Defense verdict in dram shop trial upheld

A Buncombe County jury’s verdict in favor of a Wild Wing Café that had served more than a dozen drinks to a patron who was later involved in a car accident will be left undisturbed because the plaintiff’s proposed jury instruction would have improperly focused the jury’s attention on a particular aspect of the evidence, the North Carolina Court of Appeals has ruled.

William Erickson arrived at the Asheville restaurant on a Wednesday morning in August 2015, and in the following six to seven hours was served between 13 and 16 alcoholic beverages before he was cut off. Shortly after Erickson left, the car he was driving collided with a car being driven by Dung Thang Trang. Trang sued Erickson, and sued the restaurant under a theory of dram shop liability.

At trial, Superior Court Judge J. Thomas Davis denied Trang’s request to give the jury an instruction that it could consider all of the evidence “including the evidence presented on the existence of Defendant L J Wings, Inc.’s own voluntarily adopted policies and procedures, and whether or not such voluntarily adopted policies and procedures were followed.” The jury returned a verdict finding that the restaurant was not negligent, and Trang appealed.

In a unanimous Oct. 15 opinion written by Judge John M. Tyson, the Court of Appeals affirmed, finding that the jury had been properly instructed to consider all of the evidence without steering its attention toward any particular piece of evidence highlighted by either side.

At a charge conference, Davis told the attorneys that the proposed instruction “would be an indication that the Court is asking the jury to focus on a particular aspect of the evidence. And as a result thereof, I think that’s improper … that instruction invites the Court to focus on and call as important specific evidence that would not be proper.”

The appeals court ratified the court’s reasoning, saying that the proposed instruction would have run afoul of the state’s Rules of Civil Procedure, which require judges to give “equal stress” to the contentions of each party when instructing the jury.

“If the trial court had instructed the jury with any more specificity, as Plaintiff’s special instructions requested, the instructions would have improperly pre-empted or focused the jury’s attention, and denied ‘equal stress to the contentions of each party,’” Tyson wrote. “Plaintiff admitted the employer’s policies into evidence, cross-examined the witnesses, and freely argued the purported violations of Defendant’s policies by the bartenders to the jury.”

The appeals court also rejected Trang’s argument that Davis had incorrectly granted the restaurant a directed verdict on his claim for negligent supervision of its employees. Tyson wrote that even if the decision to grant the motion had been an error, Trang could not prove that he suffered any prejudice from it because a negligent supervision claim requires a finding that an employee had committed some tortious act that caused the plaintiff’s injuries, and the jury had returned a verdict on the dram shop claim finding that the restaurant’s employees were not negligent.

Jeremy Stephenson of Pope Aylward Sweeney & Stephenson in Charlotte represented the restaurant. Stephenson said that that neither side in the case had requested oral argument, and so it was surprising when the court ordered an oral argument on its own initiative. Most of the questions at oral argument were directed toward the plaintiff, and the court published its ruling two weeks later, Stephenson said.

Lakota Denton of Asheville and Luke Baker of Concord represented Trang.

The nine-page opinion is Trang v. L J Wings, Inc. (Lawyers Weekly No. 011-277-19).

Follow David Donovan on Twitter @NCLWDonovan