Appeal by plaintiffs from order entered 30 September 2002 by
Judge William C. Griffin, Jr., in Dare County Superior Court.
Heard in the Court of Appeals 15 September 2003.
Aycock & Butler, PLLC, by Betsy Butler; and Aldridge, Seawell,
Spence & Felthousen, by W. Mark Spence, for plaintiff
appellants.
Stephenson & Stephenson, LLP, by James B. Stephenson II, and
Dena White Waters, for defendant appellee.
McCULLOUGH, Judge.
Plaintiffs appeal the trial court's order granting defendant's
motion for summary judgment entered 30 September 2002 finding that
there was no genuine issue of material fact and that defendant was
entitled to judgment as a matter of law.
Defendant La Fogata Corporation is the owner and operator of
a restaurant called “La Fogatas” which is located in Kitty Hawk,
North Carolina. On the night of 12 August 1999, about ten
employees from Ocean Atlantic Rentals attended a party at LaFogatas. The party began around 7:30 p.m. Twenty-year-old Ryan
Swinton was one of the employees who attended the party. He
arrived alone around 10:00 p.m. According to plaintiffs' evidence,
Swinton ordered and consumed alcoholic drinks, even though he was
underage.
When the party ended around 11:25 p.m., Swinton began to drive
home. Approximately twenty minutes into the trip, Swinton lost
control of his vehicle and collided with another vehicle. Swinton
died as a result of injuries sustained in the crash. At the time
of the accident, Swinton had a blood alcohol level of between .13
and .15. Plaintiffs filed this action in August of 2001 alleging
wrongful death and negligence. However, the trial court granted
defendant's motion for summary judgment on 30 September 2002.
Plaintiffs appealed.
On appeal, plaintiffs argue that the trial court committed
reversible error by granting summary judgment for defendant
because: (I) the Ancillary Administrator Plaintiff has stated a
common law negligence per se action; (II) decedent's voluntary
intoxication should not be a bar to recovery under the wrongful
death statute; (III) decedent's parents, in their individual
capacities, can maintain a common law negligence action against
defendant; and (IV) defendant had the last clear chance to avoid
damages. We are not persuaded by plaintiffs' arguments.
The standard of review on appeal from a summary judgment
ruling is whether the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits,show that there is no genuine issue as to any material fact and a
party is entitled to judgment as a matter of law. Moore v.
Coachmen Industries, Inc., 129 N.C. App. 389, 393-94, 499 S.E.2d
772, 775 (1998); see also N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2001).
I. Negligence Per Se
Defendant first contends that it has stated a claim under
common law negligence per se principles. Under N.C. Gen. Stat.
§ 18B-302(a)(1)-(2) (2001), it is a misdemeanor to sell or give
alcoholic beverages to anyone under the age of twenty-one.
However, we have previously held that a violation of this statute
is not negligence per se because the statute is not a public safety
statute which imposes a duty for the protection of the public.
Hart v. Ivey, 332 N.C. 299, 303-04, 420 S.E.2d 174, 177 (1992).
Since defendant's sale of alcohol to a minor is not negligence per
se, this assignment of error is overruled.
II. Wrongful Death Statute
Plaintiffs also claim that they should recover under North
Carolina's Wrongful Death Statute which provides:
When the death of a person is caused by a
wrongful act, neglect or default of another,
such as would, if the injured person had
lived, have entitled him to an action for
damages therefor, the person or corporation
that would have been so liable, and his or
their personal representatives or collectors,
shall be liable to an action for damages, to
be brought by the personal representative or
collector of the decedent[.]
N.C. Gen. Stat. § 28A-18-2(a) (2001). In determining whether a
wrongful death suit may be maintained, we must ask “whether the
deceased had he lived would have had a claim against defendant for
injuries inflicted.”
Carver v. Carver, 310 N.C. 669, 673, 314
S.E.2d 739, 742 (1984). In North Carolina, a plaintiff's
contributory negligence is a bar to recovery from a defendant who
commits an ordinary act of negligence.
Adams v. Board of
Education, 248 N.C. 506, 511, 103 S.E.2d 854, 857-58 (1958).
Operating a vehicle while intoxicated is negligence
per se.
Baker
v. Mauldin, 82 N.C. App. 404, 406, 346 S.E.2d 240, 241 (1986).
In this case, the forecast of evidence reveals that the
decedent ordered and consumed a number of alcoholic beverages. The
evidence also indicates that the decedent voluntarily drove his
vehicle in spite of being intoxicated. Therefore, the decedent's
contributory negligence would bar plaintiff's recovery if defendant
was merely negligent.
However, plaintiffs argue that even if the decedent was
contributorily negligent, this does not prohibit recovery because
defendant's conduct was gross negligence or willful and wanton
conduct. In particular, plaintiffs contend that defendant was
grossly negligent in serving a twenty year old so much alcohol in
such a short period of time.
Contributory negligence is no defense to willful and wanton
injury.
