Hart v. Ivey

• Decision Date: 04 September 1992
• Docket Number: No. 265A91,265A91
• Citation: 420 S.E.2d 174,332 N.C. 299
• Court: North Carolina Supreme Court
• Parties: Sandra L. HART and Roger J. Hart, Plaintiffs, v. Howard L. IVEY, Jr. and John Rosenblatt and David King and David Howell and Mike's Discount Beverage, Inc., Defendants. and John Dennis LITTLE, Jr. and John Dennis Little, Sr., Defendants and Third-Party Plaintiffs, v. Howard L. IVEY, Jr., Third-Party Defendant.

Page 174

420 S.E.2d 174

332 N.C. 299

Sandra L. HART and Roger J. Hart, Plaintiffs, v. Howard L. IVEY, Jr. and John Rosenblatt and David King and David Howell and Mike's Discount Beverage, Inc., Defendants. and John Dennis LITTLE, Jr. and John Dennis Little, Sr., Defendants and Third-Party Plaintiffs, v. Howard L. IVEY, Jr., Third-Party Defendant.

No. 265A91.

Supreme Court of North Carolina.

Sept. 4, 1992.

Olive-Monnett, P.A. & Associates by Terry D. Brown and R. Gary Keith, Charlotte, for plaintiffs appellants-appellees.

Horack, Talley, Pharr & Lowndes by Neil C. Williams; Goodman, Carr, Nixon & Laughrun by Michael P. Carr; and Kennedy, Covington, Lobdell & Hickman by F. Fincher Jarrell, Charlotte, for defendants John Dennis Little, Sr. and John Dennis Little, Jr.

Golding, Meekins, Holden, Cosper & Stiles by John G. Golding and Terry D. Horne, Charlotte, for defendant appellant-appellee Howard L. Ivey, Jr.

Hedrick, Eatman, Gardner & Kincheloe by Scott M. Stevenson, Charlotte, for defendant appellant-appellee John Rosenblatt.

Jones, Hewson & Woolard by Harry C. Hewson, Charlotte, for defendant appellant-appellee David King.

Underwood, Kinsey & Warren, P.A. by C. Ralph Kinsey, Jr. and Richard L. Farley, Charlotte, for defendant appellant-appellee David Howell.

WEBB, Justice.

At the outset, we note that although the plaintiffs have alleged that the guests at the party were charged $2.00 per person to drink beer, none of the parties to this case contend that the hosts at the party were selling beer. All agree that the defendants should be treated as social hosts.

The plaintiffs have brought this action based on the negligence of the defendants. The plaintiffs contend they have stated a claim for negligence on two separate grounds. They say first that the defendants were negligent per se for serving an alcoholic beverage to a minor in violation of N.C.G.S. § 18B-302. The plaintiffs next contend that they have stated a claim under common law principles of negligence by alleging that the defendants served alcoholic beverages to a person when they knew or should have known that person was under the influence of alcohol and would drive an automobile on the streets or highway shortly after consuming the alcoholic beverage.

The Court of Appeals held that the plaintiffs had stated a claim for negligence by alleging a violation of N.C.G.S. § 18B-302 which would be negligence per se. The Court of Appeals held that the plaintiffs had not stated a claim under common law principles of negligence. We disagree with the Court of Appeals as to both conclusions. We hold that the plaintiffs have not stated a claim for the violation of N.C.G.S. § 18B-302 but they have stated a claim under common law principles.

The plaintiffs contend and the Court of Appeals held that N.C.G.S. § 18B-302 is a public safety statute for the protection of persons driving on the highways of this state and its violation is negligence per se. N.C.G.S. § 18B-302 provides in part:

(a) Sale.--It shall be unlawful for any person to:

(1) Sell or give malt beverages or unfortified wine to anyone less than 21 years old; or

(2) Sell or give fortified wine, spirituous liquor, or mixed beverages to anyone less than 21 years old.

(b) Purchase or Possession.--It shall be unlawful for:

(1) A person less than 21 years old to purchase, to attempt to purchase, or to possess malt beverages or unfortified wine; or

(2) A person less than 21 years old to purchase, to attempt to purchase, or to possess fortified wine, spirituous liquor, or mixed beverages.

(c) Aider and Abettor.

(1) By Underage Person.--Any person who is under the lawful age to purchase and who aids or abets another in violation of subsection (a) or (b) of this section shall be guilty of a misdemeanor punishable by a fine up to five hundred dollars ($500.00) or imprisonment for not more than six months, or both, in the discretion of the court.

(2) By Person over Lawful Age.--Any person who is over the lawful age to purchase and who aids or abets another in violation of subsection (a) or (b) of this section shall be guilty of a misdemeanor punishable by a fine of up to two thousand dollars ($2,000) or imprisonment for not more than two years, or both, in the discretion of the court.

