Davis v. Hulsing Enters., LLC
| Decision Date | 05 April 2016 |
| Docket Number | No. COA15–368.,COA15–368. |
| Citation | 783 S.E.2d 765,246 N.C.App. 406 |
| Parties | Thomas A.E. DAVIS, Jr., Administrator of the Estate of Lisa Mary Davis, (deceased), Plaintiff, v. HULSING ENTERPRISES, LLC, Hulsing Hotels NC Management Company, Hulsing Hotels North Carolina, Inc., Hulsing Hotels, Inc., d/b/a Crowne Plaza Tennis & Golf Resort Asheville and Mulligan's, Defendants. |
| Court | North Carolina Court of Appeals |
Charles G. Monnett III & Associates, Charlotte, by Charles G. Monnett III, for Plaintiff–Appellant.
Northup McConnell & Sizemore, PLLC, Asheville, by Katherine M. Pomroy and Isaac N. Northup, Jr., for Defendant–Appellees.
Thomas A.E. Davis, Jr., ("Plaintiff") in his capacity as administrator of Lisa Mary Davis's ("Davis") estate, appeals from a 25 November 2013 order dismissing his common law dram shop and punitive damages claims against Defendants. We reverse the trial court.
On 15 July 2013, Plaintiff filed a complaint alleging the following causes of action: (1) common law dram shop; (2) negligent aid, rescue, or assistance; and (3) punitive damages. Plaintiff's dram shop claim alleged Defendants were negligent per se for violating N.C. Gen.Stat. § 18B–305 by selling and giving alcohol to Davis, an intoxicated person.
On 13 August 2013, Defendants filed a Rule 12(b)(6) motion to dismiss the complaint because it "fails to state a claim for which relief can be granted under the laws of [North Carolina]." Defendants filed their answer 8 November 2013 and raised defenses for contributory negligence, intervening and superseding negligence, and assumption of risk. Defendants asserted the following in their contributory negligence defense:
[I]f Defendants were negligent, which is specifically denied, then the injuries and damages complained of were proximately caused by the contributory negligence of [Davis] in consuming the beverages complained of and/or of [Plaintiff] in failing to intervene in [Davis's] consumption of the beverages ... and in failing to assist her and ensure her health and safety ... which is a complete defense to Plaintiff's claim.
The court heard arguments on the motion to dismiss on 28 October 2013. Thereafter, the court issued an order on 25 November 2013 dismissing Plaintiff's common law dram shop and punitive damages claims. The parties proceeded to a jury trial on the negligent rescue claim. Following the jury's verdict, the court entered a 23 October 2014 judgment finding Defendants not liable.
Plaintiff filed his notice of appeal 10 November 2014, appealing "from the 23 October 2014 Judgment upon the jury's verdict...." The parties settled the record by stipulation and filed their appellate briefs.
On appeal, Plaintiff only contests the dismissal of his common law dram shop claim. Defendants contend Plaintiff did not properly appeal this issue under N.C. R.App. P. 3(d) because his notice of appeal does not mention the 25 November 2013 order dismissing his dram shop claim. Plaintiff filed a petition for writ of certiorari on 28 July 2015. The Clerk of Court referred Plaintiff's petition to this panel on 7 August 2015.
To provide proper notice of appeal the appellant must "designate the judgment or order from which appeal is taken and the court to which appeal is taken...." N.C. R.App. P. 3(d). "Without proper notice of appeal, this Court acquires no jurisdiction." Dixon v. Hill, 174 N.C.App. 252, 257, 620 S.E.2d 715, 718 (2005) (citation and quotation marks omitted). However, N.C. Gen.Stat. § 1–278 Id. (citing N.C. Gen.Stat. § 1–278 ).
Appellate review under section 1–278 is proper when the following three conditions are met: "(1) the appellant must have timely objected to the order; (2) the order must be interlocutory and not immediately appealable; and (3) the order must have involved the merits and necessarily affected the judgment." Dixon, 174 N.C.App. at 257, 620 S.E.2d at 718. Defendants agree the second and third conditions are met.
The 25 November 2013 order states the trial court "heard arguments" and reviewed other materials "presented by the parties" regarding Defendants' Rule 12(b)(6) motion. Plaintiff's objection is inherent to the hearing, and he clearly identified the 25 November 2013 order in the Statement of Organization of Trial Tribunal and the proposed issues on appeal. Accordingly, this Court has subject matter jurisdiction over Plaintiff's appeal. In addition, we grant Plaintiff's petition for writ of certiorari.
Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations omitted). "As a general proposition, a trial court's consideration of a motion brought under Rule 12(b)(6) is limited to examining the legal sufficiency of the allegations contained within the four corners of the complaint." Khaja v. Husna, ––– N.C.App. ––––, ––––, 777 S.E.2d 781, 786 (2015) ().
We review the following facts in Plaintiff's complaint as true. Stanback, 297 N.C. at 185, 254 S.E.2d at 615.
Plaintiff and Davis celebrated their wedding anniversary at the Crowne Plaza Resort on 5 October 2012. They checked into the resort around 5:00 p.m., and decided to have dinner at the resort's restaurant, "Mulligan's." Plaintiff and Davis sat in Mulligan's from 5:30 p.m. to 10:00 p.m. During that time, Defendants, and their employees, served Plaintiff and Davis twenty-four alcoholic liquor drinks, and Davis drank at least ten of the twenty-four drinks. Defendants' conduct was grossly negligent, willful, and wanton.
Davis consumed a sufficient amount of alcohol to appreciably and noticeably impair her mental and physical faculties. Her intoxicated state would have been apparent to a reasonable Alcoholic Beverage Control ("ABC") permittee, agent, or employee. Defendants knew, or in the exercise of reasonable care should have known, Davis was intoxicated, yet they continued serving her alcoholic drinks. Defendants knew, or should have known, that doing so would put Davis and others at risk.
Davis became so intoxicated she was unable to walk with Plaintiff from Mulligan's to their hotel room. While attempting to walk back, Davis fell on the floor and was unable to get up. Defendants placed Davis in a wheelchair and took her to the hotel room. Defendants left Davis with Plaintiff in the hotel room without appropriate assistance, supervision, or medical attention. The next morning, Plaintiff woke up and found Davis lying dead on the floor.
N.C. Gen.Stat. § 18B–305 was in effect at the time of these events, making it unlawful for an ABC permittee to knowingly sell or give alcoholic beverages to an intoxicated person. Defendants and their employees are ABC permittees, and they had a duty to not sell or give alcoholic beverages to Davis. Defendants breached that duty by continually serving Davis, failing to train their employees, enforce policies, or take other reasonable steps to prevent unlawful alcohol sales. Defendants should have reasonably foreseen the injuries caused by their conduct. Davis died from acute alcohol poisoning
, the direct and proximate result of Defendants' negligence.
Relying upon, inter alia, Sorrells v. M.Y.B. Hosp. Ventures of Asheville, 332 N.C. 645, 423 S.E.2d 72 (1992), Defendants contend "Plaintiff's Complaint facially discloses facts that demonstrate [Davis's] contributory negligence, which is an affirmative bar to Plaintiff's claim." We disagree.
"In this state, a plaintiff's [ordinary] contributory negligence is a bar to recovery from a defendant who commits an act of ordinary negligence." McCauley v. Thomas ex rel. Progressive Universal Ins. Co., –––N.C.App. ––––, ––––, 774 S.E.2d 421, 426 (2015) (citing Sorrells, 332 N.C. at 648, 423 S.E.2d at 73–74 ). It is also well-established that "contributory negligence on the part of the plaintiff is available as a defense in an action which charges the defendant with the violation of a statute or negligence per se." Brower v. Robert Chappell & Associates, Inc., 74 N.C.App. 317, 320, 328 S.E.2d 45, 47 (1985).
However, a plaintiff's ordinary contributory negligence is not a bar to recovery when a "defendant's gross negligence, or willful or wanton conduct, is a proximate cause of the plaintiff's injuries." Yancey v. Lea, 354 N.C. 48, 51, 550 S.E.2d 155, 157 (2001) (citation omitted); see also Sorrells, 332 N.C. at 648, 423 S.E.2d at 73–74. "Only gross contributory negligence by a plaintiff precludes recovery by the plaintiff from a defendant who was grossly negligent." McCauley, ––– N.C.App. at ––––, 774 S.E.2d at 426 (citation omitted).
Our Supreme Court considered these principles in Sorrells, a case in which the estate of a 21–year–old ("decedent") brought a negligence action against a bar for violating Chapter 18B of the North Carolina General Statutes. Sorrells, 332 N.C. at 647, 423 S.E.2d at 73. The estate alleged decedent was intoxicated at the bar with friends, and consumed alcohol to the point of becoming visibly intoxicated. Id. The bar served decedent more alcohol, knowing he would drive home, even against the advice of his friends. Id. Decedent attempted to drive home, lost control of his vehicle, and died when his vehicle...
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