Estate of Mullis by Dixon v Monroe Oil Co., Inc., 349 N.C. 196, 505 S.E.2d 131 (1998)

Supreme Court of North Carolina. ESTATE OF Jacqueline Melissa MULLIS, by Kathy DIXON, Administrator v. MONROE OIL COMPANY, NCORPORATED, City of Monroe Alcoholic Beverage Control, Liston S. Darby, Administrator of the Estate Dwaine Lydell Darby, and the Estate of Otis Stephen Blount. No. 426PA97. Decided: October 09, 1998 rk, Griffin & Mccollum by Joe P. Mccollum, Jr., and William L. McGuirt, Monroe, for plaintiff-appellant. Womble Carly accident in which four young people were tragically killed. On 30 April 1993, the our persons involved, Otis Blount, twenty; Dwaine Darby, nineteen; Melissa Mullis, fifteen; and Patricia Teel, eighteen, ecided to meet several other individuals at a local teen nightclub in Monroe between 7:00 and 8:00 p.m. Before quor for himself and two other individuals from a store operated by meeting at the Monroe club, Blount bought some liquor for himself and two other defendant City of Monroe Board of Alcoholic Beverage Control ("Monroe ABC"). Blount returned to the same Monroe ome more liquor for himself and the other individuals. Later, Blount left the club again and this time bou invenience store owned by defendant Monroe Oil Company, Inc. ("Monroe 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 Dart 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 bee 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. eer. Two other carloads of teenagers in the group also stopped at the store. er, he returned to Darby's car and got behind the wheel to drive. Darby sat in the front girls remained in the backseat. After consuming alcohol in the parking lot, Blount drove the Faded towards the location of the party. Mo approximately midnight, Blou into a tree. The car caught fire, killing all four occupants. An officer responding to the scent Blount's alcohol use contributed to the accident. Blount's autopsy report also revealed that his blood- as 0.13 at the time of the accident, an amount exceeding the then-legal limit of 0.10 alcohol content aired-driving statute, N.C.G.S. 5 20-138.1 (1989) (amendment for offenses committed on or after 1 Octob 1993 substituted "0.08" for "D.10"). inistrator of the estate of Melissa Mullis, one of the pas engers, filed suit alleging that efendants Monroe ABC and act, N.C.G.S. SS 18B-120 to-129 (1995). Plaintiff brought were negligent for selling alcohol to an underage person under the Dram Shop 995). Plaintiff brought the action under N.C.G.S. $6 28A-18-1 to -18-8, dealing with ful-death provisions. Defendants ions. Defendants answered the complaint and moved to dismiss it for ate a claim upon which relief could be granted, pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil In their 12(b)(6) motions, defendants contended that the Dram Shop action should be dismissed because file the complaint within the statute of limitations period under the Act. hich was granted on 11 April 1995. In the ame aintiff withdrew the Dram G.S.S. 188-302 WHICH f also alleged that endants were liable for the negligent sale of alcohol to an underage person under common law negligence. quently 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 efendants were entitled to judgment as a matter of law. The trial court granted the summary judgment motions for efendant The Court of Appeals affirmed the trial court's decision and held that plaintiff's sole and exclusiv he deceased, Melissa 8A-18-2 (1984) (amended 1995); Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 332 N.C. 645, 647, 423 S.E.2d 72. 1992); Carver v. Carver, 310 N.C. 669, 673, 314 S.E.2d 739, 742 (1984). The Court of Appeals concluded that, here, vey, 332 N.C. 299, 420 S.E.2d 174 (1992). The Court of Appeals stated that a negligence per se action could not be use this Court held in Hart that a violation of N.C.G.S. $ 188-302 is not negligence per se. Estate of s v. Monroe Oil Co., 127 N.C.App. 277, 279, 488 S.E.2d 830, 832 (1997). Plaintiff, therefore, could not establish the ants' violation of N.C.G.S. $ 18B-302 in this case was negligence per se. Id. aim against defendants for Hart. this Court held that a common law it served alcohol to the guest when the host knew or should have known that the guest was intoxicated an 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 th knew or should have known that Otis Blount was intoxicated when defendants sold him the alcohol on 30 tiff's failure to allege knowledge of intoxication, the Court of Appeals concluded that be maintained and that the Dram Shop Act provided the sole cause of action eals stated that since plaintiff failed