Ruffin, Presiding Judge.
Sherry Mowell sued Rosanne Marks, Britt Wayne Oxford, and Benjamin Nelson for the wrongful death of her daughter, Kirby. All three defendants moved to dismiss portions of Mowell’s amended complaint for failure to state a claim. The trial court granted the motions, entering a partial final judgment for these defendants as to certain claims. Mowell appeals, and for reasons that follow, we affirm.
“A
trial court should grant a motion to dismiss only when, assuming the allegations in the complaint are true, the plaintiff would not be entitled to any relief under the facts as stated and the defendant demonstrates that the plaintiff could not introduce evidence that would justify granting the relief sought.”
We review a trial court’s order dismissing a plaintiffs complaint de novo.
Mowell’s amended complaint alleges that, on August 11, 2000, 16-year-old Kirby attended a party at Marks’ home. Oxford, Nelson, and Marks’ daughter, Jessica, prepared for the party in Marks’ presence. Marks knew that the party would be attended by minors and persons under 21 years of age.
Before the party began, Oxford and Nelson, who were minors, obtained two kegs of beer, and Marks instructed them where to place the kegs for the party. As party guests entered the house, Oxford and Nelson gave plastic cups to those who wanted to drink beer from the kegs. To defray the cost of the beer, the hosts solicited monetary contributions from the guests.
Kirby arrived at the party around 8:00 p.m., obtained a plastic cup from either Oxford or Nelson, and drank beer from the kegs. Approximately three hours later, Kirby attempted to drive herself home from the party, but lost control of her car, which rolled over.
Kirby died in the crash, and autopsy results later revealed that she
had a blood alcohol level of 0.16.
Mowell sued Marks, Oxford, and Nelson, raising claims relating to Kirby’s death. As to each defendant, Mowell alleged “Dram Shop” liability under OCGA § 51-1-40 (Counts 4 and 5). In the alternative, she asserted that the defendants are liable to her under general negligence principles for serving beer or permitting beer to be served to Kirby, a minor whom they knew or should have known would soon be driving (Counts 7 and 8). Marks, Oxford, and Nelson moved to dismiss these claims, arguing that they are not liable for Kirby’s death under OCGA § 51-1-40 or ordinary negligence principles. The trial court agreed and dismissed Counts 4, 5, 7, and 8 for failure to state a claim upon which relief can be granted.
On appeal, Mowell does not argue that we must treat her Dram Shop and negligence claims differently. She apparently concedes that both classes of claims should be analyzed under Dram Shop principles.
And, as discussed below, OCGA § 51-1-40 (b) precludes recovery.
The General Assembly has declared that “the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.”
In other words, the intoxicated person — rather than a seller or provider of alcohol — is liable for any injury or damage he or she causes.
This general rule has limited exceptions, including one relating to underage drinkers. Under OCGA § 51-1-40 (b), one who “willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age, 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.” Based on this exception, Mowell argues that the actions of Marks, Oxford, and Nelson can be viewed as the proximate cause of Kirby’s death, subjecting them to liability.
We disagree. Although OCGA § 51-1-40 (b) potentially imposes liability on a person who provides alcohol to a minor, that subsection further states that “[n]othing contained in this Code section shall authorize the consumer of any alcoholic beverage to recover from the provider of such alcoholic beverage for injuries or damages suffered
by the consumer.” Thus, an alcohol provider may be the proximate cause of injuries to third parties resulting from the intoxicated minor’s operation of a car.
But the provider is
not
liable for injuries suffered by the minor.
The rationale behind this rule relates to the alcohol consumer’s own duty to exercise ordinary care:
As between provider and consumer, the consumer has the last opportunity to avoid the effect of the alcohol, by not drinking or not driving, and thus as between the two, the negligence of the consumer is the greater. Hence, notwithstanding the fact that the provider as well as the consumer should foresee the possibility of injury to the consumer, the consumer cannot recover for his injuries from the provider.
Trying to avoid this “consumer defense,” Mowell asserts that Kirby — the alcohol consumer — has not filed a claim relating to her injuries. Mowell further argues that OCGA § 51-1-40 (b) “does not prohibit parents or persons other than consumers for suing for damages.” Noting that her wrongful death claim is distinct from any claim her daughter’s estate might have for Kirby’s pain and suffering,
Mowell thus contends that she is pursuing her own cause of action, rather than the claims of Kirby, the consumer.
Under Georgia law, however, “a suit for wrongful death ... is derivative to the decedent’s right of action.”
A survivor cannot recover for the decedent’s wrongful death if the decedent could not have recovered in his or her own right.
