Last week the North Carolina Court of Appeals reversed the lower court’s decision allowing a case involving alcohol poisoning against a hotel and its staff to go forward.[1] Lisa Davis and her husband Thomas were celebrating their wedding anniversary at the Crown Plaza Resort in October of 2012. They had dinner at Mulligans, the hotel’s restaurant, and spent four and a half hours there. Between the two of them, they consumed twenty-four drinks – drinks the restaurant’s employees served them. Not surprisingly, Lisa was extremely intoxicated. She was unable to walk and unable to stand up after falling, so the hotel employees put her in a wheelchair to take her to their room. They did not call for medical help, and when her husband woke up the next morning she had died from alcohol poisoning. Her husband, on behalf of her Estate, sued the hotel and its employees.
In North Carolina, it is against the law to knowingly sell or give alcoholic beverages to an intoxicated person.[2] The trial court said the hotel and its employees, as Alcohol Beverage Control (ABC) permittees, had a duty not to serve Lisa Davis alcoholic beverages after observing her intoxicated state. While the court ruled the hotel breached this duty, it also dismissed the Estate’s claims because it concluded Lisa Davis was contributorily negligent.
North Carolina is one of four states that allows a defense of contributory negligence. This principle bars a plaintiff from recovering damages when the plaintiff’s own negligence contributed to their harm, even if the defendant’s act of ordinary negligence is deemed to have contributed more significantly.[3] However, the North Carolina Supreme Court has previously ruled contributory negligence does not bar recovery when a “defendant’s gross negligence, or willful or wanton conduct, is a proximate cause of the plaintiff’s injuries.[4]
In this case, the Court of Appeals distinguished the facts from a 1992 North Carolina Supreme Court case where the defendant prevailed using the contributory negligence defense against a 21-year-old who drank at a bar until he was visibly intoxicated.[5] The bar continued to serve him alcohol, even though the employees knew he was intoxicated. While driving home from the bar, the plaintiff lost control of his vehicle and died. The trial court dismissed his estate’s wrongful death claims after finding the 21-year-old’s act of driving drunk to be grossly negligent, which contributed to his accident and superseded the bar’s negligence.
The difference between the two cases lies in the level of negligence – Lisa Davis did not commit any acts of gross negligence; she was merely going back to her room on the premises. The court found her level of negligence in over-consuming alcohol was less than restaurant’s negligence in over-serving her, so the Estate is permitted to continue pursuing its claims.
North Carolina’s pure contributory negligence law has peculiar implications when it comes to dram shop laws. Given the examples cited by the Court in this case, the hotel restaurant would be exculpated if Lisa Davis died while driving home, because her own negligence would have barred her estate from recovering any money. It is, at best, a strange public policy and, at worst, a dangerous one; especially if an innocent third party gets caught in the cross-fire. In the meantime, bar and restaurant owners and employees need to be mindful of the fine line between serving and overserving their clientele, lest they find themselves on the wrong end of an expensive lawsuit.
[1] Thomas A. E. Davis, Jr. v. Hulsing Enterprises, LLC, et. al., N.C. App. No. COA15-368 (April 5, 2016).
[2] N.C Gen. Stat. § 18B-305.
[3] McCauley v. Thomas ex rel. Progressive Ins. Co., __ N.C. App. __, __, 774 S.E.2d 421, 426 (2015) (citing Sorrells v. M.Y.B. Hosp. Ventures of Asheville, 332 N.C. 645, 648, 423 S.E. 2d 72, 73-74 (1992).
[4] Yancy v. Lea, 354 N.C. 48, 51, 550 S.E. 2d 155, 157 (2001) (emphasis added).
[5] Sorrells, 332 N.C. at 647, 423 S.E.2d at 73.
