Northside Equities, Inc. v. Hulsey

Benham, Justice.

The issue in this Dram Shop Act case is whether the plaintiff produced sufficient evidence to avoid the award of summary judgment to the defendant. The trial court ruled that the plaintiff had not sufficiently countered the evidence offered by the defendant in support of its motion for summary judgment, but the Court of Appeals reversed. Hulsey v. Northside Equities, 249 Ga. App. 474 (2) (548 SE2d 41) (2001). This Court granted certiorari to consider whether scientific evidence of a driver’s blood alcohol level, adduced in opposition to direct eyewitness testimony that the driver was not noticeably intoxicated, can create a question of fact whether the driver was noticeably intoxicated.

The suit arose from the death of the plaintiff’s daughter who was struck by a car driven by Rebecca Greene, an employee at an adult entertainment establishment owned by Northside Equities, Inc. Greene, who had consumed five or six drinks during her work day and was on her way home when her car struck the victim, had a blood alcohol content of .18 grams percent two hours after leaving work. In support of Northside’s motion for summary judgment in the suit filed by the victim’s mother, it submitted affidavits from several of its employees averring that Greene was not noticeably intoxicated while at work. The importance of that evidence is that a defendant will not be liable for serving alcohol unless the consumer of the alcohol is noticeably intoxicated when served. OCGA § 51-1-40 (b). To counter Northside’s evidence, the plaintiff submitted the affidavit of an expert concerning the absorption and metabolism of ethyl alcohol by persons who drink alcoholic beverages. The expert calculated Greene’s probable blood alcohol level at the time of the collision with the victim as being as much as .21 grams percent and opined that various manifestations of intoxication would appear at that level and that those manifestations would vary with the person’s history of drinking.

The Court of Appeals, in Division 2 of its opinion, analyzed the evidence in this case and properly concluded that the evidence of Greene’s blood alcohol level and the expert testimony regarding the impact of that blood alcohol level were sufficient to distinguish this case from those cases which deny probative value to inferences from circumstantial evidence which are opposed to uncontradicted direct evidence. See Birnbrey, Minsk & Minsk, LLC v. Yirga, 244 Ga. App. 726 (535 SE2d 792) (2000); McElroy v. Cody, 210 Ga. App. 201 (435 SE2d 618) (1993). The evidence that Greene was not noticeably intoxicated was not uncontradicted because the expert testimony was that a woman with Greene’s blood alcohol level would have exhibited *365manifestations of intoxication. Since the direct evidence was not uncontradicted, the inference to be drawn from the circumstantial evidence had probative value and, coupled with the conclusive presumption in OCGA § 40-6-391 (a) (5) that a person with a blood alcohol level less than half of Greene’s is impaired, was sufficient to create a question of fact whether Greene was noticeably intoxicated when she was served alcohol at work.

Contrary to the dissent’s assertion, the conclusion reached in this opinion was not the result of ignoring either the legislatively-established standard in Dram Shop Act cases or the decisions of courts in other jurisdictions, but was the result of applying Georgia law regarding summary judgment. It is important to remember that this case is not at a stage of presenting evidence to a factfinder in order to resolve issues of fact. This case involves summary judgment, and the non-movant is not required to produce evidence demanding judgment for that party, but only to present evidence which raises a material issue of fact. While the evidence adduced by the plaintiff in this case might not have been sufficient to persuade a jury that Greene was noticeably intoxicated when last served a drink at work, that is not the standard to be applied. “ ‘Where the evidence on motion for summary judgment is ambiguous or doubtful, the party opposing the motion must be given the benefit of all reasonable doubts and of all favorable inferences and such evidence construed most favorably to the party opposing the motion.’ [Cit.]” Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 552 (181 SE2d 866) (1971). Furthermore, while a movant’s evidence is to be carefully scrutinized, a respondent’s evidence is to be treated with indulgence. Whitehead v. Capital Auto. Co., 239 Ga. 460 (238 SE2d 104) (1977). Applying those standards to the present situation, Hulsey’s evidence regarding Greene’s level of intoxication, taken together with expert testimony that such a level of intoxication would produce manifestations of intoxication, was sufficient to create a question of fact and, thereby, to avoid summary judgment. We conclude, therefore, that the trial court erred in granting summary judgment to Northside and the Court of Appeals was correct in reversing that judgment.

Judgment affirmed.

All the Justices concur, except Fletcher, C. J., Sears, P. J., and Hines, J., who dissent.