Holding: Where plaintiff’s decedent consumed at least 10 drinks in four and a half hours at defendants’ bar, plaintiff cannot sue defendants for his decedent’s death from alcohol poisoning because defendants and the decedent engaged in the same level of negligence.
We reverse the Court of Appeals’ reversal of the trial court’s dismissal of plaintiff’s common law dram shop claim. Defendants’ petition for discretionary review as to an additional issue was improvidently allowed.
Plaintiff and his decedent stayed at the defendant-hotel and drank at the hotel bar. Over the course of four and a half hours, they consumed 24 alcoholic drinks, at least 10 of which were imbibed by the decedent.
As the couple tried to make their way to their room, the decedent fell. A hotel employee used a wheelchair to deliver the decedent to the room. The next morning, plaintiff awoke to find his wife dead of alcohol poisoning.
Because this wrongful death claim is being brought by the administrator of the decedent’s estate, the claim is subject to the affirmative defense of contributory negligence. Although a plaintiff’s ordinary contributory negligence is not a bar to recovery when a defendant’s gross negligence or willful or wanton conduct is a proximate cause of the plaintiff’s injuries, the actions of both the decedent and defendants in this case rise to the same level of negligence, thereby barring plaintiff’s common law dram shop claim.
The trial court properly granted defendants’ motion to dismiss because plaintiff’s complaint discloses an unconditional affirmative defense which defeats the claim asserted and pleads facts which deny the right to any relief on the alleged claim.
(Hudson, J.) The complaint sufficiently alleges gross negligence on the part of defendants, but I see no allegations in the complaint supporting gross contributory negligence on the part of the decedent.
The complaint’s allegations contend that defendants served a noticeably intoxicated person anywhere between 10 and 24 liquor drinks over a four- to five- hour period, with knowledge both of the person’s intoxication and that the quantities served were “potentially lethal.” It is for the jury to decide whether the facts as alleged are ultimately shown by evidence to constitute a conscious or reckless disregard for the safety of others.
I see no allegations in the complaint that can be construed as establishing, as a matter of law, gross contributory negligence on the part of the decedent. I am unaware of any decision from this court holding that drinking to the point of intoxication in a safe location, absent accompanying allegations of impaired driving or other conduct, constitutes gross negligence as a matter of law.
I would affirm.
Davis v. Hulsing Enterprises, LLC (Lawyers Weekly No. 010-008-18, 13 pp.) (Barbara Jackson, J.) (Robin Hudson, J., joined by Cheri Beasley & Michael Morgan, JJ., dissenting) Appealed from Mecklenburg County Superior Court (Richard Boner, J.) On appeal from the Court of Appeals. Charles Monnett III for plaintiff; Isaac Northup Jr. for defendants; R. Frank Gray & Lori Jones for amicus curiae. N.C. S. Ct.