friday, october 25, 2019 - state bar of georgia · 10:45 criminal prosecution of dui tragedies &...

Friday, October 25, 2019

Sponsored By: Institute of Continuing Legal Education

7.5 CLE Hours

CIVIL PROSECUTIONS OF DUI ANDDRAM SHOP CASES IN GEORGIA

ICLE: State Bar Series

0.5 Ethics Hour |5 Trial Practice Hours

Copyright © 2019 by the Institute of Continuing Legal Education of the State Bar of Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE.

The Institute of Continuing Legal Education’s publications are intended to provide current and accurate information on designated subject matter. They are offered as an aid to practicing attorneys to help them maintain professional competence with the understanding that the publisher is not rendering legal, accounting, or other professional advice. Attorneys should not rely solely on ICLE publications. Attorneys should research original and current sources of authority and take any other measures that are necessary and appropriate to ensure that they are in compliance with the pertinent rules of professional conduct for their jurisdiction.

ICLE gratefully acknowledges the efforts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily reflect the opinions of the Institute of Continuing Legal Education, its officers, or employees. The faculty is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. This publication was created to serve the continuing legal education needs of practicing attorneys.

ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiring a competent attorney or other professional. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

Although the publisher and faculty have made every effort to ensure that the information in this book was correct at press time, the publisher and faculty do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause.

The Institute of Continuing Legal Education of the State Bar of Georgia is dedicated to promoting a well organized, properly planned, and adequately supported program of continuing legal education by which members of the legal profession are afforded a means of enhancing their skills and keeping abreast of developments in the law, and engaging in the study and research of the law, so as to fulfill their responsibilities to the legal profession, the courts and the public.

Printed By:

Who are we?

SOLACE is a program of the State Bar of Georgia designed to assist

those in the legal community who

have experienced some significant,

potentially life-changing event in their

lives. SOLACE is voluntary, simple and

straightforward. SOLACE does not

solicit monetary contributions but

accepts assistance or donations in kind.

Contact [email protected] for help.

HOW CAN WE HELP YOU?

How does SOLACE work?

If you or someone in the legal

community is in need of help, simply

email [email protected]. Those emails

are then reviewed by the SOLACE

Committee. If the need fits within the

parameters of the program, an email

with the pertinent information is sent

to members of the State Bar.

What needs are addressed?

Needs addressed by the SOLACE

program can range from unique medical

conditions requiring specialized referrals

to a fire loss requiring help with clothing,

food or housing. Some other examples

of assistance include gift cards, food,

meals, a rare blood type donation,

assistance with transportation in a

medical crisis or building a wheelchair

ramp at a residence.

A solo practitioner’s

quadriplegic wife needed

rehabilitation, and members

of the Bar helped navigate

discussions with their

insurance company to obtain

the rehabilitation she required.

A Louisiana lawyer was in need

of a CPAP machine, but didn’t

have insurance or the means

to purchase one. Multiple

members offered to help.

A Bar member was dealing

with a serious illness and in

the midst of brain surgery,

her mortgage company

scheduled a foreclosure on

her home. Several members

of the Bar were able to

negotiate with the mortgage

company and avoided the

pending foreclosure.

Working with the South

Carolina Bar, a former

paralegal’s son was flown

from Cyprus to Atlanta

(and then to South Carolina)

for cancer treatment.

Members of the Georgia and

South Carolina bars worked

together to get Gabriel and

his family home from their

long-term mission work.

TESTIMONIALSIn each of the Georgia SOLACE requests made to date, Bar members have graciously

stepped up and used their resources to help find solutions for those in need.

The purpose of the SOLACE program is to allow the legal community to provide help in meaningful and compassionate ways to judges, lawyers,

court personnel, paralegals, legal secretaries and their families who experience loss of life or other catastrophic illness, sickness or injury.

Contact [email protected] for help.

iiiFOREWORD

Dear ICLE Seminar Attendee,

Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and eff orts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable.

We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be benefi cial as well as enjoyable We think that these program materials will provide a great initial resource and reference for you.

If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a diff erent legal interpretation/opinion from the speaker’s, the appropriate way to address this is by contacting him/her directly.

Your comments and suggestions are always welcome.

Sincerely, Your ICLE Staff

Jeff rey R. DavisExecutive Director, State Bar of Georgia

Michelle E. WestDirector, ICLE

Rebecca A. HallAssociate Director, ICLE

Presiding:Brian D. “Buck” Rogers, Program Co-Chair; Fried Rogers Goldberg LLC, Atlanta, GAJohn A. Houghton, Program Co-Chair; The Houghton Law Firm LLC, Atlanta, GA

FRIDAY, OCTOBER 25, 2019

7:30 REGISTRATION AND CONTINENTAL BREAKFAST (All attendees must check in upon arrival. A removable jacket or sweater is recommended.)

8:00 WELCOME AND PROGRAM OVERVIEW Brian D. “Buck” Rogers, Fried Rogers Goldberg LLC, Atlanta, GA

8:15 HINDSIGHT IS SOMETIMES 20/20: ANALYZING IMPAIRMENT EVIDENCE IN DIFFICULT CASES, RETROGRADE EXTRAPOLATION, & OTHER TECHNIQUES AND TECHNOLOGIES THAT YOUR EXPERT WILL NEED

Matt W. Myers, MPA, President, 7 Arrow Forensics, Atlanta, GA

9:00 EYES ON THE ROAD: PROVING NOTICEABLE INTOXICATION, NAVIGATING PITFALLS, & USING SERVSAFE PROCEDURES TO ESTABLISH RULES OF THE ROAD

John A. Houghton, The Houghton Law Firm LLC, Atlanta, GA

9:45 BREAK

10:00 NUTS & BOLTS OF DUI INJURY CASE AND VITAL EVIDENCE IN ESTABLISHING A DRAM SHOP CLAIM Harrison W. Spires, The Simon Law Firm PC, Atlanta, GA

10:45 CRIMINAL PROSECUTION OF DUI TRAGEDIES & ETHICAL CONSIDERATIONS ON THE SYMBIOTIC RELATIONSHIP BETWEEN CRIMINAL & CIVIL CASE: PERSPECTIVE FROM A FORMER DA AND CURRENT PLAINTIFF LAWYER

Robert D. James, Jr., Daniels & James LLC, Atlanta, GA

11:15 NARROWING YOUR FOCUS FOR TRIAL: EFFECTIVE STRATEGIES FOR CONDUCTING FOCUS GROUPS Bradford W. “Brad” Thomas, Fried Rogers Goldberg LLC, Atlanta, GA

12:00 LUNCH (Included in registration fee.)

viiAGENDA

12:30 VIEW FROM EVERY ANGLE: A MEDIATOR’S PERSPECTIVE ON THE PRESSURE POINTS FOR SETTLEMENT IN PROSECUTING, DEFENDING & MEDIATING DRAM

SHOP CLAIMS Nicholas C. “Nick” Moraitakis, Moraitakis & Kushel LLP, Atlanta, GA

1:15 PROVING ABOUT TO DRIVE IN DRAM SHOP CASES AND MAXIMIZING THE VALUE OF PUNITIVE DAMAGES IN IMPAIRMENT CASES

Daniel A. “Danny” Ragland, Ragland Law Firm, LLC, Atlanta, GA

2:00 BREAK

2:15 MADD UPDATES Denise Blake, Executive Director, Mothers Against Drunk Drivers, Atlanta, GA

2:30 OVERCOMING MISSING EVIDENCE & MISSING COVERAGE: ESTABLISHING THE DRAM SHOP CLAIM IN THE ABSENCE OF BOTH BAC AND SURVIVING PARTIES + FUTURE LEGISLATIVE CONSIDERATIONS

Brian D. “Buck” Rogers, Fried Rogers Goldberg LLC, Atlanta, GA

3:15 THE ROAD AHEAD: THE INAPPLICABILITY OF APPORTIONMENT IN DRAM SHOP CASES AND OTHER MOTION PRACTICE CONSIDERATIONS

David J. Hungeling, Law Office of David J. Hungeling PC, Atlanta, GA

4:00 GET THE MOST OUT OF YOUR FORENSIC TOXICOLOGIST – UTILIZING YOUR EXPERT FOR MAXIMUM IMPACT AT TRIAL

Elizabeth L. Fite, Rogers & Fite LLC, Atlanta, GA

4:45 ADJOURN

ixTABLE OF CONTENTS

Page ChaPter

Foreword .............................................................................................................................................................. v

Agenda ............................................................................................................................................................... vii

Hindsight Is Sometimes 20/20: Analyzing Impairment Evidence In Difficult Cases,Retrograde Extrapolation, & Other Techniques And TechnologiesThat Your Expert Will Need......................................................................................................................... 1-5 1 Matt W. Myers, MPA

Eyes On The Road: Proving Noticeable Intoxication, Navigating Pitfalls, &Using Servsafe Procedures To Establish Rules Of The Road......................................................... 1-26 2 John A. Houghton

Nuts & Bolts Of DUI Injury Case And Vital Evidence InEstablishing A Dram Shop Claim............................................................................................... NO MATERIALS 3 Harrison W. Spires

Criminal Prosecution Of DUI Tragedies & Ethical ConsiderationsOn The Symbiotic Relationship Between Criminal & Civil Case:Perspective From A Former DA And Current Plaintiff Lawyer......................................... NO MATERIALS 4 Robert D. James, Jr.

