Hall v. Toreros, II, Inc.

• Decision Date: 07 March 2006
• Docket Number: No. COA05-199.,COA05-199.
• Parties: Theresa D. HALL, Administratrix of the Estate of Michael H. Hall, and Theresa D. Hall, Individually, Plaintiffs, v. TOREROS, II, INC., Defendant.
• Court: North Carolina Court of Appeals

Page 861

626 S.E.2d 861

Theresa D. HALL, Administratrix of the Estate of Michael H. Hall, and Theresa D. Hall, Individually, Plaintiffs, v. TOREROS, II, INC., Defendant.

No. COA05-199.

Court of Appeals of North Carolina.

March 7, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by plaintiffs and defendant from judgment entered 1 April 2004 by Judge Abraham Penn Jones in Durham County Superior Court. Appeal by defendant from order entered 10 November 1999 by Judge Howard E. Manning, Jr. and from judgment entered 24 March 2000 and order entered 31 May 2000 by Judge James C. Spencer, Jr. in Durham County Superior Court. Heard in the Court of Appeals 18 October 2005.

Thomas, Ferguson & Mullins, L.L.P., by Jay H. Ferguson, Durham, for plaintiffs.

Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Phillip J. Anthony, Christopher J. Derrenbacher, and Kathrine E. Downing, Raleigh, for defendant.

JOHN, Judge.

This case arises out of a fatal automobile collision involving an intoxicated driver. However, our decision herein concerns neither the grave responsibility of that driver nor the crime of driving while impaired. Rather, we consider only whether the law of this jurisdiction recognizes a duty of care under the circumstances presented.

Plaintiffs Theresa D. Hall, Administratrix of the Estate of Michael H. Hall, and Theresa D. Hall, Individually ("plaintiffs"), appeal the 1 April 2004 judgment (denominated order) in favor of defendant Toreros, II, Inc. ("Toreros" or "defendant") entered by Judge Abraham Penn Jones (Judge Jones). For the reasons discussed herein, we affirm.

Pertinent procedural and factual background information includes the following: On 3 December 1997, William S. Terry ("Terry") was a patron at Toreros, a Durham, North Carolina, restaurant licensed and permitted to sell alcoholic beverages by the North Carolina Alcoholic Beverage Control Commission ("the Commission"). While at Toreros, Terry was served alcoholic beverages by bartender Lisa McBroom ("McBroom"), the only bartender on duty. At about 9:30 p.m., Terry left Toreros and walked to a nearby Food Lion. Some thirty minutes later, Terry returned to Toreros and drank the remaining portion of an alcoholic beverage he had left on the bar. When Terry ordered another alcoholic beverage, McBroom informed him that Toreros would be closing soon, that she had "called last call" while he was away, and that alcohol was no longer being served. After taking a sip from another customer's alcoholic beverage, Terry asked McBroom whether he could buy that customer another beverage. McBroom reiterated she had "called last call," and refused to sell Terry another beverage.

At approximately 10:30 p.m., Terry left Toreros. While operating his automobile less than one mile away, Terry crossed the center line and collided with a motor vehicle driven by Michael Hall and in which plaintiff Theresa Hall was a passenger. Michael Hall died as a result of the collision and his wife Theresa sustained serious injuries.

On 11 May 1998, plaintiffs filed the instant suit against Terry (later dismissed as a defendant following mediation) and defendant, alleging the latter negligently furnished alcoholic beverages to Terry when it knew or should have known Terry was intoxicated. Plaintiffs subsequently amended their complaint to allege the following:

After furnishing a substantial amount of beer and liquor to Defendant Terry, Defendant Toreros knew Defendant Terry was intoxicated at the time he left Toreros, knew Defendant Terry was going to operate a motor vehicle in his intoxicated condition and failed to take any affirmative precautionary measures to prevent Defendant Terry from driving his vehicle or attempting to provide alternative transportation.

On 14 September 1999, defendant moved to dismiss the amended complaint. In an order entered 10 November 1999, Judge Howard E. Manning, Jr. (Judge Manning) denied the motion.

The case proceeded to trial the week of 28 February 2000. Following presentation of all the evidence, the jury was instructed to decide whether defendant was negligent in (i) "serving alcoholic beverage[s] to [] Terry, when it knew, or reasonably should have known that [he] was intoxicated at the time he was served," and/or (ii) "failing to take affirmative precautionary measures to prevent [] Terry from operating a motor vehicle when it knew or reasonably should have known he was intoxicated." On 9 March 2000, the jury returned a verdict finding no negligence by defendant with regard to the service of alcoholic beverages to Terry. However, the jury was unable to reach a verdict on the second issue. Judge James C. Spencer, Jr., (Judge Spencer) thereupon entered judgment (i) denying recovery to plaintiffs on the first count and (ii) declaring a mistrial regarding the issue of defendant's negligence in failing to take "affirmative precautionary measures."