As we have found:
[ajlthough it is true that the action created by the wrongful death statute is different from the cause of action which the decedent would have possessed had he lived, any defense which would have been good against the decedent is good against his representatives in a wrongful death action.
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Ruffin, Presiding Judge.
Sherry Mowell sued Rosanne Marks, Britt Wayne Oxford, and Benjamin Nelson for the wrongful death of her daughter, Kirby. All three defendants moved to dismiss portions of Mowell’s amended complaint for failure to state a claim. The trial court granted the motions, entering a partial final judgment for these defendants as to certain claims. Mowell appeals, and for reasons that follow, we affirm.
“A
trial court should grant a motion to dismiss only when, assuming the allegations in the complaint are true, the plaintiff would not be entitled to any relief under the facts as stated and the defendant demonstrates that the plaintiff could not introduce evidence that would justify granting the relief sought.”
We review a trial court’s order dismissing a plaintiffs complaint de novo.
Mowell’s amended complaint alleges that, on August 11, 2000, 16-year-old Kirby attended a party at Marks’ home. Oxford, Nelson, and Marks’ daughter, Jessica, prepared for the party in Marks’ presence. Marks knew that the party would be attended by minors and persons under 21 years of age.
Before the party began, Oxford and Nelson, who were minors, obtained two kegs of beer, and Marks instructed them where to place the kegs for the party. As party guests entered the house, Oxford and Nelson gave plastic cups to those who wanted to drink beer from the kegs. To defray the cost of the beer, the hosts solicited monetary contributions from the guests.
Kirby arrived at the party around 8:00 p.m., obtained a plastic cup from either Oxford or Nelson, and drank beer from the kegs. Approximately three hours later, Kirby attempted to drive herself home from the party, but lost control of her car, which rolled over.
Kirby died in the crash, and autopsy results later revealed that she
had a blood alcohol level of 0.16.
Mowell sued Marks, Oxford, and Nelson, raising claims relating to Kirby’s death. As to each defendant, Mowell alleged “Dram Shop” liability under OCGA § 51-1-40 (Counts 4 and 5). In the alternative, she asserted that the defendants are liable to her under general negligence principles for serving beer or permitting beer to be served to Kirby, a minor whom they knew or should have known would soon be driving (Counts 7 and 8). Marks, Oxford, and Nelson moved to dismiss these claims, arguing that they are not liable for Kirby’s death under OCGA § 51-1-40 or ordinary negligence principles. The trial court agreed and dismissed Counts 4, 5, 7, and 8 for failure to state a claim upon which relief can be granted.
On appeal, Mowell does not argue that we must treat her Dram Shop and negligence claims differently. She apparently concedes that both classes of claims should be analyzed under Dram Shop principles.
And, as discussed below, OCGA § 51-1-40 (b) precludes recovery.
The General Assembly has declared that “the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.”
In other words, the intoxicated person — rather than a seller or provider of alcohol — is liable for any injury or damage he or she causes.
This general rule has limited exceptions, including one relating to underage drinkers. Under OCGA § 51-1-40 (b), one who “willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age, 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.” Based on this exception, Mowell argues that the actions of Marks, Oxford, and Nelson can be viewed as the proximate cause of Kirby’s death, subjecting them to liability.
We disagree. Although OCGA § 51-1-40 (b) potentially imposes liability on a person who provides alcohol to a minor, that subsection further states that “[n]othing contained in this Code section shall authorize the consumer of any alcoholic beverage to recover from the provider of such alcoholic beverage for injuries or damages suffered
by the consumer.” Thus, an alcohol provider may be the proximate cause of injuries to third parties resulting from the intoxicated minor’s operation of a car.
But the provider is
not
liable for injuries suffered by the minor.
The rationale behind this rule relates to the alcohol consumer’s own duty to exercise ordinary care:
As between provider and consumer, the consumer has the last opportunity to avoid the effect of the alcohol, by not drinking or not driving, and thus as between the two, the negligence of the consumer is the greater. Hence, notwithstanding the fact that the provider as well as the consumer should foresee the possibility of injury to the consumer, the consumer cannot recover for his injuries from the provider.
Trying to avoid this “consumer defense,” Mowell asserts that Kirby — the alcohol consumer — has not filed a claim relating to her injuries. Mowell further argues that OCGA § 51-1-40 (b) “does not prohibit parents or persons other than consumers for suing for damages.” Noting that her wrongful death claim is distinct from any claim her daughter’s estate might have for Kirby’s pain and suffering,
Mowell thus contends that she is pursuing her own cause of action, rather than the claims of Kirby, the consumer.
Under Georgia law, however, “a suit for wrongful death ... is derivative to the decedent’s right of action.”
