REPORTED DRAM SHOP AWARD:

By Michael Dayton

A Plymouth country club that sold beer to an intoxicated golfer was hit last week with a $1.1 million jury verdict.

Last Tuesday, a Beaufort County jury ruled in favor of a boy who was severely injured in 1993 when the golfer, driving drunk, caused a head-on car wreck.

The case is Roberson v. Moore (Beaufort County Superior Court; 94 CvS 244).

Lawyers in the case say the verdict may be the first dram shop recovery ever in North Carolina against a country club.

There was no question that the country club employees knew he was impaired, and if they were going to fuel him like that, they should have done something to keep him from driving," said Plymouth lawyer Wendell Hutchins. He represented the plaintiffs with Windsor lawyers Lloyd C. Smith and Jonathan E. Huddleston.

Said Smith, "We think this sends a message to these people, but in our closing we didn't mention sending a message. We just talked about the responsibility for putting somebody like this on the road."

A lawyer for the country club, David Francisco of Washington, said an appeal was being considered.

"Our main argument was a lack of proximate cause," Francisco said. "There was a two-hour period from the last purchase of beer to the time of the accident. We don't know what he was doing in that unaccounted-for time. It's just pure speculation, although there was evidence that he had 10 ounces of champagne at a wedding reception and two drinks of vodka at a hotel."

The plaintiffs' claims against several other defendants on a social host theory were dismissed by a directed verdict.

Facts

The case arose on a Saturday morning in December 1993, when John Moore, a member at the Country Club of Plymouth Inc., arrived at 8:30 a.m. to play golf in a foursome. According to the testimony, Moore bought his first beer at 9 a.m. from the pro shop.

"In fact, he kept getting beers from the pro shop all day," Smith said, "eventually charging 16 beers on his account." Moore also ate lunch at the club, drinking

one or two beers, according to one witness. Those would not have shown up on his club tab.

The pro shop attendant testified he had no training in spotting intoxicated persons and never formed an opinion as to whether Moore was drunk.

Moore played 36 holes on the club's nine-hole course, finishing up around 4:30 p.m. He then attended a wedding reception at the country club.

"He basically crashed the reception and had some champagne," Smith said.

Testimony indicates Moore also had at least one beer there.

 

At 6 p.m., Moore left the reception, met up with another country club member, and bought one more beer. An attendant in the pro shop testified that he made no attempt to determine if Moore was sober at the time.

Moore and the other member sat on a bench outside the country club until around 7 p.m., according to Smith.

"The manager of the club said he saw the two of them at 7:15 p.m. and that Moore appeared sober," Smith said.

The plaintiff's lawyers rebutted that testimony with nine witnesses who said Moore was impaired at the wedding reception. Some of that testimony came from three former country club employees, including the food services manager.

Somewhere around 7 p.m., Moore got into his truck and drove to a local motel, Port of Plymouth, where several wedding party guests were staying. Moore had two vodka drinks there, according to Smith.

"Testimony indicated he was staggering when he got there, and he was even worse when he left," Smith said.

Guests from the wedding party were apparently arranging to get Moore a hotel room when he stumbled back to his truck and headed west on Highway 64 with his lights off.

Within two miles, Moore crossed four lines of traffic and hit another car head-on. Moore was killed instantly. An 11-year-old boy in the other car suffered a broken neck. His 17-year-old sister, who was driving, was also hurt.

The boy was in the hospital for 67 days, running up $105,000 in medical expenses. The accident left him with a bad limp, partial use of his left hand, and an overall permanent disability rating of 34 percent, according to the plaintiff's testimony. He is now a senior in high school and hopes to attend Duke University or UNC-Chapel Hill.

An autopsy of Moore revealed a blood alcohol content of .30 more than four times the legal limit.

Lawsuit

Hutchins filed a lawsuit in March 1994. The initial complaint focused on the dram shop liability of the country club. Under G.S. Sect. 18B, the Dram Shop Act, bars and other business can be held liable when sales to intoxicated persons result in injuries to third parties.

"The issue was whether the country club violated the dram shop act at approximately 6 p.m.," Hutchins said. "We were able to prove by the testimony of the three club employees that between 5 p.m. and 5:30 p.m. they saw him on the club premises and he was drunk. Then we had at least one sale subsequent to that time. We could document that by uncontradicted testimony."

A theory of social host liability was also raised against guests at the Plymouth hotel who allegedly served alcohol to Moore shortly before the wreck. Social host liability was given the green light by a 1992 case, Hart v. Ivey, which recognized the right of a third party to sue a party host who served alcohol to an intoxicated driver.

"During discovery, I kept turning up additional social hosts," Hutchins said. "I had to amend the complaint to add new plaintiffs and start new rounds of discovery. That slowed down the case."

The country club, pointing to the wedding reception and hotel party, denied liability. Defenses included insulating negligence that broke any causal link to the club.

The social hosts denied liability and said they never served drinks to Moore.

Trial

The case came up for trial two weeks ago. Key testimony came from the three club employees who saw Moore drunk, according to Hutchins, and from a toxicologist.

The toxicologist extrapolated backward from the time of Moore's death to show what his blood alcohol content must have been when he left the country club. The result: .275.

The toxicologist also testified that Moore's blood alcohol content at the time of accident would have been .24 even if he had not consumed vodka at the Plymouth hotel.

The plaintiffs saw their social host liability claims wither halfway through the trial. Superior Court Judge Gary Trawick directed a verdict in favor of those individual defendants.

Elizabeth City lawyer Don Prentiss, who represented one of the motel guests, said the trial judge properly directed a verdict for all the social host defendants.

"One, there was no clear evidence Mr. Moore was served alcohol at the motel at all by the social hosts," Prentiss said. "Even if he was served, there was no proof as to who did the serving.

"Lastly, to establish social host liability, the hosts had to know he was going to be driving," Prentiss said. "The only conclusion that can be drawn from the evidence was that the hosts believed that he would not be driving. The socials hosts even offered to buy him a room. But someone Mr. Moore arrived with said they'd take care of it. Then, unbeknownst to the hosts, he drove off.

"The judge did the right thing here," Prentiss said. "To have kept us in the case would have been an unwarranted extension of social host liability."

"I knew it was going to be difficult to prove who provided the specific beverage to Moore," Hutchins said. "But if I had not brought the social hosts in, the country club would have been pointing at them throughout the whole trial as the liable party."

Verdict

After a seven-day trial, the jury deliberated 92 minutes before returning its verdict against the country club.

The boy's family members recovered $105,00 for medical bills and $2,369 in lost wages. Prejudgment interest is expected to total $400,000, offset by the $100,000 that the golfer's estate paid in liability insurance.

Hutchins said he was relieved to have the trial behind him.

By Michael Dayton

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