                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-368

                                Filed: 5 April 2016

Mecklenburg County, No. 13 CVS 11691

THOMAS A. E. DAVIS, Jr., Administrator of the Estate of LISA MARY DAVIS,
(deceased), Plaintiff,

             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, Defendants.


      Appeal by Plaintiff from order entered 25 November 2013 by Judge Richard L.

Doughton in Mecklenburg County Superior Court. Heard in the Court of Appeals 21

October 2015.


      Charles G. Monnett III & Associates, by Charles G. Monnett III, for Plaintiff-
      Appellant.

      Northup McConnell & Sizemore, PLLC, by Katherine M. Pomroy and Isaac N.
      Northup, Jr., for Defendant-Appellees.


      HUNTER, JR., Robert N., Judge.


      Thomas A. E. Davis, Jr., (“Plaintiff”) in his capacity as administrator of Lisa

Mary Davis’s (“Davis”) estate, appeals from a 25 November 2013 order dismissing his

common law dram shop and punitive damages claims against Defendants.             We

reverse the trial court.

                              I. Procedural History
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                                   Opinion of the Court



      On 15 July 2013, Plaintiff filed a complaint alleging the following causes of

action: (1) common law dram shop; (2) negligent aid, rescue, or assistance; and (3)

punitive damages. Plaintiff’s dram shop claim alleged Defendants were negligent per

se for violating N.C. Gen. Stat. § 18B-305 by selling and giving alcohol to Davis, an

intoxicated person.

      On 13 August 2013, Defendants filed a Rule 12(b)(6) motion to dismiss the

complaint because it “fails to state a claim for which relief can be granted under the

laws of [North Carolina].” Defendants filed their answer 8 November 2013 and raised

defenses for contributory negligence, intervening and superseding negligence, and

assumption of risk.      Defendants asserted the following in their contributory

negligence defense:

             [I]f Defendants were negligent, which is specifically denied,
             then the injuries and damages complained of were
             proximately caused by the contributory negligence of
             [Davis] in consuming the beverages complained of and/or
             of [Plaintiff] in failing to intervene in [Davis’s]
             consumption of the beverages . . . and in failing to assist
             her and ensure her health and safety . . . which is a
             complete defense to Plaintiff’s claim.

      The court heard arguments on the motion to dismiss on 28 October 2013.

Thereafter, the court issued an order on 25 November 2013 dismissing Plaintiff’s

common law dram shop and punitive damages claims. The parties proceeded to a

jury trial on the negligent rescue claim. Following the jury’s verdict, the court entered

a 23 October 2014 judgment finding Defendants not liable.


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      Plaintiff filed his notice of appeal 10 November 2014, appealing “from the 23

October 2014 Judgment upon the jury’s verdict . . . .” The parties settled the record

by stipulation and filed their appellate briefs.

                             II. Appellate Jurisdiction

      On appeal, Plaintiff only contests the dismissal of his common law dram shop

claim. Defendants contend Plaintiff did not properly appeal this issue under N.C. R.

App. P. 3(d) because his notice of appeal does not mention the 25 November 2013

order dismissing his dram shop claim. Plaintiff filed a petition for writ of certiorari

on 28 July 2015. The Clerk of Court referred Plaintiff’s petition to this panel on 7

August 2015.

      To provide proper notice of appeal the appellant must “designate the judgment

or order from which appeal is taken and the court to which appeal is taken . . . .” N.C.

R. App. P. 3(d). “Without proper notice of appeal, this Court acquires no jurisdiction.”

Dixon v. Hill, 174 N.C. App. 252, 257, 620 S.E.2d 715, 718 (2005) (citation and

quotation marks omitted). However, N.C. Gen. Stat. § 1-278 “provides a means by

which an appellate court may obtain jurisdiction to review an order not included in a

notice on [sic] appeal. It states: ‘Upon an appeal from a judgment, the court may

review any intermediate order involving the merits and necessarily affecting the

judgment.’” Id. (citing N.C. Gen. Stat. § 1-278).




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                                   Opinion of the Court



       Appellate review under section 1-278 is proper when the following three

conditions are met: “(1) the appellant must have timely objected to the order; (2) the

order must be interlocutory and not immediately appealable; and (3) the order must

have involved the merits and necessarily affected the judgment.” Dixon, 174 N.C.

App. at 257, 620 S.E.2d at 718. Defendants agree the second and third conditions are

met.

