Social Media and the Dram Shop Case

When a drunk driver kills or injures someone as a result of their intoxication, one would think that the fault lies entirely with the person who made the decision to consume alcohol and then get behind the wheel of the car.  They made that bad decision and should suffer all the consequences, right?  Not necessarily . . .

In Georgia, under certain circumstances, the provider of alcohol can be held liable for the damages caused by that drunk driver.  That means that the bar, restaurant or homeowner who provided alcohol to a patron or visitor may find themselves facing lawsuits over the customer or guest at the party who drank too much and drove recklessly as a result.

Like many states, Georgia has enacted legislation providing a cause of action to a person injured by an intoxicated person not only against the intoxicated at-fault party, but also against the person selling or furnishing the beverage that caused the intoxication.  This Code Section (O.C.G.A. § 51-1-40), referred to in Georgia as the Dram Shop Act and passed in 1988, is in derogation of the common law and provides an entirely new basis of liability that did not exist prior to the enactment of that law.  Importantly, it is the exclusive remedy for those seeking to impose liability on a provider of alcohol for damages caused by a driver who consumed the alcohol.  Shin v. Estate of Camacho, 302 Ga. App. 243, 244 (2010).

There are two components necessary to a Dram Shop Act claim in Georgia.  First, the Plaintiff must prove the condition of the other driver that injured him (either underage or in a noticeable state of intoxication).  Second, the Plaintiff must prove the knowledge component of the alcohol purveyor (that the provider knew the person at issue would be driving soon).  Although the body of law arising out of this statute is relatively small, several cases have made their way to the Georgia Supreme Court.  In recent years, the Court has held steady, refusing to enlarge the parameters of the statute to turn the applicable standard into one resembling Georgia law on negligence.

DRAM cases are often challenging to defend.  Cases regularly involve catastrophic injury or death caused by a drunk driver and his alleged supplier, which leads to the precarious combination of juror sympathy and anger, which jury research tells us may result in large adverse verdicts at trial.  Although Georgia requires apportionment of fault, even to non parties, there is no guarantee that a jury will apportion significant fault to the drunk driver over his supplier.

Comprehensive investigation and discovery is a key strategy for successful evaluation, defense and resolution of DRAM claims and actions.

A careful social media search often reveals relevant evidence about the drunk driver, the injured party, and even the Defendant establishment.  It amazes us what people will post publicly on Facebook (or similar) and not remove or filter upon the filing of a lawsuit.  We’ve been able to uncover photos and social media posts from decedents showing potential gang activity, medical conditions not disclosed in discovery, specific references to their level of intoxication on a given night and previous experience/interaction with the Defendant establishment.  We’ve also vetted friends and family of an injured party for anything they might have said about the cause of a wreck.

Just this past winter, we uncovered evidence that the real cause of the car crash may have been a lover’s quarrel wherein a passenger pulled the wheel away from the driver during an argument.  This, combined with uncovering some significant criminal history of the witnesses in the case allowed us to resolve the matter favorably by leveraging these issues during a pre-trial mediation.

We’ve also been successful in vetting the Defendant and getting on top of any negative press, photographs, or social media references regarding the DRAM establishment.  In this tech-savvy era, we must assume not only that the other side will uncover this information but that a juror may disregard the instructions of the Court and seek out information on the Defendant at home in the middle of trial.

Bottom line: social media searches, background checks, and the use of competent private investigators can go a long way towards successful settlement or strengthening of trial strategy in an emotionally charged area of litigation.  Knowing what you’re up against (and showing the other side what they’re up against) can ultimately save you money.

Matthew G. Moffett and Jennifer Guerra – for the defense.

About the Author

Matthew G. Moffett is a civil litigation defense attorney handling cases in both state and federal courts. His legal ability is rated “AV”, as published in Martindale-Hubbell, which is the highest rating afforded to lawyers by their peers. He is listed among the Georgia Super Lawyers in Atlanta Magazine and among the Legal Elite in Georgia Trend magazine.