Alcoholic Beverages--restaurant's sale to underage minor--automobile accident--jury
instructions--negligence--proximate cause
The trial court did not err in its jury instructions on negligence and proximate cause, and
by denying plaintiff's motion for a new trial, in a case involving defendant restaurant's alleged
negligence in selling alcoholic beverages to an underaged minor who thereafter was involved in
an automobile accident killing his passenger when the minor raced another automobile while the
roads were wet and after drinking multiple alcoholic beverages, because: (1) the jury was not
restricted to finding in favor of defendant; (2) the jury was instructed that plaintiff need not prove
defendant's negligence was the sole proximate cause of the injury; and (3) the trial court
specifically stated that it was the restaurant's contention, and that plaintiff denied, that the
proximate cause of the passenger's fatal injuries was the minor's intentional conduct. N.C.G.S. §
18B-121.
Blanchard, Jenkins, Miller & Lewis, P.A., by Philip R. Miller,
III, for plaintiff-appellant.
Teague, Campbell, Dennis & Gorham, L.L.P., by Dayle A.
Flammia, for defendant-appellee.
CAMPBELL, Judge.
Plaintiff's sole contentions on appeal are that the trial
court erred in instructing the jury, and later in denying
plaintiff's motion for a new trial on this same issue.
This case arose from the events of 30 November 1996, when the
car driven by Aaron January (Aaron), in which Megan Ellen Kane
(Megan) was a passenger, struck a tree, killing Megan.
Earlier that evening, Aaron, who was under age 21 (the legal
age required to consume alcoholic beverages, see N.C. Gen. Stat. §18B-302), went to a friend's house and consumed three or four
beers. He then went to Megan's house where he had another beer and
a shot of liquor. It was approximately midnight at the time.
After leaving Megan's house, Aaron went to Crowley's at Stonehenge,
a restaurant, (Crowley's or defendant, interchangeably) to meet
some more friends, and while there, consumed two Long Island Iced
Teas (a five liquor drink made up of gin, rum, vodka, tequila, and
triple sec, containing about three-fourths of an ounce of each
liquor). An underaged friend bought the first drink and gave it to
Aaron; then when finished with the drink, Aaron went back to the
bar with the empty glass and ordered two more, one for himself and
one for his friend. At no time was Aaron asked for identification
or other proof of his age. Aaron left Crowley's at about 1:30
a.m., and went back to Megan's house. He did not appear drunk, and
could walk and drive without problems.
Around 2:45 a.m., Aaron and Megan decided to leave her house
and go to a party. Aaron drove, while Megan gave directions. They
were turning onto Millbrook Road from Falls of the Neuse Road,
heading in the direction of Six Forks Road, when a red BMW came up
behind them. Despite the fact that the roads were slightly wet
from rain earlier in the evening, the BMW drove extremely close to
Aaron's car, so close in fact, that he could not see the BMW's
headlights. When Aaron pulled over into the right-hand lane to let
the BMW pass, it accelerated past him, swerved over in front of
Aaron's car, then went back into the left-hand lane and continued
on. This angered Aaron, and he started to chase the BMW.
Unfortunately, while going around a curve in the road, Aaron lostcontrol of the car and hit a tree. Megan was rendered unconscious
from the impact, and never regained consciousness.
At issue on appeal is a statement made by the trial court
during the jury charge. In charging the jury, the trial court
said:
Crowley's contends and the plaintiff denies that the
proximate cause of Megan Ellen Kane's fatal injuries was
the intentional conduct of Aaron January, resulting in
his conscious decision to unlawfully engage in a chase or
speed competition with another motor vehicle, which
intentional conduct, to wit: the chase of the red BMW on
Millbrook Road resulted in Aaron January losing control
of his Chevrolet Camaro, causing it to strike a tree,
thereby fatally injuring Megan Ellen Kane.
Crowley's further contends that even if the jury were to
find that Crowley's negligently sold or furnished alcohol
to Aaron January, which is denied, that Aaron January's
intentional conduct of chasing and/or racing another
motor vehicle was not foreseeable. Therefore, the
alleged sale or furnishing of alcohol to Aaron January
was not the proximate cause of Megan Ellen Kane's fatal
injuries.
Plaintiff objects to the above language, and argues that
although the trial court was only stating a contention, the
contention contained an erroneous view or incorrect application of
the law, and therefore, plaintiff is entitled to a new trial.
Plaintiff cites Blanton v. Carolina Dairy, Inc., 238 N.C. 382, 77
S.E.2d 922 (1953) in support of this argument. According to
Blanton:
It is the duty of the trial court to explain and apply
the law to the substantive phases of the evidence
adduced, and an instruction which presents an erroneous
view of the law or an incorrect application thereof, even
though given in stating the contentions of the parties,
is error . . . . (citation omitted)
Id. at 385, 77 S.E.2d at 925. In order to hold defendant liable for Megan's death, the
burden was on plaintiff to show that defendant negligently sold an
alcoholic beverage to a minor (Aaron January), that this alcohol
caused or contributed to his impairment, and that it was
foreseeable that an injury such as Megan's might occur as a result
of the minor's negligent driving. N.C. Gen. Stat. § 18B-121
(1999).
