November 17, 2014
Y.S.G. ENTERPRISES, INC
OCGA § 51-1-40; constitutional question. Newton Superior Court. Before Judge Ozburn.
Martin L. Fierman, Stephen R. Morris, for appellant.
Crim & Bassler, Jason D. Darneille, for appellee.
HINES, Presiding Justice. All the Justices concur.
Hines, Presiding Justice.
Peggy Dion (" Dion" ), the widow of Dale Dion (" Dale" ), appeals from the order of the Superior Court of Newton County granting the motion to dismiss filed by Y.S.G. Enterprises, Inc., d/b/a Depot Sports Bar and Grill (" Depot" ). For the reasons that follow, we affirm.
[296 Ga. 186] In the early hours of September 16, 2011, Dale died in a single-car wreck; his blood alcohol content was 0.282. At 2:30 p.m. the previous day, September 15, 2011, Dale went to the Depot and drank alcoholic beverages for the next eight hours, closing his tab at 10:43 p.m.; during that time, he was visibly intoxicated and a Depot employee asked for the keys to Dale's car, but Dale refused.
Dion filed a wrongful death action against Depot, contending that the conduct of its employees was the proximate cause of Dale's death. Depot moved to dismiss the complaint for failure to state a claim, arguing that Dion's asserted cause of action fell under the
Dram Shop Act, OCGA § 51-1-40, which bars claims by the consumer of alcohol against the provider. The trial court granted Depot's motion, specifically rejecting Dion's contentions that OCGA § 51-1-40 is unconstitutional.
[296 Ga. 187] Dion contends that she has a viable claim for wrongful death grounded in the general principles of tort law, see OCGA § 51-1-6, and OCGA § 3-3-22, which prohibits the provision of any alcoholic beverage to a person who is noticeably intoxicated. Of course, a wrongful death action " cannot rest solely upon OCGA § 51-1-6 because this statute sets forth merely general principles of tort law. [Cit.]" Wells Fargo Bank v. Jenkins, 293 Ga. 162, 164 (744 S.E.2d 686) (2013). And, under these circumstances, OCGA § 3-3-22 also provides no basis for Dion's suit.
" Under Georgia law ... a suit for wrongful death is derivative to the decedent's right of action. A survivor cannot recover for the decedent's wrongful death if the decedent could not have recovered in his or her own right." Mowell v. Marks, 269 Ga.App. 147, 149 (603 S.E.2d 702) (2004) (Citations and punctuation omitted.) And, as the consumer of the alcoholic beverages, Dale could not have recovered in his own right. Rather,
[a]t common law there was no right of recovery for selling or furnishing intoxicating liquor to an intoxicated person. The common-law rule holds the man who drank the liquor liable and considers the act of selling it as too remote to be a proximate cause of an injury caused by the negligent act of the purchaser of the drink. (Citations and punctuation omitted.)
Delta Airlines, Inc. v. Townsend, 279 Ga. 511, 511-512 (1) (614 S.E.2d 745) (2005). Thus, under the common law, if a claim of
liability was based on the act of furnishing alcohol, the claim would fail; regardless of whether the act of furnishing alcohol was claimed to be simple negligence or negligence per se in violation of a statute, it could not " leap the common law's chasm of causation." Id. at 512. Rather, for the provider of alcohol to be found liable, legislation would be required to impose that liability in derogation of the common law. Id. And, in 1988, the General Assembly provided such legislation, enacting OCGA § 51-1-40, which " abrogated the common law rule and created a new cause of action." Id. (Citation and punctuation omitted.)
[296 Ga. 188] OCGA § 51-1-40 (a) provides:
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.
