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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 18 September 2007
TOM I. DAVIS, II, Co-Administrator of
the Estate of Zachary Kyle Davis
(Deceased); and BOBBY BUFF, Co-
Administrator of the Estate of Zachary
Kyle Davis (Deceased),
SGT. PEPPERS RESTAURANT AND
BAR, INC.; O'CHARLEY'S, INC.; JOHN
S. BROWN; GREGORY A. BROWN; and
TERRY C. BROWN,
Appeal by plaintiffs from order entered 23 June 2006 by Judge
Richard D. Boner in Catawba County Superior Court. Heard in the
Court of Appeals 20 August 2007.
Sigmon, Clark, Mackie, Hutton, Hanvey, & Ferrell, P.A., by
Forrest A. Ferrell, Jeffrey T. Mackie and Jason White, for
McAngus, Goudelock & Courie, P.L.L.C., by John T. Jeffries and
Janiere E. Taylor, for Sgt. Peppers Restaurant and Bar, Inc.,
Hedrick Eatman Gardner & Kincheloe, L.L.P., by Mel J.
Garofalo, Lucian P. Sbarra and David L. Levy, and Guynn,
Memmer & Dillon, P.C., by C. Kailani Memmer for O'Charley's,
Inc., defendant appellee.
Plaintiffs appeal from an order granting motion for summary
judgment of defendant O'Charley's, Inc., as to plaintiffs' claim
for punitive damages. We affirm.
On 9 August 2002, defendant John Brown (Brown) was operating
a motor vehicle on Highway 127 in Hickory, North Carolina. Brown
subsequently lost control of the vehicle causing a collision with
a vehicle being operated by Angela Bass. Ms. Bass' son, Zachary
Davis, was riding in the backseat of Ms. Bass' vehicle during the
accident. Davis sustained injuries as a result of the accident and
was pronounced dead the morning after the collision. At the time
of the accident, Brown's blood alcohol content was 0.17 grams of
alcohol per 100 milliliters of whole blood.
Brown testified that on the evening before the accident, he
was a patron at Sgt. Peppers Restaurant and Bar, Inc. (Sgt.
Peppers), O'Charley's, Inc. (O'Charley's), and Randolph
Billiards. While at Sgt. Peppers, Brown testified that he either
had one beer and one shot of liquor or three to four drinks;
however, he could not recall the exact amount of alcohol he had
Later in the night, Brown patronized O'Charley's. A bartender
served Brown one shot of tequila and one twelve ounce beer. After
serving Brown, a bartender noticed Brown seemed off-balance when he
walked. Then, O'Charley's refused to serve Brown any more alcohol,
and Brown was served water. Brown testified he was at O'Charley's
for about forty minutes before he drove away.
After leaving O'Charley's, Brown drove to Randolph's Pool
Hall. Brown did not drink any alcohol at the pool hall and started
a conversation with another man. Brown testified he allowed theman he spoke with at the pool hall to drive his car to the man's
residence because Brown did not want to drive. Brown slept at the
man's house from approximately 2:00 a.m. or 2:30 a.m. to 6:30 a.m.
on 9 August 2002.
When Brown woke up at the man's house at approximately 6:30
a.m., he drove his vehicle through the drive-thru window of a local
restaurant. On his way home from the restaurant, Brown was involved
in the motor vehicle accident that fatally injured Zachary Davis.
Co-Administrators of the estate of Zachary Davis
(plaintiffs) filed this action on 20 April 2004. On 18 May 2006,
O'Charley's filed a motion for summary judgment on plaintiffs'
claim for punitive damages. On 23 June 2006, the trial court
entered an order granting O'Charley's motion for summary judgment
on punitive damages and certified the decision as appropriate for
immediate appeal. Plaintiffs appeal.
Plaintiffs contend the trial court erred in granting
O'Charley's motion for summary judgment as to plaintiffs' claim for
punitive damages. We disagree.
The trial court's order stated that its decision was
appropriate for immediate appeal pursuant to Rule 54(b) of the
North Carolina Rules of Civil Procedure. Although the certification
does not bind us to review the case, see Jenkins v. Choong
N.C. App. 780, 781, 557 S.E.2d 124, 125 (2001), disc. review
, 355 N.C. 286, 560 S.E.2d 803 (2002), in light of the needfor efficient administration of justice, we will reach the merits
of the case.
Summary judgment is appropriate only if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2005). There is no genuine issue of material fact where a party
demonstrates that the claimant cannot prove the existence of an
essential element of his claim or cannot surmount an affirmative
defense which would bar the claim. Harrison v. City of Sanford
177 N.C. App. 116, 118, 627 S.E.2d 672, 675, disc. review denied
361 N.C. 166, 639 S.E.2d 649 (2006). On appeal from a grant of
summary judgment, this Court reviews the trial court's decision de
. Falk Integrated Tech., Inc. v. Stack
, 132 N.C. App. 807,
809, 513 S.E.2d 572, 573-74 (1999). A moving party has the burden
of establishing the lack of any triable issue of fact and its
supporting materials are carefully scrutinized, with all inferences
resolved against it. Kidd v. Early
, 289 N.C. 343, 352, 222 S.E.2d
392, 399 (1976).
In order for punitive damages to be awarded, the North
Carolina General Statutes require a claimant to prove, through
clear and convincing evidence, an aggravating factor of fraud,
malice, or willful and wanton conduct. N.C. Gen. Stat. § 1D-15
(2005). Here, plaintiffs argue that the aggravating factor is
willful and wanton conduct on the part of O'Charley's. 'Willfulor wanton conduct' means the conscious and intentional disregard of
and indifference to the rights and safety of others, which the
defendant knows or should know is reasonably likely to result in
injury, damage, or other harm. 'Willful or wanton conduct' means
more than gross negligence. N.C. Gen. Stat. § 1D-5(7) (2005).
We determine the trial court did not err. The evidence is not
clear and convincing that O'Charley's engaged in a conscious and
intentional disregard of and indifference to the rights and safety
of others . . .. Id
. The evidence shows that Brown did not
frequent O'Charley's much before August of 2002. On the night in
question, Brown was served a beer and a shot at O'Charley's
according to the testimony of both Brown and a bartender. After
serving Brown the beverages, a manager on duty noticed that Brown
stumbled. The employees refused further alcohol service to Brown
and confiscated a portion of the beer previously served to Brown.
Thereafter, Brown was served water. A bartender notified a manager
on duty at O'Charley's that Brown had left the bar and was walking
in the parking lot. By the time the manager got outside of
O'Charley's, Brown had already backed out and was pulling off.
Another employee followed Brown to the parking lot to try to keep
him from driving. The employee was unable to get Brown's license
plate number. Brown testified that he was at O'Charley's for a
total of approximately forty minutes.
Assuming, without deciding, that the evidence, viewed in the
light most favorable to plaintiffs, may have amounted to simple
negligence, it did not rise to the level of willful or wantonconduct. See
N.C. Gen. Stat. § 1D-5 ('Willful or wanton conduct'
means more than gross negligence.) Accordingly, we determine the
trial court did not err in granting O'Charley's motion for summary
judgment as to plaintiffs' claim for punitive damages.
Chief Judge MARTIN and Judge TYSON concur.
Report per Rule 30(e).
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