{ "id": 11434776, "name": "GEORGE W. KANE, III, Administrator of the Estate of MEGAN ELLEN KANE, Plaintiff v. CROWLEY'S AT STONEHENGE, INC., Defendant", "name_abbreviation": "Kane v. Crowley's at Stonehenge, Inc.", "decision_date": "2001-06-19", "docket_number": "No. COA00-23", "first_page": "409", "last_page": "414", "citations": [ { "type": "official", "cite": "144 N.C. App. 409" } ], "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": "77 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1953, "pin_cites": [ { "page": "925" } ], "opinion_index": 0 }, { "cite": "238 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608819 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/238/0382-01" ] } ], "analysis": { "cardinality": 581, "char_count": 11628, "ocr_confidence": 0.753, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2403754041258776 }, "sha256": "eaf585e42e3d1d4c40e7bd4d0de7f0cb98528c970ae4e2d43f24bc36b06ae2b3", "simhash": "1:0765caee79461d35", "word_count": 1942 }, "last_updated": "2023-07-14T14:55:44.896074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge HUNTER concur." ], "parties": [ "GEORGE W. KANE, III, Administrator of the Estate of MEGAN ELLEN KANE, Plaintiff v. CROWLEY\u2019S AT STONEHENGE, INC., Defendant" ], "opinions": [ { "text": "CAMPBELL, Judge.\nPlaintiffs sole contentions on appeal are that the trial court erred in instructing the jury, and later in denying plaintiffs motion for a new trial on this same issue.\nThis case arose from the events of 30 November 1996, when the car driven by Aaron January (Aaron), in which Megan Ellen Kane (Megan) was a passenger, struck a tree, killing Megan.\nEarlier that evening, Aaron, who was under age 21 (the legal age required to consume alcoholic beverages, see N.C. Gen. Stat. \u00a7 18B-302), went to a friend\u2019s house and consumed three or four beers. He then went to Megan\u2019s house where he had another beer and a shot of liquor. It was approximately midnight at the time. After leaving Megan\u2019s house, Aaron went to Crowley\u2019s at Stonehenge, a restaurant, (Crowley\u2019s or defendant, interchangeably) to meet some more friends, and while there, consumed two Long Island Iced Teas (a five liquor drink made up of gin, rum, vodka, tequila, and triple sec, containing about three-fourths of an ounce of each liquor). An under-aged friend bought the first drink and gave it to Aaron; then when finished with the drink, Aaron went back to the bar with the empty glass and ordered two more, one for himself and one for his friend. At no time was Aaron asked for identification or other proof of his age. Aaron left Crowley\u2019s at about 1:30 a.m., and went back to Megan\u2019s house. He did not appear drunk, and could walk and drive without problems.\nAround 2:45 a.m., Aaron and Megan decided to leave her house and go to a party. Aaron drove, while Megan gave directions. They were turning onto Millbrook Road from Falls of the Neuse Road, heading in the direction of Six Forks Road, when a red BMW came up behind them. Despite the fact that the roads were slightly wet from rain earlier in the evening, the BMW drove extremely close to Aaron\u2019s car, so close in fact, that he could not see the BMW\u2019s headlights. When Aaron pulled over into the right-hand lane to let the BMW pass, it accelerated past him, swerved over in front of Aaron\u2019s car, then went back into the left-hand lane and continued on. This angered Aaron, and he started to chase the BMW. Unfortunately, while going around a curve in the road, Aaron lost control of the car and hit a tree. Megan was rendered unconscious from the impact, and never regained consciousness.\nAt issue on appeal is a statement made by the trial court during the jury charge. In charging the jury, the trial court said:\nCrowley\u2019s contends and the plaintiff denies that the proximate cause of Megan Ellen Kane\u2019s fatal injuries was the intentional conduct of Aaron January, resulting in his conscious decision to unlawfully engage in a chase or speed competition with another motor vehicle, which intentional conduct, to wit: the chase of the red BMW on Millbrook Road resulted in Aaron January losing control of his Chevrolet Camaro, causing it to strike a tree, thereby fatally injuring Megan Ellen Kane.\nCrowley\u2019s further contends that even if the jury were to find that Crowley\u2019s negligently sold or furnished alcohol to Aaron January, which is denied, that Aaron January\u2019s intentional conduct of chasing and/or racing another motor vehicle was not foreseeable. Therefore, the alleged sale or furnishing of alcohol to Aaron January was not the proximate cause of Megan Ellen Kane\u2019s fatal injuries.