               IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 160A16

                                 Filed 2 March 2018

THOMAS A.E. DAVIS, JR., Administrator of the Estate of LISA MARY DAVIS

              v.
HULSING ENTERPRISES, LLC; HULSING HOTELS NC MANAGEMENT
COMPANY; HULSING HOTELS NORTH CAROLINA, INC.; HULSING HOTELS,
INC. d/b/a CROWNE PLAZA TENNIS & GOLF RESORT ASHEVILLE and
MULLIGAN’S



      Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, ___ N.C. App. ___, 783 S.E.2d 765 (2016), reversing an order

entered on 25 November 2013 by Judge Richard L. Doughton in Superior Court,

Mecklenburg County. On 18 August 2016, the Supreme Court allowed defendants’

petition for discretionary review of additional issues. Heard in the Supreme Court

on 12 April 2017.


      Charles G. Monnett III for plaintiff-appellee.

      Northup McConnell & Sizemore, PLLC, by Isaac N. Northup, Jr., for
      defendant-appellants.

      Jordan Price Wall Gray Jones & Carlton, by R. Frank Gray and Lori P. Jones,
      for North Carolina Restaurant and Lodging Association, amicus curiae.



      JACKSON, Justice.


      In this case we are asked to consider whether North Carolina recognizes

plaintiff’s first-party claim for dram shop liability and if so, whether that claim is
                             DAVIS V. HULSING ENTERS.

                                  Opinion of the Court



barred by the contributory negligence of the decedent. Based upon our conclusion

that plaintiff cannot recover because of the decedent’s contributory negligence, we do

not reach plaintiff’s first-party dram shop claim and therefore hold that discretionary

review was improvidently allowed on that issue. For the reasons stated below, we

reverse the decision of the Court of Appeals.


      When evaluating a motion to dismiss pursuant to Rule 12(b)(6), we accept the

“factual allegations in a complaint as true.” Turner v. Thomas, 369 N.C. 419, 424,

794 S.E.2d 439, 444 (2016) (quoting Fussell v. N.C. Farm Bureau Mut. Ins. Co., 364

N.C. 222, 225, 695 S.E.2d 437, 440 (2010)). Here the complaint alleges the following:

On 5 October 2012, plaintiff Thomas A.E. Davis, and plaintiff’s wife, the decedent

Lisa Mary Davis, checked into the Crowne Plaza Tennis & Golf Resort in Asheville,

North Carolina, to celebrate their wedding anniversary.          Defendants Hulsing

Enterprises, LLC and Hulsing Hotels, Inc. own and operate this resort hotel, as well

as a restaurant and bar called Mulligan’s, which is located within the hotel. Shortly

after checking into the hotel, the couple decided to have dinner at Mulligan’s. During

the course of four and a half hours, the couple ate dinner and ordered twenty-four

alcoholic beverages. The decedent consumed at least ten of the drinks and became

visibly intoxicated. As the Davises walked down a hallway after leaving Mulligan’s,

the decedent fell down. She was so intoxicated that an employee of defendants

arrived with a wheelchair to transport the decedent to her room. After assisting the

decedent into the wheelchair, the employee helped her to her hotel room and onto her

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                              DAVIS V. HULSING ENTERS.

                                   Opinion of the Court



bed. When plaintiff awoke the next morning, he found his wife lying on the floor

deceased. The cause of death later was determined to be acute ethanol (alcohol)

poisoning.


      On 15 July 2013, plaintiff, the administrator of the decedent’s estate, filed a

complaint for wrongful death, alleging the following causes of action: (1) common law

dram shop liability; (2) negligent aid, rescue, or assistance; and (3) punitive damages.