       The 25 November 2013 order states the trial court “heard arguments” and

reviewed other materials “presented by the parties” regarding Defendants’ Rule

12(b)(6) motion.    Plaintiff’s objection is inherent to the hearing, and he clearly

identified the 25 November 2013 order in the Statement of Organization of Trial

Tribunal and the proposed issues on appeal. Accordingly, this Court has subject

matter jurisdiction over Plaintiff’s appeal. In addition, we grant Plaintiff’s petition

for writ of certiorari.

                              III. Standard of Review

       “The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests the legal sufficiency

of the complaint. In ruling on the motion 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) (citations omitted). “As a

general proposition, a trial court’s consideration of a motion brought under Rule



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                                   Opinion of the Court



12(b)(6) is limited to examining the legal sufficiency of the allegations contained

within the four corners of the complaint.” Khaja v. Husna, ___ N.C. App. ___, ___,

777 S.E.2d 781, 786 (2015) (citing Hillsboro Partners v. City of Fayetteville, 226 N.C.

App. 30, 32–33, 738 S.E.2d 819, 822 (2013), disc. review denied, 367 N.C. 236, 748

S.E.2d 544 (2013)).

                                  IV. Factual History

      We review the following facts in Plaintiff’s complaint as true. Stanback, 297

N.C. at 185, 254 S.E.2d at 615.

      Plaintiff and Davis celebrated their wedding anniversary at the Crowne Plaza

Resort on 5 October 2012. They checked into the resort around 5:00 p.m., and decided

to have dinner at the resort’s restaurant, “Mulligan’s.” Plaintiff and Davis sat in

Mulligan’s from 5:30 p.m. to 10:00 p.m. During that time, Defendants, and their

employees, served Plaintiff and Davis twenty-four alcoholic liquor drinks, and Davis

drank at least ten of the twenty-four drinks.         Defendants’ conduct was grossly

negligent, willful, and wanton.

      Davis consumed a sufficient amount of alcohol to appreciably and noticeably

impair her mental and physical faculties. Her intoxicated state would have been

apparent to a reasonable Alcoholic Beverage Control (“ABC”) permittee, agent, or

employee. Defendants knew, or in the exercise of reasonable care should have known,




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                                  Opinion of the Court



Davis was intoxicated, yet they continued serving her alcoholic drinks. Defendants

knew, or should have known, that doing so would put Davis and others at risk.

      Davis became so intoxicated she was unable to walk with Plaintiff from

Mulligan’s to their hotel room. While attempting to walk back, Davis fell on the floor

and was unable to get up. Defendants placed Davis in a wheelchair and took her to

the hotel room.   Defendants left Davis with Plaintiff in the hotel room without

appropriate assistance, supervision, or medical attention.       The next morning,

Plaintiff woke up and found Davis lying dead on the floor.

      N.C. Gen. Stat. § 18B-305 was in effect at the time of these events, making it

unlawful for an ABC permittee to knowingly sell or give alcoholic beverages to an

intoxicated person. Defendants and their employees are ABC permittees, and they

had a duty to not sell or give alcoholic beverages to Davis. Defendants breached that

duty by continually serving Davis, failing to train their employees, enforce policies,

or take other reasonable steps to prevent unlawful alcohol sales. Defendants should

have reasonably foreseen the injuries caused by their conduct. Davis died from acute

alcohol poisoning, the direct and proximate result of Defendants’ negligence.

                                    V. Analysis

      Relying upon, inter alia, Sorrells v. M.Y.B. Hosp. Ventures of Asheville, 332

N.C. 645, 423 S.E.2d 72 (1992), Defendants contend “Plaintiff’s Complaint facially




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                                    Opinion of the Court



discloses facts that demonstrate [Davis’s] contributory negligence, which is an

affirmative bar to Plaintiff’s claim.” We disagree.

A. Contributory Negligence

      “In this state, a plaintiff’s [ordinary] contributory negligence is a bar to

recovery from a defendant who commits an act of ordinary negligence.” McCauley v.

Thomas ex rel. Progressive Universal Ins. Co., ___ N.C. App. ___, ___, 774 S.E.2d 421,

426 (2015) (citing Sorrells, 332 N.C. at 648, 423 S.E.2d at 73–74). It is also well-

established that “contributory negligence on the part of the plaintiff is available as a

defense in an action which charges the defendant with the violation of a statute or

negligence per se.” Brower v. Robert Chappell & Associates, Inc., 74 N.C. App. 317,

320, 328 S.E.2d 45, 47 (1985).

