Appeal by defendant from order entered 4 April 2000, judgment
entered 28 July 2000, and order entered 21 September 2000 by Judge
B. Craig Ellis in Cumberland County Superior Court. Heard in the
Court of Appeals 10 January 2002.
Mitchell, Brewer, Richardson, Adams, Burns & Boughman, by
Ronnie M. Mitchell and Coy E. Brewer, Jr., for plaintiff-
appellees.
Teague, Campbell, Dennis & Gorham, L.L.P., by Dayle A. Flammia
and Bryan T. Simpson, for defendant-appellant.
MARTIN, Judge.
Plaintiffs are the parents of Jason Paul Storch, who died in
a single car accident on 19 September 1998 in Avery County.
Plaintiffs brought this action under Chapter 18B, Article 1A of the
North Carolina General Statutes, North Carolina's Dram Shop Act,
alleging that Jason, who was eighteen years old at the time of his
death, was intoxicated after having consumed alcohol which he
purchased from defendant's store in Boone, N.C. prior to the fatal
accident. Plaintiffs sued in their individual capacities, alleging
they have suffered damages as a result of defendant's negligent
sale of alcohol to Jason and are “aggrieved parties” within the
meaning of the Act. Defendant filed answer denying it sold orfurnished alcohol to Jason and alleging affirmative defenses.
Defendant's motion to dismiss and motion for summary judgment were
denied, and the issues were tried by a jury. The jury found that
plaintiffs were injured as a result of defendant's sale of
alcoholic beverages to an underage person and awarded damages in
the amount of $50,000 to each plaintiff. The trial court entered
judgment on the jury's verdict and denied defendant's motions for
judgment notwithstanding the verdict and, alternatively, for a new
trial. Defendant appeals.
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The sole issue presented by this appeal is whether the parents
of an underage person who dies from injuries proximately resulting
from his operation of a motor vehicle while impaired after
consuming alcoholic beverages sold or furnished to him in violation
of G.S. § 18B-302(a) may be “aggrieved parties” within the meaning
of G.S. § 18B-120
et seq., North Carolina's “Dram Shop Act.” We
answer affirmatively.
Article 1A of Chapter 18B of the North Carolina General
Statutes authorizes a claim by an “aggrieved party” for damages for
injury proximately caused by the negligent selling of alcoholic
beverages to an underage person. G.S. § 18B-121 provides:
An aggrieved party has a claim for relief
for damages against a permittee or local
Alcoholic Control Board if:
(1) The permittee or his agent or employee or
the local board or its agent or employee
negligently sold or furnished an alcoholic
beverage to an underage person; and
(2) The consumption of the alcoholic beveragethat was sold or furnished to an underage
person caused or contributed to, in whole or
in part, an underage driver's being subject to
an impairing substance within the meaning of
G.S. 20-138.1 at the time of the injury; and
(3) The injury that resulted was proximately
caused by the underage driver's negligent
operation of a vehicle while so impaired.
An “aggrieved party” is defined as “a person who sustains an
injury as a consequence of the actions of the underage person, but
does not include the underage person . . . .” N.C. Gen. Stat. §
18B-120(1). Because the underage person is expressly excluded from
the definition of “aggrieved party” in G.S. § 18B-120(1), his
personal representative is also excluded and may not maintain an
action for wrongful death under the Dram Shop Act, since the
personal representative may only bring a claim which could have
been brought by the decedent if he had lived.
Clark v. Inn West,
324 N.C. 415, 379 S.E.2d 23 (1989).
In
Clark v. Inn West, supra, the question before the Supreme
Court was whether the personal representative of the estate of an
underage person who died as a result of injuries sustained in an
accident caused by his impaired driving after the consumption of
alcohol could maintain an action under the Dram Shop Act. As noted
above, the Court held that because G.S. § 28A-18-2 provides for the
survivorship of claims by a personal representative only if such
claim could have been brought by the decedent if he had lived, and
the underage person is expressly excluded from the definition of an
“aggrieved party” contained in G.S. § 18B-120(1), the personal
representative could not maintain an action under G.S. § 18B-121. Notably, however, even though the question of the standing of the
parent of an underage person to maintain such an action,
individually, was not before the Court, the Court noted that a
parent of the underage person is not expressly excluded from the
definition of an “aggrieved party.”