Narrowing Your Focus For Trial: Effective StrategiesFor Conducting Focus Groups................................................................................................................... 1-8 5 Bradford W. “Brad” Thomas

View From Every Angle: A Mediator’s Perspective On The Pressure PointsFor Settlement In Prosecuting, Defending & Mediating Dram Shop Claims......................... 1-46 6 Nicholas C. “Nick” Moraitakis

Proving About To Drive In Dram Shop Cases And MaximizingThe Value Of Punitive Damages In Impairment Cases...................................................................... 1-5 7 Daniel A. “Danny” Ragland

MADD Updates................................................................................................................................................. 1-8 8 Denise Blake

Overcoming Missing Evidence & Missing Coverage: Establishing The Dram Shop Claim In The Absence Of Both Bac And Surviving Parties + Future Legislative Considerations................................................................................................................................. NO MATERIALS 9 Brian D. “Buck” Rogers

The Road Ahead: The Inapplicability Of Apportionment In Dram Shop CasesAnd Other Motion Practice Considerations....................................................................................... 1-33 10 David J. Hungeling

Get The Most Out Of Your Forensic Toxicologist – Utilizing Your ExpertFor Maximum Impact At Trial..................................................................................................... NO MATERIALS 11 Elizabeth L. Fite

Appendix:ICLE Board ............................................................................................................................................................ 1 Georgia Mandatory ICLE Sheet .................................................................................................................... 2

Hindsight Is Sometimes 20/20: Analyzing Impairment Evidence In Difficult Cases, Retrograde Extrapolation,& Other Techniques And Technologies That Your Expert Will NeedPresented By:

Matt W. Myers, MPA7 Arrow ForensicsAtlanta, GA

STATE BAR SERIES

COLLECTING, INTERPRETING, AND USING EVIDENCE OF INTOXICATION IN CIVIL PROSECUTION

OF DUI AND DRAM SHOP CASES

Matthew W. Myers, M.P.A. 7 Arrow Forensics Peachtree City, GA

678-516-6292 [email protected]

TABLE OF CONTENTS Glossary.……..…………………………………………………………………………………..………………………………………..1 Alcohol Absorption, Distribution, & Elimination……….…………………………………………………………….….1 Retrograde Extrapolation of Alcohol Concentration……………………………………………………………………2 Retrograde Extrapolation of Dose.…….……………………………………………….………………………………………2 Forward Extrapolation of Alcohol Concentration……………………………….…………………………………….…3 Assessing Driver Behavior……..…………………………………………………………………………………………………...3 Course Abstract: This 45-minute presentation will serve as a brief primer on alcohol pharmacology for legal professionals, and how evidence from a dram shop and/or an impaired driving investigation by law enforcement may be useful in establishing evidence regarding a person’s sobriety and alcohol concentration. ©2019 Seven Arrow Forensics, LLC All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other means without prior written permission of the author. All copyrighted materials referenced or used in this presentation are used for educational purposes only pursuant to the Fair Use Doctrine, 17 U.S.C. 10

Chapter 1 1 of 5

A. GlossaryofTerms(asusedinthisdocument)1. Alcohol:ethylalcohol,alsoknownasethanolor“drinkingalcohol”2. BAC:BystrictdefinitionthisacronymmeansBloodAlcoholConcentration,but

willbeconsideredfunctionallyequivalenttoBrAC(BreathAlcoholConcentration)inthelegalcontextofthisdocument.Forsimplicity,BACwillbeexpressedasa2-3decimalplacenumber,withtheassumedunitsofg/dlofbloodorg/210Lofbreath.

3. Elimination:theprocessofmetabolizingandremovingethanolfromthebody.Ratesofeliminationarediscussedinunitseliminatedperhour:g/dl/hrforbloodorg/210L/hrofbreath.

B. AlcoholAbsorption,Distribution,andElimination:1. Absorption: Assuming oral consumption, absorption of ethanol begins in the

stomach,whereanotableportionofthedoseisabsorbedthroughthestomachliningandquicklyreachesthebloodstream.Theremaindermustpassthroughthepylorus(valveat thebottomof thestomach)andbeabsorbed through thesmallintestine.Consumptionoffoodmayimpactabsorptionofethanolbyslowingtherateatwhichthepylorusopens.FoodconsumptionmayreducethemaximumBACachieved,butdoesnotsignificantlydelaypeakBAC.

2. Distribution: Alcohol is hydrophilic (dissolves in water), and thus distributespreferentiallyintotissuesofthebodythatcontainasignificantamountofwater(e.g.blood,brain,etc).Totalbodywateristhereforeanimportantconsiderationwhenexamining forwardextrapolatedBACswithbiometricassumptions,or incaseswhere consumption volume is estimated based upon a known BAC andbiometricassumptions.Varioustheoriesaddressthismatterindifferentways,e.g.Widmark,Forrester,etc.

3. Metabolism&Elimination:Theprimarymetabolismofethanoltakesplaceintheliver,whereethanolissubjectedtoachemicalreactionthatultimatelyresultsinit being converted primarily to carbon dioxide and water (which are easilydisposed of by the body). This process is aided by an enzyme called alcoholdehydrogenase (ADH). Chronic alcohol use increases alcohol elimination rate,oftenbyasubstantialmargin,eveninalcoholicswithliverdisease.Consumptionoffoodmaymodestlyincreasetherateofalcoholelimination,butthereislittleevidencethatitwouldbetoaforensicallyrelevantextent.Abroadlyacceptedruleof thumbforalcoholeliminationsuggestsBACfallsatapproximately .015gperhour.Eliminationratescanvarysignificantlybetweensubjects,rangingfrom.01gin somesubjects, suchas thosewith severehepatic impairment, to levelsover.025g per hour for heavy chronic drinkers. It should be noted that apparenteliminationrateslessthan.01aretypicallyanartifactofcalculationsthatincludedaninitialBACmeasuredwhenthedrinkerwasstillabsorbingalcohol.

4. Summary of Alcohol Pharmacokinetics in Drinking Drivers: Many studies ofalcoholpharmacokineticsincludepracticesthatdiffersignificantlyfromwhatcanbeexpectedinanaveragedrinkingdriver.Forexample,manypublishedarticles

Chapter 1 2 of 5

include intravenous dosing or large single doses, which may yield very longabsorptiontimes-butvarysignificantlyfromcommonsocialdrinkingpatterns.Avarietyofstudiesareavailablethatdrawdatafromactualimpaireddrivingcases,post mortem samples, multiple blood/breath samples from arrested drivers,observationsofactualdrinkingpatterns,and/orsimulationsofrealisticdrinkingsessions.Thevastmajorityofresearchexaminingsocialdrinkingscenariosfindsthat intoxicateddrivers arenot generally in the risingphaseof theBAC curvewhentested.ThisisvitallyimportanttotheforensicapplicationofretrogradeBACextrapolation.ExaminationofsocialdrinkingscenariosalsorevealsthatpeakBACistypicallyreachedlessthan15minutesaftertheendofthedrinkingepisode,andthe average elimination rate found in actual drinking drivers tends to exceedaccepted general population averages – e.g. drinking driver studies averageapproximately.02/hrratherthanapproximately.015/hr.

C. RetrogradeExtrapolationofBAC:Itissometimespossibletoestimateaperson’sBACatapointintimepriortowhenatestwasadministered.Thisprocesscanbeundertakenwithcredibilitywhenthefollowingconditionsaremet:

1. Resultsarereportedforarangeofeliminationrates,astheactualeliminationrateofthesubjectisrarelyknown.Reportinganestimatedrangeusingscenariosfor.01/hr,.015/hr,and.025/hrisgenerallyacceptedpracticeforthispurpose.

2. The target concentrations arehighenough that elimination follows zeroorderkinetics(e.g. .015/hr)ratherthanfirstorder(i.e.decreasesareproportionaltolevel).

3. Thesubjectmustbepost-peak,andshouldideallybepost-absorbtive,bothatthetimeofsamplecollectionandatthepriorpoint intimeforwhichanestimatedalcoholconcentrationisdesired.Ifthesubjectisnotpost-absorbtiveatthetargettime,theapparenteliminationratecouldbelessthan.01andactualtargetBACmaynotbeincludedinestimationsusingthecommoneliminationrangeof.01-.025/hr.Anexpertwitnessshouldbeconsultedonthepotentialimplicationsofthisfactoronacase-by-casebasis.