Thus, in enacting OCGA § 51-1-40, the General Assembly recognized that the common law prohibited recovery in the circumstances presented by Dion's suit, but established new causes of action in derogation of the common law, setting those forth in OCGA § 51-1-40 (b). But, those new causes of action do not encompass the death of Dale, and thus do not embrace Dion's claim; the only injuries that can be recognized under the new statutory rules created by OCGA § 51-1-40 are those injuries suffered by third parties. Indeed, OCGA § 51-1-40 (b) is explicit in stating that " [n]othing 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." (Emphasis supplied.) Thus, as to Dion's claim of liability, there has been no change in the common law; the act of selling alcohol to Dale is considered too remote to be a proximate cause of injury to himself, he is held to be the liable party, and no recovery can be had for furnishing him that which he drank. Delta Airlines, supra at 511-512.
Nonetheless, Dion contends that OCGA § 51-1-40 is unconstitutional as violating the separation of powers provision of the Georgia Constitution of 1983, Article I, Section II, Paragraph III, which reads: " The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided." But, the contention is meritless. " The doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced. Under that doctrine, statutory construction belongs to the courts, legislation to the legislature." (Citation and punctuation omitted.) Allen v. Wright, 282 Ga. 9, 12 (1) (644 S.E.2d 814) (2007). And that is all that has occurred here; the General Assembly has simply enacted legislation. In no way has it attempted to limit the constitutional jurisdiction of the courts, see Sentence Review Panel v. Moseley, 284 Ga. 128, 130 (1) (663 S.E.2d 679) (2008), or otherwise run afoul of the separation of powers provision. The mere fact that OCGA § 51-1-40 represents a change from the [296 Ga. 189] common law does not render it infirm under the separation of powers provision. Rather, " [t]he General Assembly properly can ... enact legislation that departs from the common law ... ." May v. State, 295 Ga. 388, 397 (761 S.E.2d 38) (2014). And, " [i]n fulfilling that legislative function, the General Assembly has not invaded the province of the judiciary. [Cit.]" Getkate v. State, 278 Ga. 585, 586 (604 S.E.2d 838) (2004).
Although Dion notes that in OCGA § 51-1-40 (a), the General Assembly states that it " finds and declares" whet constitutes proximate cause in dram shop cases, to the extent that this language implicates the separation of powers provision, it does not violate it; this Court has previously stated that " [t]his provision represents a qualified codification of the common law rule that the act of consuming, rather than that of supplying, alcoholic beverages is the proximate cause of the injuries suffered or inflicted by the consumer thereof." Delta Airlines, supra at 513. As the General Assembly can expand and create exceptions to the common law, it can also codify it. See
Peachtree-Cain Co. v. McBee, 254 Ga. 91, 92-93 (1) (327 S.E.2d 188) (1985).
Dion also asserts that OCGA § 51-1-40 is unconstitutionally vague, see In the Interest of C. B., 286 Ga. 173, 173-174 (2) (686 S.E.2d 124) (2009), contending it is contradictory; she specifically argues that the statement in OCGA § 51-1-40 (a) that " [t]he 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 ..." cannot be reconciled with the statement in OCGA § 51-1-40 (b) that liability can be found under the exceptions set forth therein " when the sale, furnishing, or serving [of alcohol] is the proximate cause of ... injury or damage" inflicted by a person described in OCGA § 51-1-40 (b). This argument is also meritless. As this Court has previously stated, the Dram Shop Act
makes it clear that it is the consumption of alcohol, not the selling or furnishing, which leads to injuries in this state, it goes on to create two exceptions to the rule for liability purposes: an individual may be liable for injuries if he furnishes or serves alcoholic beverages to a person who is underage, knowing he will soon be driving; and if he furnishes or serves alcoholic beverages to a noticeably intoxicated adult, knowing he will soon be driving. Liability is not imposed under either one of these exceptions, however, unless the furnishing or serving of the alcoholic beverage is [296 Ga. 190] the proximate cause of injury. OCGA § 51-1-40. We find these statutory requirements to be straightforward ... .
Flores v. Exprezit! Stores 98-Georgia, LLC, 289 Ga. 466, 468 (713 S.E.2d 368) (2011).
Judgment affirmed. All the Justices concur.