When a statute imposes a duty on a person for the protection of others we have held that it is a public safety statute and a violation of such a statute is negligence per se unless the statute says otherwise. Funeral Service v. Coach Lines, 248 N.C. 146, 102 S.E.2d 816 (1958); Lutz Industries, Inc. v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333 (1955). A member of a class protected by a public safety statute has a claim against anyone who violates such a statute when the violation is a proximate cause of injury to the claimant. Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331 (1954).

We do not believe N.C.G.S. § 18B-302 is a public safety statute which was intended to protect the plaintiffs. We believe its purpose was to stop persons under the statutory age from drinking alcoholic beverages. If it was to protect the public, it should not be limited to persons under twenty-one years of age. An adult driver under the influence of alcohol can be as dangerous on the highway as a person under twenty-one years of age. We also believe if it were a public safety statute, it would be related more to being under the influence of alcohol. The section does not restrict sales or the giving of alcoholic beverages to those who might be under the influence of alcohol, but forbids any sales or gifts at all of alcohol to those under twenty-one years of age. In this state, we do not proscribe all driving by those who have drunk some alcoholic beverage, but only those who are under the influence of alcoholic beverage. This demonstrates to us that the purpose of the section is to restrict the consumption of alcohol by those under twenty-one years of age and it was not adopted for the protection of the driving public.

If we were to hold, without any qualification, that a violation of N.C.G.S. § 18B-302 is negligence per se, it would require a trial court to charge that giving a person under twenty-one years of age a small amount of some alcoholic beverage, which does not affect his or her ability to drive, is negligence per se. We do not believe the General Assembly intended this result.

N.C.G.S. § 18B-302 is a part of Chapter 18B of the General Statutes whose title is "Regulation of Alcoholic Beverages." The purpose of Chapter 18B is "to establish a uniform system of control over the sale, purchase, transportation, manufacture, consumption, and possession of alcoholic beverages in North Carolina." N.C.G.S. § 18B-100 (1989). There is no express purpose of protecting the public from intoxicated persons in the statute except in that portion of the chapter known as the Dram Shop Act, N.C.G.S. § 18B-120 et seq. The Dram Shop Act has no application to this case. Where a statute specifies the acts to which it applies, an intention not to include others within its operation may be inferred. Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980). We hold that a violation of N.C.G.S. § 18B-302 is not negligence per se.

As to the cause of action for liability under common law principles of negligence we hold that the plaintiffs have stated a cognizable claim. We have not been able to find a case in this state dealing with the liability of a social host who serves an alcoholic beverage to a person who then injures someone while operating an automobile while under the influence of an intoxicating beverage. We believe, however, that the principles of negligence established by our decisions require that we hold that the plaintiffs in this case have stated a claim.

Actionable negligence is the failure to exercise that degree of care which a reasonable and prudent person would exercise under similar conditions. A defendant is liable for his negligence if the negligence is the proximate cause of injury to a person to whom the defendant is under a duty to use reasonable care. Bolkhir v. N.C. State Univ., 321 N.C. 706, 365 S.E.2d 898 (1988); Lentz v. Gardin, 294 N.C. 425, 241 S.E.2d 508 (1978); Williams v. Trust Co., 292 N.C. 416, 233 S.E.2d 589 (1977); Clarke v. Holman, 274 N.C. 425, 163 S.E.2d 783 (1968).

The plaintiffs in this case have alleged that the defendants served an alcoholic beverage to a person they knew or should have known was under the influence of alcohol and that the defendants knew that the person who was under the influence of alcohol would shortly thereafter drive an automobile. If proof of these allegations were offered into evidence, the jury could find from such evidence that the defendants had done something a reasonable man would not do and were negligent. The jury could also find that a man of ordinary prudence would have known that such or some similar injurious result was reasonably foreseeable from this negligent conduct. The jury could find from this that the negligent conduct was the proximate cause of the injury to plaintiffs. Mills v. Waters, 235 N.C. 424, 70 S.E.2d 11 (1952).

There remains the question of whether the defendants were under a duty to the plaintiffs not to serve the alcoholic beverage as they did. We said in Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551 (1951), "[t]he law imposes upon every person who enters upon an active course of conduct the positive duty to exercise ordinary care to protect others from harm, and calls a violation of that duty negligence." Id. at 474, 64 S.E.2d at 553. The defendants were under a duty to the people who travel on the public highways not to serve alcohol to an intoxicated individual who was known to be driving.

The defendants, relying on cases from other jurisdictions, say that there is not a common law negligence claim against a social host for serving alcoholic beverages. They argue that there are many implications from establishing such a...