MEMORANDUM
To:
Hal Smalls, Esq.
From:
Tawayna Rucker, Paralegal
Re:
David Jones- Pub Fight
Date:
November 30, 2010
____________________________________________________________
ISSUE
Should Joes Pub, the owner Dan Smith, or Joe Samuels be
held liable for David’s injuries sustained in the accident
following the fight with Dylan Robinson? Why or why not?
DISCUSSION
Under the Georgia Dram Shop Act, it declares that “a person
who knowingly sells, furnishes, or serves alcoholic beverages to
a person who is in a state of noticeable intoxication, 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 or person when the sale,
furnishing, or serving is the proximate cause of such injury or
damage.” GA. CODE ANN. § 51-1-40(b).
For the night in question,
the bartender presumably had actual knowledge of David’s
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noticeable intoxication as he was the only bartender working
that night and the only one who served David the entire night.
The Dram Shop Act was “enacted for the purpose to hold the
consumer of alcohol liable for any injuries inflicted upon
himself or another person” GA. CODE ANN. § 51-1-40(b); however
the exception in subsection (b), allows David to hold Joes Pub
and the owner, Dan Smith, liable for the accident that occurred
after leaving the Pub given the fact that David Jones was
noticeably intoxicated when he was being served and when he was
ejected from the Pub.
In addition to David having the right to
sue the Pub and the owner, Martha Jones can also seek damages
from Dan Smith and Joe Samuels, under the Dram Shop Act, should
David die. For example, in North Equities, Inc. v. Hulsey, 275
Ga. 364, 567 S.E.2d 4, (2002), the business was initially
granted summary judgment because it claimed there was no
evidence that their employee was intoxicated before leaving work
that day. This judgment was reversed because the question of
fact was that the employee was served several alcoholic
beverages throughout her entire day at work which would imply or
infer that she would be too intoxicated to drive even if there
were no noticeable signs of the intoxication.
Inc. 275 Ga. at 364.
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North Equities,
CONCLUSION
In this case, David Jones was obviously under the
influence of alcohol and probably should have received
reasonable care from Joe’s Pub and employees. It is very likely
that this case will be granted in David’s favor (should he live)
and/or Martha Jones’s favor (should David die) resulting in them
both receiving damages for their losses.
ISSUE
What cause of action may David or Martha maintain against
Dylan for the injuries sustained in the fight? What defenses
does Dylan have?
DISCUSSION
In Georgia, a person commits the offense of battery when he
or she intentionally causes substantial physical harm or visible
bodily harm to another. GA. CODE ANN. § 16-5-23.1.
Etheridge's admission that, during an argument, he hit Dagnan in
the face with his fist, coupled with proof that the boy's face
and eye were swollen and bruised, is sufficient under the
standard of Jackson v. Virginia to authorize the jury's verdict
that he is guilty, beyond a reasonable doubt, of battery by
intentionally causing visible bodily harm....
Etheridge v. State, 249 Ga. App. 111, 547 S.E.2d 744(2001).
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In the case of David Jones, David was the victim of battery
and can sue Dylan in civil court for pain and suffering, medical
expenses, lost earnings from being out of work, etc. as the
physical altercation between he and Dylan resulted in David
sustaining serious bodily injury.
The likely outcome of David’s
claim of battery should prove favorable much like the case of
Etheridge v. State where the defendant, and also the aggressor,
Etheridge, was convicted of battery.
Martha and David, if David survives, may also sue Dylan for
loss of consortium damages as the bodily harm caused by Dylan
and the car accident has resulted in a change in their
relationship and sexual activity within their marriage. GA. CODE
ANN. § 51-1-17. For example, in the case of Atlanta Oculoplastic
Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 691 S.E.2d 218,
(2010), Ms. Nestlehutt and her husband were awarded loss of
consortium damages, also known as “noneconomic damages” for
their medical malpractice claim. Martha and David will more than
likely be awarded loss of consortium damages as well for their
battery claim.
Dylan Robinson, on the other hand, will likely take the
route of self defense.
This Georgia statute is defined as “use
of force in defense of self or others; evidence of belief that
force was necessary in murder or manslaughter prosecution.”
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GA.
CODE ANN. § 16-3-21. The statute explains that “a person is not
justified in using force if he initially provokes the use of
force against himself with the intent to use force as an excuse
to inflict bodily harm upon the assailant.”
3-21.
GA. CODE ANN. § 16-
Dylan will have to prove to the court that he was
justified in using force against David.
For example, much like
the case of Koritta v. State, 263 Ga. 703, 438 S.E.2d 68 (1994),
Dylan’s case of self-defense could go either way.
He could
claim that the injuries he inflicted upon David were an accident
and that he had no intention of causing such bodily harm upon
David.
If Dylan does decide to go this route, which would be a
pretty difficult case to prove, the court would need evidence
showing the injuries David sustained were justified and indeed
an accident.
Koritta, 263 Ga. at 703.
Moreover, like the
defendant in the Koritta v. State case, Dylan would also have to
convince the court that David’s injuries were brought about
because of an act the “defendant committed while defendant was
engaged in an intentional attempt to protect himself from death
or great bodily harm at the hands of the victim.”
Koritta, 263
Ga. at 703.
David Jones will carry the burden of proving that Dylan
was indeed the aggressor in this case and David will more than
likely succeed in proving his case against Dylan since his
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injuries consisted of a black eye, bruised ribs and a broken
arm. These injuries and more will be confirmed on the medical
reports and will be entered into evidence to support David’s
case.
CONCLUSION
Since David’s injuries are visibly apparent and will be
medically confirmed, it is more than likely the court will rule
in favor of all his and Martha’s claims.
Under Georgia law,
David and Martha, collectively and/or individually, could be
awarded medical expenses, loss of income and future earning
capacity, pain and suffering, loss of consortium, and some court
costs.
Dylan’s case of self-defense will more than likely be
dismissed unless he is successful in proving that he was not the
aggressor and did not initiate force upon David,` but instead he
was merely acting in self-defense.
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