D. RetrogradeExtrapolationofDose:IfanearlierBACcanbeestimated,itisalsopossibleto estimate an approximatedoseof alcoholnecessary to reach that level – subject toseveralassumptions.

1. Therequirements/assumptionsrequiredaboveforRetrogradeExtrapolationofBACremainthesame.

2. Itmustadditionallybeassumedthataweightand“volumeofdistribution”areknown for the subject –meaning itmust be known approximately howmuchwaterisintheirbody.

a) Numerous studies have examined average volumes of distribution formenandwomen,withconventionallyacceptedaveragesof .7L/kgformenand.6L/kgforwomen.

b) SomemodelsforestimatingBACinsuchscenariosrecommendtheuseofspecificbiometricdata(orestimations),suchasheight/weight,age,

Chapter 1 3 of 5

and gender.However, research indicates thesemodels do not tend toresultinsignificantimprovementsoverthegenerallyacceptedvolumeofdistribution averages. Theymay be ofmore value in caseswhere thesubjectisofsignificantlyabnormalphysicalcomposition.

E. ForwardExtrapolationofBAC:Givenaparticulardrinkingscenario, it issometimespossible toestimateBACata futurepoint in timebaseduponthedoseandbiologicalvariables of the drinker. These calculations are subject to the samerequirements/assumptionsdetailedabove,andafewadditionalconsiderations.

1. Drinkingscenarioscanbecomplexandtakeplaceoveraprolongedperiodoftime.Formulasformakingsuchcalculationsaregenerallyconstructedtoworkbaseduponasingledoseofalcohol.However,ifthedrinkingscenarioassumesthattheperson never completely eliminated the consumed alcohol, the quantityconsumedcanbeconsideredasingledoseforthesepurposes.Litigatingattorneysshould strive to obtain as much information as possible about the drinkingepisodetoaidindevelopingthebestestimation.

2. The same questions of biological variability between subjects remains, butresearch indicates that the use of average volume of distribution variablesgenerallyworkaswellasmorecomplexmodels.Again,casesofunusualphysicalcompositionmaybenefitfromalternatemethods.

F. AssessmentofBehaviors:Evidenceofintoxicatedorimpaired/intoxicatedbehavioristypicallythecruxofalcohol-relatedcivilcases,butsuchevidencemayoftenbedifficult,or impossible, to gather directly. Attorneys should consider several challenges andopportunitiesthatmayproveimpactfultothissituation.

1. Servingestablishmentsmayhavevideo that reflects customerbehaviorduringtheir visit, which may be vitally important to litigating decisions made aboutalcoholservice.

2. Witnessestestimonymaybeofuseindevelopingevidenceofaperson’sbehavioratthedrinkingestablishment.However,litigantsshouldconsiderthatintoxicatedpeople may not accurately assess another person’s sobriety. Furthermore,witnessesmayunderreportsubjectiveperceptionsofintoxicationwhentheyareunfavorable to peoplewithwhom they are familiar. The credibility ofwitnesstestimony should be scrutinized closely, particularly when there is scientificevidencethatsuggestsdifferently.

3. Whenthereislackingevidenceofbehaviorfromaservingestablishment,theremay still bewell documented evidence of behaviors from a subsequent policeinvestigation. A forensic blood or breath alcohol concentration may also beavailable, and helpful in reconstructing a range of expectations. It may bebeneficial to consultwith an expert to determine if behaviors at the time of afuturepolice investigationmayberelevanttoassessingbehaviorsatanearlierpointintimeaswell.

Chapter 1 4 of 5

4. Althoughmanyservingestablishmentslacksurveillancevideo,thevastmajorityare capable of reproducing itemized receipts for particular patrons, givensufficientinformationtoidentifythetransaction(s).

a) Many police agencieswill routinely gather this information as part oftheir investigation, but that effort is significantly diminished in caseswhere the at-fault driver is deceased, the establishment is in anotherjurisdiction,orresourcesfortheagencyareverylimited.

b) Anitemizedreceipt,alongwithreasonableassumptionsofatimelineandthephysiologyofthesubject,mayassistanexpertwitnessindevelopinginformation regarding thedrinker’s level of sobriety andapproximatealcohol concentration. The witness should acknowledge necessaryassumptionsandlimitationsofprojectedscenarios.

c) Caution:estimatingBACduringadrinkingepisodeisachallenginganddubious process, subject to greater error than other methods ofextrapolating BACs. However, extrapolated BACs can still be useful indeveloping reasonable inferences about expected behaviors -particularlywhenaccompaniedbyaforensicalcoholtestadministeredlater.

d) When information is available about the consumed products,consideration should be given to actual alcohol consumed during thedrinking episode in light of other commonlyunderstooddosingunits.Thegeneralpopulation,andevenmanyinthelegalprofession,tendtolackthoroughunderstandingofalcoholcontentinbeveragesandhowitrelates to more familiar scenarios. Visual aids may be of use indemonstratingsuchscenarios[Examplestobeshowninclass].

e) When comparing manifestations of intoxication at a later time asindicatorsofearlierbehaviors,oneshouldbecautious toconsider thepotential for acute tolerance (aka Mellanby Effect). In summary, thisprincipleindicatesthatapersonwillgenerallyexhibitmorepronouncedoutwardsignsof intoxicationwhen theirBAC is rising thanwhen it isfalling(i.e.earlyindrinkingepisodeversuslateinthesameepisode,evenifcomparedBACsarethesame).

©2019 Seven Arrow Forensics, LLC All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other means without prior written permission of the author. All copyrighted materials referenced or used in this presentation are used for educational purposes only pursuant to the Fair Use Doctrine, 17 U.S.C. 107

Chapter 1 5 of 5

Eyes On The Road: Proving Noticeable Intoxication, Navigating Pitfalls, & Using Servsafe Procedures To Establish Rules Of The RoadPresented By:

John A. HoughtonThe Houghton Law Firm LLCAtlanta, GA

STATE BAR SERIES

EYES ON THE ROAD:

PROVING THE ELEMENTS OF GEORGIA DRAM SHOP CLAIMS & USING DEFENDANTS’ OWN SERVING POLICIES TO ADVANCE YOUR CASE

By: John A. Houghton

THE HOUGHTON LAW FIRM, LLC houghtonlawfirm.com

(404) 549-3006 (office) (404) 592-6471 (fax)

(404) 840-0454 (cell) [email protected]

2860 Piedmont Road NE, Suite 250

Atlanta, GA 30305

TABLE OF CONTENTS

Introduction…………………………………………………………………………………………………………..1

I. Dram Shop Claims in General….……………………..…………………………………………………….1

II. Proving the Elements of the Claim….…………………………………………………………..……….2

a. Proving Noticeable Intoxication..……………………………..…………………………………………..3

b. Proving Would Be Driving Soon….……………………………………………………..…………………7

III. Conclusion..…..……………………………………………….………………………………………..…….13

Appendix………..…..……………………………………………….………………………………………..…….14

Chapter 2 1 of 26

John A. Houghton www.houghtonlawfirm.com Eyes on the Road: Proving Your Dram Shop Claim [email protected] (404) 840-0454

Introduction

The objective of this paper is to give an overview of methods helpful in proving the

elements of Dram Shop claims. Specifically, it is intended to provide some practical

approaches to gathering vital evidence and testimony to support a dram shop claim while

simultaneously advancing the Plaintiff’s theme.

I. Dram Shop Claims in General

Georgia law, like several jurisdictions, places an obligation on bar and restaurant

owners to not serve noticeably intoxicated individuals who they know or should know

may be driving soon. Dram Shop cases require the Plaintiff’s lawyer to do an exhaustive

investigation into the events leading up to the Defendant’s decision to get behind the

wheel.

The starting point for understanding the required elements of a Dram Shop claim

is provided by statute in Georgia. Under O.C.G.A. § 51-1-40(b), a person who sells,

furnishes, or serves alcoholic beverages to a person of lawful drinking age shall not

thereby become liable for injury, death, or damage caused by or resulting from the

intoxication of such person, including injury or death to other persons; provided,

however, a person who willfully, knowingly and unlawfully sells, furnishes or serves

alcoholic beverages to a person who is not of lawful drinking age, knowing that such

person will soon be driving a motor vehicle, or 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,

Chapter 2 2 of 26


may become liable for injury or damage caused by or resulting from the intoxication of

such minor or person, when the sale, furnishing, or serving is the proximate cause of such

injury or damage.[Emphasis Supplied]

The knowledge element of the claim can be satisfied through proof of either actual

or constructive knowledge of the serving entity. Thus, if an alcohol provider in the

exercise of reasonable care should have known that the recipient of the alcohol

was noticeably intoxicated and would be driving soon, he or she will be deemed to have

knowledge of that fact. See Riley v. H&H Operations, Inc. 263 Ga. 652, 655 (1993)

Determining what an alcohol server should have known through the exercise of

reasonable care can be tricky. The plaintiff’s attorney needs to be mindful that company

alcohol service policies alone are not sufficient to prove what the server should have

known. [“The Bar's policy cannot supplant the statutory requirement that the server have

knowledge that the person will soon be driving when served his last drink.” Becks v.

