United States Court of Appeals,
Eleventh Circuit.
No. 94-8009.
Joseph H. JAQUES, III, Diana V. Jaques, Plaintiffs-Appellants,
v.
James F. KENDRICK, III, Shannon Mitchell, Curt Hill, Scott Lever,
Blake Beattie, Defendants,
Lufran, Incorporated, Defendant-Appellee.
Jan. 27, 1995.
Appeal from the United States District Court for the Southern
District of Georgia. (No. CV190-291), Dudley H. Bowen, Jr., Judge.
Before COX, Circuit Judge, and FAY, Senior Circuit Judge, and
CARNES*, District Judge.
CARNES, District Judge:
Plaintiffs-Appellants Joseph H. Jaques, III, and Diana V.
Jaques ("plaintiffs") brought this action against
defendant-appellee Lufran, Inc., alleging that Lufran was negligent
in selling beer to Scott Lever, a minor, and was therefore liable
to Joseph Jaques for injuries resulting from an automobile
collision between Jaques and James Kendrick, a minor to whom Scott
1
Lever had given some of the beer. Lufran moved for summary
judgment, claiming that plaintiffs failed to satisfy the elements
of O.C.G.A. § 51-1-40 (Michie Supp.1994), which governs liability
for the sale of alcoholic beverages to minors. The district court
*
Honorable Julie E. Carnes, U.S. District Judge for the
Northern District of Georgia, sitting by designation.
1
In their action, plaintiffs also named James Kendrick,
Shannon Mitchell, Curt Hill, Scott Lever, and Blake Beattie as
defendants. Only defendant Lufran, however, is a party to this
appeal.
granted Lufran's motion, holding that defendants failed to meet the
knowledge requirement of O.C.G.A. § 51-1-40, 831 F.Supp. 881
(1993).
I. Background
This case arose out of the following events. In the early
evening of October 19, 1989, six minors—Scott Lever, James
Kendrick, Shannon Mitchell, Angela Boyd, Blake Beattie, and Curt
Hill—met in a Winn Dixie parking lot in Augusta, Georgia to make
plans for their night together. At that time, Kendrick was driving
his vehicle, a 1985 Ford Ranger, with Mitchell and Beattie as
passengers in that vehicle. Hill was driving his vehicle, a 1985
Jeep Cherokee, with Lever and Boyd as passengers. The group
planned to attend a party that was purportedly taking place
somewhere around Lake Strom Thurmond, close to Lincolnton, South
Carolina.
On the way to the lake, the group stopped at an Amoco gas
station and convenience store, which is owned and operated by
defendant Lufran. The vehicle in which Lever had been riding
parked somewhere near the gas pumps. Lever exited the vehicle,
and, by himself, entered the store and purchased a quantity of
beer.2 In order to purchase the beer, Lever furnished the cashier
with a false driver's license that included a false date of birth.3
2
There is a dispute as to the exact amount purchased, but it
appears that Lever purchased at least eighteen (18) and most
likely twenty-four (24) beers.
3
O.C.G.A. § 51-1-40(c) provides that evidence that the
person selling the alcoholic beverages has been furnished with
and acted in reliance on identification showing the purchaser to
be at least twenty-one years old constitutes rebuttable proof
that the beverages were not sold willfully, knowingly, and
After Lever made his purchase and left the Amoco store,
Kendrick, who also had parked his vehicle near the gas pumps, then
entered the store to pay for gas that he had been pumping. After
Kendrick left the store, the two vehicles departed the parking lot
of the Amoco store.
Somewhere down the road at a point not visible from the Amoco
store, the vehicles pulled over and Lever distributed the beer
among the two vehicles. The two vehicles then headed toward Lake
Strom Thurmond in order to find the party. Driving around for some
time, the vehicles stopped at one point and Mitchell took over as
driver of the Hill vehicle; Kendrick continued to drive his
vehicle. While attempting to pass the Mitchell vehicle, the
Kendrick vehicle struck the automobile being driven by Margaret
Jaques Perryman. Joseph Jaques, who was a passenger in the
Perryman vehicle, was seriously injured in the accident. Kendrick
was charged with passing in a no passing zone and driving while
under the influence of alcohol.
II. Discussion
We review grants of summary judgment under a de novo standard
of review. Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374,
1377 (11th Cir.1994). Summary judgment is appropriate when there
are no genuine issues of material fact and the movant is entitled
to judgment as a matter of law. The Court reviewing the motion
must consider the evidence in the light most favorable to the
nonmoving party. Lordmann Enterprises, Inc. v. Equicor, Inc. 32
unlawfully. In rebuttal, plaintiff offered Lever's deposition
testimony that the cashier stated "that little fellow just showed
me a fake ID," after Lever had purchased the beer. (R2-58-20.)
F.3d 1529, 1532 (11th Cir.1994).
§ 51-1-40(b) provides that one who:
willfully, knowingly, and unlawfully sells, furnishes, or
serves alcoholic beverages to a [minor], 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 ... when the sale, furnishing, or
serving is the proximate cause of such injury or damage.
O.C.G.A. § 51-1-40(b) (Michie Supp.1994). Plaintiffs appeal the
district court's grant of summary judgment for Lufran, asserting
that the district court predicated its order on an erroneous
conclusion that § 51-1-40(b) requires "actual knowledge" by the
defendant that the recipient of the alcohol was a minor who would
soon be driving. Plaintiffs contend that because such a
requirement was subsequently disavowed in Riley v. H & H
Operations, Inc., 263 Ga. 652, 655, 436 S.E.2d 659 (1993), the
district court's order must be reversed.
Defendant argues that the statute, itself, requires that the
minor to whom the alcohol is provided must be the same minor whose
intoxication results in the injury. Alternatively, defendant
argues that plaintiff has adduced no facts to suggest either
constructive or actual knowledge by the defendant of the required
elements of the statute.
In Riley, the defendant's agent requested no identification
prior to selling alcohol to a minor who later caused an automobile
accident. Relying on the deposition testimony of the store clerk
that she neither remembered the sale nor had ever knowingly sold
alcohol to a minor, the trial court concluded that there was no
showing of actual knowledge and it granted summary judgment for the
defendant. The Georgia Supreme Court reversed, holding that a
requirement of "actual knowledge," as defined by the trial court,
would create liability only when the seller admitted her own
knowledge of the specified elements. Instead, the court ruled, the
"knowing" element of the statute can be satisfied by "implied
knowledge" or "constructive knowledge",4 such that "[i]f 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." 263 Ga. at 655, 436
S.E.2d 659.
Assuming, without deciding, that § 51-1-40 permits liability
when the person driving is not the underage purchaser, we find no
evidence in the record to establish either actual or implied
knowledge of the requisite elements of the statute. Kendrick, a
non-purchasing, albeit ultimate consumer of some of the beer,
allegedly caused the automobile accident. Accordingly, to survive
a motion for summary judgment, plaintiffs were required to produce
evidence suggesting the clerk should have known that, by selling
beer to Lever, she was, in effect, also furnishing that beer to
other minors who would soon be driving. The record, however,
contains no evidence of facts that should have put the clerk on
such notice. Lever, who had ridden in one vehicle, entered the
store alone. It was only after Lever had left that Kendrick, who
had ridden into the parking lot in a different vehicle, came into
the store. Accordingly, there is nothing in the record to indicate
actual or constructive knowledge by the clerk that Lever was with
4
The court uses the terms "implied knowledge" and
"constructive knowledge" interchangeably.
Kendrick or that Kendrick would be sharing Lever's beer.
For the above reasons, we conclude that the district court
correctly granted summary judgment for the defendant and we AFFIRM.