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Sorrells v. M.Y.B. Hospitality Ventures of Asheville11/19/1992
FRYE, Justice.
Defendant contends that the Court of Appeals erred in reversing the trial court's order granting defendant's Rule 12(b)(6) motion to dismiss. The underlying issue in this case is whether the personal representative of the estate of a twenty-one-year-old who was fatally injured as a result of driving while in a highly intoxicated state may recover in a wrongful death action against the seller of the alcohol. We hold that recovery in this case is barred. Therefore, we reverse the decision of the Court of Appeals and remand for reinstatement of the trial court's order dismissing plaintiff's complaint.
I.
In evaluating a Rule 12(b)(6) motion to dismiss, we must take the factual allegations in plaintiff's complaint as true. Johnson v. Ruark Obstetrics, 327 N.C. 283, 286, 395 S.E.2d 85, 87 (1990). The allegations of the complaint establish the following facts: On or about 21 May 1990, Travis Cain Sorrells, the twenty-one-year-old decedent, and three friends went to Rhapsody's Food and Spirits, defendant's place of business in Asheville, North Carolina. Upon arrival at Rhapsody's, the decedent ordered and then consumed a shot of tequila. Thereafter, the decedent attempted to order another drink. Upon being informed by one of the decedent's friends (Carla Jacobson) that the decedent was driving and should not be served any more alcohol, the waitress refused to accept decedent's order for another drink.
When the decedent and a male friend ("Tim") left the table to visit the restroom, the waitress returned to the table to find out whether the two young men really wanted another drink. The waitress was told that the decedent was driving and had already had enough to drink. After the men returned to the table, the waitress checked on the group again. The decedent told the waitress that he wanted another shot of tequila. At that point, the waitress asked who was driving. She was again advised that the decedent was driving and that he should not be served another drink. At
that time, both men were highly intoxicated and showed visible signs of impairment.
A few minutes later, the decedent and Tim went to the restroom again, stopping at the bar on their way back to the table. The waitress returned to their table to inform the two young women there that the decedent and Tim had ordered drinks at the bar. She further stated that she told the manager that she had been advised not to serve the men but the manager told the bartender to go ahead and serve them. The decedent was served a glass of "Ice Age Tea," a large drink made with various liquors and alcoholic spirits.
After the decedent finished his drink, his companions asked him not to drive home and offered to have someone else drive him. The decedent refused these requests and proceeded to drive himself. While on Interstate Highway 26, he lost control of the vehicle, struck a bridge abutment and was killed.
Plaintiff, the administratrix of the decedent's estate, sued defendant for wrongful death, alleging negligence and gross negligence. The trial court granted defendant's Rule 12(b)(6) motion to dismiss based on decedent's contributory negligence. Plaintiff appealed to the Court of Appeals, which reversed the trial court and remanded the case for trial. Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 105 N.C. App. 705, 414 S.E.2d 372 (1992). We allowed defendant's petition for discretionary review. Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 331 N.C. 555, 417 S.E.2d 803 (1992).
II.
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