Plaintiff’s dram shop claim alleged that defendants were negligent per se because

they violated N.C.G.S. § 18B-305 by knowingly selling and giving alcoholic beverages

to the decedent, an intoxicated person. On 13 August 2013, defendants filed a Rule

12(b)(6) motion to dismiss the complaint for failure to state a claim for which relief

can be granted under the laws of North Carolina. Defendants filed their answer on

8 November 2013 and raised several affirmative defenses, including contributory

negligence.   On 25 November 2013, the trial court entered an order dismissing

plaintiff’s common law dram shop and related punitive damages claims. The parties

proceeded to a jury trial on the negligent rescue and remaining punitive damages

claims. On 23 October 2014, the trial court entered a judgment dismissing the action

after a jury found that the decedent’s death was not proximately caused by the

negligence of defendants. Plaintiff appealed to the Court of Appeals. On appeal,

plaintiff contested only the dismissal of his common law dram shop claim. Davis v.

Hulsing Enters., ___ N.C. App. ___, ___ 783 S.E.2d 765, 768 (2016).



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                              DAVIS V. HULSING ENTERS.

                                   Opinion of the Court



      The Court of Appeals determined that plaintiff had stated a valid negligence

per se dram shop claim pursuant to N.C.G.S. § 18B-305(a) and therefore reversed the

trial court’s order dismissing that claim. Id. at ___, ___,783 S.E.2d at 772, 773. The

majority concluded that defendants breached their duty to not sell or give alcoholic

beverages to the decedent and opined that it was reasonable that defendants should

have foreseen the injuries caused by their conduct. Id. at ___, 783 S.E.2d at 769-70.

In reaching these conclusions, the majority ultimately determined that the decedent’s

death was “the direct and proximate result of” defendants’ negligence. Id. at ___, 783

S.E.2d at 770. In contrast, the dissenting judge reasoned that, although plaintiff

alleged facts sufficient to support a claim of negligence per se, plaintiff also alleged

facts that demonstrated that the decedent “acted negligently in proximately causing

her own death.” Id. at ___, 783 S.E.2d at 774 (Dillon, J., dissenting). Defendants

appealed the decision of the Court of Appeals to this Court based upon the dissenting

opinion.   In addition, we allowed discretionary review to address defendants’

proposed issue as to whether North Carolina recognizes a first-party cause of action

for dram shop liability.


      Defendants argue that the factual allegations of plaintiff’s complaint establish

the decedent’s contributory negligence. Because we agree, we do not reach the issue

of the first-party dram shop claim.




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                             DAVIS V. HULSING ENTERS.

                                  Opinion of the Court



      When evaluating the legal sufficiency of plaintiff’s complaint, “the allegations

of the complaint must be viewed as admitted, and on that basis the court must

determine as a matter of law whether the allegations state a claim for which relief

may be granted.” Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615

(1979) (citing Newton v. Standard Fire Ins. Co., 291 N.C. 105, 229 S.E.2d 297 (1976)).


      Our opinion in Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 332 N.C.

645, 423 S.E.2d 72 (1992), is both instructive and controlling in this case. Similar to

the circumstances in this case, the claim in Sorrells was brought by the administrator

of the estate of a person who was fatally injured after driving while in a highly

intoxicated state. Id. at 646, 423 S.E.2d at 72. The representative of the decedent’s

estate sued a bar for wrongful death, alleging negligence and gross negligence. Id. at

647, 423 S.E.2d at 73. The estate alleged in its complaint that the twenty-one-year-

old decedent and one or more of his friends were intoxicated, that their waitress was

informed on at least three separate occasions by the decedent’s friends that he was

driving and should not be served more alcohol, and that, nevertheless, the bartender

served the decedent more alcohol.      Id. at 646-47, 423 S.E.2d at 72-73.       After

consuming his last drink, the decedent proceeded to drive himself—against the advice

of his friends—lost control of his vehicle on the interstate highway, and struck a

bridge abutment. Id. at 647, 423 S.E.2d at 73.




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                              DAVIS V. HULSING ENTERS.

                                    Opinion of the Court



      The trial court dismissed the estate’s claim based upon the decedent’s

contributory negligence, and the estate appealed to the Court of Appeals, which

reversed the trial court. Id. at 647, 423 S.E.2d at 73. On appeal to this Court, the

estate argued that the claim should not be dismissed because the bar acted with

willful and wanton negligence. Id. at 648, 423 S.E.2d at 74. This Court concluded

that plaintiff’s complaint alleged facts which denied the right to relief and that the

trial court properly granted defendant’s motion to dismiss. Id. at 648-49, 423 S.E.2d

at 73-74. Specifically, the Court stated that “defendant’s motion to dismiss was

properly granted since 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.’ ” Id. at 648, 423 S.E.2d at 73 (alteration in original)

(quoting Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 166 (1970)).


