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Copyright 1997 – N.C. Administrative Office of the Courts


Administrator, Plaintiff-Appellant, v. MONROE OIL COMPANY,
S. DARBY, Administrator of the Estate of Dwaine Lydell Darby, and
the Estate of Otis Stephen Blount, Defendants-Appellees



No. COA96-1230



(Filed 19 August 1997)



Intoxicating Liquor § 64 (NCI4th)– underage driver — alcohol
related accident — Dram Shop action not timely filed — wrongful
death action — summary judgment for defendant


    The trial court did not err in granting defendants’ motion
for summary judgment in a wrongful death action brought by the
decedent’s estate where the decedent was killed in an alcohol
related accident in which an underage driver purchased alcohol
from stores owned by defendants. Plaintiff failed to file a
timely action pursuant to N.C.G.S. § 18B-120, the Dram Shop Act,
and may not maintain an wrongful death action because the
decedent had she lived could not have established an action for
negligence per se or for common law negligence. The Dram Shop
Act provided the sole cause of action available to plaintiff.

     Appeal by plaintiff from order entered 10 May 1996 by Judge
Jerry Cash Martin in Union County Superior Court. Heard in the
Court of Appeals 15 May 1997.


    Clark, Griffin & McCollum, L.L.P., by Joe P. McCollum, Jr. and
William L. McGuirt, for plaintiff-appellant.


    Womble, Carlyle, Sandridge & Rice, P.L.L.C., by Timothy G.
Barber and Steven D. Gardner, for defendant-appellee Monroe
Oil Company.


    Morris, York, Williams, Surles & Brearley, by R. Gregory
Lewis, and Jordan, Price, Wall, Gray & Jones, by Joseph E.
Wall for defendant-appellee Monroe Alcoholic Beverage Control


    WYNN, Judge.



    The facts of this appeal are set forth in greater detail in
the companion case of Estate of Darby v. Monroe Oil Co., Inc., ___
N.C. App. ___, 488 S.E.2d 828 (filed August 19, 1997). The
following facts are pertinent to this appeal: Shortly after
midnight on 1 May 1993, Otis Stephen Blount drove a vehicle owned
by the front seat passenger, Dwaine Darby, off the road and into a
tree killing himself, Darby and the two backseat passengers,
Melissa Mullis and Patty Teel. All were under the age of twenty
one and the accident was caused by Blount’s intoxication. Earlier
that evening, Blount had twice purchased and consumed liquor from
a store operated by defendant City of Monroe Alcoholic Beverage
Control ("Monroe ABC") and beer from a convenience store owned by defendant Monroe Oil Company, Inc. ("Monroe Oil").

    Unlike the plaintiff estate in Estate of Darby, for reasons
not given in the record, the Estate of Melissa Mullis failed to
file an action under N.C. Gen. Stat. § 18B-120 (1996) ("the Dram
Shop Act") within the one year statute of limitations period.
Having lost this opportunity to obtain relief under the Dram Shop
Act, the administrator of Melissa Mullis’ estate brought a wrongful
death action alleging that Monroe Oil and Monroe ABC negligently
sold alcoholic beverages to an underage person in violation of N.C.
Gen. Stat. § 18B-102 (1996)(prohibiting the unlawful manufacture,
sale, etc. of alcohol) and N.C. Gen. Stat. § 18B-302
(1996)(prohibiting the sale of alcohol to underage persons).
Following discovery, Monroe Oil and Monroe ABC moved for and the
trial court granted summary judgment. From that judgment, the
Estate of Mullis appealed to this Court.


    We confront in this appeal the novel question of whether a
plaintiff may maintain a wrongful death action against a vendor on
the basis of the vendor’s unlawful sale of alcohol to an underage
person in violation of N.C.G.S. § 18B-102 in general, and more
specifically, N.C.G.S. § 18B-302.

    The plaintiff, Estate of Mullis, in this case, argues that in
addition to the cause of action provided by the Dram Shop Act, a cause
of action may be maintained under the wrongful death statute
against vendors who unlawfully sell alcohol to underage persons who
as a result of their intoxication from the consumption of alcohol
injures or kills others. In response, the vendors in this case,
Monroe Oil and Monroe ABC, contend that the Dram Shop Act provides
the exclusive remedy for Estate of Mullis. Alternatively, they
argue that Melissa Mullis’ contributory negligence bars, as a
matter of law, any potential wrongful death action.

    For the reasons given below, we interpret our Supreme Court’s
decision in Hart v. Ivey, 332 N.C. 299, 420 S.E.2d 174, (1992), to
compel a finding that the Estate of Mullis may not maintain an
action under the wrongful death statute in this case.

    In Carver v. Carver, 310 N.C. 669, 673, 314 S.E.2d 739, 742
(1984), our Supreme Court noted:

        [I]n determining whether any wrongful death
action is maintainable, this Court has
consistently analyzed the question in terms of
whether the deceased had he lived would have
had a claim against defendant for injuries
inflicted. If so, then the estate of the
deceased may maintain an action for wrongful
death; if not, then the action for wrongful
death will not lie.