Pierce, 282 Ga. App. 229, 234 (2006)] However, extensive review of documentary

evidence, video footage (if available), and the testimony of employees can make that

knowledge irrefutable.

II. Proving the Elements of the Claim

How do you prove that the bar or restaurant violated the Dram Shop Act when

serving the DUI defendant alcohol? Dram shop litigation requires extensive research into

the investigative records of law enforcement, close monitoring of the criminal

prosecution, and immediate requests to the potential at-fault establishment to preserve

Chapter 2 3 of 26


all video and business records from the evening in question. (Spoliation Letters form

enclosed in appendix) In the aftermath of a tragedy, these cases need to be put in suit

with minimal delay to obtain the subpoena power to gather any and all surveillance video

and bar receipts of the establishment. Credit card transactions and phone records of the

drunk driver should also be obtained to help piece the night back together.

a. Should Have Known of Noticeable Intoxication

Under the first prong of the statute, the Plaintiff has the burden of proving more

likely than not that the dram shop provider knew or should have known it was serving

alcohol to a noticeably intoxicated patron. Under current Dram Shop appellate law,

proving that a server should have known of the patron’s noticeable intoxication is less

burdensome than proving the dram provider should have known he was ‘about to drive’.

Even with good surveillance video and testimony, the Plaintiff’s lawyer may want to

consider retaining a forensic toxicologist.

In cases with well-preserved BAC evidence, a Plaintiff may avoid summary

judgment by having an expert testify about the effects of alcohol on an average person

based on absorption and metabolism rates. The Georgia Court of Appeals has held that a

question of fact was created, on the key issue of noticeable intoxication at the moment the

last drink was served, by an expert's affidavit based on circumstantial evidence, despite

unimpeached direct testimony that the bar's patron was not visibly intoxicated at the

crucial moment. [Hulsey v. Northside Equities Inc., 249 Ga. App. 474, 475: “the scientific

evidence of the driver's blood alcohol level in this case creates a genuine issue of material

Chapter 2 4 of 26


fact on the Dram Shop Act's crucial issue of whether Greene was noticeably intoxicated at

the time she was served her last drink by Northside.”]

The Hulsey holding also leaves the door open for additional forensic scientific

evidence on impairment to be used to rebut dram shop defendant’s testimony that the

driver ‘didn’t seem drunk.’ The Hulsey Court accepted the method used by Plaintiff’s

expert as being based on ‘reliable and objective scientific fact’ in calculating what the

impaired driver’s BAC would have been at the time of her last drink. Id. at 477, 478. This

expert testimony created a sufficient factual issue to prevent summary judgment and

allow the case to proceed to a jury trial.

In cases without any post-collision toxicology results, reviewing the bar

surveillance video with scene witnesses, company, and the defendant in deposition can

help identify additional patrons who may have helpful information regarding the

condition of the driver. Credit card transactions and point of service sales receipts should

be among the first records requested in discovery (See standard Dram Shop discovery

requests and interrogatories provided in appendix)

Customers and servers at the bar can generally be very helpful in providing

testimonial evidence of the ‘noticeable intoxication’ of the DUI defendant, as many of

these offenders frequent the same establishments on a regular basis.

Most restaurants with liquor liability coverage will have policies and procedures

that servers are required to follow when serving alcohol. These servers should be trained

to identify outward signs of impairment. Understanding that a Bar’s policy cannot

Chapter 2 5 of 26


supplant knowledge from Becks v. Pierce, (282 Ga.App. 229), these guidelines and

procedures provide a wealth of cross ammunition on all of the signs these servers must

look for. Most large restaurant chains require their servers to go through ServSafe

training. Go through each of these impairment indicators or ‘No Way Signs’ when taking

the deposition of the servers and restaurant personnel:

Compare these signs with any video of the impaired driver captured on

surveillance video with the deponent. Craft your language around the ‘No Way Signs’

contained in the policy handbook or ServSafe manual.

Additional signs of impairment include increased volume levels, slurred speech

and aggressive conduct among multiple other indicators. Through the discovery process,

Chapter 2 6 of 26


often aggravating evidence is uncovered that demonstrates how little the dram shop

employees did to prevent the tragedy with all the warning signs that were present.

The Defendant himself in his plea hearing or subsequent deposition will often

divulge valuable information about who he was with and how impaired he was on the

evening in question.

The offender’s own lack of clarity of the events can be used to further establish the element

of noticeable intoxication.

Chapter 2 7 of 26


Although these Defendant drivers are certainly adverse to your client’s interests at

the outset of the case, they often will provide helpful testimony about their over-service

of alcohol once they plead guilty. The Defendant driver may try to diminish his own guilt

by attempting to direct blame at the bar or restaurant for continuing to serve him. These

drunk driving offenders have no financial interest in protecting the restaurant or

bar. This can be quite helpful in trial if the judge instructs the jury to apportion fault

amongst multiple named defendants.

b. Should Have Known Would Be Driving Soon

Generally, the more difficult element of the Dram Shop claim is proving the alcohol

provider knew or should have known that the intoxicated offender would be driving soon.

The advent of Uber and other rideshare services has been helpful in reducing drunk

driving tragedies. However, it has also made bartenders and servers less vigilant about

determining if an over-served guest drove himself to the bar. The Becks v. Pierce case has

also created a glaring inconsistency with the Georgia Supreme Court’s traditional

definition of constructive knowledge. The Court of Appeals in Becks v. Pierce held that

the Dram Shop Statute “requires that the person serving the last drink know that the

patron is soon to drive.” Id. at 234. This rigid interpretation coupled with the mandate

that a bar’s policy cannot supplant knowledge creates a difficult circumstance for a

Plaintiff.

The Becks holding borders on reverting to an ‘actual knowledge’ requirement and

is directly contrary to the Georgia Supreme Court’s original findings in Riley v. H&H

Chapter 2 8 of 26


Operations, Inc., 263 GA. 252 (1993). The Riley Court rejected the contention that the

Dram Shop Act required proof of actual knowledge that an intoxicated driver will be

driving soon, finding “a construction of the Act requiring actual knowledge would render

the Act an ineffective sanction, since only when the defendant admitted its own

knowledge could the plaintiff prevail.” Id. at 661.

The underlying basis of proving constructive knowledge is determining if

reasonable care was exercised to the point where a Defendant should have known a fact.

The Riley Court further held: “Accordingly, we find that the policy behind the statute

requires a broader reading of "knowingly" and "knowing" than that urged by the appellee.

If one in the exercise of reasonable care should have known that the recipient of the

alcohol was a minor and would be driving soon, he or she will be deemed to have

knowledge of that fact.” Id. This principle extends to a noticeably intoxicated patron

under the statute.

The question then becomes is there a better way to determine if reasonable care

was exercised than reviewing the policies and procedures that defines reasonable conduct

for the employee? Even though these policies cannot ‘supplant’ the knowledge

requirement under the statute, they certainly can be used to establish the rules that

employees must follow to comply with the dram shop statute. It is important to determine

if the Defendant server exercised the reasonable care required by his employer to the

point where he should have known the patron would be driving soon. Obtain testimony

from company personnel regarding the purpose of these policies.

Chapter 2 9 of 26


The obvious reason that liquor liability insurers require these policies be followed is to

ensure compliance with the Dram Shop Statute.

With corporate representatives, it is important to specifically address the policies

and procedures as they relate to the Dram Shop statute:

Chapter 2 10 of 26


Prior to deposing company personnel, make certain that you have received a full

document production from the defense on policies and procedures / ServSafe manuals.

Over-Consumption Prevention policies usually require company personnel to take

affirmative action to inquire if a patron is driving:

The cumulative effect of these servers testifying that little or nothing was done in

compliance with these rules is quite compelling in the face of a summary judgment

motion. These policies and procedures provide the definition of the standard of

reasonable care to be followed by the alcohol provider. Utilizing these policies in cross is

not supplanting the knowledge requirement under the statute, but rather providing

Chapter 2 11 of 26


supporting evidence that reasonable care was not exercised to the point that the company

should have known. The ‘About to Drive’ element still only requires proof that a server in

the exercise of reasonable care should have known a noticeably drunk patron would be

driving soon. Constructive knowledge is still the requirement, and the server will be

deemed to have knowledge of the fact.