      Here plaintiff’s complaint alleges that defendants were negligent in “serv[ing]

at least one and more likely, several additional intoxicating liquor drinks” to the

decedent after “her mental and/or physical faculties were appreciably and noticeably

impaired.” Plaintiff also alleges facts indicating that this negligence was the “direct

and proximate” cause of her death. Nonetheless, even if plaintiff’s dram shop claim

is valid, it is well established that “a plaintiff’s contributory negligence is a bar to

recovery from a defendant who commits an act of ordinary negligence.” Id. at 648,

423 S.E.2d at 73-74 (citing Adams ex rel. Adams v. State Bd. of Educ., 248 N.C. 506,

511, 103 S.E.2d 854, 857 (1958)).

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                              DAVIS V. HULSING ENTERS.

                                   Opinion of the Court



      Turning to the statute governing the claim raised here—the wrongful death

statute—N.C.G.S. § 28A-18-2 provides for survivorship of only those claims that could

have been brought by the decedent herself had she lived. Carver v. Carver, 310 N.C.

669, 673, 314 S.E.2d 739, 742 (1984). Because this claim is being brought by the

administrator of the decedent’s estate, this claim is subject to the affirmative defense

of contributory negligence. See generally Sorrells, 332 N.C. 645, 423 S.E.2d 72.


      Plaintiff argues on appeal that because the decedent’s death was proximately

caused by defendants’ gross negligence, only gross contributory negligence on the part

of the decedent would bar recovery. As the Court of Appeals majority highlighted, 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.” Yancey v. Lea, 354 N.C. 48, 51, 550 S.E.2d 155, 157 (2001)

(citation omitted); see also Sorrells, 332 N.C. at 648, 423 S.E.2d at 73-74. “An act is

wanton when it is done of wicked purpose, or when done needlessly, manifesting a

reckless indifference to the rights of others.” Yancey, 354 N.C. at 52, 550 S.E.2d at

157 (citations omitted). We conclude here, as we did in Sorrells, that the actions of

both the decedent and defendants rise to the same level of negligence, thereby barring

plaintiff’s common law dram shop claim.


      The events leading up to the decedent’s death are undeniably tragic; however,

in this State contributory negligence precludes recovery for a plaintiff when, as here,


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                             DAVIS V. HULSING ENTERS.

                                  Opinion of the Court



the complaint alleges facts that demonstrate the plaintiff’s decedent exhibited the

same level of negligence as the defendant. Accordingly, we conclude here, as we did

in Sorrells, that 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.” Sorrells, 332 N.C. at 648, 423 S.E.2d at 73 (alteration in original)

(quoting Sutton, 277 N.C. at 102, 176 S.E.2d at 166).


      For the foregoing reasons, we reverse the decision of the Court of Appeals that

reversed the trial court’s 25 November 2013 order dismissing plaintiff’s common law

dram shop claim for failure to state a claim under Rule 12(b)(6) and further conclude

that defendants’ petition for discretionary review as to the additional issue was

improvidently allowed.


      REVERSED; DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED.




      Justice HUDSON dissenting.

      Here the majority concludes that plaintiff’s dram shop claim is barred because

the complaint establishes the decedent’s contributory negligence as a matter of law,

based largely on Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 332 N.C. 645,

423 S.E.2d 72 (1992). The majority also asserts that the actions of the decedent and

defendants rise to the same level of negligence, barring plaintiff’s claim. I disagree

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                                DAVIS V. HULSING ENTERS.

                                   Hudson, J., dissenting



with the application of Sorrells and conclude that the complaint sufficiently alleges

gross negligence on the part of defendants; moreover, I see no allegations in the

complaint supporting gross contributory negligence on the part of the decedent. As

such, I respectfully dissent.

