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Harshbarger v. Murphy5/31/1988
This is a civil action to recover damages from a nightclub, for injuries and death sustained in an automobile accident due to the actions of an intoxicated driver, under a dram shop liability theory.
Plaintiff, in his individual capacity, and in his capacity as the administrator of the estate of his deceased wife, Sue K. Harshbarger, and duly appointed guardian ad litem for his child, Sabrina K. Harshbarger, instituted this civil action on 6 August 1985 to recover for damages sustained on 19 April 1985, when a vehicle driven by David Baxter Murphy collided head-on with the vehicle in which plaintiff and his family were riding. Plaintiff and his child were injured and his wife was killed in the collision.
The original suit was instituted against defendant driver and his wife, who filed a third-party complaint against Night Clubs, Inc., d/b/a The Foxy Lady Nightclub. The plaintiff then amended his complaint to name "The Foxy Lady" as an additional defendant, and alleged that the establishment's employees had served defendant-driver alcohol while he was visibly intoxicated, in violation of N.C.G.S. 18B-305(a).
Subsequently, the claim leveled against Murphy's wife was dismissed, and the claim asserted against defendant-driver was settled and dismissed.
At trial against the remaining defendant, "The Foxy Lady," the trial court granted defendant's motion for a directed verdict made at the conclusion of plaintiff's evidence, and dismissed the action with prejudice. From this judgment, plaintiff appeals.
We have before this Court one issue to review: whether the trial court committed prejudicial error in granting defendant's motion for a directed verdict pursuant to G.S. 1A-1, Rule 50(a). For the reasons noted below, we find that defendant's motion was properly allowed.
A motion for a directed verdict tests the legal sufficiency of the evidence to take the case to the jury and to support a verdict for the nonmoving party. Everhart v. LeBrun, 52 N.C. App. 139, 277 S.E.2d 816 (1981). Upon defendant's motion for a directed verdict, the trial court is required to take plaintiff's evidence as true and to consider it in the light most favorable to the nonmovant, giving him the benefit of every reasonable inference, with contradictions, inconsistencies and conflicts in the evidence resolved in plaintiff's favor. Oliver v. Royall, 36 N.C. App. 239, 243 S.E.2d 436 (1978). The reviewing court is confronted with the identical task, that is, to determine whether the evidence, when considered in the light most favorable to the nonmovant, was sufficient to have been submitted to the jury. Meacham v. Montgomery County Board of Education, 59 N.C. App. 381, 297 S.E.2d 192 (1982).
Although rarely appropriate in negligence cases, a verdict may be directed for defendant where plaintiff is unable to offer evidence sufficient to establish, beyond mere speculation, every essential element of negligence. Oliver at 242, 243 S.E.2d at 439. Bearing these principles in mind, we shall consider plaintiff's evidence.
The driver of the automobile testified that he left his place of employment a little after noon on 19 April 1985, the day of the fatal accident. He was accompanied by a co-employee and friend, Charles C. Eddins. They consumed three twelve ounce cans of beer each during the next three hour span and then arrived at the establishment in question, "The Foxy Lady," a little after 3:00 p.m. While there, Murphy drank an additional six to eight twelve ounce cans of beer,
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