370 N.C. 455
N.C.2018Background
- Decedent Lisa Mary Davis and her husband checked into a Crowne Plaza hotel and ate at Mulligan's bar/restaurant owned by defendants.
- Over ~4.5 hours the couple ordered 24 alcoholic drinks; decedent consumed at least 10 and became visibly intoxicated.
- Hotel staff assisted the decedent into a wheelchair and into bed; she was found dead the next morning from acute ethanol poisoning.
- Administrator (husband) sued for wrongful death alleging common-law dram shop liability (negligence per se under N.C.G.S. § 18B-305), negligent rescue/assistance, and punitive damages.
- Trial court dismissed the dram shop/punitive claims under Rule 12(b)(6); Court of Appeals reversed as to dram shop; the Supreme Court granted discretionary review on dram shop recognition and contributory negligence.
- Supreme Court reversed the Court of Appeals, holding the complaint, taken as true, establishes contributory negligence by the decedent that bars recovery; therefore it did not reach whether North Carolina recognizes a first-party dram shop cause of action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint states a dram shop (negligence per se) wrongful-death claim under N.C.G.S. § 18B-305 | Davis argued defendants knowingly served an already-intoxicated person in violation of the statute, proximately causing death | Defendants argued facts alleged also establish decedent's contributory negligence, an affirmative bar to recovery | Court did not decide substantive recognition of first-party dram shop claim because it held decedent's contributory negligence barred recovery as a matter of law; reversed Court of Appeals and affirmed dismissal |
| Whether decedent's contributory negligence (ordinary or gross) bars recovery | Davis contended defendants' conduct rose to gross negligence/wantonness so ordinary contributory negligence would not bar recovery | Defendants argued the complaint alleges facts (extreme intoxication) establishing contributory negligence that defeats the claim under Sorrells | Held that the complaint discloses an unconditional affirmative defense: decedent exhibited the same level of negligence as defendants, so contributory negligence bars recovery; trial court dismissal affirmed on that basis |
Key Cases Cited
- Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 332 N.C. 645 (N.C. 1992) (pleading may disclose an affirmative defense of contributory negligence defeating a dram shop/wrongful-death claim)
- Yancey v. Lea, 354 N.C. 48 (N.C. 2001) (gross negligence/wanton conduct can overcome ordinary contributory negligence)
- Stanback v. Stanback, 297 N.C. 181 (N.C. 1979) (on motion to dismiss under Rule 12(b)(6) allegations are treated as admitted for legal sufficiency review)
- Sutton v. Duke, 277 N.C. 94 (N.C. 1970) (complaint may be dismissed when it affirmatively pleads facts denying relief)
- Adams ex rel. Adams v. State Bd. of Educ., 248 N.C. 506 (N.C. 1958) (plaintiff's contributory negligence bars recovery for ordinary negligence)