      However, 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.

“Only gross contributory negligence by a plaintiff precludes recovery by the plaintiff

from a defendant who was grossly negligent.” McCauley, ___ N.C. App. at ___, 774

S.E.2d at 426 (citation omitted).

      Our Supreme Court considered these principles in Sorrells, a case in which the

estate of a 21-year-old (“decedent”) brought a negligence action against a bar for



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                                   Opinion of the Court



violating Chapter 18B of the North Carolina General Statutes. Sorrells, 332 N.C. at

647, 423 S.E.2d at 73. The estate alleged decedent was intoxicated at the bar with

friends, and consumed alcohol to the point of becoming visibly intoxicated. Id. The

bar served decedent more alcohol, knowing he would drive home, even against the

advice of his friends. Id. Decedent attempted to drive home, lost control of his vehicle,

and died when his vehicle struck a bridge abutment. Id. The trial court dismissed

the estate’s wrongful death claim because it was barred by decedent’s contributory

negligence. Id.

      On appeal, the estate argued the claim should not be dismissed because the

bar acted with willful and wanton negligence, “such that the decedent’s contributory

negligence would not act as a bar to recovery.” Id. at 648, 423 S.E.2d at 74. Our

Supreme Court recognized “the validity of [this] rule” but did “not find it applicable”

because the decedent committed a misdemeanor by driving his vehicle while “highly

intoxicated,” establishing that his actions as alleged in the complaint rose to “a

similarly high degree of contributory negligence.” Id. at 648–49. In other words, the

Court found that decedent’s act of driving intoxicated, as alleged in the complaint,

established that decedent’s gross contributory negligence was commensurate with

defendant’s gross negligence alleged in the complaint, therefore barring plaintiff’s

claim from proceeding beyond the pleading stage.




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      The Dissent acknowledges, but does not follow these principles in concluding

“the complaint here fails to allege any facts which demonstrate that Defendants’

negligence was any greater than [Davis’s]” and “Plaintiff has simply failed to plead

any facts that would make Defendant’s behavior any worse than the facts alleged in

[other dram shop cases].” The Dissent, agreeing with Defendants’ speculation and

overreach, believes Davis’s contributory negligence rose to the level of Defendants’

gross negligence. We cannot agree, however, that the allegations in the complaint

establish Davis’s gross or willful and wanton contributory negligence.

      Plaintiff specifically alleged Defendants’ acts constituted “gross negligence and

. . . willful or wanton conduct which evidences a reckless disregard for the safety of

others.”   In response, Defendants answered and alleged that Davis’s ordinary

contributory negligence barred Plaintiff’s claim.        The allegations in Defendants’

answer are consistent with our decision in Brower, which holds that an individual’s

voluntary consumption of alcohol to the point of “approaching a comatose state”

equates to “‘a want of ordinary care’ which proximately caused plaintiff's injuries

constituting contributory negligence as a matter of law.” 74 N.C. App. 317, 320, 328

S.E.2d 45, 47 (1985). Based on Brower, we cannot say that voluntary consumption of

alcohol, even to the point of “approaching a comatose state,” without more, amounts

as a matter of law to anything above ordinary contributory negligence.




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                                           Opinion of the Court



        Even if Defendants alleged Davis acted with gross contributory negligence, this

case could not be appropriately resolved at the pleading stage with such a limited

record. Rather, comparing Davis’s gross contributory negligence to Defendants’ gross

negligence and willful, wanton conduct, would be appropriate upon a full

development of the record. See McCauley, ___ N.C. App. at ___, 774 S.E.2d at 429

(reversing a directed verdict in favor of defendant and holding that plaintiff’s alleged

gross contributory negligence was a jury issue).1

        Taking the allegations in Plaintiff’s complaint as admitted, we cannot hold

Davis’s conduct rises to the level of gross contributory negligence.                         Unlike the

decedent in Sorrells, Davis did not engage in conduct that is grossly negligent as a

matter of law. Davis’s consumption of alcohol, without more alleged in the complaint,

cannot bar Plaintiff’s claim at the pleading stage.

