A Charlotte woman’s decision to consume at least 10 alcoholic drinks in a few hours was grossly negligent as a matter of law, and so her estate can’t sue the hotel which served her those fatal drinks under a theory of common law dram shop liability, a closely divided North Carolina Supreme Court ruled March 2.
The court at the same time declined an invitation to rule that patrons who are overserved are legally precluded from pursuing dram shop suits on their own behalves.
Thomas Davis alleged that the restaurant at the Crowne Plaza Resort in Asheville 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 those. Davis said his wife became so intoxicated that she was unable to walk to their room. Resort employees put Lisa in a wheelchair and took her to the room, and allegedly left both Davises without appropriate assistance or medical attention. The next morning, Davis woke up and found his wife dead.
Davis sued the resort, alleging common law dram shop and negligent aid or rescue. A jury resolved the negligent aid claim in favor of the resort. A Mecklenburg County Superior Court judge dismissed the dram shop claim, finding that Lisa’s own negligence in consuming so many drinks contributed to her death, but in 2016 the state’s Court of Appeals reversed the dismissal by a 2-1 margin.
In North Carolina, contributory negligence—negligent acts on the part of the plaintiff—will prevent a plaintiff from prevailing in a negligence suit if the actions of both the plaintiff and defendants rise to the same level of negligence. So if both the plaintiff and the defendant commit ordinary negligence, or if both commit gross negligence, no recovery is allowed. But recovery will be permitted if the defendant was grossly negligent while the plaintiff engaged in merely ordinary negligence.
Justice Barbara Jackson, writing for the Supreme Court’s 4-3 majority, ruled that Lisa had been grossly negligent in imbibing so many drinks, and thus the trial court had correctly dismissed her estate’s dram shop suit. Jackson said the case was controlled by the Supreme Court’s 1992 decision in Sorrells v. M.Y.B. Hospitality Ventures of Asheville, which dismissed a wrongful death claim brought on behalf of a man killed in a car crash while trying to drive home drunk. The Sorrells court held that drunk driving was grossly negligent as a matter of law.
Chief Justice Mark Martin and Justices Paul Newby and Sam Ervin joined Jackson’s majority opinion.
Justice Robin Hudson wrote a dissenting opinion arguing that a jury should have been allowed to decide whether Lisa’s actions rose to gross negligence. Hudson said the majority didn’t specify the precise actions that constituted gross negligence as a matter of law in the case, and that she saw no allegations in the complaint that would establish it.
Hudson noted that the Supreme Court had never previously decided 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.” Justices Cheri Beasley and Mike Morgan joined Hudson’s dissent.
Dram shop suits are typically brought against a tavern by third parties who’ve been injured by a drunk driver. Davis’ suit was atypical in that it was a first-party cause of action, meaning that it was brought directly on behalf of the person who’d been served too many drinks. Because the court ruled that the estate could not recover due to contributory negligence, it did not consider a request by Crown Plaza to decide whether North Carolina even recognizes a first-party cause of action for dram shop liability. Hudson wrote in her dissent that she would have reached the issue.
Ike Northup of Hall Booth Smith in Asheville represented the Crowne Plaza Resort. Northup said that while he thought the court had reached the proper result, he wished it had addressed Crowne Plaza’s issue about the viability of first-party dram shop lawsuits. Although Davis’ claim was ultimately barred, Northup said the case was fact-specific—it’s unclear how a court might rule if, he gave as an example, a patron was only mildly overserved and injured themselves falling down a staircase or something similar.
“To me, the court had the opportunity to say that a first-party cause of action does not exist, and they declined to take that opportunity,” Northup said.
Charles Monnett of Charlotte represented the Davis estate. Monnett said that the Supreme Court has defined gross negligence as “wanton conduct done with conscious or reckless disregard for the rights and safety of others,” and that while drunk driving clearly did meet that definition, he felt the facts of his client’s case were distinguishable from those in Sorrells.
“How can you say she was grossly negligent when she didn’t do anything that exposed anyone else to harm?” Monnett said. “The only thing Mrs. Davis did is consume alcohol. There was no other negligence. I don’t see how that rises to the level of gross negligence.”
Monnett also noted that North Carolina is one of only four states that still apply a pure contributory negligence doctrine to negligence cases. In that context, he said, he was surprised that in this case the court had chosen to expand the doctrine rather than place boundaries on it.
The 13-page decision is Davis v. Hulsing Enterprises, LLC (Lawyers Weekly No. 010-008-18). The full text of the opinion is available online at nclawyersweekly.com.
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