NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 18 September 2007

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA NORTH CAROLINA COURT OF APPEALS Filed: 18 September 2007 TOM I. DAVIS, II, Co-Administrator of the Estate of Zachary Kyle Davis (Deceased); and BOBBY BUFF, Co- Administrator of the Estate of Zachary Kyle Davis (Deceased), Plaintiffs, v. Catawba County No. 04-CVS-1183 SGT. PEPPERS RESTAURANT AND BAR, INC.; O CHARLEY S, INC.; JOHN S. BROWN; GREGORY A. BROWN; and TERRY C. BROWN, Defendants. Appeal by plaintiffs from order entered 23 June 2006 by Judge Richard D. Boner in Catawba County Superior Court. Heard in the Court of Appeals 20 August Sigmon, Clark, Mackie, Hutton, Hanvey, & Ferrell, P.A., by Forrest A. Ferrell, Jeffrey T. Mackie and Jason White, for plaintiff appellants. McAngus, Goudelock & Courie, P.L.L.C., by John T. Jeffries and Janiere E. Taylor, for Sgt. Peppers Restaurant and Bar, Inc., defendant appellee. Hedrick Eatman Gardner & Kincheloe, L.L.P., by Mel J. Garofalo, Lucian P. Sbarra and David L. Levy, and Guynn, Memmer & Dillon, P.C., by C. Kailani Memmer for O Charley s, Inc., defendant appellee. McCULLOUGH, Judge.

2 -2- Plaintiffs appeal from an order granting motion for summary judgment of defendant O Charley s, Inc., as to plaintiffs claim for punitive damages. We affirm. FACTS On 9 August 2002, defendant John Brown ( Brown ) was operating a motor vehicle on Highway 127 in Hickory, North Carolina. Brown subsequently lost control of the vehicle causing a collision with a vehicle being operated by Angela Bass. Ms. Bass son, Zachary Davis, was riding in the backseat of Ms. Bass vehicle during the accident. Davis sustained injuries as a result of the accident and was pronounced dead the morning after the collision. At the time of the accident, Brown s blood alcohol content was 0.17 grams of alcohol per 100 milliliters of whole blood. Brown testified that on the evening before the accident, he was a patron at Sgt. Peppers Restaurant and Bar, Inc. ( Sgt. Peppers ), O Charley s, Inc. ( O Charley s ), and Randolph Billiards. While at Sgt. Peppers, Brown testified that he either had one beer and one shot of liquor or three to four drinks; however, he could not recall the exact amount of alcohol he had consumed. Later in the night, Brown patronized O Charley s. A bartender served Brown one shot of tequila and one twelve ounce beer. After serving Brown, a bartender noticed Brown seemed off-balance when he walked. Then, O Charley s refused to serve Brown any more alcohol, and Brown was served water. Brown testified he was at O Charley s for about forty minutes before he drove away.

3 -3- After leaving O Charley s, Brown drove to Randolph s Pool Hall. Brown did not drink any alcohol at the pool hall and started a conversation with another man. Brown testified he allowed the man he spoke with at the pool hall to drive his car to the man s residence because Brown did not want to drive. Brown slept at the man s house from approximately 2:00 a.m. or 2:30 a.m. to 6:30 a.m. on 9 August When Brown woke up at the man s house at approximately 6:30 a.m., he drove his vehicle through the drive-thru window of a local restaurant. On his way home from the restaurant, Brown was involved in the motor vehicle accident that fatally injured Zachary Davis. Co-Administrators of the estate of Zachary Davis ( plaintiffs ) filed this action on 20 April On 18 May 2006, O Charley s filed a motion for summary judgment on plaintiffs claim for punitive damages. On 23 June 2006, the trial court entered an order granting O Charley s motion for summary judgment on punitive damages and certified the decision as appropriate for immediate appeal. Plaintiffs appeal. I. Plaintiffs contend the trial court erred in granting O Charley s motion for summary judgment as to plaintiffs claim for punitive damages. We disagree. The trial court s order stated that its decision was appropriate for immediate appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure. Although the certification does not bind us to review the case, see Jenkins v. Choong, 147

4 -4- N.C. App. 780, 781, 557 S.E.2d 124, 125 (2001), disc. review denied, 355 N.C. 286, 560 S.E.2d 803 (2002), in light of the need for efficient administration of justice, we will reach the merits of the case. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. N.C. Gen. Stat. 1A-1, Rule 56(c) (2005). There is no genuine issue of material fact where a party demonstrates that the claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Harrison v. City of Sanford, 177 N.C. App. 116, 118, 627 S.E.2d 672, 675, disc. review denied, 361 N.C. 166, 639 S.E.2d 649 (2006). On appeal from a grant of summary judgment, this Court reviews the trial court's decision de novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, (1999). A moving party has the burden of establishing the lack of any triable issue of fact and its supporting materials are carefully scrutinized, with all inferences resolved against it. Kidd v. Early, 289 N.C. 343, 352, 222 S.E.2d 392, 399 (1976). In order for punitive damages to be awarded, the North Carolina General Statutes require a claimant to prove, through clear and convincing evidence, an aggravating factor of fraud, malice, or willful and wanton conduct. N.C. Gen. Stat. 1D-15

5 -5- (2005). Here, plaintiffs argue that the aggravating factor is willful and wanton conduct on the part of O Charley s. Willful or wanton conduct means the conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm. Willful or wanton conduct means more than gross negligence. N.C. Gen. Stat. 1D-5(7) (2005). We determine the trial court did not err. The evidence is not clear and convincing that O Charley s engaged in a conscious and intentional disregard of and indifference to the rights and safety of others.... Id. The evidence shows that Brown did not frequent O Charley s much before August of On the night in question, Brown was served a beer and a shot at O Charley s according to the testimony of both Brown and a bartender. After serving Brown the beverages, a manager on duty noticed that Brown stumbled. The employees refused further alcohol service to Brown and confiscated a portion of the beer previously served to Brown. Thereafter, Brown was served water. A bartender notified a manager on duty at O Charley s that Brown had left the bar and was walking in the parking lot. By the time the manager got outside of O Charley s, Brown had already backed out and was pulling off. Another employee followed Brown to the parking lot to try to keep him from driving. The employee was unable to get Brown s license plate number. Brown testified that he was at O Charley s for a total of approximately forty minutes.

6 -6- Assuming, without deciding, that the evidence, viewed in the light most favorable to plaintiffs, may have amounted to simple negligence, it did not rise to the level of willful or wanton conduct. See N.C. Gen. Stat. 1D-5 ( Willful or wanton conduct means more than gross negligence. ) Accordingly, we determine the trial court did not err in granting O Charley s motion for summary judgment as to plaintiffs claim for punitive damages. Affirmed. Chief Judge MARTIN and Judge TYSON concur. Report per Rule 30(e).

IN THE COURT OF APPEALS OF NORTH CAROLINA. No. COA Filed: 5 July 2016

IN THE COURT OF APPEALS OF NORTH CAROLINA. No. COA Filed: 5 July 2016 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3)