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Storch v. Winn-Dixie Charlotte3/19/2002
PUBLISHED
Appeal by defendant from order entered 4 April 2000, judgment entered 28 July 2000, and order entered 21 September 2000 by Judge B. Craig Ellis in Cumberland County Superior Court. Heard in the Court of Appeals 10 January 2002.
Plaintiffs are the parents of Jason Paul Storch, who died in a single car accident on 19 September 1998 in Avery County. Plaintiffs brought this action under Chapter 18B, Article 1A of the North Carolina General Statutes, North Carolina's Dram Shop Act, alleging that Jason, who was eighteen years old at the time of his death, was intoxicated after having consumed alcohol which he purchased from defendant's store in Boone, N.C. prior to the fatal accident. Plaintiffs sued in their individual capacities, alleging they have suffered damages as a result of defendant's negligent sale of alcohol to Jason and are "aggrieved parties" within the meaning of the Act. Defendant filed answer denying it sold or furnished alcohol to Jason and alleging affirmative defenses. Defendant's motion to dismiss and motion for summary judgment were denied, and the issues were tried by a jury. The jury found that plaintiffs were injured as a result of defendant's sale of alcoholic beverages to an underage person and awarded damages in the amount of $50,000 to each plaintiff. The trial court entered judgment on the jury's verdict and denied defendant's motions for judgment notwithstanding the verdict and, alternatively, for a new trial. Defendant appeals.
The sole issue presented by this appeal is whether the parents of an underage person who dies from injuries proximately resulting from his operation of a motor vehicle while impaired after consuming alcoholic beverages sold or furnished to him in violation of G.S. § 18B-302(a) may be "aggrieved parties" within the meaning of G.S. § 18B-120 et seq., North Carolina's "Dram Shop Act." We answer affirmatively.
Article 1A of Chapter 18B of the North Carolina General Statutes authorizes a claim by an "aggrieved party" for damages for injury proximately caused by the negligent selling of alcoholic beverages to an underage person. G.S. § 18B-121 provides:
An aggrieved party has a claim for relief for damages against a permittee or local Alcoholic Control Board if:
(1) The permittee or his agent or employee or the local board or its agent or employee negligently sold or furnished an alcoholic beverage to an underage person; and
(2) The consumption of the alcoholic beverage that was sold or furnished to an underage person caused or contributed to, in whole or in part, an underage driver's being subject to an impairing substance within the meaning of G.S. 20-138.1 at the time of the injury ; and
(3) The injury that resulted was proximately caused by the underage driver's negligent operation of a vehicle while so impaired.
An "aggrieved party" is defined as "a person who sustains an injury as a consequence of the actions of the underage person, but does not include the underage person . . . ." N.C. Gen. Stat. § 18B-120(1). Because the underage person is expressly excluded from the definition of "aggrieved party" in G.S. § 18B-120(1), his personal representative is also excluded and may not maintain an action for wrongful death under the Dram Shop Act, since the personal representative may only bring a claim which could have been brought by the decedent if he had lived. Clark v. Inn West, 324 N.C. 415, 379 S.E.2d 23 (1989).
In Clark v. Inn West, supra, the question before the Supreme Court was whether the personal representative of the estate of an underage person who died as a result of injuries sustained in an accident caused by his
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