Dram Shop and Adults

  • N.C.G.S. § 18B-305. Other prohibited sales (Adults unlike Section 120 minors)(a) Sale to Intoxicated Person. — It shall be unlawful for a permittee or his employee or for an ABC store employee to knowingly sell or give alcoholic beverages to any person who is intoxicated.(b) Discretion for Seller. — Any person authorized to sell alcoholic beverages under this Chapter may, in his discretion, refuse to sell to anyone. It shall be unlawful for any person to knowingly buy alcoholic beverages for someone who has been refused the right to purchase under this subsection.(c) Notwithstanding subsection (b) of this section, no permittee may refuse to sell alcoholic beverages to a person solely based on that person’s race, religion, color, national origin, sex, or disability.

Visibly drunk– For purposes of imposing civil liability, before a violation of this Dram Shop statute may be found, the plaintiff must allege and prove (1) that the patron was intoxicated and (2) that the licensee or permittee knew or should have known that the patron was in an intoxicated condition at the time he or she was served. Harshbarger v. Murphy, 90 N.C. App. 393, 368 S.E.2d 450 (1988). The driver of the automobile testified that he left his place of employment a little after noon on 19 April 1985, the day of the fatal accident. He was accompanied by a co-employee and friend, Charles C. Eddins. They consumed three twelve ounce cans of beer each during the next three hour span and then arrived at the establishment in question, “The Foxy Lady,” a little after 3:00 p.m. While there, Murphy drank an additional six to eight twelve ounce cans of beer, played pool and pinball machines, and watched topless dancers perform. He left the bar at around 5:30 p.m. and drove his companion home. Murphy remained at Eddins’ home until [*396] around 6:50 p.m. Murphy also testified that he could not recollect where he went after he left Charlie Eddins’ home. He only remembered later sitting at a countertop bar which has uneven strips of wood, and seeing red and yellow vending machines near a corner of the bar. He also [**452] had no recollection of the automobile accident.

Charles Eddins testified that when he and Murphy left “The Foxy Lady” together, Murphy did not appear intoxicated, did not appear to have trouble understanding what he said, did not have trouble walking, and had no trouble driving his vehicle.

Dr. Arthur McBay, an expert in the field of toxicology, and an employee in the State medical examiner’s office, testified that in order for Murphy to have had a blood alcohol level of 0.15 at 10:56 p.m., which he had at the time when he was examined after the accident, he would have had to have consumed at least an additional six, four percent alcohol content beers between the hours of 6:50 p.m., when he left Eddins’ home, and 8:42 p.m., when the accident occurred. He further testified that Murphy’s blood alcohol level would have been 0.18 at 8:42 p.m. when the accident occurred.

Plaintiff presented no conclusive evidence as to Murphy’s whereabouts between the hours following his departure from Eddins’ home, and the time of the fatal accident. No witness whatsoever was presented who placed Murphy at defendant’s establishment between 6:50 p.m. and 8:42 p.m.

Viewing the evidence in the light most favorable to the plaintiff, we find that it was insufficient to have been submitted to the jury on the question of defendant’s liability premised upon a violation of N.C.G.S. 18B-305(a).

Drunks can’t sue– However, even if defendants were negligent in selling alcohol to plaintiff, dismissal was proper because contributory negligence bars plaintiff’s Dram Shop claim. Eason v. Cleveland Draft House, LLC, 2009 N.C. App. LEXIS 291 (N.C. Ct. App. Mar. 17, 2009)

In Sorrells, a 21-year-old driver was killed when the car he was driving descended from a bridge after he had consumed alcohol at defendant’s place of business. Decedent’s estate filed a wrongful death action against the defendant. 332 N.C. at 647, 423 S.E.2d at 73. The estate claimed defendant violated Chapter 18B Dram Shop Act of the North Carolina General Statutes by knowingly serving alcohol to a customer who would be driving. Id. The court noted that the allegation that decedent drove his vehicle while impaired “established contributory negligence as a matter of law.” Id. at 648, 423 S.E.2d at 74. The court also concluded that the decedent’s negligence in driving while impaired was a violation of N.C. Gen. Stat. § 20-138.1 and constituted culpable negligence, which rises to the same level of negligence as that of the defendant. Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 332 N.C. 645, 648, 423 S.E.2d 72, 73 (1992) (motion to dismiss was properly granted where complaint disclosed an affirmative defense which defeats the claim asserted).

But I didn’t see him drunk– Foxy Lady, Long Branch then Your House. (allegation that defendant operated car with a blood alcohol level of greater than .10 percent does not establish that the deceased knew when he rode with defendant that defendant was intoxicated and merely establishes that at time of accident defendant’s blood alcohol level exceeded legal limit). Moreover, when plaintiff alleged in the complaint that defendant was under the influence of alcohol, he had the benefit of Trooper Parker’s investigation. Trooper Parker was of the opinion that defendant was impaired by reason of a strong odor of alcohol. Ayscue v. Weldon, 118 N.C. App. 636, 639 (N.C. Ct. App. 1995)

Take their keys? No. Bars aren’t under a duty to take keys from patrons if they become intoxicated. This is the short version of tremendous litigation:

SUBSEQUENT HISTORY: Review granted by Hall v. Toreros, II, Inc., 361 N.C. 219, 642 S.E.2d 248, 2007 N.C. LEXIS 58 (2007)
Motion granted by Hall v. Toreros II, Inc., 643 S.E.2d 589, 2007 N.C. LEXIS 194 (N.C., 2007)
Motion granted by Hall v. Toreros II, Inc., 645 S.E.2d 375, 2007 N.C. LEXIS 374 (N.C., 2007)
Motion granted by Hall v. Toreros II, Inc., 647 S.E.2d 428, 2007 N.C. LEXIS 571 (N.C., 2007)
Motion denied by Hall v. Toreros II, Inc., 653 S.E.2d 883, 2007 N.C. LEXIS 1069 (N.C., 2007)
Motion granted by Hall v. Toreros II, Inc., 659 S.E.2d 5, 2008 N.C. LEXIS 127 (N.C., 2008)
Motion granted by Hall v. Toreros II, Inc., 2008 N.C. LEXIS 167 (N.C., Feb. 29, 2008)
Motion denied by Hall v. Toreros II, Inc., 363 N.C. 125, 675 S.E.2d 364, 2009 N.C. LEXIS 306 (2009)
Affirmed by Hall v. Toreros II, Inc., 363 N.C. 114, 2009 N.C. LEXIS 235 (2009)
Later proceeding at Hall v. Toreros, II, Inc., 2009 N.C. LEXIS 354 (N.C., Apr. 13, 2009)
Motion granted by Hall v. Toreros II, Inc., 2009 N.C. LEXIS 571 (N.C., Apr. 15, 2009)
Motion denied by Hall v. Toreros II, Inc., 2009 N.C. LEXIS 563 (N.C., Apr. 30, 2009)
Stay dissolved by Hall v. Toreros, II, Inc., 2009 N.C. LEXIS 357 (N.C., May 5, 2009)

PRIOR HISTORY: [***1] Durham County. No. 98 CVS 1903.
Hall v. Toreros II, Inc., 147 N.C. App. 785, 559 S.E.2d 294, 2001 N.C. App. LEXIS 1309 (2001)

Hall v. Toreros, II, Inc., 176 N.C. App. 309 (N.C. Ct. App. 2006)