Another basis for avoiding summary judgment on either element of the Dram Shop

statute’s knowledge requirement is establishing that vital evidence was destroyed or not

preserved. Specifically, evidence of the destruction or disposal of any surveillance video

footage from any area of the dram shop provider is sufficient to create a genuine issue of

material fact for the jury’s consideration. See Baxley v. Hakiel Industries, Inc., 647 S.E.2d

29, 282 Ga. 312 (2007)

In finding that unpreserved portions of the video that could have showed the

impaired patron walking with her keys, the Georgia Supreme Court held that the

“manager was aware of the potential for litigation and failed to preserve whatever

videotaped evidence may have been captured as to whether Karafiat would soon be

driving, a rebuttable presumption arose against Brewsters. Accord J.B. Hunt Transport,

Inc. v. Bentley, 207 Ga. App. 250, 256-57, 427 S.E.2d 499 (1992) (reasonable to presume

evidence destroyed by defendant in normal course of business after its accident

investigation had begun would have favored plaintiff). It follows that the Court of Appeals

erred by affirming the trial court's grant of summary judgment to this defendant.”

Baxley, 647 S.E.2d 29, 282 Ga. 312 (2007)

Chapter 2 12 of 26


The importance of sending Spoliation / Preservation letters in the immediate

aftermath of a drunk driving tragedy cannot be emphasized enough in dram shop

litigation.

Other Notable Holdings Related to Knowledge of About To Drive

There are some other specific factual circumstances that have been weighed by

Georgia appellate courts in recent years that dictate the likely outcome of summary

judgment in dram shop cases.

Airlines Liability

In general, the Georgia Supreme Court has held that airlines have no way of

knowing if a passenger will be driving soon, and summary judgment is appropriate:

“while an airline knows or should know that an intoxicated passenger will shortly be

leaving the plane where the alcohol was served, it 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.” Delta Airlines, Inc. v. Townsend, 614

S.E.2d 745 (Ga. 2005)

Remoteness of Location – Expert Affidavit Not Sufficient

Also, circumstantial evidence from an expert’s affidavit about the remoteness of a

dram shop’s location does not prove constructive knowledge that the intoxicated patron

drove. See Sugarloaf Café v. Wilbanks, 279 Ga. 255 (2005)

Chapter 2 13 of 26


Hotels / Motels / Land-Based Establishments

Hotels and other similar land-based establishments may have sufficient knowledge

to create a factual dispute if patron had driven to hotel to pick up his friend, and multiple

clerks testified to witnessing his arrival and departure. See Griffin Motel Co. v. Strickland,

223 Ga. App. 812, 814 (1996).

Every case presents a different factual circumstance, and it is important for the

Plaintiff’s lawyer to be aware of the various scenarios that the appellate courts have

weighed in reversing or affirming summary judgment. It is absolutely vital for the

Plaintiff’s lawyer to elicit facts and testimony distinguishable from the factual scenarios

in which summary judgment was upheld and navigate their case around these potential

pitfalls.

Facts can never be changed. However, through extensive discovery efforts and

diligent deposition-taking, new facts often emerge that can create compelling factual

disputes to get your case to the jury.

IV. Conclusion

The underlying principle of Dram Shop claims is that these alcohol providers are

the last line of defense between impaired drivers and the motoring public. Through

methodical discovery efforts and well-directed examinations of witnesses, evidence of

these claims can be shaped to support a very strong theory of liability.

Chapter 2 14 of 26


APPENDIX

Chapter 2 15 of 26

IN THE STATE COURT OF COUNTY

STATE OF GEORGIA

CIVIL ACTION Plaintiffs, FILENO.

v.

Defendants.

PLAINTIFFS' . AS SURVIVING PARENTS OF I DECEASED FIRST REQUEST FOR PRODUCTIQN OF

DOCUMENTS TO DEFENDANT

COMES NOW Plaintiff, and pursuant to O.C.O.A. § 9-11-34, hereby serves this First

Request for Production of Documents on to be

answered in accordance with Oeorgia law:

REQUESTS TO PRODUCE

1.

Please produce an unedited version of all video footage from each of the approximately

twelve (12) surveillance cameras on the premises of Defendants' establishment from 11 :OOPM on

May 1,2012 through 4:00AM on May 2, 2012.

2.

Please produce a copy of each of Cory Camp's bar tabs, receipts, and signed credit card

bills generated at Defendants' subject establishment on the evening of May 1,2012 and/or the

morning of May 2,2012.

Chapter 2 16 of 26

3.

Please produce a copy of each of Josh Hulsey's bar tabs, receipts, and signed credit card

bills generated at Defendants' subject establishment on the evening of May 1,2012 andlor the

morning of May 2, 2012.

4.

Please produce a copy of Defendant employee Lisa Parker's written statement provided

to Defendants concerning the subject incident.

5.

Please produce a copy of Defendant employee Lisa Parker's personal notes concerning

the events of the subject evening and early morning of this incident.

6.

Please produce a copy of any incident reports, written statements, or other documentation

concerning this incident in the possession of

7.

Please produce a copy of any email, interoffice correspondence, memoranda, report,

telephone log, message, or other written or electronic communication made between Defendant and

any of its employees concerning the subject incident.

8.

Please produce all employer or employee handbooks, manuals, guidelines, policies and

procedures for in effect on the evening of May 1,

2012 and the morning of May 2, 2012.

Chapter 2 17 of 26

9.

Please produce all alcohol service policies, procedures, rules or guidelines for Defendant

in effect at the time of the subject incident.

10.

Please produce all house policies or procedures for


II.

Please produce the employee schedule for the evening of May 1,2012 and the morning of

May 2,2012 for

12.

Please produce all training procedures for Defendant


13.

Please produce all training material, including procedures, manuals and guidelines for

alcohol servers for Defendant in effect at the time of the

subject incident.

14.

Please produce certificate for training for serving alcohol for


15.

Please produce a list of all employees who worked on the evening of May 1,2012 and the

morning of May 2,2012 for Defendant

- 3

Chapter 2 18 of 26

16.

Please produce all bar set up procedures for I


17.

Please produce all documents regarding building capacity for Defendant

in effect at the time ofthe subject incident.

18.

Please produce all advertisements including but not limited to internet, print, TV, posters

and email for the 1 year period leading up to the subject incident for

19.

Please produce a list of all managers employed for Defendant

at the time of the subject incident.

20.

Please produce a list of all managers on duty on the evening of May 1, 2012 and the

morning of May 2, 2012 for Defendant

21.

Please produce a list of all security personnel employed for the 1 year period leading up

to the subject incident for Defendant

22.

Please produce a list of all security personnel on duty on the evening of May 1,2012 and

the morning of May 2, 2012 for 1

-4

Chapter 2 19 of 26

23.

Please produce a copy of the log book or manager's book for six months prior to one

month post subject incident for

24.

Please produce a delivery schedule from Georgia distributors for sixty days prior to

subject incident for

25.

Please produce all accounting documents for sales and delivery for tax basis for the 120

day period leading up to the subject incident for:

26.

Please produce the business revenue for one year prior to subject incident for Defendant

27.

Please produce a list of all policy changes for Defendant:

subsequent to the subject incident.

28.

Please produce a copy of all identification check policies for Defendant


29.

Please produce the identification checking book for


- 5 .

Chapter 2 20 of 26

30.

Please produce the identification checking scanner for Defendant


31.

Please produce a copy of procedures for handling false identification for Defendant


32.

Please produce a copy of State of Georgia license to sell alcoholic beverages for


33.

Please produce a copy of the liquor license to serve alcoholic beverages held by Lisa

Parker in effect at the time of the subject incident.

34.

Please produce a copy of the liquor license to serve alcoholic beverages held by Nicola

Paschke in effect at the time of the subject incident.

35.

Please produce a copy of the Certificate of Occupancy for Defendant


36.

Please produce a copy of all plans, blueprints or plats for


- 6

Chapter 2 21 of 26

37.

Please produce a copy of Defendant 's proof of food

sales filed with the City of

38.

Please produce a copy of all documents which record, reflect, or otherwise evidence, in

whole or in part, any violations of Code of Ordinances, Code of the City of

or the Official Code of Georgia, including but not limited to any citations, incident

reports, and/or alcohol violations.

39.

Please produce copies of any videotapes, photographs, reports, data, memorandums,

handwritten notes, curriculum vitae(s) or other documents reviewed by or generated by any

expert you have retained and/or intend to call at trial.

This ~ day of March, 2013

THE HOUGHTON LAW FIRM, LLC

By: / I JO

One Alliance Center 3500 Lenox Road, Suite 500 Atlanta, Georgia 30326 (404) 549-3006

-7

Chapter 2 22 of 26

CERTIFICATE OF SERVICE

This is to certify that I have this day served a copy of PLAINTIFFS' ,

DECEASED FIRST CONTINUING REQUEST FOR PRODUCTION OF DOCUMENTS TO

DEFENDANT upon Defendants' counsel of record in

this action by mailing copies of same to the following:

Marc H. Bardack. Esq.

Jacob E. Daly, Esq.

