequently injured by the intoxicated individual. A social host may be someone who is hosting a party, holiday event, tailgate party, business event or other gathering in a private setting where drinks are provided on a gratuitous basis.
It’s worth noting, however, that the person who owns the property where the underage or noticeably intoxicated driver was sold, furnished or served alcohol is not necessarily the same person who can be sued under Georgia’s dram shop law. Homeowners who weren’t present when another person hosted a social engagement at their home, or homeowners who were present but didn’t consent to selling, furnishing or serving alcohol to a minor or a noticeably intoxicated guest 21 years of age or older, are protected and can’t be held liable.
What damages can be sought from dram shop cases?
The exact damages that injured parties or their families can seek from dram shops and social hosts vary based on the law and the details of the accident. The dram shop or host is typically named in the lawsuit with the person who caused the accident. It’s common to seek compensation for medical expenses, property damage, current and future lost wages due to time missed at work, and pain and suffering.
Families that have lost a loved one can make a wrongful death claim against all involved parties so they can recover monetary compensation for medical expenses, funeral costs, and loss of support if the victim was a provider.
Of course, there must be evidence to support the claim. This includes witness statements and video footage. Having these pieces of evidence strengthens the claim and can help maximize the amount of compensation secured by your lawyer.
Who can file a dram shop or social host liability lawsuit?
There are several possible claimants in a dram shop or social host liability action. The most obvious is the person who was injured by the intoxicated or impaired driver. This individual could claim personal injuries suffered in the accident as well as property damages. If the victim died due to the accident or from injuries sustained in the accident, the family of the victim, or the victim’s estate, could bring a wrongful death claim.
Also, passengers in any car, whether or not their driver was drunk, can claim damages. If the passenger was in the vehicle of the intoxicated driver, some states permit the dram shop defendant to raise an “assumption of risk” defense. This defense seeks to reduce or eliminate damages because the passenger is deemed to have assumed the risk of injuries or death by virtue of that passenger’s choice to ride with an intoxicated driver.
As previously stated, Georgia’s Dram Shop Act prevents any dram shop or social host liability actions to be filed by the drunk driver, and family members of the drunk driver are also prevented from filing a dram shop or social host liability action on behalf of the drunk driver.
How can I prove a dram shop claim in Georgia?
Pursuing a dram shop or social host liability action in Georgia can be difficult, as there are multiple evidentiary requirements in both types of claims. The 4 required elements necessary to prove a dram shop or social host liability claim in the state of Georgia are as follows:
- The dram shop or social host must have willfully and unlawfully sold, furnished or served alcohol to a person not of the lawful drinking age OR knowingly sold, furnished or served alcohol to a person of lawful drinking age that was noticeably intoxicated;
- The dram shop or social host must have known that the intoxicated or underage person would soon be driving a motor vehicle;
- The sale, furnishing or serving of alcohol must have been the proximate cause of injury or damage to the person seeking the dram shop claim; and
- The claimant must establish some form of injury, death or damage caused by the motor vehicle accident.
If any one of these requirements is unmet, or if the plaintiff is unable to provide evidence with respect to any of these requirements, then the victim will lose and the dram shop or social host will not be held liable.
For example, if a bartender serves alcohol to a minor and the minor doesn’t drive, the bar cannot be held liable under Georgia’s Dram Shop Act. The bartender could still face criminal charges for serving alcohol to a minor; however, a civil action won’t be possible.
What are possible defenses to dram shop and social host liability?
A dram shop or social host can avoid liability under a civil action involving a drunk driver 21 years of age or older if they provide evidence that the consumer didn’t indicate that he or she would soon be driving. Georgia case law has held that it is an acceptable defense to provide evidence that:
- The consumer put away his or her keys to a motor vehicle when asked to
- There was no evidence that the consumer drove to the dram shop or social engagement
- There was no reason for the dram shop or social host to believe the consumer would soon be driving away
Another part of the Act provides a defense to the dram shop or social host when a case against an underage driver is pursued. If the dram shop or social host can prove it was furnished with and acted in reliance on a fake ID tendered by the underage consumer, this shall be rebuttable proof that the alcoholic beverages were not furnished, sold or served to the underage consumer willfully, knowingly and unlawfully.
Georgia’s Dram Shop Act further clarifies that the person who owns the property where the underage or noticeably intoxicated consumer was sold, furnished or served alcohol is not necessarily the same person who can be held liable under a dram shop or social host liability action. Only if the owner of the premises is present and consents to sell, furnish or serve alcohol to the minor or adult consumer can the owner be liable under the Georgia Dram Shop Act.
One important exception is if a business is licensed to sell alcohol, then the owner of the premises can still be liable under the Georgia Dram Shop Act, regardless of whether or not the owner of the premises was present and gave consent.