to timely file an action under the Dram Shop summary judgment was proper. For reasons set forth below, we affirm the Court of Appea urt's orders of summary judgment for defendants. The 15Sues this case are whether plaintiff may maintain negligence claims against defe commercial vendors welage persoff on two grounds: (1) negligence per se. based on a violation of N.C.G.S. 5 188-30 imon law negligence. First, the Court of Appeals correctly deter hed that plaintiff may not maintain a negligence per se action based on a violation of N.C.G.S. $ 188-302. In Hart v. Ivey. 332 N.C. 299, 420 S.E.2d 174, this ersed the Court of Appeals and held that a violation of N.C.G.S. $ 18B-302 is not neg .C.G.S. 5 188-302, it is a misdemea misdemeanor to give or sell alcoholic beverage wenty-one years old. 1 306, 420 S.E.2d at 178. In a divided opinion, this Court held that a violation of N.C.G.S. 5 188-302 was not negligen er se because the statute was not a public safety statute which imposed a duty 03-04, 420 S.E.2d at 177. The majority in Hart concluded public safety statute which imposed a duty for the protection of the public. Id. at e purpose of N.C.G.S. $ 188-302 was to restrict of alcohol, that it was therefore not a public-safety statute, and that it could not be the basis for a In light of the majority decision in Hart, we are bound in this case to conclude that plaintiff m sed on a violation of N.C.G.S. $ 18B-302. ram Shop Act. N.C.G.S. SS addressed first since the Act was specifically created to impose liability for the conduct upon which plaintiff's suit is der the Dram Shop Act, an aggrieved party has a claim against a "permittee or local Alcohol Beverage Control Bo f 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 esulted was "proximately caused by the underage driver's negligent ope ver's negligent operation of a vehicle while so impaired," N.C.G $ 18B-121. The legislature has also provided that " [the creation of any claim for relief by this Article may not be the Preted to abrogate of abridge any claims for relief under me common law.' N.C.G.S. $ 188-128. Under this section, the legislature has made clear that previously existing common law rights are preserved. We may conclude herefore, that the Dram Shop cause of action was not intended to be the exclusive remedy available to a third party who wishes to assert a negligence suit against a seller based on the sale of alcohol to an und addition to the Dram Shop Act's not excluding common law remedies, this Court held in Hart v. Ivey, 332 N.C. 299, 420 .E.2d 174, that a common law negligence claim could exist for the negligent provision of alcohol by a social host. There, we held that a common law negligence claim could be maintained alcohol to an underage guest when the host knew or should have was intoxicated and wa law claim in Hart, we stated hat we were not creating a new cause of action but were instead merely allowing "established negligence principles" to applied to the facts alleged. Id. at 306, 420 S.E.2 10. at 306, 4:20 S.E.2d at 178. We stated that, under established common law negligence vinciples, a plaintiff must offer evidence of four essential elements in order to prevail: duty, breach of duty. proximate cause, and damages. Id. at 305, 420 S.E.2d at 177-78; see Lamm v. Bissette Realty, Inc., 327 N.C. 412, 395 S.E.2d 112 (990). In Hart, we further explained that exercise that degree of care which a reasonable and prudent person would versiondew is the rallure to exercise that degree of care vercise under similar conditions. A defendant is liable for his negligence if the negligence is the proximate cause of njury to a person to whom the defendant is under a duty to use reasonable care. art, 332 N.C. at 305, 420 S.E.2d at 177-78. ding negligence rules to the plaintiff's allegations in Hart, we concluded that the plaintiff's factua known to be drink is going to drive would istitute a breach of that duty, and a jury could determine that this breach proximately caused harm. al-host liability in Camalier v. Jeffries, 340 N.C. 699, 460 S.E.2d 133 (1995). In itended a party at the home of defendant Frank Daniels and consumed several gin and tonics over a time party in his car and collided into a car driven by Caleb C alier v. Jeffries, 113 N.C.App. 303, 438 S.E.2d 427 (1994). We subsequ nalier failed to produce ablish a common law negligence claim against the social host. uit, that is, duty, breach of duty, proximate cause, and damages. As was the case in Hart, not recognize a new aintiff's case. Having determined that a common law cause of action may be maintained for the negligent sale of alcohol to