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Home / Courts / N.C. Court of Appeals / Tort/Negligence – Dram Shop Act – Gross Negligence – Contributory Negligence – Per Se Negligence – Last Clear Chance

Tort/Negligence – Dram Shop Act – Gross Negligence – Contributory Negligence – Per Se Negligence – Last Clear Chance

Davis v. Hulsing Enterprises, LLC (Lawyers Weekly No. 011-104-16, 21 pp.) (Robert Hunter Jr., J.) (Chris Dillon, J., dissenting) Appealed from Mecklenburg County Superior Court (Richard Doughton, J.) N.C. App.

Holding: Even if plaintiff’s late wife was contributorily negligent when she drank 10 alcoholic drinks at defendants’ restaurant, since plaintiff’s complaint sufficiently alleged that defendants were grossly negligent, the trial court should not have granted defendant’s motion to dismiss under N.C. R. Civ. P. 12(b)(6).

We reverse the trial court’s grant of defendant’s motion to dismiss.

Plaintiff’s complaint alleges the following. Plaintiff’s late wife, Lisa Davis drank 10 or more alcoholic drinks, diminishing her mental and physical faculties.

At least one or more of these drinks was served to her in violation of North Carolina law. She was noticeably and visibly intoxicated, which would have been apparent to a reasonable ABC permittee; consequently, defendants knew or should have known she was intoxicated. Defendants had a statutory duty to stop serving Davis under G.S. § 18B-305(a), and they failed to uphold their duty by continuing to serve Davis.

Davis fell, and defendants used a wheelchair to take her to her room. Defendants left a grossly intoxicated Davis in her room without appropriate assistance, supervision, or medical attention, thereby “abandoning their prior undertaking to render assistance.” As a direct and proximate result of defendants’ negligence, Davis died of acute alcohol poisoning.

Plaintiff specifically alleged defendants’ acts constituted “gross negligence and … willful or wanton conduct which evidences a reckless disregard for the safety of others.” Based on Brower v. Robert Chappell, 74 N.C. App. 317, 328 S.E.2d 45 (1985), we cannot say that voluntary consumption of alcohol, even to the point of “approaching a comatose state,” without more, amounts as a matter of law to anything above ordinary contributory negligence.

This case could not be appropriately resolved at the pleading stage. Rather, comparing defendants’ negligence level to Davis’ would be appropriate upon a full development of the record. Davis’ consumption of alcohol, without more alleged in the complaint, cannot bar plaintiff’s claim at the pleading stage.

The complaint also alleged a negligence per se claim under § 18B-305(a). Thereunder, ABC permittees and their employees have a duty to not sell alcoholic beverages to intoxicated persons.

This statute exists for (1) the protection of the customer from adverse consequences of intoxication and (2) the protection of the community at large from the injurious consequences of contact with an intoxicated person. Viewing the complaint’s allegations as admitted, defendants breached their duty by continuing to serve Davis while she was intoxicated, when they knew or should have known she was intoxicated. Further, Davis’s alcohol poisoning and death clearly embody the adverse consequences of intoxication that § 18B-305 contemplates and protects against. Accordingly, plaintiff sufficiently pled a negligence per se claim in his complaint.

However, plaintiff did not file a reply, and the complaint’s allegations do not establish that it was clear that Davis’ level of intoxication had become so perilous that injury was inescapable. Therefore, plaintiff failed to allege that defendants had the last clear chance to avoid Davis’ death by acute alcohol poisoning.



(Dillon, J.) The complaint’s allegations demonstrate that Davis acted negligently in proximately causing her own death, namely by voluntarily consuming a large quantity of alcohol. The complaint fails to allege any facts which demonstrate that defendants’ negligence was any greater than Davis’ negligence. I would affirm.

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