Convenience Stores May Be Liable For Sale of Alcohol Under Dram Shop Act

This case arose out of motor vehicle collision in which six people were killed and several were injured. Approximately four hours before the collision, the driver of one of the vehicles, Billy Joe Grundell, drove with a passenger to a convenience store. Grundell was noticeably intoxicated when he entered the store and purchased a 12-pack of beer. Grundell and his passenger drove off and consumed the beer. Later, Grundell crossed the centerline of a highway and ran head-on into a van going the opposite direction. Grundell’s blood alcohol level at time of the accident was 0.181, twice the legal limit. After the injured passengers brought suit under the dram shop act against the owner of the convenience store, Exprezit! Stores 98-Georgia, LLC (“Exprezit!”), the trial Judge granted summary judgment to Exprezit! and the Court of Appeals agreed.

The Georgia dram shop act provides that a person who 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 that person. Other States, in their dram shop acts, have expressly exempted convenience stores from liability. The Georgia statute, however, does not provide for any express exemption.

In creating an exemption for convenience stores, the Court of Appeals had applied the reasoning of the Georgia Supreme Court in its 2005 decision exempting airlines from liability under the dram shop act. In a lawsuit against Delta, the Supreme Court found that airline passengers generally do not have direct and immediate access to their vehicles after they deplane and the airline has no way of knowing whether any of its passengers will “soon” be operating a vehicle as opposed to remaining at the airport or departing by some other means of transportation. The Court of Appeals found, and Exprezit! argued, that like airlines, convenience stores have no way of knowing if their customers will soon be driving a motor vehicle. Exprezit! also argued that unlike taverns, bars and restaurants, where customers consume alcoholic beverages on the premises, convenience stores are limited in their ability to discern whether their customers are noticeably intoxicated. The Supreme disagreed.

According to the Supreme Court, when a convenience store sells alcoholic beverages to a customer it often has an opportunity to observe how the customer arrived and, conversely, the manner in which he will depart. Therefore, a convenience store may very well know if a customer will soon be driving a motor vehicle. The convenience store seller also has, according the Court, an opportunity to observe the customer to determine if he appears to be noticeably intoxicated.

The issue of what the convenience store operator knows insofar as the level of intoxication of the customer and whether the customer is driving will now always involve a factual determination. Only in cases where the facts are clear that the convenience store had no knowledge, and could have had no knowledge, that the patron was driving or where there is no evidence that the patron was “noticeably intoxicated” will summary judgment be granted to a convenience store in a dram shop case. The focus, according the Supreme Court, is on the convenience store’s knowledge as to whether its customer was noticeably intoxicated and would be driving soon. “If a convenience store sells alcohol to such a customer, it is foreseeable that the customer will drive while intoxicated and injure an innocent third party and if the plaintiff can prove that such sale of alcohol was a proximate cause of any injuries the convenience store will be held liable.”

One unfortunate result of this opinion is that a convenience store cashier now is in the same position as a bartender serving alcohol over the counter in a bar. Both must exercise their judgment as to who is intoxicated and whether or not he or she is driving. Convenience stores should all now closely review their policies on the sale of alcoholic beverages.

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About the Author

Michael Rust graduated from Emory University in 1980 and Emory University School of Law in 1983 where he was Notes and Comments editor of the Emory Law Journal (Law Review). Since that time, he has maintained an active trial practice in the state of Georgia both in State and Federal Courts. Mr. Rust teaches litigation as part of Emory University School of Law’s annual Trial Practice Program. He has received AV rating from Martindale Hubble, the highest rating afforded to lawyers by their peers.