Plaintiff asserts that as a result of the above contention,
the jury might believe that it was precluded from finding in favor
of plaintiff if it found Aaron January's conduct to be intentional,
since the statute requires that in order for the defendant to be
liable, the minor's driving must have been negligent.
We conclude from the record before us that the trial court
correctly explained the laws of North Carolina, and that this
contention was neither an “incorrect application” of our laws, nor
did it “present an erroneous view” of our laws.
In instructing the jury, the trial court read and explained
each of the five issues the jury would need to decide. Regarding
the issue on appeal, the trial court stated the issue was whether
“Megan Ellen Kane [was] fatally injured as a result of Crowley's at
Stonehenge, Inc.'s negligent sale or furnishing of an alcoholic
beverage to an underage person,” and explained that in determining
this issue, the jury would need to decide six sub-issues, for which
the plaintiff had the burden of proof. These six sub-issues were:
(1) that Crowley's “negligently sold or furnished one or more Long
Island Iceteas [sic] to Aaron January”; (2) that Aaron January was
underage at the time of sale; (3) that in selling the alcoholicbeverage(s) to Aaron January, “Crowley's failed to exercise that
degree of care which a reasonable person would have exercised under
the same or similar circumstances” (and that here the jury could
consider the fact that Aaron was never asked for identification);
(4) that Aaron January “became subject to an impairing substance,”
that alcohol is an impairing substance, and that “a person is []
impaired when he has consumed a sufficient quantity of alcohol that
at any relevant time after the driving he has an alcohol
concentration of 0.08 or more grams of alcohol per 210 liters of
breath,” (here the parties had stipulated that Aaron's blood
alcohol level had been 0.145 at the time); (5) that “such
impairment was caused or contributed to by consumption of the Long
Island Iceteas [sic] that Crowley's sold or furnished to Aaron
January”; and (6) that “while so impaired, Aaron January was
negligent in the operation of the Chevrolet [Camaro] and that such
negligence was a proximate cause of Megan Ellen Kane's fatal
injuries.” We believe that this was an accurate summation of the
plaintiff's burden at trial.
Next, the court instructed the jury on the meanings of
negligence and proximate cause.
[N]egligence refers to a person's failure to follow a
duty of conduct imposed by law. Every person is under a
duty to use ordinary care to protect himself and others
from injury. Ordinary care means that degree of care
which a reasonable and prudent person would use under the
same or similar circumstances to protect himself and
others from injury. A person's failure to use ordinary
care is negligence. (emphasis added)
. . .
Ladies and gentlemen, I [also] want to talk to you about
proximate cause. The plaintiff, George W. Kane, III,Administrator of the Estate of Megan Ellen Kane, not only
has the burden of proving negligence, but also that such
negligence was a proximate cause of the fatal injuries to
Megan Ellen Kane. Proximate cause, ladies and gentlemen,
is a cause which in a natural and continuous sequence
produces a person's injury, and is a cause which a
reasonable and prudent person could have foreseen could
probably produce such injury or some similar injurious
result.
There may be more than one proximate cause of an injury.
Therefore, the plaintiff need not prove that the
defendant's negligence was the sole proximate cause of
the injury. (emphasis added)
As evidenced from the above excerpts, the trial court
accurately instructed the jury as to both negligence and proximate
cause. Also, as shown by the italicized portions, the jury was not
restricted to finding in favor of defendant. Based on these
instructions, the jury could find that Aaron January was negligent
in his “failure to follow a duty of conduct imposed by law” and
“failure to use ordinary care,” by racing the red BMW, while the
roads were wet, and after drinking multiple alcoholic beverages
(not to mention while under the legal age to consume alcohol), just
as it could find defendant was negligent in selling an alcoholic
beverage to a minor in violation of “a duty of conduct imposed by
law” and that it “fail[ed] to use ordinary care” by never asking to
see Aaron's identification or using other methods to prevent
selling alcohol to someone who was underage.
Additionally, the jury was instructed that “plaintiff need not
prove that the defendant's negligence was the sole proximate cause
of the injury,” further giving the jury ample opportunity to find
negligence on the part of both Aaron January and defendant.
Finally, the trial court was very specific in introducing thepart of the charge to which plaintiff objects by stati
ng that
“Crowley's contends and the plaintiff denies” making it clear that
the judge was not presenting his view of the law, but rather a
theory of the case from one party's point of view. We conclude
that the record shows the trial court gave a clear and accurate
explanation of the law and legal terms involved in the case when
instructing the jury, and that the court did not misstate or
incorrectly apply the law when giving the contentions of the
parties. Therefore, the jury's finding that Megan Ellen Kane was
not fatally injured as a result of a negligent sale of an alcoholic
beverage by Crowley's to an underage person, as well as the trial
court's denial of the motion for a new trial, is upheld.
No error.
Chief Judge EAGLES and Judge HUNTER concur.
*** Converted from WordPerfect ***