Freeman Mathis & Gary. LLP

100 Galleria Parkway, Suite 1600

Atlanta, GA 30339

(770) 937-9960 Fax

This 11th day of March, 2013


One Alliance Center 3500 Lenox Road Suite 500 Atlanta, Georgia 30326 (404) 549-3006

- 8

Chapter 2 23 of 26

___H_-THE HOUGHTON LAW FIRM, LLC

John A. Houghton Cell: (404) 840·0454 Attorney May 26, 2012 [email protected]

SENT VIA U.S. MAIL & FACSIMILE (770) 920-7123 Brian Fortner, Esq. Douglas County District Attorney's Office 8700 Hospital Drive, 2nd Floor Douglasville, GA 30134

RE: Our Clients: .

Defendant! At-fault: Michael Cory Camp Date of Collision: May 2,2012 Crash Rpt #: C000117S23-01 Investigating Officer: TFC J. Pyland

Dear Mr. Fortner:

My law firm represents Family and Estate of. deceased with regard tor , a collision by Defendant Michael Cory Camp that resulted in Zachary's death on May 2, 2012. I have enclosed a copy of the Crash Report for your reference. The Defendant Camp was cited with DUl of Drugs and Alcohol, 151 Degree Vehicular Homicide and Reckless Driving and Driving on the Wrong Side of the Road. We understand that the prosecution is pending in this matter, but we would like to be kept up-to-date on the criminal proceedings for this Defendant.

Can you kindly call me to discuss the status of this prosecution? My clients/victims in this matter would like to offer any help they can in the adjudication of these charges. Additionally, pursuant to O.C.O.A. § 50-18-70(f), can you kindly let me know which prosecution documents can be produced at this juncture? We are requesting the full prosecution file, but understand that certain items will be exempt from production due to the pending prosecution.

Additionally, if there is a plea hearing, we would like to request any transcript generated by the Court, or alternatively attend the hearing with a private court reporter at our own expense. Thank you very much for your help in this matter and we look forward to your response.

Very truly yours,


John

JAH/slv

Enclosure

One Alliance Center • 3500 Lenox Road • Suite 500 • Atlanta, Georgia 30326 • Office: (404) 549·3006 • Fax: (404) 592·6471

www.houghtonlawfirm.com

Chapter 2 24 of 26

http:www.houghtonlawfirm.commailto:[email protected]

I ___H__ [THE HOUGHTON LAW FIRM, LLC f

John A. Houghton Direct: (404) 214-7481 Attorney [email protected] !

May 18,2012

VIA FACSIMILE: &

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

Re: Letter o(Representation and Spoliation Letter Our Clients The Family of, dec. Date of Incident May 2, 2012

Dear Sir/Madam:

This firm has been retained to represent the family of ., who sustained [ fatal injuries in a motor vehicle coll.ision on May 2, 2012. All future correspondence and communication should be directed to our firm.

The purpose of this letter is to request the preservation of certain evidence related to this incident. If you fail to preserve and maintain this evidence, we will seek any sanctions available under the law. We specifically request that the following evidence be maintained and preserved and not be destroyed, modified, altered, repaired, or changed in any manner:

(\) Any and all surveillance videos from your facility from 12:00 p.m. on May \,2012 to 2:00 a.m. on May 2,2012;

(2) Itemized credit card receipts for any purchases made from \2:00 p.m. on May \,2012 to 2:00 a.m. on May 2, 2012. The card number information may be redacted, but the last four digits ofthe credit card should be provided for identification purposes;

(3) All Point of Sale records for your facility from 12:00 p.m. on May 1, 2012 to 2:00 a.m. on May 2,2012;

(4) Documents that list or identify all employees by name, address, phone number and position that were working at your facility from 12:00 p.m. on May 1, 2012 to 2:00 a.m. on May 2, 2012.

2860 Piedmont Road. NE • Suite 250 • Atlanta, Georgia 30305 • Office: (404) 549-3006 • Fax: (404) 592-6471

www.houghtonlawfirm.com

Chapter 2 25 of 26

http:www.houghtonlawfirm.commailto:[email protected]

May 18,2012 Page 2

Please contact me if you require anything further or if advance payment for duplication costs is required. I am best reached on my cell at 404-840-0454.

Please be governed accordingly.

Sincerely,


t JAH:jwr I

I

I r

~ t

Chapter 2 26 of 26

Nuts & Bolts Of DUI Injury Case And Vital Evidence InEstablishing A Dram Shop ClaimPresented By:

Harrison W. SpiresThe Simon Law Firm PCAtlanta, GA

STATE BAR SERIES

Criminal Prosecution Of DUI Tragedies & Ethical Considerations On The Symbiotic Relationship Between Criminal & Civil Case: Perspective From A Former DA And Current Plaintiff LawyerPresented By:

Robert D. James, Jr.Daniels & James LLCAtlanta, GA

STATE BAR SERIES

Narrowing Your Focus For Trial: Effective StrategiesFor Conducting Focus GroupsPresented By:

Bradford W. “Brad” ThomasFried Rogers Goldberg LLCAtlanta, GA

STATE BAR SERIES

NARROWING YOUR FOCUS FOR TRIAL: EFFECTIVE STRATEGIES FOR CONDUCTING FOCUS GROUPS

Brad W. ThomasFried Rogers Goldberg LLC, Atlanta, GA

404‐307‐0284brad@frg‐law.com

Focus Groups

Why do them?

When to do them ?

How to do them?

Chapter 5 1 of 8

Why do them

Jurors may not be as persuaded, angry, or sympathetic about our case as we expect.

Jurors are likely to want proof that is not part of the evidence we have compiled or focused on during discovery.

Some of opponent’s case may be more persuasive than we thought and our counter argument is not as persuasive as we thought

Why do them

Narrow Issues Find your weaknesses Make sure you perceptions are accurate Test your theories Get roadmap for discovery Get data for settlement negotiations

Chapter 5 2 of 8

When to do a focus group

Early in Discovery Preparation for mediation When client expectations are unreasonable At close of discovery when prepping for trial

Early in Discovery

Gives a roadmap for discovery Frame up trial theme Prevents you from focusing on senseless fights Get early feedback on your exhibits‐What works and what doesn’t

Shows holes in case early

Chapter 5 3 of 8

After Discovery‐Before Trial

Test your theme again Test opponents strongest arguments Simplify, simplify, simplify your case Critical feedback on your style and approach Critical feedback on evidence you intend to present

How to Conduct Focus Groups

Low cost ($200‐$2000) Medium cost ($2000‐$7000) Expensive (above $7000)

Chapter 5 4 of 8

High Cost

Professional facilitator Trained in what to do Will meet with you beforehand Invaluable in substantial damage cases Will cost in excess of $15,000 most of the time

Medium Cost

Professional organization https://www.focuspointeglobal.com Ease of finding participants Leg work is done Can focus solely on case and not peripheral matters

Chapter 5 5 of 8

Low Cost

Don’t spend $10,000 on a $10,000 case Friends are your free focus group Temp agencies are great source for participants

Place such as We Work, Regus and Shared Space rent conference rooms for less than $100/day

Adversarial Format

Use Facilitator‐can be lawyer in your officePlaintiff v. DefendantYour opponent should winDo not tell participants who you representUse your key exhibitsTwo way mirror to watch deliberationsCase summary‐not entire caseStart to finish about 3‐4 hours

Chapter 5 6 of 8

Discussion Format

Excellent facilitator is key here Open ended questions are imperative Have to keep discussion going Used for feedback on key case facts and evidence

Get biases out and deal with them Helps simplify case Listen!

Non‐negotiables for you

Avoid your bias! You will be challenged by participants‐Do not lose your temper!

Process should be confidential‐confidentiality agreements

Video tape the focus group for further use Don’t try to do too much in one settings Do multiple focus groups if necessary

Chapter 5 7 of 8

The End!!