Defendant subsequently filed a "Motion For Judgment Pursuant to Rule 50." On 31 May 2000, Judge Spencer denied the motion and certified his decision for immediate appeal. Defendant thereafter appealed to this Court both the 10 November 1999 order of Judge Manning and Judge Spencer's 31 May 2000 order. In an unpublished opinion filed 18 December 2001, the appeals of plaintiffs and defendant were both dismissed as interlocutory. Hall v. Toreros II, Inc., 147 N.C.App. 785, 559 S.E.2d 294 (2001) (unpublished).

Retrial was scheduled before Judge Jones during February and March 2004. Upon conclusion of the evidence, the jury was charged to determine whether defendant was negligent in (i) "failing to take affirmative precautionary measures to prevent [] Terry from operating a motor vehicle when it knew he was intoxicated," and/or (ii) "allowing [] Terry to consume an alcoholic beverage on its premises when it knew he was intoxicated." After answering each issue in the affirmative, the jury awarded plaintiffs a total of $1,241,600.00 in damages.

Defendant thereupon moved for judgment notwithstanding the verdict ("JNOV"). On 1 April 2004, Judge Jones allowed the motion in an order providing as follows:

In that it appears to the Court in this case that there is no legal duty by a commercial provider of alcohol in North Carolina after service of the final drink by the defendant, the plaintiffs' claims for relief do not establish recognized legal claims.

It is therefore ordered that the jury's verdict as to each issue contained on the verdict sheet is set aside and judgment is entered in favor of the Defendant and against the Plaintiffs as to each issue.

Plaintiffs appeal the JNOV, and defendant appeals the 10 November order of Judge Manning, the rulings of Judge Spencer and Judge Jones allowing the issue of defendant's failure to take affirmative measures to be submitted to the jury in the first and second trials, and the denials by Judge Jones of defendant's motions for directed verdict. Because we affirm the ruling of Judge Jones on defendant's JNOV motion, it is unnecessary to address defendant's appellate contentions.

Initially, we note plaintiffs have failed to present argument upon six of their original seven assignments of error. Pursuant to N.C.R.App. P. 28(b)(6) (2005), the omitted assignments of error are deemed abandoned. We therefore limit our consideration of plaintiffs' appeal to the issue of whether Judge Jones erred in allowing defendant's JNOV motion.

A JNOV motion "seeks entry of judgment in accordance with [a] movant's earlier motion for directed verdict, notwithstanding the contrary verdict actually returned by the jury." Streeter v. Cotton, 133 N.C.App. 80, 82, 514 S.E.2d 539, 541 (1999) (citations omitted). Since "ruling on such [a] motion is a question of law, and presents the same issue for appellate review as a motion for directed verdict," id. (citations omitted), "[i]t follows . . . that `[t]he propriety of granting a motion for [JNOV] is determined by the same considerations as that of a motion for directed verdict.'" Bank v. Burnette, 297 N.C. 524, 536, 256 S.E.2d 388, 395 (1979) (citation omitted).

"Ordinarily, [JNOV] is not proper unless it appears as a matter of law that [] recovery simply cannot be had by plaintiff upon any view of the facts which the evidence reasonably tends to establish." Taylor v. Walker, 320 N.C. 729, 734, 360 S.E.2d 796, 799 (1987) (citation omitted). "The heavy burden carried by the movant is particularly significant in cases . . . in which the principal issues are negligence and contributory negligence. Only in exceptional cases is it proper to enter a directed verdict or a [JNOV] against a plaintiff in a negligence case." Id. (citations omitted). However, one such "exceptional case[]" exists where the plaintiff is unable to offer evidence sufficient to establish each essential element of negligence. Oliver v. Royall, 36 N.C.App. 239, 242, 243 S.E.2d 436, 439 (1978).

This Court has previously held that

[n]egligence is not presumed simply because an accident has occurred. In order to establish a prima facie case of negligence, plaintiff must offer evidence that defendant owed him a duty of care, that defendant breached that duty, and that defendant's breach was the actual and proximate cause of plaintiff's injury. If plaintiff fails to show any one of these elements, it is proper for the court to enter a directed verdict in favor of defendant.

Cowan v. Laughridge Construction Co., 57 N.C.App. 321, 323-24, 291 S.E.2d 287, 289 (1982) (citation omitted).

In the case sub judice, defendant successfully argued to Judge Jones that JNOV was appropriate because of the failure of plaintiffs' evidence on the duty element of negligence. According to defendant, North Carolina jurisprudence places no legal duty upon a commercial vendor of alcoholic beverages which, having determined a patron is not intoxicated at the time of service, has served said patron his or her final drink. Upon careful consideration of pertinent case and statutory law, we...