*

Honorable Julie E. Carnes, U.S. District Judge for the

Northern District of Georgia, sitting by designation. 

 1In their action, plaintiffs also named James Kendrick,

Shannon Mitchell, Curt Hill, Scott Lever, and Blake Beattie as

defendants. Only defendant Lufran, however, is a party to this

appeal. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-8009.

Joseph H. JAQUES, III, Diana V. Jaques, Plaintiffs-Appellants,

v.

James F. KENDRICK, III, Shannon Mitchell, Curt Hill, Scott Lever,

Blake Beattie, Defendants,

Lufran, Incorporated, Defendant-Appellee.

Jan. 27, 1995.

Appeal from the United States District Court for the Southern

District of Georgia. (No. CV190-291), Dudley H. Bowen, Jr., Judge.

Before COX, Circuit Judge, and FAY, Senior Circuit Judge, and

CARNES*

, District Judge.

CARNES, District Judge:

Plaintiffs-Appellants Joseph H. Jaques, III, and Diana V.

Jaques ("plaintiffs") brought this action against

defendant-appellee Lufran, Inc., alleging that Lufran was negligent

in selling beer to Scott Lever, a minor, and was therefore liable

to Joseph Jaques for injuries resulting from an automobile

collision between Jaques and James Kendrick, a minor to whom Scott

Lever had given some of the beer. 1 Lufran moved for summary

judgment, claiming that plaintiffs failed to satisfy the elements

of O.C.G.A. § 51-1-40 (Michie Supp.1994), which governs liability

for the sale of alcoholic beverages to minors. The district court
 2

There is a dispute as to the exact amount purchased, but it

appears that Lever purchased at least eighteen (18) and most

likely twenty-four (24) beers. 

 3O.C.G.A. § 51-1-40(c) provides that evidence that the

person selling the alcoholic beverages has been furnished with

and acted in reliance on identification showing the purchaser to

be at least twenty-one years old constitutes rebuttable proof

that the beverages were not sold willfully, knowingly, and

granted Lufran's motion, holding that defendants failed to meet the

knowledge requirement of O.C.G.A. § 51-1-40, 831 F.Supp. 881

(1993).

I. Background

This case arose out of the following events. In the early

evening of October 19, 1989, six minors—Scott Lever, James

Kendrick, Shannon Mitchell, Angela Boyd, Blake Beattie, and Curt

Hill—met in a Winn Dixie parking lot in Augusta, Georgia to make

plans for their night together. At that time, Kendrick was driving

his vehicle, a 1985 Ford Ranger, with Mitchell and Beattie as

passengers in that vehicle. Hill was driving his vehicle, a 1985

Jeep Cherokee, with Lever and Boyd as passengers. The group

planned to attend a party that was purportedly taking place

somewhere around Lake Strom Thurmond, close to Lincolnton, South

Carolina.

On the way to the lake, the group stopped at an Amoco gas

station and convenience store, which is owned and operated by

defendant Lufran. The vehicle in which Lever had been riding

parked somewhere near the gas pumps. Lever exited the vehicle,

and, by himself, entered the store and purchased a quantity of

beer.2 In order to purchase the beer, Lever furnished the cashier

with a false driver's license that included a false date of birth.3
unlawfully. In rebuttal, plaintiff offered Lever's deposition

testimony that the cashier stated "that little fellow just showed

me a fake ID," after Lever had purchased the beer. (R2-58-20.) 

After Lever made his purchase and left the Amoco store,

Kendrick, who also had parked his vehicle near the gas pumps, then

entered the store to pay for gas that he had been pumping. After

Kendrick left the store, the two vehicles departed the parking lot

of the Amoco store.

