Hutchens v. Hankins, 8217SC514

• Decision Date: 21 June 1983
• Docket Number: No. 8217SC514,8217SC514
• Court: North Carolina Court of Appeals
• Parties: Shirley K. HUTCHENS, individually; Shirley K. Hutchens, Administratrix of the Estate of Otis Wayne Hutchens: Mark Wayne Hutchens, by and through his Guardian Ad Litem, Shirley K. Hutchens v. Cicero HANKINS and wife, Martha Hankins, T/A Younger Brothers Lounge; Donny Ray Fletcher and Weldon Everett.

Page 584

303 S.E.2d 584

63 N.C.App. 1

Shirley K. HUTCHENS, individually; Shirley K. Hutchens Administratrix of the Estate of Otis Wayne Hutchens: Mark Wayne Hutchens, by and through his Guardian Ad Litem Shirley K. Hutchens v. Cicero HANKINS and wife, Martha Hankins, T/A Younger Brothers Lounge; Donny Ray Fletcher and Weldon Everett.

No. 8217SC514.

Court of Appeals of North Carolina.

June 21, 1983.

Bethea, Robinson, Moore & Sands by Alexander P. Sands, III, Reidsville, for plaintiffs-appellants.

Benjamin R. Wrenn and Albert J. Post, Reidsville, for defendants-appellees.

JOHNSON, Judge.

The sole question presented by the motion to dismiss is whether a common law dram shop liability exists in North Carolina for injuries or death sustained by innocent third parties in an automobile collision with the customer of a tavern who was sold alcoholic beverages while in an intoxicated condition. For the reasons set forth below, we hold that a licensed provider of alcoholic beverages for on-premises consumption may be held liable for injuries or damages proximately resulting from the acts of persons to whom beverages were illegally furnished while intoxicated.

I

This action for personal injuries and death was instituted by Shirley K. Hutchens as Administratrix of the Estate of Otis Wayne Hutchens, individually, and as Guardian Ad Litem for Mark Wayne Hutchens, her minor son. Otis Wayne Hutchens was killed, and Shirley K. Hutchens, his wife, and Mark Wayne Hutchens, their minor son, were severely injured when the Hutchens automobile collided head-on with an automobile driven by Donnie Ray Fletcher, and owned by Weldon Everett. This action was instituted against Fletcher and Everett, and also against Cicero Hankins and his wife, Martha Hankins, owners and operators of Younger Brothers Lounge.

Younger Brothers Lounge is situated at the intersection of Freeway Drive and U.S. 29 Business, near the city of Reidsville, North Carolina. The Lounge provided a parking lot for its customers, and was licensed by the State of North Carolina and permitted to sell at retail, beer to customers for on-premises consumption.

The complaint alleged that on 19 March 1981, prior to the collision, Donny Ray Fletcher purchased and consumed on the premises of Younger Brothers a large number of beers over a period of several hours; that Fletcher became intoxicated, and as a result, negligently operated his automobile so as to cause the head-on collision with the plaintiffs' automobile some 15 minutes after leaving Younger Brothers Lounge. At the time of the accident, Fletcher had a blood alcohol content of .16% by weight, which is prima facie evidence that Fletcher was driving under the influence of intoxicating liquor. G.S. 20-138(b).

In the second cause of action, plaintiffs' allege that as a result of Younger Brothers' furnishing beer and Fletcher's consumption of it while on the premises, Fletcher became intoxicated and that the furnishing of beer was a proximate cause of the collision with plaintiffs. Paragraph 7 alleges further that defendants were negligent in furnishing beer to Fletcher in that:

A. They failed to exercise reasonable care under the circumstances then existing;

B. That they furnished beer to Donny Ray Fletcher when he was in such a condition as to be deprived of his willpower and responsibility for his behavior;

C. That they knew or should have known that Donny Ray Fletcher habitually became intoxicated and drove automobiles in a negligent manner;

D. They violated G.S. 18A-34 when they sold beer to Donny Ray Fletcher;

E. They engaged in a course of conduct while operating Younger Brothers that they knew or should have known, would lead to the death or serious injuries, of innocent third parties injured by drivers of automobiles who become intoxicated at their premises.

