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 ...