In the final part of our series on Dram Shop Claims in North Carolina, Richard Pinto and co-author David G Harris provide a recommendation on a Pattern Jury Instruction that would remedy the inconsistencies among current patter Jury Instructions involving Dram Shop Claims. We encourage you to read Parts 1,2, and 3.
Neither of the pattern jury instructions currently in place for civil dram shop claims properly outline the elements necessary to impose civil liability in a dram shop action as recognized by the Hutchens case and its progeny. As a result, the authors of this article would propose replacing the current two separate pattern jury instructions with a jury instruction which they believe adheres to the elements set forth by the North Carolina appellate courts for imposing civil dram shop liability reading in part:
In this case, the Plaintiffs contend, and Defendant denies, that Defendant was negligent in that it sold or gave alcoholic beverages to a person it knew or, in the exercise of ordinary care, should have known was “noticeably intoxicated”.
The Plaintiffs further contend, and Defendant denies, that Defendant’s negligence was a proximate cause of the Plaintiffs’ injury.
I instruct you that negligence is not to be presumed from the mere fact of injury.
A law enacted for the safety of the public provides that it is unlawful for a corporation who is licensed to sell alcoholic beverages to knowingly sell or give alcoholic beverages to any person who is intoxicated.
A violation of this safety law is negligence in and of itself.
A person violates this law when he sells or gives alcoholic beverages to a person who he knows or, in the exercise of ordinary care, should know is noticeably intoxicated and he knows or, in the exercise of ordinary care, should know this “noticeably intoxicated” person is going to drive a motor vehicle. “Intoxicated” means that a person’s mental or physical functioning is substantially, that is materially, impaired as a result of the use of alcohol.
In order to prevail on this (state number) issue, the Plaintiffs must present substantial evidence that: (1) Defendant furnished alcoholic beverages to someone the defendant knew or should have known was “noticeably intoxicated” and (2) Defendant knew or should have known this “noticeably intoxicated” person was going to drive a motor vehicle.
As a hybrid of the two current pattern jury instructions, this proposed jury instruction properly includes the requirements set forth by the North Carolina appellate courts that: (1) the defendant serve alcohol to a person he knew, or, should have known, was intoxicated; and (2) the defendant knew, or should have known, that the person would shortly thereafter drive an automobile. Furthermore, this proposed jury instruction eliminates those portions of the current pattern jury instructions that would improperly impose liability on a defendant for serving alcohol to a person that is only likely to achieve a BAC level of 0.08 at some future point in time.