ESTATE OF MULLIS BY DIXON v. Monroe Oil

• Decision Date: 09 October 1998
• Docket Number: No. 426PA97.,426PA97.
• Citation: 349 N.C. 196,505 S.E.2d 131
• Court: North Carolina Supreme Court
• Parties: ESTATE OF Jacqueline Melissa MULLIS, by Kathy DIXON, Administrator v. MONROE OIL COMPANY, INCORPORATED, City of Monroe Alcoholic Beverage Control, Liston S. Darby, Administrator of the Estate of Dwaine Lydell Darby, and the Estate of Otis Stephen Blount.

505 S.E.2d 131

349 N.C. 196

ESTATE OF Jacqueline Melissa MULLIS, by Kathy DIXON, Administrator v. MONROE OIL COMPANY, INCORPORATED, City of Monroe Alcoholic Beverage Control, Liston S. Darby, Administrator of the Estate of Dwaine Lydell Darby, and the Estate of Otis Stephen Blount.

No. 426PA97.

Supreme Court of North Carolina.

October 9, 1998.

Clark, Griffin & McCollum by Joe P. McCollum, Jr., and William L. McGuirt, Monroe, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice, P.L.L.C. by Timothy G. Barber and Steven D. Gardner, Charlotte, for defendant-appellee Monroe Oil Company.

R. Gregory Lewis, Anna L. Baird, Charlotte, and Joseph E. Wall, Raleigh, for defendant-appellee Monroe ABC.

ORR, Justice.

This case arises out of a drunk-driving accident in which four young people were tragically killed. On 30 April 1993, the four persons involved, Otis Blount, twenty; Dwaine Darby, nineteen; Melissa Mullis, fifteen; and Patricia Teel, eighteen, decided to meet several other individuals at a local teen nightclub in Monroe between 7:00 and 8:00 p.m. Before meeting at the Monroe club, Blount bought some liquor for himself and two other individuals from a store operated by defendant City of Monroe Board of Alcoholic Beverage Control ("Monroe ABC"). Blount returned to the same Monroe ABC store later that evening and bought some more liquor for himself and the other individuals. Later, Blount left the club again and this time bought beer from a convenience store owned by defendant Monroe Oil Company, Inc. ("Monroe Oil").

At about 11:00 p.m., Blount, Darby, Mullis, and Teel decided to go to a party at a friend's house. The four got into Darby's Volkswagen Jetta: Darby in the driver's seat; Blount in the front passenger seat; and the two girls, Mullis and Teel, in the back passenger seat. Prior to leaving the club, Blount was given money which had been collected at the club to buy beer for the party, and on the way to the party, Darby stopped at the convenience store owned by Monroe Oil so that Blount could buy the beer. Two other carloads of teenagers in the group also stopped at the store.

After Blount bought the beer, he returned to Darby's car and got behind the wheel to drive. Darby sat in the front passenger seat, and the two girls remained in the backseat. After consuming alcohol in the parking lot, Blount drove the car out of the parking lot and headed towards the location of the party. Moments later, at approximately midnight, Blount drove the car off the road into a tree. The car caught fire, killing all four occupants. An officer responding to the scene concluded that Blount's alcohol use contributed to the accident. Blount's autopsy report also revealed that his blood-alcohol content was 0.13 at the time of the accident, an amount exceeding the then-legal limit of 0.10 alcohol content under our impaired-driving statute, N.C.G.S. § 20-138.1 (1989) (amendment for offenses committed on or after 1 October 1993 substituted "0.08" for "0.10").

Based on the above, the administrator of the estate of Melissa Mullis, one of the passengers, filed suit alleging that defendants Monroe ABC and Monroe Oil were negligent for selling alcohol to an underage person under the Dram Shop Act, N.C.G.S. §§ 18B-120 to -129 (1995). Plaintiff brought the action under N.C.G.S. §§ 28A-18-1 to -18-8, dealing with the survival of actions and wrongful-death provisions. Defendants answered the complaint and moved to dismiss it for failure to state a claim upon which relief could be granted, pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. In their 12(b)(6) motions, defendants contended that the Dram Shop action should be dismissed because plaintiff had failed to file the complaint within the statute of limitations period under the Act. Plaintiff then filed a motion to amend the complaint, which was granted on 11 April 1995. In the amended complaint, plaintiff withdrew the Dram Shop action and asserted a negligence per se claim alleging that defendants' acts were in violation of N.C.G.S. § 18B-102, which prohibits the illegal sale of alcohol, and, more specifically, were in violation of N.C.G.S. § 18B-302, which prohibits the sale of alcohol to underage persons. In addition to the negligence per se claim, plaintiff also alleged that defendants were liable for the negligent sale of alcohol to an underage person under common law negligence.

