Dram Shop Act - Wrongful Death - Circumstantial Evidence
Wiggins v. Mobile Greyhound Park, LLP, [Ms. 1170874, May 3, 2019] __ So. 3d __ (Ala. 2019). The Court (Bryan, J.; Parker, C.J., and Wise, Mendheim, Stewart, Mitchell, JJ., concur; Bolin and Sellers dissent) reverses a summary judgment entered by the Mobile Circuit Court dismissing a Dram Shop action predicated on overserving a patron at a dog-racing track.
The Court first held that “the totality of the circumstances” must be considered where an on-premises licensee is alleged to have sold alcohol to a visibly intoxicated person. Ms. *16.
McMillian, the intoxicated driver, testified that he only consumed two beers at the defendant dog-racing track and had not consumed alcohol before arriving there. Ms. *32. However, the fatal crash occurred only twenty minutes after McMillian left the dog-racing track and numerous witnesses testified that immediately following the crash McMillian was visibly intoxicated. Ms. *18-20. The plaintiff also submitted expert testimony that based upon his BAC, McMillian consumed 20-23 beers during the time he was at the dog-racing track. Ms. *33.
The Court held that “‘circumstantial evidence is in no wise considered inferior evidence and is entitled to the same weight as direct evidence ....’” Ms. *35, quoting Edwards v. State, 139 So. 3d 827, 836-37 (Ala. Crim. App. 2013). Consequently, the circuit court erred in discounting the circumstantial evidence that McMillian was visibly intoxicated when he was served by the defendants. Ms. *37.
The Court also rejected defendants’ collateral estoppel argument because collateral estoppel only extends to “matters actually litigated and determined in the first action.” Ms. *48, quoting 50 C.J.S. Judgment § 928 (2009) (emphasis added by Wiggins). The issue of McMillian’s visible intoxication was not actually determined in the prior declaratory judgment action. Ms. *47-48.
In affirming the trial court’s order striking the claim for wrongful death, the Court reiterated settled law that
“[t]he Dram Shop Act provides the exclusive remedy for the unlawful dispensing of alcohol to an adult.” Johnson v. Brunswick Riverview Club, Inc., 39 So. 3d 132, 139 (Ala. 2009). “In Alabama, one cannot recover for negligence in the dispensing of alcohol.” Williams v. Reasoner, 668 So. 2d 541, 542 (Ala. 1995).
Thus, Wiggins cannot assert both a claim under the Dram Shop Act and a claim under the Wrongful Death Act for the same injury. To the extent that the circuit court’s order granting MGR’s motion to strike is based on such a conclusion, it is affirmed. Our decision in that regard, however, does not alter the relief available to Wiggins under the Dram Shop Act for damages arising from Turner’s death.