dissenting
I respectfully dissent to the majority’s opinion that Georgia’s Dram Shop Act, OCGA § 51-1-40, applies to grocery and convenience stores that sell alcoholic beverages in closed containers or packages intended for consumption elsewhere. During the years that the dram shop law has been in existence, it has never been applied to grocery stores, convenience stores, or mom and pop roadside stores. In fact, the General Assembly has declared that “the consumption of alcoholic beverages” is the behavior being regulated by the act rather than the sale of such beverages. See OCGA § 51-1-40 (a). If the legislature had intended for the law to apply to such stores, the legislature could have amended the act to provide for their specific inclusion. The herculean step the majority opinion takes today by including such stores in the sweep of the Dram Shop Act is contrary to the history of the act’s application and experience.
Establishments such as grocery and convenience stores are different in kind from restaurants, bars and clubs where alcohol is consumed openly on the premises and where employees interact numerous times with their customers. In grocery and convenience stores, store clerks have very little contact with the customers standing in line waiting to make their purchases. Often the brief interaction between grocery and convenience store clerks and their customers is limited to nothing more than determining the amount and form of payment. If the convenience store is in a gas station setting, clerks may be enclosed behind sturdy glass windows where money is exchanged through a small opening in the glass. With the advent of smart technologies, grocery store customers can now use machines to check themselves out and pay for items, essentially eliminating all human interaction. In these situations, store clerks are not in a position to judge the sobriety of their customers, much less to determine whether their customers will be driving soon.
The negative impact of the majority’s opinion will be far-reaching, in particular exposing small businesses to indeterminate liability and almost-certain economic ruin. Should we require general store clerks, as opposed to licensed bartenders, to judge sobriety or to investigate which customers arrived at the store by driving a vehicle, rather than as a passenger or pedestrian? Will stores now be required to keep surveillance recordings for the duration of the statute of limitation period on the chance that one of its customers is involved in an accident, perhaps long after he or she last set foot in *472the store?9 The steps necessary to ensure against this liability for grocery and convenience stores are unworkable at best. Courts have had difficulty establishing this knowledge of a patron’s intentions with regard to on-premises alcohol sales, much less in the context of a fleeting interaction in the checkout line of a grocery or convenience store which sells many products and beverages other than alcohol. See Becks v. Pierce, 282 Ga. App. 229, 234 (638 SE2d 390) (2007) (finding “evidence that most customers drove to the [b]ar” was insufficient to establish that they knew the consumer would be driving soon). Moreover, unlike a bar or restaurant, a convenience store employee has no way to monitor or control the customer’s post-sale actions. As the Court of Appeals correctly observed below, “[The employee] did not know if [the customer] would drink the beer, how much he might drink, when he might do so, or whether he would drive soon after drinking[,]” therefore providing no legitimate basis to conclude “that it was or should have been reasonably foreseeable to [the employee] that [the customer] would soon drive while intoxicated from consuming the packaged beer it sold.” Flores v. Exprezit! Stores 98-Georgia, 304 Ga. App. 333, 335-336 (696 SE2d 125) (2010). A finding of proximate cause in these situations would almost always require the jury to rely on pure speculation in order to import liability to a grocery or convenience store. Id. at 336; Dildine v. Town & Country Truck Sales, 259 Ga. App. 732, 734 (577 SE2d 882) (2003) (finding that inferences based on “speculation or guesswork [are] improper bases for liability”). Such a result is not supported by the legislative intent behind the statute. Accordingly, I would affirm the judgment of the Court of Appeals.
Decided July 5, 2011. Edward J. Bauer, Mary K. Durant, for appellants. Fain, Major & Brennan, Gene A. Major, Weinberg, Wheeler, Hudgins, Gunn & Dial, Michael A. Sexton, Y. Kevin Williams, for appellees. Lyle G. Warshauer, Oates & Courville, Traci G. Courville, Butler, Wooten & Fryhofer, Alan J. Hamilton, Matthew E. Cook, James D. Summerville, amici curiae.This Court has held that the spoliation of evidence raises a rebuttable presumption against a party where litigation is “contemplated or pending." Silman v. Assocs. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009) (citing Baxley v. Hakiel Indus., 282 Ga. 312, 313 (647 SE2d 29) (2007)).