Defendants renewed the 12(b)(6) motions to dismiss the complaint, and both motions were denied. Defendants subsequently moved for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, arguing that there was no genuine issue as to any material fact as shown by the pleadings, depositions, and responses, and that defendants were entitled to judgment as a matter of law. The trial court granted the summary judgment motions for defendants on 10 May 1996, and plaintiff appealed.

The Court of Appeals affirmed the trial court's decision and held that plaintiff's sole and exclusive remedy was under the Dram Shop Act. The Court of Appeals explained that to maintain a wrongful-death suit, plaintiff/estate had to show that the deceased, Melissa Mullis, could have maintained a negligence action against defendants if she had lived. N.C.G.S. § 28A-18-2 (1984) (amended 1995); Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 332 N.C. 645, 647, 423 S.E.2d 72, 73 (1992); Carver v. Carver, 310 N.C. 669, 673, 314 S.E.2d 739, 742 (1984). The Court of Appeals concluded that, here, a negligence per se or common law negligence claim could not be so maintained based on this Court's decision in Hart v. Ivey, 332 N.C. 299, 420 S.E.2d 174 (1992). The Court of Appeals stated that a negligence per se action could not be maintained because this Court held in Hart that a violation of N.C.G.S. § 18B-302 is not negligence per se. Estate of Mullis v. Monroe Oil Co., 127 N.C.App. 277, 279, 488 S.E.2d 830, 832 (1997). Plaintiff, therefore, could not establish that defendants' violation of N.C.G.S. § 18B-302 in this case was negligence per se. Id.

The Court of Appeals also held that plaintiff could not maintain a common law negligence claim against defendants for selling alcohol to an underage person. The Court of Appeals explained that in Hart, this Court held that a common law negligence suit could be maintained against a social host for furnishing alcohol to an underage guest if it was shown that the social host served alcohol to the guest when the host knew or should have known that the guest was intoxicated and was going to drive a car. Id. at 280, 488 S.E.2d at 832. The Court of Appeals noted that, here, plaintiff did not allege that defendants knew or should have known that Otis Blount was intoxicated when defendants sold him the alcohol on 30 April 1993. Id. Emphasizing plaintiff's failure to allege knowledge of intoxication, the Court of Appeals concluded that a common law negligence action could not be maintained and that the Dram Shop Act provided the sole cause of action available to plaintiff. The Court of Appeals stated that since plaintiff failed to timely file an action under the Dram Shop Act, the trial court's grant of summary judgment was proper. For reasons set forth below, we affirm the Court of Appeals' decision affirming the trial court's orders of summary judgment for defendants.

The issues in this case are whether plaintiff may maintain negligence claims against defendant commercial vendors for selling alcohol to an underage person on two grounds: (1) negligence per se, based on a violation of N.C.G.S. § 18B-302; and (2) common law negligence. First, the Court of Appeals correctly determined that plaintiff may not maintain a negligence per se action based on a violation of N.C.G.S. § 18B-302. In Hart v. Ivey, 332 N.C. 299, 420 S.E.2d 174, this Court reversed the Court of Appeals and held that a violation of N.C.G.S. § 18B-302 is not negligence per se. Under N.C.G.S. § 18B-302, it is a misdemeanor to give or sell alcoholic beverages to anyone less than twenty-one years old. Id. at 306, 420 S.E.2d at 178. In a divided opinion, this Court held that a violation of N.C.G.S. § 18B-302 was not negligence per se because the statute was not a public safety statute which imposed a duty for the protection of the public. Id. at 303-04, 420 S.E.2d at 177. The majority in Hart concluded that the purpose of N.C.G.S. § 18B-302 was to restrict minors' consumption of alcohol, that it was therefore not a public-safety statute, and that it could not be the basis for a negligence per se claim. In light of the majority decision in Hart, we are bound in this case to conclude that plaintiff may not maintain a negligence per se action based on a violation of N.C.G.S. § 18B-302.

The next issue we must address is whether plaintiff may maintain a common law negligence action against defendant commercial vendors arising out of the sale of alcohol to an underage person. Presently, commercial vendors are subject to liability for the negligent sale of alcohol to an underage person under the North Carolina Dram Shop Act. N.C.G.S. §§ 18B-120 to -129. Any effect that the Dram Shop Act may have on the existence of a common law negligence suit must be addressed first since the Act was specifically created to impose liability for the conduct upon which plaintiff's suit is based.

Under the Dram Shop Act, an aggrieved party has a claim against a "permittee or local Alcoholic Beverage Control Board" if the party shows that the seller "negligently sold or furnished an alcoholic beverage to an underage person," that consumption of the beverage caused or contributed to the underage driver's impairment, and that the injury which resulted was "proximately caused by the underage driver's negligent operation of a vehicle while so impaired." N.C.G.S. § 18B-121. The legislature has also provided that "[t]he creation of any claim for relief by this Article may not be interpreted to...