Thus, to maintain a wrongful death action against the vendors in the
instant case, the Estate of Mullis must show that the deceased,
Melissa Mullis, would have had a claim against Monroe Oil and Monroe
ABC had she lived. We conclude that had Melissa Mullis lived, she could have maintained neither a negligence per se cause of action
based on a violation of N.C.G.S. § 18B-302, nor an action under
common law negligence based on the selling of alcohol to underage
persons in violation of N.C.G.S. § 18B-102.

    First, had Melissa Mullis lived, she could not have
established that a violation of N.C.G.S. § 18B-302 was negligence
per se. The Estate of Mullis argues that the vendors’ alleged
violation of N.C.G.S. § 18B-302 — making it unlawful to sell or
give alcoholic beverages to persons under twenty-one years of age
— constitutes negligence per se. However, in Hart v. Ivey, our
Supreme Court, after determining that this statute was not a public
safety statute, held that "a violation of N.C.G.S. § 18B-302 is not
negligence per se." 332 N.C. at 304, 420 S.E.2d at 177. The Court
explained that the purpose of this statute was not to protect the
driving public from intoxicated drivers, rather it was to restrict
the consumption of alcohol by minors. Id. Thus, Melissa Mullis
could not have established that the vendors’ violation of N.C.G.S.
§ 18B-302 constituted negligence per se.

    Second, had Melissa Mullis lived, she could not have
established a common law negligence action. To establish a prima
case of common law negligence, a plaintiff must show:

        (1) that defendants had a duty or
obligation recognized by the law,
requiring them to conform to a certain standard of conduct, for the protection of
others against unreasonable risks;


        (2) a failure on defendants’ part to
conform to the standard required;


        (3) a reasonably close causal connection
between defendants’ conduct and
plaintiffs’ injuries; and


        (4) actual loss or damage.


Freeman v. Finney and Zwigard v. Mobil Oil Corp., 65 N.C. App. 526,
528, 309 S.E.2d 531, 533, disc. review denied, 310 N.C. 744, 315
S.E.2d 702 (1984). "Our courts to date have not articulated any
common law duty existing between a third-party furnishing alcohol
to underage persons and the public at large." Hart v. Ivey, 102
N.C. App. 583, 594, 403 S.E.2d 914, 921, aff’d on other grounds,
332 N.C. 299, 420 S.E.2d 174 (1992). Moreover, in Hutchens v.
, 63 N.C. App. 1, 5, 303 S.E.2d 584, 587, disc. review
309 N.C. 191, 305 S.E.2d 734 (1983), this Court observed
that "[u]nder 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."

    Concerning the existence of a duty under common law negligence
to the general public, we find it significant in this case that unlike the plaintiffs in Hart and Hutchens,See footnote 1 the Estate of Mullis
did not allege that the vendors furnished the alcohol to Blount
with either actual or constructive knowledge that he was

    In Hart, the plaintiffs alleged facts sufficient to support a
claim of actionable common law negligence in that "the defendants
served an alcoholic beverage to a person they knew or should have
known was under the influence of alcohol and that the defendants
knew that the person who was under the influence of alcohol would
shortly thereafter drive an automobile." 332 N.C. at 305, 420
S.E.2d at 178. Writing for the Court, Justice Webb concluded that
"[t]he defendants were under a duty to the people who travel on the
public highways not to serve alcohol to an intoxicated individual
who was known to be driving." Id. (emphasis supplied.); see also,
63 N.C. App. at 2, 303 S.E.2d
at 586. "[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

    In sum, we conclude that the Dram Shop Act provided the sole
cause of action available to the Estate of Mullis.See footnote 2 Having failed
to timely file an action under that statute, the Estate of Mullis
cannot obtain relief under the wrongful death statute because
Melissa Mullis could not have maintained an action against
defendants either under a theory of negligence per se or common law
negligence, had she lived. Therefore, the trial court’s grant of
summary judgment for defendants must be,


    Judges LEWIS and MARTIN, John C. concur.


Footnote: 1 The common law actions found in Hart and Hutchens were
premised on the provision of alcohol to intoxicated persons which
is prohibited by N.C. Gen. Stat. 18B-305 (formerly § 18B-34) — a
per se negligence statute. See Hart 332 N.C. at 304, 420 S.E.2d
at 177. While both cases turned on the decision to find that the
common law supported an action of negligence against the alcohol
providers, the determination that the statute is a safety statute
indicates that it was designed to protect the general public and
thus, a duty was owed by the alcohol providers to the general
public not to provide alcohol to intoxicated persons known to be
driving. As noted earlier, violation of the statute in the
subject case, 18B-302, does not constitute per se negligence.

Footnote: 2 Since the Dram Shop Act is not at issue, we do not address
the issues of whether the deceased was contributorily negligent
or "aided and abetted" in the purchase of the alcohol. See,
No. 96-1381 (N.C. App.—-, 1997).

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