COA says dram shop case can move forward

A jury might be asked to decide whose negligence was most wanton in the case of a Charlotte woman who died of alcohol poisoning at an Asheville resort. A divided Court of Appeals panel ruled April 5 that a trial court judge improperly dismissed a dram shop lawsuit against the Crown Plaza Resort, finding that the facts raised in the complaint did not show that the woman who downed the long series of drinks that killed her had been grossly negligent as a matter of law.

Thomas Davis alleged that the Crown Plaza’s restaurant served him and his wife, Lisa, at least 24 liquor drinks on the night of Oct. 5, 2012, with his wife drinking at least 10 of them. Davis said his wife became so intoxicated she was unable to walk to their hotel room. Resort employees placed Lisa Davis in a wheelchair and took her to the hotel room, where her husband claims they left both of them without appropriate assistance or medical attention. The next morning, Davis woke up and found his wife dead.

Davis filed suit against the resort, alleging common law dram shop and negligent aid or rescue. A trial on the negligent aid claim produced a jury verdict in favor of the resort. The trial court dismissed the dram shop claim, finding that Lisa Davis’ own negligence in consuming such a high number of drinks contributed to her death. In North Carolina, a finding of contributory negligence prevents a plaintiff from recovering any damages.

But the Court of Appeals, by a 2-1 margin, reversed the dismissal of the lawsuit, saying that a plaintiff’s ordinary negligence will not prevent recovery when the defendant has been grossly negligent—unless the plaintiff’s negligence was also gross, willful or wanton. The majority said that none of the allegations in the plaintiff’s complaint necessarily showed that either of the Davises had been grossly negligent.

“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,” Judge Robert Hunter wrote for the majority.

The majority distinguished the case from a 1992 decision in which the state’s Supreme Court dismissed a wrongful death claim brought by the estate of a man who had died in a car crash after he tried to drive home from a bar while drunk. Whereas drunk driving constitutes gross negligence as a matter of law, the majority said it should be up to a jury to decide whether Davis’ own gross negligence contributed to her death.

North Carolina law makes it illegal for establishments to knowingly give or sell alcoholic beverages to any person who is intoxicated, as the complaints alleges happened to Davis.

Judge Chris Dillon dissented from the majority’s holding. Dillon would have held that Davis acted negligently in causing her own death by voluntarily imbibing such a large volume of alcohol. He argued that the resort’s alleged behavior was not any worse than the allegations in prior cases where dram shop suits had been dismissed.

“The complaint here fails to allege any facts which demonstrate that Defendants’ negligence was any greater than the negligence of Plaintiff’s wife,” Dillon wrote. “A patron is barred from recovering from her server as a matter of law where her allegations fail to allege anything more than that the defendant served alcohol and the patron voluntarily consumed alcohol.”

The divided opinion means that the resort has an automatic right to have its appeal heard by the state’s Supreme Court.

Charles Monnett of Charlotte represented Davis’ estate. Monnett said that serving a patron enough alcohol to cause their death by alcohol poisoning should easily rise to the level of gross negligence. He said that after the complaint was filed, toxicology experts for both sides said in depositions that Lisa Davis had actually been served the alcoholic equivalent of 18 to 20 drinks.

“I think [the decision] is certainly a step in the right direction of holding establishments that serve alcohol accountable for their conduct,” Monnett said. “Between a professional bartender and a patron, the bartender is certainly in a better position to judge whether a person should to continue to be served.”

Katie Pomroy and Isaac Northup of Northup McConnell & Sizemore in Asheville represented the Crown Plaza Resort. Pomroy confirmed that the resort would appeal the decision and said that the ruling, if it is upheld, would essentially make barkeepers strictly liable for the provision of alcohol. She also argued that North Carolina has never specifically established whether dram shop suits can even be brought on behalf of the person who voluntarily consumed the alcohol.

“The Court of Appeals decision we believe is just flat-out wrong, and we’re of course disappointed by it,” Pomroy said. “It sets what would prove to be, if it’s allowed to stand, a very dangerous precedent in this case holding alcohol providers to a very high level of care.”

The 21-page decision is Davis v. Hulsing Enterprises, LLC (Lawyers Weekly No. 011-104-16). The full text of the opinion is available online at nclawyersweekly.com.

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