For example, if the hypothetical Bars Corporation owns several bars in the Atlanta area that all are licensed to sell alcohol, this business entity can be held liable regardless of whether or not there was presence and consent of Bars Corporation to sell, furnish or serve alcohol to a minor or noticeably intoxicated consumer.
If, however, John is the owner of a home where Jill furnished, sold or served alcohol to a minor and John was neither present nor did he give his consent, then he could not be held liable. Jill, however, could be held liable under the social host theory of the Georgia Dram Shop Act.
What damages are recoverable in a dram shop liability claim?
In addition to being criminally charged with a misdemeanor for serving alcohol to a minor under the Georgia Criminal Code, the dram shop or social host can be financially responsible for compensatory and punitive damages under the Georgia Dram Shop Act.
In such cases, the accident victim will be able to recover compensation for compensatory damages including past present and future medical expenses, loss of income and pain and suffering. If the victim suffers from some type of disability or impairment, this can also be compensable. If the victim’s personal property was damaged as a result of the intoxicated driver’s actions, such as their vehicle or phone, they can recover compensation for these losses as well.
In addition to compensatory damages, Georgia and some other states permit the recovery of punitive damages in dram shop cases. Punitive damages are intended to punish the wrongdoer, as well as to deter the offender or others from engaging in this sort of behavior in the future.
Georgia law generally places a cap on punitive damages in the amount of $250,000. However, when alcohol or drugs are material to the negligent conduct, this $250,000 cap is waived and the amount of punitive damages recoverable is not subject to statutory limitation.
In other words, when it comes to drunk or drugged driving cases (including dram shop and social host liability claims), there is no cap for punitive damages in Georgia.
For a wrongful death resulting from a drunk driver, under Georgia’s Dram Shop Act the family of the victim can recover compensation for the loss of the life of the loved one, loss of income, loss of services, loss of consortium or parental consortium, as well as medical and other expenses incurred from the time of injury to the time of death. Funeral expenses and other estate costs are also recoverable. Punitive damages are generally not recoverable in a wrongful death action.
Are dram shop cases covered by insurance?
One limitation of Georgia’s dram shop law is the absence of any requirement that a business licensed to sell alcohol have specific liability insurance which would pay damages for a dram shop liability claim. Unlike drivers who are required to maintain minimum liability auto insurance, a dram shop can sell, serve and furnish alcohol without any insurance to pay for damages caused by the intoxication of their customers.
While most businesses have general liability insurance protecting them if a customer falls in their restaurant or if a fire or flood occurs, such insurance typically excludes dram shop liability. Therefore, a business must purchase an additional (and optional) “alcohol liability rider” to cover these claims.
Ultimately, this means that if the business doesn’t have insurance, then the victim may never recover for damage — even if the establishment is found liable by a Georgia court. This is because the business may not have the financial ability to pay the damages awarded to the victim. Further, if the victim was killed in the DUI accident, the family of the loved one and the estate may never recover for wrongful death damages awarded by a jury.
Fortunately, most reputable establishments that are licensed to sell alcohol take it upon themselves to procure alcohol liability insurance, particularly those that are corporately-owned and operated.
Why contact a Georgia car accident attorney?
One reason why it’s important to not deal with drunk driving car accident claims on your own is that settlements can be too low. Rest assured that the defendant — whether it’s a business, an insurance company or an individual — will do everything in their power to get by with the lowest settlement possible. You need something more meaningful so the monetary damages caused by the accident are less crippling, allowing you and your family to move toward healing without worrying about expenses.
What’s more, Georgia’s Dram Shop Act is the exclusive remedy an injured third party has against the dram shop or the social host that provided alcohol to the intoxicated driver. For this reason, you need an experienced attorney representing you in your personal injury lawsuit. Scholle Law can counsel you in pursuing a dram shop or social host liability claim and assisting you in bringing justice for the injuries to your family member or the loss of your family member.
Schedule your free consultation with a top-rated Atlanta personal injury lawyer
When you’ve been the victim of a drunk driver or you have lost a family member because someone was intoxicated behind the wheel, it’s important to consult with an Atlanta car accident lawyer as soon as possible. This is not something you should ever have to deal with on your own. Instead, you can have a powerful personal injury lawyer in your corner to guide, advise, and fight for fair compensation. Georgia residents can contact Scholle Law Firm today and talk to a lawyer who will fight for their rights.
As a former member of the Executive Steering Committee and financial supporter of Mothers Against Drunk Driving (MADD), Charles Scholle is a strong advocate for victims injured in drunk driving accidents. Scholle Law exclusively represents drunk driving victims and their families — we do not defend drunk drivers.
Drunk driving and underage drinking is a crisis in Georgia. As personal injury lawyers with over 20 years of experience, we have seen the tragic consequences of drinking and driving in the lives of our clients and friends. We have represented dozens of injured plaintiffs across Georgia, the Southeast and in several other states. We are respected authorities in the area of dram shop and social liability litigation.