Chapter 5 8 of 8

View From Every Angle: A Mediator’s Perspective On The Pressure Points For Settlement In Prosecuting, Defending & Mediating Dram Shop ClaimsPresented By:

Nicholas C. “Nick” MoraitakisMoraitakis & Kushel LLPAtlanta, GA

STATE BAR SERIES

DRAM SHOP CASES- CIVIL PROSECTION

The Dram Shop Case – The Statute; Case Law; Experts Needed

October 25, 2019

Nicholas C. Moraitakis

MORAITAKIS & KUSHEL, LLP 5555 Glenridge Connector Suite 550 Atlanta, GA 30342 Phone: (404) 261-0016 [email protected]

Chapter 6 1 of 46

DRAM SHOP CASES- CIVIL PROSECUTION THE DRAM SHOP CASE – THE STATUTE; CASE LAW; EXPERTS NEEDED

October 25, 2019

Nicholas C. Moraitakis Moraitakis & Kushel, LLP 5555 Glenridge Connector

Suite 550 Atlanta, Georgia 30342

TABLE OF CONTENTS Page

Introduction …………………………………………………………………………... 1

Evolution of the Cause of Action …………………………………………………….. 1

Codification of Liquor Liability ……………………………………………………… 4

Cases Interpreting the Statute ………………………………………………………... 6

Proximate Causation – Breach of First Duty Relieved By Subsequent Acts ………… 10

Practical Considerations ……………………………………………………………… 12

More Appellate Cases ………………………………………………………………... 18 Appendix A: March 30, 2016 Order on Plaintiff’s Motion for Sanctions Against Defendants

Due to Spoliation of Evidence State Court of Cobb County, Georgia Appendix B: May 11, 2016 Order on Defendants’ Motion for Reconsideration of March 30,

2016 Order State Court of Cobb County, Georgia

Chapter 6 2 of 46

THE DRAM SHOP CASE

INTRODUCTION

The law with regard to “liquor liability” or “dram shop liability” of premises owners and

operators has been fairly active in recent years. A number of cases have served to define the

nature of this liability and the circumstances under which it gives rise to a bona fide cause of

action. The history of appellate rulings regarding dram shop liability reveals the creation of

liquor liability for premises owners to be a relatively recent development. Therefore, this paper

begins with a brief history of the evolution of liquor liability and how it came to be imposed

upon premises owners and operators and follows with an examination of caselaw, both pre-

passage and post-passage of Georgia’s Dram Shop Act, O.C.G.A. §51-1-40.

The cases which have been decided since passage of the 1988 statute obviously serve to

interpret the statute and have provided better understanding of the nature of the evidentiary

requirement dictated by the statute. After reviewing the pertinent case law on this issue, some

consideration will be given to practical matters that lawyers litigating cases involving liquor

liability of premises owners should consider.

EVOLUTION OF THE CAUSE OF ACTION

At common law, an individual who furnished alcoholic beverages to one who became

intoxicated was not liable to third persons who were injured as a result of the intoxication of the

consumer. Many of the earlier cases on the books on this issue were decided unequivocally in

favor of the premises owner. Perhaps the first case recorded is that of Belding v. Johnson, 86

Ga. 177, 17 S.E. 304 (1890), in which a barkeeper was held not to be liable to the deceased’s

widow when the deceased was shot and killed by a drunken consumer at the bar.

Chapter 6 3 of 46

In the case of Henry Grady Hotel Co. v. Sturgis, 70 Ga. App. 379, 28 S.E.2d 329 (1943),

an unfortunate imbiber apparently died from burns resulting from scalding in a bathtub after a

drinking binge of several days. The alcohol which he consumed was purchased with money

furnished to him by the Henry Grady Hotel. The court in that case applied the common law rule

that a person who consumes alcohol is responsible for his own acts and went one step further to

state that selling alcohol is too remote to be the proximate cause of an injury caused by the

negligence of the consumer. Other cases which are worth reviewing from a historical standpoint

are Shuman v. Mashburn, 137 Ga. App. 231, 223 S.E.2d 268 (1976), Keaton v. Kroger Co., 143

Ga. App. 23, 237 S.E.2d 443 (1977); Nunn v. Komadis Exquisitos, Inc., 166 Ga. App. 796, 305

S.E.2d 487 (1983); and Riverside Enterprises, Inc. v. Rahn, 171 Ga. App. 674, 320 S.E.2d 595

(1984).

It was not until the case of Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985), that

the court recognized premises owner liability for the provision of alcoholic beverages to a

consumer who subsequently injured a third person. In Sutter the mother of a high school student

permitted her 17-year-old daughter to have a keg party at their home. The keg party was for the

daughter’s high school classmates, all of whom were under the legal drinking age. One of the

students, after engaging in some sort of drinking game, became noticeably inebriated. When the

young man was leaving the party, the hostess expressed concern over his ability to drive, but

watched the minor driver get into the car and drive off.

Chapter 6 4 of 46

Unfortunately for everyone concerned, within a distance of less than four miles, the

intoxicated minor driver ran a red light at a high rate of speed and killed David Sutter. The Court

of Appeals relied on the line of cases set forth above to affirm the premises owner/defendant’s

motion for summary judgment that no cause of action existed against her for Mr. Sutter’s death.

Sutter v. Hutchings, 172 Ga. App. 777, 325 S.E.2d 384 (1984).

The Supreme Court took certiorari and overturned the Court of Appeals in what

obviously was a very important decision. Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716

(1985). This is a very interesting case and certainly worth reading for anybody who participates

in dram shop litigation. The court examined the traditional formula pertaining to tort law,

observing that the elements of negligence are: (1) a duty recognized by law; (2) a failure of an

individual to conform to the standard required; (3) a reasonably close causal connection between

the conduct and the injury; and (4) actual loss or damage. The court then relied upon O.C.G.A.

§§ 3-3-22 and 3-3-23 to determine that a legal duty did in fact exist. These two statutes fell

under the portion of the Code dealing simply with regulation of alcoholic beverages and imposed

certain criminal sanctions on individuals who sold or furnished alcoholic beverages to

intoxicated persons or minors. Using these statutes to recognize the existence of a legal duty in a

civil action, the court held that a cause of action exists where one provides alcohol to a

noticeably intoxicated high school student under drinking age, knowing that student will soon be

driving an automobile. The court went on to rule that it was foreseeable to the provider of the

alcoholic beverages that the consumer would drive while intoxicated and a jury may be

authorized to find it foreseeable to the provider that the intoxicated driver might injure someone.

Sutter v. Hutchings, 254 Ga. 194, 199, 327 S.E.2d 716, 720. Thus, after many, many years of

contrary rulings, liquor liability for premises owners and operators was born in Georgia.

Chapter 6 5 of 46

CODIFICATION OF LIQUOR LIABILITY

Three years after the Sutter decision, the General Assembly codified liquor liability at

O.C.G.A. § 51-1-40 entitled “Liability for acts of intoxicated persons.” Because the specific

language of the statute will be discussed extensively herein, it is reprinted in its entirety below:

§ 51-1-40. Liability for acts of intoxicated persons.

(a) The General Assembly finds and declares that the consumption of alcoholic beverages,

rather than the sale or furnishing or serving of such beverages, is the proximate cause of

any injury, including death and property damage, inflicted by an intoxicated person upon

himself or upon another person, except as otherwise provided in subsection (b) of this

Code section.

(b) A person who sells, furnishes, or serves alcoholic beverages to a person of lawful

drinking age shall not thereby become liable for injury, death, or damage caused by or

resulting from the intoxication of such person, including injury or death to other persons;

provided, however, a person who willfully, knowingly, and unlawfully sells, furnishes, or

serves alcoholic beverages to a person who is not of lawful drinking age, knowing that

such person will soon be driving a motor vehicle, or 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 minor or person

when the sale, furnishing, or serving is the proximate cause of such injury or damage.

Nothing contained in this Code section shall authorize the consumer of any alcoholic

beverage to recover from the provider of such alcoholic beverage for injuries or damages

suffered by the consumer.

Chapter 6 6 of 46

(c) In determining whether the sale, furnishing, or serving of alcoholic beverages to a person

not of legal drinking age is done willfully, knowingly, and unlawfully as provided in

subsection (b) of this Code section, evidence that the person selling, furnishing, or

serving alcoholic beverages had been furnished with and acted in reliance on

identification as defined in subsection (d) of code Section 3-3-23 showing that the person

to whom the alcoholic beverages were sold, furnished, or served was 21 years of age or

older shall constitute rebuttable proof that the alcoholic beverages were not sold,

furnished, or served willfully, knowingly, and unlawfully.

(d) No person who owns, leases, or otherwise lawfully occupies a premises, except a

premises licensed for the sale of alcoholic beverages, shall be liable to any person who

consumes alcoholic beverages on the premises in the absence of and without the consent

of the owner, lessee, or lawful occupant or to any other person, or to the estate or

survivors of either, for any injury or death suffered on or off the premises, including

damage to property, caused by the intoxication of the person who consumed the alcoholic

beverages. (Code 1981, § 51-1-40, enacted by Ga. L. 1988, p. 1692, § 1.)

In looking at Georgia’s dram shop statute, there is certain language that draws one’s

attention immediately. First, in Paragraph (a) of the statute, the General Assembly issues a

policy statement declaring that the consumption of alcoholic beverages, rather than the sale or

furnishing of same, is the proximate cause of any injury. It has been argued that because of this

policy statement, the statute should be construed to limit liquor liability in comparison to the

liability which existed pursuant to the Sutter case, rather than to expand liquor liability. In fact,

the Court of Appeals held in Hansen v. Etheridge, 232 Ga. App. 408, 501 S.E.2d 517 (1998), that

the statute “insulates providers of alcohol from third-party claims of negligence except as

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provided in (O.C.G.A. § 51-1-40(b)).” See also, Kappa Sigma International Fraternity v. Tootle,

221 Ga. App. 890, 473 S.E.2d 213 (1996) wherein the Court of Appeals held that a fraternity was

entitled to the grant of summary judgment where the drunk driver who caused the plaintiff’s

injuries had been at a fraternity party, but he had brought and consumed only beer from his own

cooler. It was held that any liability could only be pursuant to the dram shop statute and the

fraternity could not be held liable under general negligence principles for allowing its party guest

to drive under the influence of alcohol.

