Case Summary: The Dram Shop Act
Auto Accidents Involving Alcohol: The Dram Shop Act
Green II v. Fishing Piers, Inc.
214 N.C. App. 529 (2011)
Court of Appeals of North Carolina
This case arose out of a single-vehicle accident in which the driver, Ms. Daryll Lutz (Ms. Lutz), lost control of her vehicle and crashed, killing every person in the accident. Ms. Lutz, who was only twenty years old at the time, was served alcohol at the High Tide Lounge (the Lounge), and then left the Lounge with two passengers, Chad R. Lewis (Mr. Lewis) and his younger brother, Dustin Lewis, immediately before the accident.
Trentyn C. Lewis, minor son of Mr. Lewis, filed a complaint, by and through his Guardian ad Litem, John F. Green, II (Plaintiff), seeking to recover for the loss of his father, and alleging a violation of N.C. Gen. Stat. § 18B-120 et seq. (the Dram Shop Act). A settlement between the Plaintiff and Defendants was agreed upon, yet the Defendants filed a motion for summary judgment, seeking contribution from Ms. Lutz’ s Estate, pursuant to N.C. Gen. Stat. § 18B-124. Ms. Lutz’s estate then filed a cross motion for summary judgment against the Defendants. The trial court denied the Defendants’ motion for summary judgment and granted Ms. Lutz’s Estate’s motion for summary judgment. It is from that order that the Defendants appealed.
The facts in this case showed that Ms. Lutz, Mr. Lewis, and Mr. Lewis’ younger brother spent the evening of August 14 and the early morning hours of August 15, 2008 drinking alcoholic beverages at the Lounge. Ms. Lutz, although under the legal drinking age of twenty-one, was nevertheless served alcohol at the Lounge. When the trio left the Lounge, Ms. Lutz was driving, and the Lewis brothers were passengers. Shortly after they left, Ms. Lutz lost control of her 2000 Volkswagen while traveling approximately 90 to 100 miles an hour. The car flipped about eight times before coming to a rest almost 1000 feet from where Ms. Lutz initially lost control. There were no survivors after the incident.
N.C. Gen. Stat. 18B-121 (2009) provides
“An aggrieved party has a claim for relief for damages against a permittee or local Alcoholic Beverage Control Board if:
(1) The permittee or his agent or employee or the local board or its agent or employee negligently sold or furnished an alcoholic beverage to an underage person; and
(2) The consumption of the alcoholic beverage that was sold or furnished to an underage person caused or contributed to, in whole or in part, an underage driver’s being subject to an impairing substance within the meaning of G.S. 20-138.1 at the time of the injury; and
(3) The injury that resulted was proximately caused by the underage driver’s negligent operation of a vehicle while so impaired.”
N.C. Gen. Stat. § 18B-120 (2009) defines “aggrieved party” and “injury” as follows:
(1) “Aggrieved party” means a person who sustains an injury as a consequence of the actions of the underage person, but does not include the underage person or a person who aided or abetted in the sale or furnishing to the underage person.
(2) “Injury” includes, but is not limited to, personal injury, property loss, loss of means of support, or death. Damages for death shall be determined under the provisions of G.S. 28A-18-2(b). Nothing in G.S. 28A-18-2(a) or subdivision (1) of this section shall be interpreted to preclude recovery under this Article for loss of support or death on account of injury to or death of the underage person or a person who aided or abetted in the sale or furnishing to the underage person.
Although section 18B-121 requires that the injury, “be proximately caused by the underage driver’s negligent operation,” the cause of action that flows from the statute is only to be maintained against a “permittee or local Alcoholic Beverage Control Board.” N.C. Gen. Stat. § 18B-121. The statute also only refers to the negligence of the underage driver, and makes no mention as to the liability of the underage driver to the injured party. The purpose of the statute was to provide a cause of action where it did not previously exist, and to allow those injured by inebriated underage drivers to recover compensation from a permittee or ABC board. It did not create a new theory of liability against an underage driver.
The North Carolina Court of Appeals ultimately upheld the ruling of the trial court, and found that the Plaintiff’s personal injury lawyer failed to allege a theory by which the Lutz Estate would be liable. Essentially, the pleadings failed to present an alternate theory of liability and only relied upon N.C.G.S. § 18B-124 to create liability for Ms. Lutz’s estate. Thus, because the Defendants did not plead the theory under which Ms. Lutz’s estate would be liable, there was no way that they could assert a right to contribution.