\nPlaintiff objects to the above language, and argues that although the trial court was only stating a contention, the contention contained an erroneous view or incorrect application of the law, and therefore, plaintiff is entitled to a new trial. Plaintiff cites Blanton v. Carolina Dairy, Inc., 238 N.C. 382, 77 S.E.2d 922 (1953) in support of this argument. According to Blanton:\nIt is the duty of the trial court to explain and apply the law to the substantive phases of the evidence adduced, and an instruction which presents an erroneous view of the law or an incorrect application thereof, even though given in stating the contentions of the parties, is error .... (citation omitted)\nId. at 385, 77 S.E.2d at 925.\nIn order to hold defendant liable for Megan\u2019s death, the burden was on plaintiff to show that defendant negligently sold an alcoholic beverage to a minor (Aaron January), that this alcohol caused or contributed to his impairment, and that it was foreseeable that an injury such as Megan\u2019s might occur as a result of the minor\u2019s negligent driving. N.C. Gen. Stat. \u00a7 18B-121 (1999).\nPlaintiff asserts that as a result of the above contention, the jury might believe that it was precluded from finding in favor of plaintiff if it found Aaron January\u2019s conduct to be intentional, since the statute requires that in order for the defendant to be liable, the minor\u2019s driving must have been negligent.\nWe conclude from the record before us that the trial court correctly explained the laws of North Carolina, and that this contention was neither an \u201cincorrect application\u201d of our laws, nor did it \u201cpresent an erroneous view\u201d of our laws.\nIn instructing the jury, the trial court read and explained each of the five issues the jury would need to decide. Regarding the issue on appeal, the trial court stated the issue was whether \u201cMegan Ellen Kane [was] fatally injured as a result of Crowley\u2019s at Stonehenge, Inc.\u2019s negligent sale or furnishing of an alcoholic beverage to an underage person,\u201d and explained that in determining this issue, the jury would need to decide six sub-issues, for which the plaintiff had the burden of proof. These six sub-issues were: (1) that Crowley\u2019s \u201cnegligently sold or furnished one or more Long Island Iceteas [sic] to Aaron January\u201d; (2) that Aaron January was underage at the time of sale; (3) that in selling the alcoholic beverage(s) to Aaron January, \u201cCrowley\u2019s failed to exercise that degree of care which a reasonable person would have exercised under the same or similar circumstances\u201d (and that here the jury could consider the fact that Aaron was never asked for identification); (4) that Aaron January \u201cbecame subject to an impairing substance,\u201d that alcohol is an impairing substance, and that \u201ca person is [] impaired when he has consumed a sufficient quantity of alcohol that at any relevant time after the driving he has an alcohol concentration of 0.08 or more grams of alcohol per 210 liters of breath,\u201d (here the parties had stipulated that Aaron\u2019s blood alcohol level had been 0.145 at the time); (5) that \u201csuch impairment was caused or contributed to by consumption of the Long Island Iceteas [sic] that Crowley\u2019s sold or furnished to Aaron January\u201d; and (6) that \u201cwhile so impaired, Aaron January was negligent in the operation of the Chevrolet [Camaro] and that such negligence was a proximate cause of Megan Ellen Kane\u2019s fatal injuries.\u201d We believe that this was an accurate summation of the plaintiff\u2019s burden at trial.\nNext, the court instructed the jury on the meanings of negligence and proximate cause.\n[NJegligence refers to a person\u2019s failure to follow a duty of conduct imposed by law. Every person is under a duty to use ordinary care to protect himself and others from injury. Ordinary care means that degree of care which a reasonable and prudent person would use under the same or similar circumstances to protect himself and others from injury. A person\u2019s failure to use ordinary care is negligence, (emphasis added)\nLadies and gentlemen, I [also] want to talk to you about proximate cause. The plaintiff, George W. Kane, III, Administrator of the Estate of Megan Ellen Kane, not only has the burden of proving negligence, but also that such negligence was a proximate cause of the fatal injuries to Megan Ellen Kane. Proximate cause, ladies and gentlemen, is a cause which in a natural and continuous sequence produces a person\u2019s injury, and is a cause which a reasonable and prudent person could have foreseen could probably produce such injury or some similar injurious result.