Somewhere down the road at a point not visible from the Amoco

store, the vehicles pulled over and Lever distributed the beer

among the two vehicles. The two vehicles then headed toward Lake

Strom Thurmond in order to find the party. Driving around for some

time, the vehicles stopped at one point and Mitchell took over as

driver of the Hill vehicle; Kendrick continued to drive his

vehicle. While attempting to pass the Mitchell vehicle, the

Kendrick vehicle struck the automobile being driven by Margaret

Jaques Perryman. Joseph Jaques, who was a passenger in the

Perryman vehicle, was seriously injured in the accident. Kendrick

was charged with passing in a no passing zone and driving while

under the influence of alcohol.

II. Discussion

 We review grants of summary judgment under a de novo standard

of review. Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374,

1377 (11th Cir.1994). Summary judgment is appropriate when there

are no genuine issues of material fact and the movant is entitled

to judgment as a matter of law. The Court reviewing the motion

must consider the evidence in the light most favorable to the

nonmoving party. Lordmann Enterprises, Inc. v. Equicor, Inc. 32
F.3d 1529, 1532 (11th Cir.1994).

 § 51-1-40(b) provides that one who:

willfully, knowingly, and unlawfully sells, furnishes, or

serves alcoholic beverages to a [minor], 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 ... when the sale, furnishing, or

serving is the proximate cause of such injury or damage.

O.C.G.A. § 51-1-40(b) (Michie Supp.1994). Plaintiffs appeal the

district court's grant of summary judgment for Lufran, asserting

that the district court predicated its order on an erroneous

conclusion that § 51-1-40(b) requires "actual knowledge" by the

defendant that the recipient of the alcohol was a minor who would

soon be driving. Plaintiffs contend that because such a

requirement was subsequently disavowed in Riley v. H & H

Operations, Inc., 263 Ga. 652, 655, 436 S.E.2d 659 (1993), the

district court's order must be reversed.

Defendant argues that the statute, itself, requires that the

minor to whom the alcohol is provided must be the same minor whose

intoxication results in the injury. Alternatively, defendant

argues that plaintiff has adduced no facts to suggest either

constructive or actual knowledge by the defendant of the required

elements of the statute.

In Riley, the defendant's agent requested no identification

prior to selling alcohol to a minor who later caused an automobile

accident. Relying on the deposition testimony of the store clerk

that she neither remembered the sale nor had ever knowingly sold

alcohol to a minor, the trial court concluded that there was no

showing of actual knowledge and it granted summary judgment for the

defendant. The Georgia Supreme Court reversed, holding that a
 4

The court uses the terms "implied knowledge" and

"constructive knowledge" interchangeably. 

requirement of "actual knowledge," as defined by the trial court,

would create liability only when the seller admitted her own

knowledge of the specified elements. Instead, the court ruled, the

"knowing" element of the statute can be satisfied by "implied

knowledge" or "constructive knowledge",4 such that "[i]f one in the

exercise of reasonable care should have known that the recipient of

the alcohol was a minor and would be driving soon, he or she will

be deemed to have knowledge of that fact." 263 Ga. at 655, 436

S.E.2d 659.

Assuming, without deciding, that § 51-1-40 permits liability

when the person driving is not the underage purchaser, we find no

evidence in the record to establish either actual or implied

knowledge of the requisite elements of the statute. Kendrick, a

non-purchasing, albeit ultimate consumer of some of the beer,

allegedly caused the automobile accident. Accordingly, to survive

a motion for summary judgment, plaintiffs were required to produce

evidence suggesting the clerk should have known that, by selling

beer to Lever, she was, in effect, also furnishing that beer to

other minors who would soon be driving. The record, however,

contains no evidence of facts that should have put the clerk on

such notice. Lever, who had ridden in one vehicle, entered the

store alone. It was only after Lever had left that Kendrick, who

had ridden into the parking lot in a different vehicle, came into

the store. Accordingly, there is nothing in the record to indicate

actual or constructive knowledge by the clerk that Lever was with
Kendrick or that Kendrick would be sharing Lever's beer.

For the above reasons, we conclude that the district court

correctly granted summary judgment for the defendant and we AFFIRM.