Clark, 324 N.C. at 417-18,
fn.2, 379 S.E.2d at 24, fn.2. The Court went on to examine the
definition of “injury” contained in G.S. § 18B-120(2) and concluded
that the statute “does not preclude recovery for
loss of support by
their underage child, if the underage child in fact supported the
parents.”
Id. at 418, 379 S.E.2d at 24.
The Court's analysis with respect to the parent's standing to
bring the action as individuals was unnecessary to its decision
and, as
dictum, is not binding precedent.
In re University of
North Carolina, 300 N.C. 563, 576, 268 S.E.2d 472, 480 (1980).
Nevertheless, such analysis is directly relevant to the issue
before us and we adopt it. “A remedial statute must be construed
broadly, in light of the evils sought to be remedied and the
objectives to be attained.”
Wade v. Wade, 72 N.C. App. 372, 379,
325 S.E.2d 260, 267-68 (1985) (citation omitted),
disc. review
denied, 313 N.C. 612, 330 S.E.2d 616 (1985). Thus, we hold that a
parent of an underage driver injured or killed as a result of such
underage driver's negligent operation of a motor vehicle due to
impairment resulting from the consumption of alcohol may be an
“aggrieved party” within the meaning of G.S. § 18B-120(1) so as to
have standing to maintain an action under the Dram Shop Act if such
parent suffers an
injury as a proximate result of the negligentselling of alcoholic beverages to the underage person.
The term “injury” under the statute
includes, but is not limited to, personal
injury, property loss, loss of means of
support, or death. Damages for death shall be
determined under the provisions of G.S 28A-18-
2((b). Nothing in G.S. 28A-18-2(a) or
subdivision (1) of this section shall be
interpreted to
preclude recovery under this
Article for . . . death on account of injury
to or death of the underage person . . . .”
N.C. Gen. Stat. § 18B-120(2) (emphasis added). Clearly, under
subsection (2), a parent of an underage person killed as a result
of his own impaired driving would be an “aggrieved party” to the
extent the parent's automobile was damaged as a consequence of the
underage person's impaired driving and would have standing to
maintain an action under G.S. § 18B-121. In addition, the last
sentence of subsection (2) expressly renders inapplicable the
limitation of G.S. § 28A-18-2(a) restricting the right of recovery
of damages for death of the underage person to the personal
representative. Indeed, as the Supreme Court must have recognized
in its analysis of the statute in
Clark, if the last sentence of
subsection (2) were interpreted otherwise, G.S. § 28A-18-2(a) would
preclude a parent from recovering for loss of support by the
underage child.
Subsection (2) provides that damages for death be determined
as directed by G.S. § 28A-18-2(b). As applicable to the parent of
the underage person, “injury” would include funeral expenses of the
underage person, G.S. § 28A-18-2(b)(3), as well as damages for loss
of services, G.S. § 28A-18-2(b)(4)b, society, companionship, etc., G.S. § 28A-18-2(b)(4)c, and loss of support. N.C. Gen. Stat. §
18B-120(2);
Clark, supra. Thus, even though an action for wrongful
death is reserved to the personal representative of the decedent
and a parent, individually, may not maintain a wrongful death
action for death of his or her child,
Killian v. R.R., 128 N.C.
261, 38 S.E. 873 (1901), damages under G.S. § 28A-18-2(b) may be
available, in a completely distinct claim under the Dram Shop Act
to the parent of an underage child who negligently drove a motor
vehicle while impaired by alcohol and died from injuries sustained
as a proximate result thereof.
In summary, we hold that a parent of an underage person who
dies from injuries proximately resulting from his operation of a
motor vehicle while impaired after consuming alcohol negligently
sold by a permittee may be included within the class of persons
known as “aggrieved parties” under G.S. § 18B-120(1), and may
recover damages for his or her “injury,” including damages pursuant
to G.S. § 28A-18-2(b).
No error.
Judges TIMMONS-GOODSON and BRYANT concur.
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