an er plaintiff's to hen such evidence reve with summary judgment motion quine issue as to any material fact, and whe entitled to a judgment as a matter of law." Koontz v. City of Winston-salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 2). The party moving for sum claim is non existent, or by showing through discovery that the opposing party cannot ce evidence to supp lement of his claim." Boudreau v. Baughman, 322 N.C. 331, 342, 368 S.E.2d 849, 858 (1988), quoted in C. at 710-11, 460 S.E.2d at 138. To survive a motion for summary judgment, the no ent evidence of all essential elements of [his] claim' to make na facie case at trial." amalier, 340 N.C. at 711, 460 S.E.2d at 138 (quoting Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992)). the following: On the night of 30 April 1993, Otis Blount, chased alcohol twice from defendant Monroe ABC her deposition that she drove Blount r for himself and two other individuals; she also stated that she later drove Blount to an Amoco station nice store owned by Monroe Oil, where he bought beer. Several other teenagers stat hellostation owned by Monroe Oil with Darby in Darby's car based more beer. ent that night, stated the on with beer and drink a portion of it in the parking lot. Blount then drove moco station; a short time later, he drove the car off the road and into a tree, killing ants, Melissa Mullis, Patty Teel, and Dwaine Darby. at, although Blount was intoxicated, he did not readily appear so. Blount's autopsy blood-alcohol content of at least 0.13 and was therefore driving while impaired; an office elissa Baucom, howe eenagers stated that Blou ons, and that he did no seen Blount drink that Quick stated that "Otis [Blount you." Several other ficult to know when he was y show outward signs of intoxication. show that defendants Monroe Oil and Monroe ABC illegally sold alcohol to Blou J Apni 1993 mpaired and caused irrevocable harm, it fails to int evidence to make a prima facie case for common law negligence. Plaintiff nce showing only that defendants sold as later found to be an underage person. As we have explained, a duty is ""an obligation, to cognition and effect, to conform to a particular standard of conduct toward another." Pe " Peal v. Smith, 115 N.C.App. 22 oting W. Page Keeton et al., The Law of Torts $ 53 (5th ed. 1984)), aff'd per curiam. duty is owed " whenev ize that if he did not us danger of injury to the " Dail v. Taylor, 151 N.C. 284, 287, 66 S.E. 135, 136 (1909) (qu ng Heaven v. Pender, X rever the reasonably ch care!" Firemen's tual Ins. Co. v. High Point Sprinkler Co., 266 N.C. 134, 140-41, 146 S.E.2d E.2d 53, 60 (1966) (quoting 2 Fowler V. Harper & e Law of Torts $ 28.1, at 1535 (1956)). Risk-creation behavior thus triggers duty where the risk both unreasonable and foreseeable. Charles E. Daye & Mark W. Morris, North Carolina Law of Torts $ 16.30, at 135 1991); David A. Logan & Wayne A. Logan, North Carolina Torts 5 1.10, at 7 (1996). As explained by Justice Cardozo inWe are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and therefore of a wrongful one, irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage The risk reasonably to be perceived denes the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. Palsgraf v. Long Island R. Co., 248 NY. 339, 344, 162 NE. 99, 100 (1928) (emphasis added). "[T]he orbit of the danger as disclosed to the eye of reasonable vigilance [is] the orbit of the duty." Id. at343, 162 NE. at 100. In this case, there is no evidence showing that the defendant commercial vendors should have recognized that Mullis, or anyone similarly situated might be injured by their conduct, and thus there was no duty. Plaintiff's evidence tends to show that defendants sold alcohol to Blount on 30 April 1993 and that Blount consumed some of the alcohol priorto driving Darby's car. Although the evidence tends to show that a sale was made, plaintiff's evidence fails to show that defendants should have perceived that the sale of alcohol to Blount was going to create an unreasonable risk of harm to third persons The evidence in fact fails to indicate that the sellers should have been aware that anything but an ordinary transaction was occurring when selling the alcohol to Blount. Blount did not appear inebriated that evening according to observers, and there is no evidence in the record showing that Blount was noticeably intoxicated when buying the alcohol from defendants Plaintiff's evidence tends to show the contrary: that although Blount may have been intoxicated, he appeared sober throughout the evening when buying liquor from Monroe ABC and when buying beer