B. Plaintiff’s Complaint

        To prevail on a negligence per se claim, a plaintiff must show the following:

                (1) a duty created by a statute or ordinance;
                (2) that the statute or ordinance was enacted to protect a
                class of persons which includes the plaintiff;
                (3) a breach of the statutory duty;

        1 Our Court held in McCauley v. Thomas ex rel. Progressive Universal Ins. Co., ___ N.C. App.
___, 774 S.E.2d 421 (2015), that a plaintiff’s alleged gross contributory negligence was an issue for the
jury to decide. This issue was raised in the defendant’s answer leading up to a jury trial. At trial, the
defendant successfully moved for a directed verdict “on the ground that plaintiff was grossly
contributorily negligent as a matter of law,” citing to portions of the plaintiff’s testimony, and case law.
Id. ___ N.C. App. at ___, 774 S.E.2d at 424. Reviewing a more complete record than the scant record
in the case sub judice, our Court reversed the trial court and ordered a new trial, holding “the evidence
in this case is not sufficient to determine as a matter of law that plaintiff’s contributory negligence
rose to the level of gross contributory negligence.” Id. at ___, 774 S.E.2d at 429.

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             (4) that the injury sustained was suffered by an interest
             which the statute protected;
             (5) that the injury was of the nature contemplated in the
             statute; and,
             (6) that the violation of the statute proximately caused
             the injury.

Birtha v. Stonemor, N. Carolina, LLC, 220 N.C. App. 286, 293-94, 727 S.E.2d 1, 8

(2012) (citation omitted). Plaintiff’s negligence per se claim is based upon section

18B-305(a), which states, “[i]t shall be unlawful for a[n] [ABC] permittee or his

employee or for an ABC store employee to knowingly sell or give alcoholic beverages

to any person who is intoxicated.” N.C. Gen. Stat. § 18B-305(a) (2013).

      Under section 18B-305, ABC permittees, and their employees, have a duty to

not sell alcoholic beverages to intoxicated persons. Hutchens v. Hankins, 63 N.C.

App. 1, 4, n. 1, 303 S.E.2d 584, 588 (1983), disc. review denied, 309 N.C. 191, 305

S.E.2d 734 (discussing N.C. Gen. Stat. § 18A-34, the predecessor to section 18B-305).

This duty “has existed in some form in North Carolina since enactment of the

Beverage Control Act of 1939.” Id. (citation omitted).

      This statute exists for “(1) the protection of the customer from adverse

consequences of intoxication and (2) the protection of the community at large from

the injurious consequences of contact with an intoxicated person.” Hart v. Ivey, 102

N.C. App. 583, 590, 403 S.E.2d 914, 919 (1991) (citing Hutchens, 63 N.C. App. at 16,

303 S.E.2d at 593). Viewing the allegations in Plaintiff’s complaint as admitted,

Defendants breached their duty by continuing to serve Davis while she was


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                                    Opinion of the Court



intoxicated, when they knew or should have known she was intoxicated.                   See

Hutchens, 63 N.C. App. at 19, 303 S.E.2d at 595. As to the fourth and fifth elements,

Davis’s alcohol poisoning and death clearly embody the “adverse consequences of

intoxication” that section 18B-305 contemplates and protects against. See Hart, 102

N.C. App. at 590, 403 S.E.2d at 919 (citation omitted).             Accordingly, Plaintiff

sufficiently pled a negligence per se claim in his complaint.

C. Last Clear Chance

       Defendants raised contributory negligence as an affirmative defense in their 8

November 2013 answer. Therefore, Plaintiff was permitted to file a reply raising last

clear chance under N.C. Gen. Stat. § 1A-1, Rule 7(a). Rule 7(a) states: “If the answer

alleges contributory negligence, a party may serve a reply alleging last clear chance.

. . . [T]he court may order a reply to an answer . . . .” Id. “While the recommended

pleading practice is for the plaintiff to file a reply alleging last clear chance, it is not

the exclusive pleading alternative.” Vernon v. Crist, 291 N.C. 646, 652, 231 S.E.2d

591, 594 (1977).

       Noting a need for flexibility in pleading last clear chance, our Supreme Court

held a complaint’s facts may raise last clear chance, as follows:

              It would be exceedingly technical to hold that, though the
              complaint . . . alleged facts giving rise to the doctrine of the
              last clear chance, the plaintiff may not receive the benefit
              of the doctrine . . . merely because . . . facts were alleged in
              the complaint rather than in a reply.



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Vernon, 291 N.C. at 652, 231 S.E.2d at 594–95 (citing Exum v. Boyles, 272 N.C. 567,

579, 158 S.E.2d 845, 855 (1968)). We, therefore, review Plaintiff’s complaint for

allegations that, if held as true, could satisfy the elements of last clear chance.