\nThere may be more than one proximate cause of an injury. Therefore, the plaintiff need not prove that the defendant\u2019s negligence was the sole proximate cause of the injury, (emphasis added)\nAs evidenced from the above excerpts, the trial court accurately instructed the jury as to both negligence and proximate cause. Also, as shown by the italicized portions, the jury was not restricted to finding in favor of defendant. Based on these instructions, the jury could find that Aaron January was negligent in his \u201cfailure to follow a duty of conduct imposed by law\u201d and \u201cfailure to use ordinary care,\u201d by racing the red BMW, while the roads were wet, and after drinking multiple alcoholic beverages (not to mention while under the legal age to consume alcohol), just as it could find defendant was negligent in selling an alcoholic beverage to a minor in violation of \u201ca duty of conduct imposed by law\u201d and that it \u201cfail[ed] to use ordinary care\u201d by never asking to see Aaron\u2019s identification or using other methods to prevent selling alcohol to someone who was underage.\nAdditionally, the jury was instructed that \u201cplaintiff need not prove that the defendant\u2019s negligence was the sole proximate cause of the injury,\u201d further giving the jury ample opportunity to find negligence on the part of both Aaron January and defendant.\nFinally, the trial court was very specific in introducing the part of the charge to which plaintiff objects by stating that \u201cCrowley\u2019s contends and the plaintiff denies\u201d making it clear that the judge was not presenting his view of the law, but rather a theory of the case from one party\u2019s point of view. We conclude that the record shows the trial court gave a clear and accurate explanation of theiaw and legal terms involved in the case when instructing the jury, and that the court did not misstate or incorrectly apply the law when giving the contentions of the parties. Therefore, the jury\u2019s finding that Megan Ellen Kane was not fatally injured as a result of a negligent sale of an alcoholic beverage by Crowley\u2019s to an underage person, as well as the trial court\u2019s denial of the motion for a new trial, is upheld.\nNo error.\nChief Judge EAGLES and Judge HUNTER concur.", "type": "majority", "author": "CAMPBELL, Judge." } ], "attorneys": [ "Blanchard, Jenkins, Miller & Lewis, PA., by Philip R. Miller, III, for plaintiff-appellant.", "Teague, Campbell, Dennis & Gorham, L.L.P., by Dayle A. Flammia, for defendant-appellee." ], "corrections": "", "head_matter": "GEORGE W. KANE, III, Administrator of the Estate of MEGAN ELLEN KANE, Plaintiff v. CROWLEY\u2019S AT STONEHENGE, INC., Defendant\nNo. COA00-23\n(Filed 19 June 2001)\nAlcoholic Beverages\u2014 restaurant\u2019s sale to underage minor\u2014 automobile accident \u2014 jury instructions \u2014 negligence\u2014 proximate cause\nThe trial court did not err in its jury instructions on negligence and proximate cause, and by denying plaintiff\u2019s motion for a new trial, in a case involving defendant restaurant\u2019s alleged negligence in selling alcoholic beverages to an underaged minor who thereafter was involved in an automobile accident killing his passenger when the minor raced another automobile while the roads were wet and after drinking multiple alcoholic beverages, because: (1) the jury was not restricted to finding in favor of defendant; (2) the jury was instructed that plaintiff need not prove defendant\u2019s negligence was the sole proximate cause of the injury; and (3) the trial court specifically stated that it was the restaurant\u2019s contention, and that plaintiff denied, that the proximate cause of the passenger\u2019s fatal injuries was the minor\u2019s intentional conduct. N.C.G.S. \u00a7 18B-121.\nAppeal by plaintiff from judgments entered 2 March 1999 and 1 April 1999 by Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard in the Court of Appeals 12 February 2001.\nBlanchard, Jenkins, Miller & Lewis, PA., by Philip R. Miller, III, for plaintiff-appellant.\nTeague, Campbell, Dennis & Gorham, L.L.P., by Dayle A. Flammia, for defendant-appellee." }, "file_name": "0409-01", "first_page_order": 437, "last_page_order": 442 }