Dram Shop Country Club On Hook For $1 Million Dram Shop Award

Dram Shop Country Club On Hook For $1 Million 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 even 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 Wendel Hutches. 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 person 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 has 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. § 18B, the Dram Shop Act, bars and other business can be held liable when sales to intoxicated person’s 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 insurance 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 the 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 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 social 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 host, 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 $105,000 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.

“As my client observed this quit being about money a long time ago because the case has dragged on for five years. I filed this suit in 1994 because I believed back then the country club had violated the dram shop act. The jury confirmed that on Tuesday.”

NORTH CAROLINA
LAWYERS WEEKLY
8/30/99 Issue Vol. 12, No. 23
Cite: 12NCLW0645

“Country Club On Hook For $1 Million Dram Shop Award”

CASE NAME:

Eric Lanier Roberson, A Minor,
By His Guardian Ad Litem
Denise Moulden, Harold Roberson
And Reva Robertson,
Plaintiffs

Vs.

Brian Mitchell Moore, Administrator
Of the Estate of John Moore,
The Country Club of Plymouth, Inc.,
Edwin Burnett, Phillip Adams,
Douglas Miller, Bobbi Miller,
D. E. Warren and Lou P. Warren,
Defendants

BEAUFORT COUNTY FILE NUMBER: 94-CVS-244
FIRST DAY OF TRIAL: August 16, 1999
DATE OF VERDICT: August 24, 1999
VERDICT: See Attached Verdict Sheet

This fax is to follow up on our telephone conversation of August 26th regarding the above referenced case. I think that this case may be of interest to you for two reasons: 1) the size of the verdict and 2) because I believe it is one of the first jury verdicts in the State against a Country Club under the State’s Dram Shop Law (Chapter 18B of the North Carolina General Statutes).

At 8:30 a.m. on December 4, 1993, John “Butch” Moore, a member of the Country Club of Plymouth, Inc. (hereinafter “the Club”) arrived at the Club to play golf. Between the hours of 8:30 a.m. and 4:30 p.m. Moore played 36 holes of golf. During that time the Club Pro Shop sold Moore sixteen beers on credit and at least two beers for cash. The evidence at trial was uncontradicted that Moore drank at least ten of the sixteen beers that he charged.

A wedding reception being held at the Club between the hours of 2:00 and 5:30 p.m. After finishing his round of golf at approximately 5:00 p.m., Moore crashed the reception. He was seen consuming at least one cup of champagne at the reception. Also, nine witnesses (including three Club employees) testified that they say Moore at the reception and that he appeared visibly intoxicated (described as stumbling, disheveled appearance, glassy eyes, etc.). Moore left the reception at approximately 6:00 p.m. and bought his last beer with cash at the Club Pro Shop at approximately 6:15 p.m. The Pro Shop attendant who sold him the beer testified that 1) he was not instructed by the Club to refuse alcohol to intoxicated patrons, 2) he was not trained to know what to look for in determining whether a patron was intoxicated, and 3) he made absolutely no effort to determine whether Moore was intoxicated when he purchased his beer.

Moore left the Club sometime around 7:00 p.m. and drove to the Port of Plymouth Inn, about a 5 minute drive from the Club. He was invited to the Inn by guests at the weeding reception. At the Port of Plymouth Inn Moore consumed two cups of vodka. At approximately 8:00 p.m. Moore left the Port of Plymouth Inn driving West on Highway 64 in the dark, with no lights. A little over a mile West of the Inn he crossed two lanes of travel and struck the vehicle driven by Wendy Roberson (now Wendy Boyd), which vehicle was traveling East n Highway 64 in the slow lane. Riding with Wendy was her brother, Eric. At the time of the accident Wendy and Eric were returning from Williamston where they had been Christmas shopping for their parents. Wendy was 17 years old at the time of the accident, and Eric was 11 years old.

Wendy survived the accident with minor injuries, having been saved from serious injury by the air bag. Eric was sitting in the back seat because he and Wendy had an argument over Wendy’s refusal to give Erick money to buy his girlfriend a ring. Eric was wearing his seat belt, but sustained fractures and dislocations to three vertebrae in his neck. Moore was killed in the accident. An autopsy performed on Moore’s body revealed that he had a blood alcohol content of 0.300 at the time of his death. Eric spent sixty-seven (67) days at Pitt County Memorial Hospital undergoing surgery and rehabilitation. Eric has a 34% whole body permanent disability.

The individuals who served Moore alcohol at the Port of Plymouth Inn (these were not employees of the Inn, but rather residents) were dismissed upon their Motion for a Directed Verdict at the conclusion of the Plaintiff’s evidence. The Club remained in the case as the sole defendant.

Dr. Andrew Mason of Toxicologics Ltd., testified on behalf of the Plaintiffs as an expert in the field of toxicology and the effects of alcohol upon the human body. Dr. Mason testified to a reasonable degree of certainty that given Moore’s blood alcohol content of .300 at the time of his death and given the fact that he drank two cups of vodka at the Port of Plymouth Inn, Moore’s blood alcohol content at the time he was served is last beer at the Club must have been at least .275. Dr. Mason also testified that given a blood alcohol content of .275 at the time he was served his last beer at the Club, even if Moore had nothing to drink at the Port of Plymouth Inn, his blood alcohol content would have been .240 at the time of the accident.

Dr. Ann Neulicht testified on behalf of the Plaintiffs as an expert in vocational rehabilitation and life care planning. Dr. Neulicht testified that to a reasonable degree of scientific certainty Eric Roberson would have to retire five to ten years early and that he would need equipment, home modifications, house and yard maintenance assistance, and special transportation beginning in his mid 40’s. Dr. J. C. Poindexter testified on behalf of Plaintiffs as an expert in the field of economics. Dr. Poindexter testified to the present value of Eric Roberson’s loss of employment and earnings and the cost of equipment, home modifications, hose and yard maintenance, and transportation considering Eric’s life expectancy.

Wendel Hutchins of Plymouth filed suit on behalf of the Plaintiffs in March of 1994. In 1998 Hutchins asked the firm of Pritchett & Burch, PLLC of Windsor to assist him in preparing the case for trial and trying the case. The attorneys from Pritchett & Burch who tried the case with Hutchins were Lloyd C. Smith, Jr. and Jonathan e. Huddleston. The Country Club of Plymouth, Inc., was represented by David Francisco and Brantley Peck of Rodman, Holscher, Francisco and Peck of Washington.

I can fax you the pleadings in the case, but this summation contains all the information you would get from the pleadings, and there were several amendments made to the pleadings as defendants were added to and dropped from the case. Let me know if you still want the pleadings.

According to Smith, “we had a great jury that realized that the Country Club had to take responsibility for letting a man buy that much beer, get that drunk and drive.”