Coleman v. Hines, 133 N.C. App. 147, 150, 515 S.E.2d 57,
59-60,
disc. review denied, 350 N.C. 826, 539 S.E.2d 281 (1999)
.
However, a number of decisions have also held that a plaintiff'sclaim is barred when decedent's own actions rise to the same level
of negligence as the defendant.
See id. at 150-52, 515 S.E.2d at
59-60;
Coble v. Knight, 130 N.C. App. 652, 656-57, 503 S.E.2d 703,
706 (1998);
Canady v. McLeod, 116 N.C. App. 82, 87, 446 S.E.2d 879,
882,
disc. review denied, 338 N.C. 308, 451 S.E.2d 632 (1994);
Meachum v. Faw, 112 N.C. App. 489, 494-95, 436 S.E.2d 141, 144-45,
(1993); and
Sorrells v. M.Y.B. Hospitality Ventures of Asheville,
332 N.C. 645, 648, 423 S.E.2d 72, 74 (1992). In the present case,
even if defendant's serving alcohol to a minor rose to the level of
willful or wanton negligence, the decedent's own negligence in
voluntarily drinking and driving rose to that same level.
Therefore, plaintiffs' claim is barred in this case.
III. Negligence
Plaintiffs argue that as the parents of the decedent, they can
maintain a common law negligence action against defendant.
“Actionable negligence is the failure to exercise that degree
of care which a reasonable and prudent person would exercise under
similar conditions.”
Hart, 332 N.C. at 305, 420 S.E.2d at 177-78.
This Court has also held that social hosts can be liable for common
law negligence.
Id. at 305-06, 420 S.E.2d at 177-78. To prove the
claim, a plaintiff must show that a social host “(1) served alcohol
to a person (2) when he knew or should have known the person was
intoxicated and (3) when he knew the person would be driving
afterwards.”
Camalier v. Jeffries, 340 N.C. 699, 711, 460 S.E.2d
133, 138 (1995). The forecast of evidence shows that the first element of
social host liability was met. The affidavits of Cyrus Shahan and
Pat Lewis reveal that the decedent was served alcoholic beverages
by agents or employees of defendant.
However, nothing in the record indicates that defendant knew
or should have known that the decedent was intoxicated.
Significantly, plaintiffs failed to forecast any evidence that
anyone at the restaurant believed that the decedent was
intoxicated. In addition, the manager on duty that night, Tony
Fernandez, came to the opposite conclusion. Fernandez stated that
he was positioned near the front door and watched customers as they
entered and left. He also explained that when the group of Ocean
Atlantic Rentals employees left the restaurant, none of them
appeared to be impaired. We conclude that plaintiffs failed to
meet their burden on the second element.
Plaintiffs also failed to establish the third and final
element. Nothing in the record shows that defendant knew that the
decedent would be driving that night. The decedent was socializing
with a group of at least ten people at the restaurant. Indeed, any
member or members of the group could have been driving.
Conversely, it is possible that the patrons intended to take a
taxi, walk, or seek some other means of transportation to get home.
In short, nothing put defendant on notice that Ryan Swinton was
intoxicated and would be driving afterwards. Because plaintiffs
failed to forecast evidence on two elements of their claim, weconclude that the trial court properly granted summary judgment for
defendant.
IV. Last Clear Chance Doctrine
Plaintiffs claim that the doctrine of last clear chance would
operate to preserve their claim. To show last clear chance, a
plaintiff must allege and prove that:
“(1) [p]laintiff, by [his] own negligence,
placed [himself] in a position of peril from
which [he] could not escape; (2) defendant
saw, or by the exercise of reasonable care
should have seen and understood, the perilous
position of plaintiff; (3) defendant had the
time and the means to avoid the accident if
defendant had seen or discovered plaintiff's
perilous position; (4) . . . defendant failed
or refused to use every reasonable means at
his command to avoid impending injury to
plaintiff; and (5) plaintiff was injured as a
result of defendant's failure or refusal to
avoid impending injury.”
Coleman, 133 N.C. App. at 152, 515 S.E.2d at 61 (quoting
Williams
v. Lee Brick and Tile, 88 N.C. App. 725, 728, 364 S.E.2d 720, 721
(1988)).
We find that the last clear chance doctrine is not applicable
in this case. Plaintiffs presented no allegations that the
decedent placed himself in a position of peril from which he could
not escape. No one forced the decedent to drive drunk. In fact,
a number of the decedent's coworkers and friends car-pooled back to
the decedent's destination. The decedent easily could have ridden
with them. Furthermore, the decedent had the opportunity to extract
himself from the dangerous situation of driving drunk. He could
have stopped the car at any point during the twenty minutes hetraveled before the accident. Accordingly, we reject this
assignment of error.
We have considered plaintiffs' other arguments and find them
to be without merit. The forecast of evidence shows that there is
no genuine issue as to any material fact, and defendant is entitled
to judgment as a matter of law. Therefore, the trial court's order
granting summary judgment for defendant is
Affirmed.
Chief Judge EAGLES and Judge STEELMAN concur.
Report per Rule 30(e).
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