      I agree with the majority’s recitation of the standard of review regarding a

motion to dismiss under Rule 12(b)(6). The relevant inquiry is “whether, as a matter

of law, the allegations of the complaint, treated as true, are sufficient to state a claim

upon which relief may be granted.” Newberne v. Dep’t of Crime Control & Pub. Safety,

359 N.C. 782, 784, 618 S.E.2d 201, 203 (2005) (quoting Meyer v. Walls, 347 N.C. 97,

111, 489 S.E.2d 880, 888 (1997)). Additionally, I generally agree with the majority’s

discussion of the applicable principles regarding negligence and contributory

negligence. As the majority recognizes, “[i]n this state, a plaintiff’s contributory

negligence is a bar to recovery from a defendant who commits an act of ordinary

negligence,” Sorrells, 332 N.C. at 648, 423 S.E.2d at 73-74 (citing Adams ex rel.

Adams v. State Bd. of Educ., 248 N.C. 506, 511, 103 S.E.2d 854, 857 (1958)), but

“[c]ontributory negligence is not a bar to a plaintiff’s recovery when the defendant’s

gross negligence, or willful or wanton conduct, is a proximate cause of the plaintiff’s

injuries,” Yancey v. Lea, 354 N.C. 48, 51, 550 S.E.2d 155, 157 (2001) (citing Brewer v.

Harris, 279 N.C. 288, 297, 182 S.E.2d 345, 350 (1971)). This Court has “defined ‘gross

negligence’ as ‘wanton conduct done with conscious or reckless disregard for the

rights and safety of others.’ ” Yancey, 354 N.C. at 52, 550 S.E.2d at 157 (quoting


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                              DAVIS V. HULSING ENTERS.

                                   Hudson, J., dissenting



Bullins v. Schmidt, 322 N.C. 580, 583, 369 S.E.2d 601, 603 (1988)); see also id. at 53,

550 S.E.2d at 158 (“An act or conduct rises to the level of gross negligence when the

act is done purposely and with knowledge that such act is a breach of duty to others,

i.e., a conscious disregard of the safety of others.”). I do not agree with the majority’s

application of these principles to the complaint here.

      For the purposes of Rule 12(b)(6), we take the allegations of the complaint as

true. Newberne, 359 N.C. at 784, 618 S.E.2d at 203. The majority here does not

specify which allegations in the complaint suffice, as a matter of law, to establish the

decedent’s ordinary contributory negligence, let alone establish that “the actions of

both the decedent and defendants rise to the same level of negligence.” Nonetheless,

assuming arguendo that the allegations of the complaint can be taken as conclusively

establishing ordinary contributory negligence on the part of the decedent, the

allegations of the complaint, in my view, plainly allege gross negligence on the part

of defendants, so that contributory negligence does not bar the claim. Specifically,

plaintiff alleged in the complaint:

             51.    The employee(s) or agent(s), such as “1241 Michael,”
                    of Defendants’ conduct of serving twenty-four (24)
                    alcoholic beverages, of which the Decedent was
                    served at least ten (10) of those drinks, in
                    approximately a four-to-five hour period was an
                    egregious, wrongful act which constitutes gross
                    negligence and was willful or wanton conduct which
                    evidences a reckless disregard for the safety of
                    others.

             52.    That the employee(s) or agent(s), such as “1241


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                              DAVIS V. HULSING ENTERS.

                                  Hudson, J., dissenting



                    Michael,” of Defendants continued to serve
                    intoxicating liquor drinks to the decedent, Lisa Mary
                    Davis, after Lisa Mary Davis became noticeably or
                    visibly intoxicated was an egregious, wrongful act
                    which constitutes gross negligence and was willful
                    or wanton conduct which evidences a reckless
                    disregard for the safety of others.

             53.    That the employee(s) or agent(s) of Defendants knew
                    or had reason to know that Lisa Mary Davis was so
                    grossly intoxicated so as to be a danger to herself and
                    knew or had reason to know that the quantities of
                    alcohol she had been served and consumed were
                    potentially lethal . . . .