      Plaintiff’s complaint does not contain the words “last clear chance,” but this

omission “is not fatal.” Vernon, 291 N.C. at 652, 231 S.E.2d at 595. Plaintiff’s

complaint alleges the following.       Davis drank ten or more alcoholic drinks,

diminishing her mental and physical faculties. At least one or more of these drinks

was served to her in violation of North Carolina law. She was noticeably and visibly

intoxicated, which would have been apparent to a reasonable ABC permittee;

consequently, Defendants knew or should have known she was intoxicated.

Defendants had a statutory duty to stop serving Davis under section 18B-305(a), and

they failed to uphold their duty by continuing to serve Davis. Defendants left a

grossly intoxicated Davis in her room without appropriate assistance, supervision, or

medical attention, thereby “abandoning their prior undertaking to render

assistance.” As a direct and proximate result of Defendants’ negligence, Davis died

of acute alcohol poisoning.

      The last clear chance doctrine “allows a contributorily negligent plaintiff to

recover where the defendant's negligence in failing to avoid the accident introduces a

new element into the case, which intervenes between the plaintiff's negligence and

the injury and becomes the direct and proximate cause of the accident.” Outlaw v.



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                                      Opinion of the Court



Johnson, 190 N.C. App. 233, 238, 660 S.E.2d 550, 556 (2008) (citation and quotation

marks omitted). “Last clear chance mitigates the sometimes harsh effects of the

contributory negligence rule.” Artis v. Wolfe, 31 N.C. App. 227, 228, 228 S.E.2d 781,

782 (1976). “The doctrine contemplates that if liability is to be imposed the defendant

must have a last ‘clear’ chance, not a last ‘possible’ chance to avoid injury.” Grant v.

Greene, 11 N.C. App. 537, 541, 181 S.E.2d 770, 772 (1971). “[I]t must have been such

a chance as would have enabled a reasonably prudent man in like position to have

acted effectively.” Battle v. Chavis, 266 N.C. 778, 781, 147 S.E.2d 387, 390 (1966).

       To prevail on a last clear chance theory, a plaintiff must prove the following:

              (1) that the plaintiff negligently placed himself in a position
              of helpless peril;
              (2) that the defendant knew or, by the exercise of
              reasonable care, should have discovered the plaintiff's
              perilous position and his incapacity to escape from it;
              (3) that the defendant had the time and ability to avoid the
              injury by the exercise of reasonable care;
              (4) that the defendant negligently failed to use available
              time and means to avoid injury to the plaintiff; and
              (5) as a result, the plaintiff was injured.

Id. (emphasis added) (citing Parker v. Willis, 167 N.C. App. 625, 627, 606 S.E.2d 184,

186 (2004), disc. review denied, 359 N.C. 411, 612 S.E.2d 322 (2005)).

       As a matter of law, we cannot say the allegations in Plaintiff’s complaint

adequately raise last clear chance.2           Although it is adequately alleged that


       2    Normally, the question of whether a defendant had the last clear chance to avoid the
plaintiff’s injury is reserved for the jury. See Grant, 11 N.C. App. at 540, 181 S.E.2d at 772.



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                                         Opinion of the Court



Defendants negligently served Davis alcoholic beverages past the point of visible

intoxication, there are no facts alleged allowing us to draw any inference in favor of

Plaintiff that Defendant had the last clear chance to avoid Davis’s death by acute

alcohol poisoning.

        Specifically, Plaintiff’s complaint fails to satisfy the doctrine of last clear

chance at the second element set out in Outlaw because, even taking Plaintiff’s

allegations as true, we cannot conclude that Defendants were aware of, or should

have been aware of, Davis’s “incapacity to escape” death. As alleged, Defendants left

a grossly intoxicated Davis with her husband in a hotel room after negligently serving

her past the point of intoxication. Under these facts, even drawing all inferences in

favor of Plaintiff, we cannot say there was a clear moment in which Defendants

realized, or should have realized, Davis was going to be injured as a result of

Defendants’ negligence and Davis’s “insensitiv[ity] to danger.” Grant, 11 N.C. App.

at 540, 181 S.E.2d at 772.

        Stated broadly, under circumstances such as this, it is possible to avoid injury

or death to an intoxicated individual by ceasing service to them or calling for medical

attention, but the allegations of Plaintiff’s complaint do not establish that it was clear

that Davis’s level of intoxication had become so perilous that injury was inescapable.