A survivor cannot recover for the decedent’s wrongful death if the decedent could not have recovered in his or her own right.
As we have found:
[ajlthough it is true that the action created by the wrongful death statute is different from the cause of action which the decedent would have possessed had he lived, any defense which would have been good against the decedent is good against his representatives in a wrongful death action. Thus, no recovery could be had unless the deceased in his lifetime could have maintained an action for damages for the injury to him, and... any defenses good as against the deceased would
be good as against the action brought by the beneficiaries.
Pursuant to OCGA § 51-1-40 (b), Kirby would not have been able to recover for any injuries she sustained in the car wreck. We fail to see, therefore, how Mowell can recover.
On appeal, Mowell argues that any consumer defense based on OCGA § 51-1-40 (b) is procedural, rather than substantive, and should not apply derivatively to bar her claim. Pretermitting whether procedural and substantive defenses should be treated differently in this situation, we cannot agree that the consumer defense is procedural. As noted above, the rationale behind this defense involves both the consumer’s ability to avoid the harm and the consumer’s greater level of negligence with respect to the alcohol provider. Thus, the defense incorporates substantive comparative and contributory negligence principles.
And such principles apply derivatively to wrongful death claims.
Citing our opinion in
Eldridge v. Aronson,
Mowell claims that we have previously found the consumer defense to be a procedural “standing question.” The
Eldridge
opinion does no such thing. In
Eldridge,
the claimants sued two individuals who allegedly provided alcohol to the claimants’ minor son. They did not bring suit under OCGA § 51-1-40, but instead based their claim on OCGA § 51-1-18 (a), which gives a parent “a right of action against any person who ... sell[s] or furnish[es] alcoholic beverages to that parent’s underage child for the child’s use without the permission of the child’s parent.”
Although we noted in
Eldridge
that the consumer defense in
OCGA § 51-1-40 (b) does not bar a parent’s claim under OCGA § 51-1-18, nothing in that opinion authorizes Mo well’s wrongful death claim or characterizes a defense based on OCGA § 51-1-40 (b) as procedural.
Mowell further argues that policy considerations should preclude application of the consumer defense to her wrongful death claim. To support this argument, she cites case law in which we declined to apply the interspousal tort immunity defense derivatively to a wrongful death claim because, given the particular case facts, the policy reasons underlying the immunity rule no longer applied.
We are not persuaded by Mowell’s argument. Through clear and explicit language, the General Assembly refused to subject an alcohol provider to liability under OCGA § 51-1-40 for injuries suffered by an alcohol consumer. We see no reason why this rule —■ and the comparative/contributory negligence rationale behind it —■ should not apply to a derivative wrongful death claim.
Finally, Mowell argues that the legislature’s failure to specifically include wrongful death claims within the consumer defense indicates that such claims are not barred. As support, she cites the “estate or survivors” language in OCGA § 51-1-40 (d), which provides:
No person who owns, leases, or otherwise lawfully occupies a premises, except a premises licensed for the sale of alcoholic beverages, shall be liable to any person who consumes alcoholic beverages on the premises in the absence of and without the consent of the owner, lessee, or lawful occupant or to any other person, or
to the estate or survivors of either,
for any injury or death suffered on or off the premises, including damage to property, caused by the intoxication of the person who consumed the alcoholic beverages.
Decided August 13, 2004.
Frankel & Associates, Craig M. Frankel, Tamisa N. Wertz,
for appellant.
Hawkins & Parnell, William H. Major HI, Nathan T. Lee, Gray, Hedrick & Edenfield, Lloyd B. Hedrick, Jr.,
for appellees.
According to Mowell, because the legislature included claims by “the estate or survivors” in OCGA § 51-1-40 (d), but not in subsection (b), it did not intend to bring wrongful death claims within the consumer defense. We disagree. “It is presumed that the legislature knows and enacts statutes with reference to the existing law, including the decisions of the courts.”
Under clear Georgia law, wrongful death claims are derivative. And nothing in OCGA § 51-1-40 (b) suggests that the legislature intended to exempt such claims from the consumer defense. Furthermore, given the legislature’s overarching declaration that an intoxicated individual generally is the proximate cause of injuries resulting from the intoxication,
as well as the comparative/contributory negligence rationale behind the consumer defense, we cannot conclude that the language in OCGA § 51-1-40 (d) evidences such intent.
OCGA § 51-1-40 (b) bars Mowell’s wrongful death claims against Marks, Oxford, and Nelson. Accordingly, the trial court properly dismissed Counts 4, 5, 7, and 8 of Mowell’s amended complaint.
Judgment affirmed.
Eldridge and Adams, JJ., concur.