Can Bars Be Sued for Wrongful Death for Over-Serving?
After a fatal single-vehicle collision, a surviving spouse filed a wrongful death action against the driver of a passenger truck in which the victim was riding. The plaintiff also sued the owner of the vehicle, as well as two bars that had served alcoholic beverages to the defendant. The plaintiff sought review of the grant of summary judgment in favor of one bar, and she also appealed from the grant of summary judgment in favor of a second bar.
Drinking at the bar
On the evening of December 7, 2019, the defendant spent roughly five hours at Bar One. Although it was a busy “event night” for the bar due to a boat parade and fireworks, the bar didn’t dispute that it served the defendant multiple alcoholic drinks while she was there. The evidence showed that three different bartenders served her drinks. Bar One didn’t dispute that it provided the defendant with straight vodka (sans mixer) or that, viewed in the light most favorable to the plaintiff, the defendant consumed at least some of it.
The defendant left Bar One at around 11:40 p.m. and arrived at Bar Two when the bartender was doing the last call shortly before midnight close. As she walked in, the defendant driver briefly encountered the only two customers still in the bar—one of whom was the victim. She yelled at them to get out then ordered a margarita before heading to the restroom. There was no surveillance video from the bar, the bartender served the defendant the margarita at approximately 11:55 p.m. No one saw whether the defendant consumed the margarita.
Meanwhile, the two customers were looking for their friend to give them a ride and tried to reach him by phone. They’d ridden with their friend to Bar Two a few hours earlier and had expected him to drive them home.
The bar patron testified that the defendant came outside and apologized for yelling at them when she arrived. The defendant explained that she’d been in the food service business and had wanted to help the bartender clear people out. The two customers soon gave up looking. The victim had the keys to their friend’s pickup truck, and the defendant offered to drive them in the truck to the victim’s home, about two miles away. The bar patron sat in the front passenger seat while the defendant drove. The victim, sitting in the backseat, continued trying to reach their friend by phone.
The victim connected with their friend at 12:43 and 12:48 a.m. Their friend told the victim that he was still at Bar Two. So, the victim told the defendant to turn around and head back. After turning around, the defendant began driving recklessly. The bar patron heard the victim say that she was doing 100 miles an hour. The patron urged the defendant to slow down, but she either ignored him or told him that she knew what she was doing.
At approximately 12:53 a.m., the truck “fishtailed,” went off the road, and struck a utility pole and a tree. Live power lines were down, and the truck became engulfed in flames. Emergency vehicles arrived within minutes. The defendant was treated at the scene before being transported by ambulance to a hospital, arriving there around 1:50 a.m. The patron suffered serious injuries but survived the crash. The victim was pronounced dead at the scene.
It was unclear at when the defendant’s blood was drawn to measure her BAC (blood alcohol content) because hospital records list the time as 1:02 a.m. on December 8th— prior to her arrival at the hospital. The test results showed she had a BAC of 0.173.
The plaintiff filed suit, alleging that the two bars were liable under Georgia’s Dram Shop Act, O.C.G.A. § 51-1-40, and seeking damages for wrongful death and loss of consortium, as well as attorney fees and punitive damages. Following a hearing, the trial court entered separate, detailed orders granting both establishments’ motions for summary judgment. These appeals followed.
Dram shop lawsuits can hold bars responsible
Judge Jeffrey A. Watkins wrote that the Dram Shop Act provides in relevant part:
A person who sells, furnishes, or serves alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury, death, or damage caused by or resulting from the intoxication of such person, including injury or death to other persons; provided, however, a person . . . who [1] knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, [2] 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 . . . person when the sale, furnishing, or serving is the [3] proximate cause of such injury or damage.
The judge explained that “a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case.”
In granting summary judgment in favor of Bar One, the trial court held, inter alia, that:
- There was no evidence the defendant was noticeably intoxicated when she was served at Bar One;
- Bar One had no reason to expect that she’d soon be driving a motor vehicle; and
- The plaintiff failed to establish that the service of alcoholic beverages at Bar One was the proximate cause of the victim’s death.