Each individual’s tolerance for alcohol, and the point at which it becomes fatal, is


Here, taking the facts as alleged in the complaint as true, we are able to make a conclusion as a matter
of law that plaintiff has unsuccessfully established the elements necessary for last clear chance.

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different and the complaint does not include allegations that Defendants should have

known that Davis’s intoxication level had reached a perilous level. Thus, Plaintiff’s

allegations are not sufficient to allege that Defendants failed to recognize a clear

chance to take action in avoidance of Davis’s impending injury.

       There is no doubt that, as pled, it was foreseeable that Davis could be injured

or killed by consuming that much alcohol unlawfully furnished to her by Defendants.

However, the complaint does not include allegations establishing that it was clear to

Defendants that Davis could not escape injury at the moment she was left in her hotel

room with her husband. As such, we find Plaintiff’s complaint fails to raise facts

sufficient to satisfy the doctrine of last clear chance.

                                     V. Conclusion

       For the foregoing reasons we reverse the trial court’s 25 November 2013 order

dismissing Plaintiff’s claim on the pleadings.

       REVERSED.



Judge GEER concurs.

Judge DILLON dissents.




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      DILLON, Judge, dissenting.


      Plaintiff filed an action as administrator of his deceased wife’s estate against

Defendants alleging that their negligence contributed to his wife’s death. The trial

court granted Defendants’ Rule 12(b)(6) motion to dismiss Plaintiff’s common law

Dram Shop and punitive damages claims. The majority has concluded that the trial

court erred in granting Defendants’ motion to dismiss. Because I believe the trial

court ruled correctly, I respectfully dissent.

      As the majority points out, in reviewing the trial court’s Rule 12(b)(6)

dismissal, we must assume that Plaintiff’s allegations in the complaint are true.

These allegations tend to show the following: Plaintiff and his wife were staying at

the Crowne Plaza Resort celebrating their wedding anniversary. Over the course of

four and a half hours, Plaintiff and his wife sat in a restaurant at the Resort and

ordered twenty-four (24) alcoholic drinks. Plaintiff’s wife consumed at least ten (10)

of the drinks. She was served one or more drinks after becoming appreciably and

noticeably impaired. She and Plaintiff left the restaurant and headed to their hotel

room for the night. However, she was so intoxicated that she fell to the floor as they

left the restaurant; whereupon Defendants’ employee(s) assisted her by placing her

in a wheelchair and escorting her and Plaintiff to their hotel room. The next morning,

Plaintiff woke up and found his wife lying dead on the floor.

      The death of Plaintiff’s wife is certainly a tragedy. Moreover, Plaintiff succeeds

in alleging facts – that Defendants’ employee(s), served “one or more” alcoholic drinks
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                                  DILLON, J., dissenting



to an intoxicated patron – which constitute negligence per se, and that this negligence

was a proximate cause of his wife’s death. See N.C. Gen. Stat. § 18B-305 (2012) (Dram

Shop Act prohibits an ABC permittee to “knowingly sell or give alcoholic beverages

to any person who is intoxicated”).      However, Plaintiff also alleges facts in his

complaint which demonstrate that Plaintiff’s wife also acted negligently in

proximately causing her own death, namely by voluntarily consuming a large

quantity of alcohol. As our Court has held,

                [a patron’s] act of [voluntarily] consuming sufficient
                quantities of intoxicants to raise his blood level
                approaching comatose state amounts to ‘a want of ordinary
                care’ which proximately caused [the patron’s] injuries
                constituting contributory negligence as a matter of law.

Brower v. Robert Chappell, 74 N.C. App. 317, 320, 328 S.E.2d 45, 47 (1985) (affirming

summary judgment for the defendant-server in action brought by plaintiff-patron

who was injured by shattering glass when opening a glass door after becoming

intoxicated).

      “It is a well-established precedent in this State that contributory negligence on

the part of the plaintiff is available as a defense in an action which charges the

defendant with the violation of a statute or negligence per se.” Id. (following our

Supreme Court’s holdings in Poultry Co. v. Thomas, 289 N.C. 7, 220 S.E.2d 536 (1975)

and Stone v. Texas Co., 180 N.C. 546, 105 S.E. 425 (1920)). Furthermore, as our

Supreme Court has recognized, where one serving alcohol to an intoxicated person in



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                                  DILLON, J., dissenting



violation of N.C. Gen. Stat. § 18B-305 may be liable to third parties who are injured

by the intoxicated patron, a claim brought by the intoxicated patron herself against

the server is subject to the defense of contributory negligence. Sorrell v. M.Y.B.

