{ "id": 8525089, "name": "LINDA SORRELLS, Administratrix of the Estate of Travis Cain Sorrells, Plaintiff v. M.Y.B. HOSPITALITY VENTURES OF ASHEVILLE, d/b/a RHAPSODY'S FOOD AND SPIRITS, Defendants", "name_abbreviation": "Sorrells v. M.Y.B. Hospitality Ventures of Asheville", "decision_date": "1992-03-17", "docket_number": "No. 9130SC184", "first_page": "705", "last_page": "709", "citations": [ { "type": "official", "cite": "105 N.C. App. 705" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "64 ALR3d 849", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "364 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571435, 2572686, 2566866, 2568754, 2567063 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0474-05", "/nc/321/0474-03", "/nc/321/0474-02", "/nc/321/0474-04", "/nc/321/0474-01" ] }, { "cite": "361 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358661 ], "year": 1987, "pin_cites": [ { "page": "519-20" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0512-01" ] }, { "cite": "148 S.E. 36", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1929, "pin_cites": [ { "page": "37-38" } ], "opinion_index": 0 }, { "cite": "197 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627884 ], "year": 1929, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/nc/197/0189-01" ] }, { "cite": "111 S.E. 354", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "opinion_index": 0 }, { "cite": "183 N.C. 282", "category": "reporters:state", "reporter": "N.C.", "year": 1922, "opinion_index": 0 }, { "cite": "379 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2484550 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0415-01" ] }, { "cite": "365 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "89 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521435 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/89/0275-01" ] }, { "cite": "335 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4692102, 4687718, 4686763, 4692244, 4688249 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0537-05", "/nc/314/0537-04", "/nc/314/0537-01", "/nc/314/0537-03", "/nc/314/0537-02" ] }, { "cite": "328 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 317", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524386 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0317-01" ] }, { "cite": "373 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564133, 2564783, 2562769, 2564599, 2561689 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0366-04", "/nc/323/0366-02", "/nc/323/0366-01", "/nc/323/0366-05", "/nc/323/0366-03" ] }, { "cite": "368 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "893" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 447", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525000 ], "year": 1988, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0447-01" ] }, { "cite": "330 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4722362 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0565-01" ] }, { "cite": "318 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "909" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521732 ], "year": 1984, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0299-01" ] } ], "analysis": { "cardinality": 536, "char_count": 8475, "ocr_confidence": 0.731, "pagerank": { "raw": 2.252703777571588e-07, "percentile": 0.7817295525723701 }, "sha256": "989955e26f4638d320c909baa0ae48dde3db144839a68c5ca14a7ab5416b73c6", "simhash": "1:080ee68c247fa5de", "word_count": 1401 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and ORR concur." ], "parties": [ "LINDA SORRELLS, Administratrix of the Estate of Travis Cain Sorrells, Plaintiff v. M.Y.B. HOSPITALITY VENTURES OF ASHEVILLE, d/b/a RHAPSODY\u2019S FOOD AND SPIRITS, Defendants" ], "opinions": [ { "text": "EAGLES, Judge.\nThe sole issue before us is whether the trial court erred by granting the defendant\u2019s motion to dismiss. We hold that the trial court did err and accordingly we reverse.\nThe essential question in considering the appropriateness of a Rule 12(b)(6) motion is whether the complaint, when liberally construed and taken to be true, states a claim upon which relief can be granted. See Barnaby v. Boardman, 70 N.C. App. 299, 302, 318 S.E.2d 907, 909 (1984), rev\u2019d on other grounds, 313 N.C. 565, 330 S.E.2d 600 (1985); and Peele v. Provident Mut. Life Ins. Co., 90 N.C. App. 447, 449, 368 S.E.2d 892, 893, disc. review denied and appeal dismissed, 323 N.C. 366, 373 S.E.2d 547 (1988). Here, the plaintiff alleges that the \u201cwilful, wanton and gross negligence\u201d of the defendant proximately caused the intestate\u2019s death. The defendant, however, argues that the plaintiff was contributorily negligent as a matter of law and is therefore barred from recovery. Brower v. Robert Chapel & Assoc., Inc., 74 N.C. App. 317, 328 S.E.2d 45, disc. review denied, 314 N.C. 537, 335 S.E.2d 313 (1985); Clark v. Inn West, 89 N.C. App. 275, 365 S.E.2d 682, rev\u2019d on other grounds, 324 N.C. 415, 379 S.E.2d 23 (1989). We agree that the intestate here was contributorily negligent as a matter of law. Brower at 319-20, 279 S.E.2d at 47. However,\n[i]t is well established that a party\u2019s contributory negligence will not preclude recovery for injuries proximately caused by other\u2019s willful and wanton negligence. Fry v. Southern Public Utilities Co., 183 N.C. 282, 111 S.E. 354 (1922). . . . The concept of willful and wanton negligence was explained by our Supreme Court in Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 36, 37-38 (1929):\nAn act is done willfully when it is done purposely and deliberately in violation of law (citations omitted), or when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason. (Citation omitted). \u201cThe true conception of willful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, which duty the person owing it has assumed by contract, or which is imposed on the person by operation of law.\u201d (Citation omitted).\nAn act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others. (Citations omitted). A breach of duty may be wanton and wilful while the act is yet negligent. . . . (Citation omitted).\nRobinson v. Seaboard System Railroad, 87 N.C. App. 512, 519-20, 361 S.E.2d 909, 914 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988).