Another interesting part of the statute lies in Paragraph (b). The final sentence of that

paragraph indicates that the consumer of any alcoholic beverage is not to recover from the

provider of an alcoholic beverage for injuries or damages suffered by the consumer. This raises

an interesting question which has been addressed by the appellate courts and which will be

discussed later in this paper.

CASES INTERPRETING THE DRAM SHOP STATUTE To summarize the statute, an individual may be liable to a third party for injuries caused

by the intoxication of another individual if the individual:

(1) knowingly furnishes alcohol to another individual;

(2) who is not of lawful age or who is noticeably intoxicated;

(3) knowing that such person will soon be driving a motor vehicle; and

(4) the providing of the alcohol is the proximate cause of injuries to third persons.

The obvious question raised by the statute which begs an answer is: how does one go

about proving that a bartender, a food mart clerk, or a waiter knew that someone was not of legal

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age or was noticeably intoxicated?1 Furthermore, how does one prove that these types of servers

may know that a person will soon be driving a vehicle? Occasionally, but not often, the lawyer

is presented with a set of circumstances which are clear-cut. The ideal set of facts would exist if

there were witnesses at the table with the soon to be tort-feasor who saw him become inebriated.

The witnesses then brought it to the attention of the alcohol server and told him that this man or

woman was going to be driving, and despite that knowledge, the server continued to serve

alcoholic beverages to the intoxicated person. Upon exiting the premises, the intoxicated person

operated his vehicle, collided with someone, and caused injury. In the face of facts of this

nature, it is pretty clear that the requirements of the statute are met. Needless to say, this type of

scenario is not likely to present itself very often.

Thus, the first question that needs to be answered is: what level of knowledge is required

that the individual “will soon be driving?” Initially, a couple of cases seemed to indicate that an

actual knowledge standard would be applied. See, Jacques v. Lever, 831 F.Supp. 881 (S.D. Ga.

1993), aff’d, 43 F.3d 628 (11th Cir. 1995) and Perryman v. Lufran, Inc., 209 Ga. App. 654, 434

S.E.2d 112 (1993). Jacques and Perryman both involved situations wherein a group of

individuals congregated to purchase beer and to consume it while driving. Nevertheless, as may

be expected, only one member of the group possessed a fake I.D. and actually went into the food

mart to purchase the beer. In both of these cases, the entire group became intoxicated, however,

the intoxicated driver of the vehicle who ultimately caused a collision was not the same person

who purchased the beer in the food mart. The court in Jacques stated as follows:

1 See Shortnacy v. N. Atlanta Internal Medicine, 252 Ga. App. 321, 556 S.E.2d 209 (2001) and Houston v. Bedgood, 263 Ga. App. 139, 588 S.E.2d 437 (2003) wherein the Georgia Court of Appeals held that doctors administering narcotics to patients are not subject to dram shop-like liability nor are doctors liable for negligently certifying truck drivers physically fit to drive, under any dram shop analogy.

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The knowledge required under this statute is actual knowledge, rather than constructive knowledge, that the minor purchasing the beer would soon be driving, or that he was purchasing the beer as but one of a group … Jacques, 831 F.Supp. 881, 884 (emphasis added). Given this language, it was thought by those engaging in litigation over the liquor

liability statute, that an “actual knowledge” standard was going to be applied.

The application of an actual knowledge standard poses substantial challenges to a

plaintiff with regard to proof of a liquor liability cause of action. Absent a factual scenario as

outlined above, or an admission by the server that the customer was inebriated or underage and

about to drive, the plaintiff would certainly face a motion for summary judgment.

Relief for the plaintiff came when the Georgia Supreme Court decided Riley v. H & H

Operations, Inc., 263 Ga. 652, 436 S.E.2d 659 (1993). In Riley, the trial court granted summary

judgment to the seller of alcoholic beverages, H & H Operations, Inc. The trial court determined

that the provider must have had actual knowledge that the purchaser was a minor and would soon

be driving. The Supreme Court disapproved the trial court interpretation requiring actual

knowledge and noted as follows:

With this policy in mind, a construction of the Act requiring actual knowledge would render the Act an ineffective sanction, since only when the defendant admitted its own knowledge could the plaintiff prevail. … If one in the exercise of reasonable care should have known that the recipient of the alcohol was a minor and would be driving soon, he or she will be deemed to have knowledge of that fact. Riley, 263 Ga. 652, 654.

While Riley dealt with the sale of alcoholic beverages to a minor, it stands to reason the

same logic is applicable to a sale of alcoholic beverages to a noticeably intoxicated person. In

fact, this logic underlying the application of a constructive knowledge standard was later

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expressly recognized by the Supreme Court in Flores v. Exprezit!, 289 Ga. 466, 713 S.E.2d 368

(2011) at footnote 8 where the Court held: “We reject Exprezit!’s assertion that the holding in

Riley is limited to the sale of alcohol to minors. The dram shop act treats sales to minors and

noticeably intoxicated adults identically. Griffin Motel Co. v. Strickland, 223 Ga. App. 812, 815,

479 S.E.2d 401 (1996).”

An extension of the constructive knowledge standard recognized in Riley can be found in

Griffin Motel Co. v. Strickland, 223 Ga. App. 812, 479 S.E.2d 401 (1996). In that case the court

determined that the defendant’s position that actual knowledge was required that the consumer

would be driving soon was without merit. Thus, it seems clear that the actual knowledge

standard is dead with regard to all aspects of the knowledge requirements contained in the liquor

liability statute.

Another portion of the statute the Courts have clarified is the last sentence in subpart (b)

of the statute which indicates that under no circumstances shall a consumer of alcoholic

beverages be allowed to recover from the provider. Subsection (b) thus raises the question as to

whether the statute bars a consumer who is a passenger from suing the provider of the alcoholic

beverages. The above-referenced case of Griffin Motel Co. v. Strickland addressed this issue

head-on, and rather surprisingly concluded that a passenger could make such a recovery. In

coming to this conclusion, the court stated as follows:

It is clear that in O.C.G.A. § 51-1-40 the General Assembly sought to avoid the sale of alcoholic beverages to minors and to noticeably intoxicated individuals. Although the law does not permit the intoxicated consumer to sue the provider of the alcohol for his own negligence and recover for his own injuries, the language does allow third parties who are injured to recover, regardless of whether they also consumed alcohol. Griffin Motel Co., 223 Ga. App. 812, 814.

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However, the right of the passenger to recover is not limitless. In Lumpkin v. Mellow

Mushroom, 256 Ga. App. 83, 567 S.E. 2d 728 (2002) the Court of Appeals affirmed the trial

court’s grant of summary judgment to the defendant establishment. In Lumpkin the plaintiff was

an underage consumer at Mellow Mushroom where he became intoxicated. Subsequent to

leaving the restaurant, he was a front seat passenger in a Jeep when he fell out and was killed.

The court held that he wasn’t driving at the time of the injury and “the statutory language clearly

reflects a legislative intent to limit the exception [to no liability for sale of alcoholic beverages]

to those cases in which the underaged person causes an injury while driving.” Lumpkin, 256 Ga.

App. 83, 85.

PROXIMATE CAUSATION – BREACH OF FIRST

DUTY RELIEVED BY SUBSEQUENT ACTS

As concerns liquor liability of premises owners, the case of Pirkle v. Hawley, 199 Ga.

App. 371, 405 S.E.2d 71 (1991) is a very interesting read. In this case, an employee of the

Gwinnett Daily News had too much beer to drink at a company party. The company provided

the beer for the function, and the employees who organized the party recognized that their co-

worker had become inebriated. Having noticed that the co-worker was too intoxicated to drive,

the two individuals who planned the party convinced him to let them take him home. As may

not be surprising, they had to argue with him, but they finally prevailed upon him to let one of

them drive him home. The organizers had to clean up after everyone left and they sat their

inebriated co-worker in a corner - instructing him to wait for them there. Unfortunately, when

they returned to get him, they found he had already gotten into his vehicle and driven off. He

went on to cause an accident and the plaintiff who was injured sued the individual driver and the

company, the Gwinnett Daily News. The jury returned a verdict against the employee, but not

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the employer, and the plaintiff appealed in an attempt to bring the employer back into the picture.

In affirming the judgment for the defendant employer, the Court of Appeals held as follows:

It is not that the fulfillment of the duty which follows breach of the statutorily based duty excuses the breach. Quite the contrary. The breach gives rise to the subsequent duty, a duty that does not even exist if the law against furnishing is complied with. If the alcohol provider stops serving a noticeably intoxicated person, he is not liable for the damages that person later inflicts. If the alcohol provider continues to serve and knows the intoxicated person is about to drive, the p