Hospitality, 332 N.C. 645, 647-48, 423 S.E.2d 72, 73-74 (1992).

      The majority correctly points out that a plaintiff’s ordinary contributory

negligence will not bar a recovery where the defendant’s negligence (or negligence per

se) rises to the level of gross negligence or willful and wanton conduct. However, our

Supreme Court in Sorrell, supra, has instructed that a Rule 12(b)(6) dismissal is

appropriate where the allegations in the complaint show that the patron’s

contributory negligence rose to the same level as the defendant’s negligence. In

Sorrell, a patron became visibly intoxicated; the patron’s friend told the bar waitress

not to serve the patron another drink because the patron would be driving; the

waitress, nonetheless, served the patron another large alcoholic drink; the patron

finished the drink, left the bar, and got into his car; and the patron lost control of his

vehicle and was killed. Id. at 646-47, 423 S.E.2d at 73. On appeal, our Supreme

Court recognized that both the waitress and the patron acted negligently. Id. at 648,

423 S.E.2d at 74. The patron’s estate, though, argued that the waitress’ conduct in

serving alcohol to an intoxicated patron whom she knew was going to drive, after

being requested to refrain from serving him, rose above the level of ordinary

negligence. Id. Our Supreme Court, however, affirmed the trial court’s Rule 12(b)(6)



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                                 DILLON, J., dissenting



dismissal because the “decedent’s own actions, as alleged in the complaint, [] [rose] to

the same level of negligence as that of [the waitress].” Id. at 648-49, 423 S.E.2d at 74

(further stating that the allegations concerning the patron’s actions “establish a

similarly high degree of contributory negligence on the part of the [patron]”)

(emphasis added).

      As was the case in Sorrell and the other reported cases in our State involving

first-party Dram Shop claims, the complaint here fails to allege any facts which

demonstrate that Defendants’ negligence was any greater than the negligence of

Plaintiff’s wife. See id. (affirming Rule 12(b)(6) dismissal); Mohr v. Matthews, ___

N.C. App. ___, ___, 768 S.E.2d 10, 14 (2014) (Rule 12(b)(6) dismissal); Canady v.

McLeod, 116 N.C. App. 82, 87, 446 S.E.2d 879, 882 (1994) (affirming summary

judgment). See also Eason v. Cleveland Draft House, 195 N.C. App. 785, 673 S.E.2d

883, 2009 N.C. App. LEXIS 291, *6 (2009) (unpublished opinion) (affirming Rule

12(b)(6) dismissal).   Rather, here, the only allegation concerning Defendants’

negligence is that the waiter(s) served “at least one and more likely, several

intoxicating liquor drinks” after the decedent had become “noticeably impaired.”

Moreover, the allegations otherwise demonstrate that Plaintiff’s wife consumed the

alcohol voluntarily. Under our case law, a patron is barred from recovering from her

server as a matter of law where her allegations fail to allege anything more than that

the defendant served alcohol and the patron voluntarily consumed alcohol. The same



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                                 DILLON, J., dissenting



rule applies even where the server knew the patron was going to drive if the patron

also knew (s)he was going to be driving. Here, there is simply no allegation that

Defendants were aware of any facts of which Plaintiff’s wife was not aware or that

Defendants had any special relationship or owed any special duty beyond that

between a server to a patron.

      That is not to say that there could not be a situation where the negligence of a

server could exceed the contributory negligence of a patron. See Sorrell, 332 N.C. at

648, 423 S.E.2d at 74 (recognizing the validity of the rule that a patron’s ordinary

negligence would not defeat his claim against a waiter whose actions in serving

alcohol rise to the level of gross or willful and wanton negligence). However, here,

Plaintiff has simply failed to plead any facts that would make Defendants’ behavior

any worse than the facts alleged in the above-cited cases.

      In conclusion, Plaintiff has alleged facts which demonstrate as a matter of law

that he is not entitled to a recovery under our law, which is the majority view in this

country.   See Bridges v. Park Place, 860 So.2d 811, 816-818 (2003) (Mississippi

Supreme Court–citing cases, including Sorrell from our Supreme Court).




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