\nHere, the plaintiff has alleged sufficient facts of the defendant\u2019s gross negligence, under the foregoing definitions, to survive the defendant\u2019s Rule 12(b)(6) motion to dismiss. Plaintiff alleged that the intestate\u2019s waitress was requested by intestate\u2019s companions on three separate occasions that she not serve alcohol to the intestate because he was going to drive home and he had already had too much to drink. The complaint also alleges that when the intestate went to the bar to order another drink, the waitress told the manager what the intestate\u2019s companions had told her. The manager disregarded this information, observed the plaintiff\u2019s intestate and instructed his bartender to go ahead and serve the intestate a large mixed drink despite the waitress\u2019 warnings.\nWe conclude that these allegations are sufficient to state a claim for injuries caused by the defendant\u2019s wilful and wanton negligence. Accordingly, the Rule 12(b)(6) motion was improperly allowed. We base our ruling on the premise that while contributory negligence will bar a recovery for damages caused by negligence, allegations of the willful and wanton negligence of the defendant would survive a finding that the intestate was contributory negligent as a matter of law because he drove while impaired.\nOn remand the jury will consider whether the evidence shows that defendant\u2019s conduct amounts to wilful and wanton negligence. If so, the additional issue that may arise is whether the actions of the plaintiff\u2019s intestate in refusing requests not to drive himself and in refusing to allow someone else to drive him home were sufficient to establish contributory wilful and wanton negligence.\nReversed and remanded.\nJudges JOHNSON and ORR concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "McLean & Dickson, P.A., by Russell L. McLean, III, for plaintiff-appellant.", "Harrell & Leake, by Larry Leake, for defendant-appellee." ], "corrections": "", "head_matter": "LINDA SORRELLS, Administratrix of the Estate of Travis Cain Sorrells, Plaintiff v. M.Y.B. HOSPITALITY VENTURES OF ASHEVILLE, d/b/a RHAPSODY\u2019S FOOD AND SPIRITS, Defendants\nNo. 9130SC184\n(Filed 17 March 1992)\nIntoxicating Liquor \u00a7 24 (NCI3d)\u2014 serving drunken patron\u2014 contributory negligence \u201412(b)(6) dismissal \u2014 inappropriate\nThe trial court erred by granting defendant\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) where plaintiff brought a wrongful death action for serving the decedent a large drink containing various liquors after being informed that decedent was driving and did not need another drink. While contributory negligence will bar a recovery for damages caused by negligence, allegations of the willful and wanton negligence of the defendant would survive a finding that the decedent was contributorily negligent.\nAm Jur 2d, Intoxicating Liquors \u00a7 265.\nContributory negligence allegedly contributing to cause of injury as defense in Civil Damages Act proceeding. 64 ALR3d 849.\nAPPEAL by plaintiff from order entered 3 January 1991 by Judge J. Marlene Hyatt in HAYWOOD County Superior Court. Heard in the Court of Appeals 14 November 1991.\nThe plaintiff\u2019s evidence tends to show the following: On or about 21 May 1990 the plaintiff\u2019s intestate, a twenty-one year old student at Haywood Community College, and three of his friends (Carla Jacobson, Lisa Durham and a young man identified only as Tim) went to the defendant\u2019s place of business in Asheville, Rhapsody\u2019s Food and Spirits. Upon arrival the group ordered drinks. The intestate ordered a shot of tequila. Later, the intestate tried to order another drink from a waitress. However, Carla Jacobson intervened and told the waitress that the intestate had driven his vehicle to Rhapsody\u2019s, that he was driving home and that he should not be served any more alcoholic beverages. The waitress refused to take the intestate\u2019s order.\nThe intestate and Tim then left the table and went to the restroom. While the intestate was away the waitress returned and asked Ms. Jacobson and Lisa Durham whether the two men really wanted another drink. Once again, Ms. Jacobson told the waitress that the intestate was driving and that he and Tim had already had \u201cplenty to drink.\u201d When the intestate and Tim returned from the restroom, the waitress again came over to \u201ccheck on them.\u201d The intestate and Tim tried again to order another drink. The waitress asked who was driving. Ms. Jacobson and Ms. Durham intervened again and told the waitress that the intestate was driving and that the men did not need another drink. The waitress said \u201cOK\u201d and left the table. At that point both men were red faced, had red eyes and their speech was slow.\nAfter a few minutes the intestate and Tim went to the restroom again. When they came out of the restroom, they went to the bar. The waitress then walked over to Ms. Jacobson and Ms. Durham and told them that the two men were ordering drinks at the bar. The waitress also told them that she had told the manager what Ms. Jacobson and Ms. Durham had said to her about not serving the two men and that the manager told the bartender to go ahead and serve them anyway. The waitress apologized.\nThe bartender served the intestate and Tim a glass of Ice Age Tea, a large drink containing various liquors. Tim fell asleep. The intestate, finished his drink and started to leave. He refused both girls\u2019 requests that he not drive as well as their requests that he allow someone else to drive him home. The intestate got in his automobile and attempted to follow Ms. Jacobson home. However, while en route home he lost control of his car and struck a bridge abutment on Interstate Highway 26 and was killed.\nPlaintiff sued for wrongful death alleging negligence and \u201cwillful, wanton and gross negligence\u201d on the part of the defendant. The defendant made a Rule 12(b)(6) motion to dismiss which the trial court granted. Plaintiff appeals.\nMcLean & Dickson, P.A., by Russell L. McLean, III, for plaintiff-appellant.\nHarrell & Leake, by Larry Leake, for defendant-appellee." }, "file_name": "0705-01", "first_page_order": 733, "last_page_order": 737 }