R. Gregory Lewis (Charlotte, NC)(Dram Shop/Automobile Liability) obtained Summary Judgment for an LLC convenience store. Two lawsuits were filed involving a one-car collision resulting in the death of one passenger and catastrophic injuries to another passenger, following the sale of alcohol to an underage individual.
Plaintiffs alleged on the night prior to the date of loss, a group of 18-year-olds formulated evening plans to attend a house party, and purchased alcohol along the way. Plaintiffs alleged the group went to the Defendant LLC convenience store, because its clerks had a reputation of selling alcohol to persons under the age of 21, and that in fact the store personnel “loved” one of the female individuals. Two of the young women allegedly entered the store, purchased several cases of Truly Hard Seltzer with money contributed by the group, and all went to the house party where they (among others) consumed the alcohol. Close to midnight, the operator of the vehicle advised that she was leaving the party to get home prior to curfew, and took Plaintiff Bissette’s decedent son Pooley, Plaintiff Weller, and three others to a park where Weller had left his car. A 3rd young woman in the group advised that she was not impaired, although had been observed consuming alcohol that night, and that she could drive Weller’s vehicle. Shortly after midnight, that driver caused the car to leave the roadway, over-corrected, and the vehicle crashed into stationary objects. Two individuals were ejected from the vehicle, one (Pooley) was pronounced dead at the scene, the other (Weller) survived with critical injuries, and two others sustained significant injuries. The driver was the only occupant wearing a seatbelt. Plaintiffs in both lawsuits sued the driver, the individuals that allegedly purchased the alcohol, and the LLC convenience store, alleging common law negligence against all Defendants, gross negligence on the part of the driver, and Plaintiff Weller asserted a Dram Shop action against the LLC convenience store.
The Defendant LLC convenience store moved for Summary Judgment in both lawsuits. North Carolina has a 2-year Dram Shop Act statute of limitations. Both sets of Plaintiffs filed their action after the expiration of the limitation period. Plaintiff Weller admitted at the Summary Judgment hearing that the limitation period had expired, and voluntarily withdrew that claim. The N.C. Dram Shop Act provides for a cause of action for the sale to an underage person proximately resulting in harm to others, and for the sale of alcohol to someone the alcohol permittee knew or should have known was impaired and likely to cause harm to himself/herself or others. Both sets of Plaintiffs argued that there is, however, a common law negligence cause of action against the alcohol permittee.
The LLC convenience store’s defense counsel, Greg Lewis, a former law clerk to the Chief Judge of the North Carolina Court of Appeals, refuted that argument by citing a case with substantially similar facts arising from a single-car accident in 1993. In that case, a young man under the age of 21 had, over the course of an evening, made several trips to a local ABC store to purchase liquor, and to a local convenience store to purchase malt beverages, all for consumption by youth that were at a local teen spot. At some point in the evening, the youth in attendance decided to go to a house party, and the alcohol purchaser, along with 3 other individuals were driving to the party, with the purchaser driving the car of one of the occupants. Along the way, the car left the roadway, impacted a tree, and burst into flames, killing all of the occupants. The estate of the vehicle owner, a passenger at the time of the accident, sued the convenience stores under the NC Dram Shop Act. The trial court granted Summary Judgment to the defendant alcohol permittees, and the N.C. Court of Appeals affirmed, holding that the Plaintiff’s decedent, in aiding and abetting the driver in the purchase of alcohol, was not an aggrieved party within the meaning of the Dram Shop Act. The estates of two of the passengers filed suit against the owner of the vehicle, the driver, and the two alcohol permittees (ABC and convenience stores). The permittees moved for Summary Judgment, which was allowed. As with the current cases, the Plaintiffs in these two lawsuits filed their action after the expiration of the statute of limitations, and could only maintain a common law negligence action against the permittees. The trial court, based upon the case law provided by the moving defendants, granted Summary Judgment for the permittees.
On appeal of one of the Plaintiffs, the Court of Appeals affirmed Summary Judgment for the permittee defendants and Plaintiff sought discretionary review by the Supreme Court of North Carolina, which was granted. The Supreme Court held that the Dram Shop Act did not afford the Plaintiff the right, having missed the limitations period, to argue sale of alcohol to someone under the age of 21. The Supreme Court went on to hold that Summary Judgment was proper, in that there was no evidence of sale to someone the permittees knew or should have known was impaired and likely to produce foreseeable harm as a result. Further, a common law negligence claim cannot be supported where defendants merely sold alcohol to someone later found to be underage. Such was the case with the Estate of Pooley and Weller lawsuits. The evidence would show only that two young women purchased alcohol, with no evidence that they (or anyone in the vehicle) had consumed alcohol prior to the purchase, and no evidence that the permittee should have foreseen potential harm. Accordingly, the trial court granted Summary Judgment for the LLC convenience store, and the time for appeal has not run. Mr. Lewis, whose practice includes alcohol liability cases, was very familiar with the law in this area, as he had defended on behalf of the ABC permittee the lawsuits filed as a result of the 1993 accident, having argued the Summary Judgment motions in 1996, argued before the Court of Appeals in 1997, and before the North Carolina Supreme Court in 1998.