In Davis v. Hulsing Enterprises, the plaintiff appealed from the dismissal of his dram shop and punitive damages claims against the defendants. The case arose when a woman and her husband celebrated their wedding anniversary at a resort. They had dinner at a resort restaurant and drank 24 alcoholic liquor drinks.
The husband drank at least 10 of these drinks, and the wife drank enough to noticeably impair her abilities. The wife’s intoxication would have been visibly apparent to a reasonable employee, agent, or ABC permittee. She was unable to walk with her husband from the restaurant to their hotel room. While they tried to walk to the room, she fell and couldn’t get up, so the defendants put her in a wheelchair and took her to her room. They left the plaintiff and his wife in the hotel room without medical attention, and in the morning when he woke up, the plaintiff found his wife dead on the floor.
Under N.C. Gen. Stat. § 18B-305, it is illegal for an ABC permittee to knowingly provide alcoholic drinks to someone who is intoxicated. The defendants and their employees were ABC permittees.
The plaintiff argued that they had a duty not to sell or provide alcohol to the wife and breached that duty by continuing to serve the wife. He also argued they should have reasonably foreseen that their actions would cause the harm suffered by the victim: acute alcohol poisoning.
The plaintiff sued on claims of common law dram shop liability, negligent assistance, and punitive damages. The dram shop cause of action alleged the defendants were negligent per se for violating N.C. Gen. Stat. § 18B-305. The defendants moved to dismiss for failure to state a claim and also defended on grounds of contributory negligence, assumption of the risk, and intervening negligence. They argued that the plaintiff’s contributory negligence in consuming the drinks and the husband’s intervening negligence and failure to assist her and ensure her safety were the legal causes of her death.
The court dismissed the dram shop and punitive damages claims, and the case went to trial solely on the claim of negligent rescue. The jury found for the defendants, and the plaintiff appealed. He contested the court’s dismissal of the dram shop claim.
The defendants argued that the plaintiff’s complaint stated facts that showed the wife was contributorily negligent and that this barred the plaintiff’s claim. The appellate court explained that a plaintiff’s negligence doesn’t bar recovery if a defendant’s gross negligence or willful or wanton actions are the legal cause of the plaintiff’s injuries (although a plaintiff’s gross contributory negligence would be).
The appellate court explained that a plaintiff voluntarily consuming liquor to the point of approaching a comatose state is equal to a lack of ordinary care, but it doesn’t amount to gross contributory negligence. The defendants had not stated in their papers that it did, but even if they had, the issue couldn’t be resolved on a limited record.
The court also noted that under § 18B-305(a), the defendant had a duty not to sell liquor to intoxicated people, and the purpose of this was to protect consumers as well as the community from adverse consequences. They also found the plaintiff had properly stated a claim for negligence per se and reversed the lower court’s ruling.
If you were injured by a restaurant or bar that served alcohol to an intoxicated person, the experienced personal injury attorneys at Maurer Law may be able to help you recover compensation. Contact us at 919-229-8359 or via our online form.
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