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Clark v. Inn West3/15/1988
Initially, we note that appellants have failed to comply with Rule 12(a) of the Rules of Appellate Procedure. That rule requires a record on appeal be filed with this court " ithin 15 days after the record . . . has been settled . . . but no later than 150 days after giving notice of appeal." App. R. 12(a). Counsel for the parties stipulated to the record on appeal on 7 July 1987, but plaintiffs failed to file the record with this court until 18 September 1987. The case is, therefore, subject to dismissal for failure to meet the fifteen day requirement. However, as there has been no motion to dismiss and the 150-day requirement was met, we exercise our discretion and hear the appeal " o prevent manifest injustice." App. R. 2.
The complaint alleges that defendant Inn West is a North Carolina partnership operating the Ramada Inn West in Asheville, North Carolina as a franchisee of defendant Ramada Inn, a Delaware corporation. The complaint also alleges that defendants James E. Brandis, Ann Brandis and Wallace Hyde are partners in Inn West. Debra Ara was the employee of Ramada Inn West who served Jordan on the night in question. The remaining defendants, Clifton E. Siler, Dorothy E. Siler, Betty S. Hintz, Williard A. Hintz, Mary Thrash Boyd and Albert L. Boyd, are alleged to be the owners and lessors of the property on which the Ramada Inn West is located.
The complaint further alleges that on 5 December 1985 at approximately 10:00 p.m., Jordan, age 19, purchased four "double shots" of tequila and four bottles of beer at the Ramada Inn West lounge. Jordan was not old enough to legally purchase alcoholic beverages in North Carolina. G.S. 18B-302. On his way home, Jordan
was involved in a single-car accident and died the next morning from injuries sustained in the accident.
Defendants answered asserting several defenses, including Jordan's contributory negligence, as a bar to recovery. They also moved for dismissal under G.S. 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Defendants' motion to dismiss was granted, and plaintiffs appeal. Plaintiffs' sole assignment of error is that the trial court erred in dismissing their claims.
Plaintiffs have sought to allege two causes of action. The first is a wrongful death claim under G.S. 28A-18-2 and G.S. 18B-305. The second is a claim for relief under the "dram shop act," G.S. 18B-120 et seq. We conclude that the wrongful death claim was properly dismissed but that the dismissal of the dram shop claim of the personal representative should be reversed as to the Inn West partnership and its individual partners.
Plaintiffs' first claim for relief is under the wrongful death statute, G.S. 28A-18-2. It is alleged that defendants breached a duty to Jordan and to the motoring public by serving alcoholic beverages to an intoxicated person and that this breach proximately caused his death. G.S. 18B-305 prohibits the sale of alcoholic beverages to an intoxicated person. Violation of the statute constitutes negligence per se. Brower v. Robert Chappell & Assoc., Inc., 74 N.C. App. 317, 328 S.E.2d 45, disc. rev. denied, 314 N.C. 537, 335 S.E.2d 313 (1985); Hutchens v. Hankins, 63 N.C. App. 1, 303 S.E.2d 584, disc. rev. denied, 309 N.C. 191, 305 S.E.2d 734 (1983). However, the complaint also alleges that Jordan was operating his automobile
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