                    ....

             55.    That the egregious, willful or wanton conduct of
                    Defendants’ employee(s) or agent(s), while in the
                    course and scope of their employment with
                    Defendants as set forth above was a proximate cause
                    of the injuries and damages sustained by Plaintiff.

Facially, these allegations assert gross negligence and willful and wanton conduct

evidencing a reckless disregard for the safety of others. Taking these allegations as

true, I conclude that the majority has improperly applied inferences of ordinary

contributory negligence to bar plaintiff’s claims for gross negligence and willful and

wanton conduct as a matter of law. These allegations contend in part that defendants

served a noticeably intoxicated person anywhere between ten and twenty-four 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.” In my view, it is for the jury

to decide whether the facts as alleged are ultimately shown by evidence to constitute



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                                  DAVIS V. HULSING ENTERS.

                                      Hudson, J., dissenting



a conscious, or even a reckless, “disregard of the safety of others.” Yancey, 354 N.C.

at 53, 550 S.E.2d at 158; see also Ladd v. Estate of Kellenberger, 314 N.C. 477, 481,

334 S.E.2d 751, 755 (1985) (“A complaint should not be dismissed under Rule 12(b)(6)

‘. . . unless it affirmatively appears that plaintiff is entitled to no relief under any

state of facts which could be presented in support of the claim.’ ” (ellipsis in original)

(quoting Presnell v. Pell, 298 N.C. 715, 719, 260 S.E.2d 611, 613 (1979))).

       Moreover, 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, as was the case in Sorrells. There, as the majority noted, the plaintiff

argued that the allegations in the complaint of the defendant’s serving alcohol to the

intoxicated decedent, after being requested to refrain from serving him, sufficiently

alleged gross negligence, such that the decedent’s ordinary contributory negligence

would not bar recovery. Sorrells, 332 N.C. at 647-48, 423 S.E.2d at 73-74. Yet, the

Court noted that the complaint also alleged that the decedent had chosen to drive his

vehicle while highly intoxicated—a willful violation of the impaired driving statute.

Id. at 648, 423 S.E.2d at 74.1 Accordingly, the Court held that “to the extent the


       1  The Court also noted that it had previously held that “a willful violation of this
statute constitutes culpable negligence” and that the decedent’s conduct, had his driving
while impaired resulted in the death of another, would have amounted to manslaughter. 332
N.C. at 648, 423 S.E.2d at 74 (citing State v. McGill, 314 N.C. 633, 637, 336 S.E.2d 90, 92
(1985)); see also id. at 648-49, 423 S.E.2d at 74 (“Proof of both a willful violation of the statute
and a causal connection between the violation and a death is all that is needed to support a
successful prosecution for manslaughter. Plaintiff cannot dispute either of these elements
under the facts as alleged in the complaint.” (citing McGill, 314 N.C. at 636, 336 S.E.2d at
92)).

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                              DAVIS V. HULSING ENTERS.

                                  Hudson, J., dissenting



allegations in the complaint establish more than ordinary negligence on the part of

defendant, they also establish a similarly high degree of contributory negligence on

the part of the decedent.” Id. at 649, 423 S.E.2d at 74. Although driving while highly

intoxicated clearly evinces “a conscious disregard of the safety of others,” Yancey, 354

N.C. at 53, 550 S.E.2d at 158, 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.

      In looking solely at the allegations of the complaint and taking them as true,

and expressing no view on the ultimate merits of plaintiff’s claim, I conclude that

plaintiff has sufficiently alleged gross negligence on the part of defendants. Unlike

in Sorrells, there are no allegations in the complaint that, as a matter of law,

constitute gross contributory negligence on the part of the decedent. As such, I

disagree with the majority’s conclusion that contributory negligence dooms plaintiff’s

claim at the pleading stage and respectfully dissent from the Court’s decision. I would

affirm the Court of Appeals on this issue and proceed to address the issue of the first-

party dram shop claim.

      Justices BEASLEY and MORGAN join in this dissenting opinion.




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