The plaintiff challenged each of these findings, arguing that there were genuine disputes of material fact as to each element of the Dram Shop Act. The plaintiff argued that summary judgment was improper because there was evidence that Bar One knowingly served the defendant alcoholic beverages when she was in a state of noticeable intoxication.
But Judge Watkins said that the direct evidence in the record was uncontradicted. Bar One presented testimony of employees who were familiar with the defendant’s general personality and had interacted with her that night. The defendant had recently worked at Bar One, and her former coworkers described her as normally “very talkative” and outgoing, openly affectionate, “high-strung,” “wide open all the time,” opinionated, headstrong, argumentative, and sometimes obnoxious — behaviors that can also be associated with intoxication.
According to the bartender who served the defendant the double Moscow Mule around 8 p.m. and then saw her again toward the end of the night, she “seemed fine” and seemed like herself. The bartender who served her the last two drinks testified that she wasn’t noticeably intoxicated. More specifically, he recalled that she wasn’t slurring her words and didn’t have glassy eyes. He further said that the defendant’s behavior in going into the employee-only Beer Room and attempting to help clean up trash at the end of the night didn’t seem like odd behavior for her. Similarly, the third bartender who served her at Bar One testified that she wasn’t noticeably intoxicated during their brief conversation just after 10:30 p.m.
In rebuttal, the plaintiff presented only circumstantial evidence to suggest that the defendant may have been noticeably intoxicated by the time she was last served at Bar One.
The expert viewed the video footage and noted certain behaviors in the footage that he believed were consistent with intoxication, but his testimony was equivocal at best, Judge Watkins said. The expert primarily relied on his calculations which he made by extrapolating backwards from the BAC of 0.173 in the defendant’s hospital records. In doing so, he made a number of assumptions, including the time the blood sample was drawn, her weight, a consistent rate of consumption of the drinks throughout the night, that she finished every drink that she was served at Bar One, that the only other alcoholic beverage she had was the midnight margarita at Bar Two, and an average elimination rate.
Using these assumptions, the expert estimated that the defendant’s BAC around 9 p.m. would have been below 0.08 and that around 10:30 (when Bar One last served her), it was “probably” over 0.10. He acknowledged it was “very possible” that at this amount over 0.10 there still wouldn’t be noticeable signs of intoxication from an experienced drinker and that such a drinker could compensate and mask some of the effects (such as unsteadiness and slurred speech) and not appear drunk.
According to the plaintiff’s expert, at a BAC of 0.12, the defendant “would certainly have been exhibiting signs of intoxication, but how apparent that would have been, could be somewhat debatable.” The plaintiff’s expert added, “to answer the question at 0.12, was she exhibiting symptoms; she could have been. She certainly was under the influence. And if somebody would have engaged and looked closer, you would have been able to determine the impairment.”
The expert further qualified his opinion, stating that individualized factors such as physiological makeup, metabolism rate, and previous experience with alcohol make a difference, so “it’s difficult to say or pretty much impossible to say that at this level, this person is going to be exhibiting these systems.” But most people are visibly and appreciably intoxicated at those levels and above, he said. Even so, he didn’t opine that the defendant was at such a level of intoxication when Bar One served her an alcoholic beverage.
In the absence of evidence that the defendant appeared noticeably intoxicated, the plaintiff’s claim against Bar One lacked a required element. The trial court, therefore, didn’t err in granting summary judgment on this ground.
In granting summary judgment in favor of Bar Two, the trial court held that there was no evidence that the defendant was noticeably intoxicated when she was served at Bar Two. However, there was little direct evidence as to whether the defendant was “noticeably intoxicated” when she arrived just before closing at Bar Two. Very few people were still at the bar, and there was no video surveillance footage. Although the bartender testified that the defendant seemed “fine” when she ordered a margarita right before closing time, the circumstantial evidence provided by the plaintiff’s expert contradicted the direct evidence.
The judgments were affirmed. Kendrick v. Fish Tale Rests, 2025 Ga. App. LEXIS 516, 2025 LX 410663 (Ga. App. October 31, 2025).
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