from the Amoco station owned by Monroe Oil. There was also no evidence tending to show that the defendant commercial vendors should have known that Blount was going to drive a car even if he had appeared inebriated. The evidence tended to show instead that, as previously stated, Blount did not appear intoxicated and that every time he purchased alcohol from defendants, he was driven to the store by other persons and was not driving a car. Thus, from the perspective of the vendors, this was an ordinary transaction for the sale of alcohol to a person who was driven to the store by another. Thus, there was no indication that foreseeable harm would occur from the sale of alcohol to Blount. Such a scenario is quite different from that which occurred in Hart where the facts alleged were sufficient to establish foreseeability and the duty element. The plaintiffs allegations in Hart that the host served alcohol to an underage person who the host knew or should have known was intoxicated and was going to shortly drive a car were sufficient to show that the host should have perceived a risk of harm. There, we stated that ajury could nd that "a man of ordinary prudence would have known that such or some similar injurious result was reasonably foreseeable from this negligent conduct." Hart, 332 NC. at 305, 420 S.E.2d at 178. Furnishing alcohol to an intoxicated driver was conduct creating an unreasonable risk of harm to others. In such a situation, the host could also perceive the risk: Serving alcohol to an inebriated individual who is going to drive is a foreseeable risk "clear to the ordinarily prudent eye." Munsey v. Webb, 231 US. 150, 156, 34 S.Ct. 44, 45, 58 L.Ed. 162, 166 (1913). Such is not the case here. No evidence tended to show that defendants should have been aware that selling alcohol to Blount could produce foreseeable harm and subject other drivers or passengers to an unreasonable risk of harm. Evidence offered by plaintiff indicated merely that defendants sold alcohol to an individual who was later discovered to be underage Evidence of this alone, without an offer of some additional factor or factors which would put the vendor on notice that harm was foreseeable, is insufcient to establish the duty element and thus maintain a common law negligence suit. It was necessary, in other words, for plaintiff's forecast of evidence to point to some additional factor or factors that would alert the defendant commercial vendors that the act of selling the alcohol would likely produce some foreseeable injury. Whether harm is foreseeable simply depends on the circumstances of each case and is not determined according to any predetermined set of factors. However, since plaintiff's forecast of evidence failed to have such an additional factor or factors which would have enabled the vendors to foresee that harm was, in all likelihood, going to occur, the duty element is not satised, and plaintiff's prima facie case must fail. Thus, based on the foregoing, plaintiff has not produced a sufcient forecast of evidence to maintain a common law negligence claim against defendants based on the sale of alcohol to Otis Blount. Accordingly, we affirm the Court of Appeals' decision afrming the trial court's grant of summaryjudgment for defendants. AFFIRMED. I agree with the majority that plaintiff has not produced a sufcient forecast of evidence to maintain a common law negligence claim against defendants based on the sale of alcohol to Otis Blount. However, the crucial question here is not whether there was a duty, but whether the evidence forecast a breach of duty. "Actionable negligence is the failure to exercise that degree of care which a reasonable and prudent person would exercise under similar conditions." Hart v. Ivey, 332 NC. 299, 305, 420 S.E.2d174, 177-78 (1992). Under this Court's decisions in Hart and Camalierv. Jeffries, 340 NC. 699, 460 S.E.2d 133 (1995), "an individual may be held liable on a theory of common-law negligence if he (1) served alcohol to a person (2) when he knew or should have known the person was intoxicated and (3) when he knew the person would be driving afterwards." Id. at 71 1, 460 S.E.2d at 138. Here, as in Camalier, the forecast of evidence was insufcient to show that defendants knew or should have known that Blount was intoxicated at the time they sold alcohol to him. Thus, plaintiffs failed to forecast evidence of a breach of duty, and summary judgment for defendants was proper. Accordingly, I agree that the decision of the Court of Appeals should be affirmed. 0 RR, Justice. WYNN, J., did not participate in the consideration or decision ofthis case