Appeal by plaintiff from an order entered 27 June 2005 by
Judge Richard L. Doughton in Wilkes County Superior Court. Heard
in the Court of Appeals 17 May 2006.
Franklin D. Smith for plaintiff-appellant.
Davis & Hamrick, L.L.P., by Kent L. Hamrick and Ann C. Rowe,
for defendant-appellee Mark Edward Walker.
Parker, Poe, Adams & Bernstein L.L.P, by James C. Thornton,
for defendant-appellee Brinker North Carolina, Inc.
Shannon Mae Bullins (plaintiff) appeals from an order entered
27 June 2005 dismissing her claims against Mark Edward Walker
(Walker) and Brinker North Carolina, Inc., trading and doing
business as Chili's Grill & Bar (collectively, defendants). We
affirm the order of the trial court.
On 11 September 2004, Walker drove plaintiff and his wife,
Susan Walker, to Hanes Mall in Winston-Salem, North Carolina. While plaintiff and Walker's wife shopped at the mall, Walker went
to a Chili's Grill & Bar located adjacent to the mall and consumed
two Long Island Iced Teas. After shopping, plaintiff and Mrs.
Walker joined Walker at Chili's Grill & Bar for dinner. Over the
course of the evening, Walker consumed a total of five Long Island
Iced Teas, and, as plaintiff alleged in her complaint, [a]s the
evening progressed, [Walker] became increasingly louder, his speech
became slurred, his eyes were glassy, he had difficulty standing
and stumbled several times going to and from the restroom.
After finishing their meal, Walker retrieved his car and drove
to the front of the restaurant, where plaintiff and Mrs. Walker
were waiting. Walker then picked up plaintiff and carried her to
the rear passenger door. Plaintiff was aware of Walker's impaired
condition and repeatedly asked him to let her drive them home.
Mrs. Walker also asked Walker to let plaintiff drive them home.
Walker insisted upon driving his car, and the parties drove
away from the restaurant, stopping at a gas station and a
McDonald's restaurant before heading home. While driving the
parties home, Walker lost control of the vehicle, veered into the
left lane, ran off of the side of the road, struck an embankment,
and overturned. Plaintiff was thrown from the vehicle and suffered
On 21 February 2005, plaintiff filed a complaint against
defendants for negligence, seeking both compensatory and punitive
damages. On 25 and 29 April 2005, defendants independently filedmotions to dismiss plaintiff's complaint pursuant to Rule 12(b)(6)
of the North Carolina Rules of Civil Procedure for failure to state
a claim upon which relief can be granted. Plaintiff subsequently
filed a Motion to Amend Complaint.
A hearing on defendants' and plaintiff's motions was held on
9 May 2005, before the Honorable Richard L. Doughton. Plaintiff's
motion to amend was allowed without objection. However,
defendants' motions to dismiss were granted pursuant to Rule
12(b)(6) after defendants presented arguments that all of the
elements of contributory negligence were affirmatively pled in
plaintiff's complaint. The trial court entered an order dismissing
plaintiff's claims with prejudice on 27 June 2005. Plaintiff
Plaintiff raises the issue of whether the trial court erred in
allowing defendants' motions to dismiss plaintiff's claims pursuant
to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.
Plaintiff argues the trial court erred in dismissing her claims
because she should be allowed to present evidence as to whether she
was forced into Walker's car and whether she was restrained from
leaving the car.
Standard of Review
In reviewing a trial court's dismissal pursuant to Rule
12(b)(6), this Court must inquire '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 under some legaltheory.' Newberne v. Dep't of Crime Control & Pub. Safety
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)).
Rule 12(b)(6) generally precludes dismissal
except in those instances where the face of
the complaint discloses some insurmountable
bar to recovery. Dismissal is proper,
however, when one of the following three
conditions is satisfied: (1) the complaint on
its face reveals that no law supports the
plaintiff's claim; (2) the complaint on its
face reveals the absence of facts sufficient
to make a good claim; or (3) the complaint
discloses some fact that necessarily defeats
the plaintiff's claim.
, 359 N.C. at 784, 618 S.E.2d at 203-04 (internal citations
and quotations omitted). However, [a] party is bound by his
pleadings and, unless withdrawn, amended or otherwise altered, the
allegations contained in all pleadings ordinarily are conclusive as
against the pleader. He cannot subsequently take a position
contradictory to his pleadings. Davis v. Rigsby
, 261 N.C. 684,
686, 136 S.E.2d 33, 34 (1964) (citation omitted).
[C]ontributory negligence consists of conduct which fails to
conform to an objective
standard of behavior -- the care an
ordinarily prudent person would exercise under the same or similar
circumstances to avoid injury. Smith v. Fiber Controls Corp.
N.C. 669, 673, 268 S.E.2d 504, 507 (1980) (citations and quotations
omitted). A court should dismiss a complaint based on
contributory negligence only when the allegations of the complaint
taken as true 'show negligence on [the plaintiff's] part
proximately contributing to his injury, so clearly that no otherconclusion can be reasonably drawn therefrom.' Sharp v. CSX
, 160 N.C. App. 241, 244-5, 584 S.E.2d 888, 890 (2003)
(quoting Ramey v. Southern Ry. Co.
, 262 N.C. 230, 234, 136 S.E.2d
638, 641 (1964)). Nonetheless, our Supreme Court has held that
where a passenger enters an automobile with knowledge that the
driver is under the influence of an intoxicant and voluntarily
rides with him, he is guilty of contributory negligence per se
, 261 N.C. at 686-87, 136 S.E.2d at 35.
In the instant case, plaintiff knew Walker was under the
influence of alcohol, and there is nothing in her complaint to
indicate she did not enter and remain in the car voluntarily.
While the complaint does state that Walker picked plaintiff up and
carried her to the passenger door, it is only at the hearing on
defendants' motions to dismiss and in her brief to this Court that
plaintiff asserts she was forced into
the car. Further, Walker
made two stops in Winston-Salem during which plaintiff did not
leave the car. Plaintiff remained in the car at each of these
stops, and although she states she was carried to the car, there is
no indication in plaintiff's complaint that she was forced to enter
the car or restrained from leaving the car at any time.
Plaintiff's own complaint establishes she voluntarily continued to
ride in a car driven by Walker whom she knew to be impaired by
alcohol, and thus is contributorily negligent as a matter of law.
See Watkins v. Hellings
, 321 N.C. 78, 81, 361 S.E.2d 568, 570
(1987) (when a passenger voluntarily continues to ride with a
driver the passenger knows to be impaired by alcohol, the passengeris contributorily negligent as a matter of law); Davis v. Rigsby
261 N.C. 684, 686-87, 136 S.E.2d 33, 35 (1964) (where a passenger
enters an automobile with knowledge that the driver is under the
influence of an intoxicant and voluntarily rides with him, he is
guilty of contributory negligence per se
); Coleman v. Hines
N.C. App. 147, 151, 515 S.E.2d 57, 60 (1999) (where the evidence
establishes willful and wanton negligence on the part of a drunk
driver, it also establishes a similarly high degree of
contributory negligence on the part of a passenger who voluntarily
rides with him). This assignment of error is overruled.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
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