The complaint also alleges that the negligence of defendants was wanton and willful and, as such, entitles plaintiffs to recover punitive damages in addition to the compensatory damages requested for the injuries received as a result of the automobile collision. Thus, the complaint presents two theories of negligent conduct: (1) a failure to exercise due care to avoid a reasonably foreseeable risk of harm to innocent third parties upon the highways by the serving of alcoholic beverages to an obviously intoxicated person by one who knows or should know that such intoxicated person habitually became intoxicated and drove automobiles in a negligent manner, and (2) the sale of alcoholic beverages to Fletcher while he was intoxicated in violation of G.S. 18A-34 as constituting negligence per se. G.S. 18A-34(a), in effect at the time of plaintiffs' injury, provides:

No holder of a license or permit authorizing the sale at retail of malt beverages or wine (fortified or unfortified) for consumption on or off premises where sold, or any servant, agent or employee of the licensee, shall do any of the following upon the licensed premises;

(2) Knowingly sell such beverages to any person while such person is in an intoxicated condition. ¹

A violation of G.S. 18A-34(a)(2) constitutes a misdemeanor, punishable by fine, imprisonment, or both. G.S. 18A-56.

Voluntary dismissals, with prejudice, have been taken against defendants Fletcher and Everett, and the cause of action against them is not the subject of this appeal. The sole issue presented by the dismissal of plaintiffs' action is whether civil liability may be imposed upon a vendor of alcoholic beverages for providing alcoholic drinks to an intoxicated customer who, as a result of intoxication, injures third persons. Since the following issues are not presented in the case under discussion, we do not decide whether, under similar circumstances, (1) a noncommercial furnisher of alcoholic beverages may be subject to civil liability; (2) whether a person who is served alcoholic beverages may recover for injuries suffered as a result of such sale or furnishing; or (3) whether off-premises retailers may be held civilly liable for sales or furnishing of alcohol to intoxicated customers.

II

Under the common law rule it was not a tort to either sell or give intoxicating liquor to ordinary able-bodied men, and no cause of action existed against one furnishing liquor in favor of those injured by the intoxication of the person so furnished. The reason usually given for this rule being that the drinking of the liquor, not the remote furnishing of it, was the proximate cause of the injury. See 48A C.J.S., Intoxicating Liquors, § 430 (1947); 45 Am.Jur.2d, Intoxicating Liquor, § 553 (1969); 97 A.L.R.3d 528, § 2 (1980). However, the question of civil dram shop liability is apparently one of first impression in North Carolina. Our research has disclosed no judicial decision addressing the question of dram shop liability under general principles of tort law and no case in which a claim of negligence has been predicated upon a violation of G.S. 18A-34 or its predecessor statute. In fact, these statutes have not previously been construed by our courts. ²

Other jurisdictions have dealt with the question in three separate ways. Approximately twenty-one states have legislatively enacted a "Civil Damages Act" or a "Dram Shop Act," which statutorily provide a cause of action for injuries resulting from the sales of alcoholic beverages to intoxicated customers who injure third persons. ³ At the time of plaintiffs' injuries in 1981, no comparable dram shop legislation had been enacted in North Carolina. However, we note here that the North Carolina General Assembly has recently amended Chapter 18B of the General Statutes to provide dram shop liability for negligent sales of alcoholic beverages to underaged persons for injuries proximately caused by the underaged driver's negligent operation of an automobile while impaired by an alcoholic beverage, as part of the Safe Roads Act of 1983. See G.S. 18B-121 et seq. (Session Laws, 1983). As originally proposed, the Act included a provision creating dram shop liability for sales to intoxicated persons. Section 41.1 of the Safe Roads Act of 1983 specifically states:

The original inclusion and ultimate deletion in the course of passing this act of statutory liability for certain persons who sell or furnish alcoholic beverages to intoxicated persons does not reflect any legislative intent one way or the other with respect to the issue of civil liability for negligence by persons who sell or furnish those beverages to such persons.

In light of this express declaration of "no legislative intent" to include or preclude liability for sales to intoxicated persons we will treat the issue as have courts in those jurisdictions which either do not have Civil Damages or Dram Shop Acts, or whose acts were found inapplicable to the situation presented.

In recent years only a handful of courts have continued to follow the old rule of nonliability and refused to allow the injured person to recover from the liquor supplier. ⁴ Two rationales are commonly advanced to support this rule. First, the proximate cause of both the patron's intoxication and the subsequent injury to the third party was held to be the consumption of the liquor, not its sale or furnishing. Second, even if the sale or furnishing were found to have caused the patron's intoxication, the subsequent injury to a third party was held to be an unforeseeable result of the furnishing of the intoxicating beverage. The common law rule was succinctly stated in the off-quoted passage from State for Use of Joyce v. Hatfield, 197 Md. 249, 254, 78 A.2d 754, 756 (Md.App.1951):

Apart from statute, the common law knows no right of action against a seller of intoxicating liquors, as such, for "causing" intoxication of the person whose negligent or willful wrong has caused injury. Human beings, drunk or sober, are responsible for their own torts. The law (apart from statute) recognizes no relation of proximate cause between the sale of liquor...