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Trang v. L J Wings, Inc.

Court of Appeals of North Carolina

October 15, 2019

DUNG THANG TRANG, Plaintiff,
v.
L J WINGS, INC. and WILLIAM ROBERT ERICKSON, Defendants.

          Heard in the Court of Appeals 18 September 2019.

          Appeal by plaintiff from judgment and order entered 1 May 2018 and 26 July 2018, respectively, by Judge J. Thomas Davis in Buncombe County Superior Court. No. 15 CVS 4472

          Lakota R. Denton and Lucas T. Baker for plaintiff-appellant.

          Pope Aylward Sweeney & Stephenson, LLP, by Jeremy A. Stephenson, for defendant-appellee.

          TYSON, JUDGE.

         Dung Thang Trang ("Plaintiff") appeals from the trial court's partial grant of directed verdict in favor of L J Wings, Inc. ("Defendant"). Plaintiff also appeals the trial court's denial of his requested jury instructions. We find no error.

         I. Background

         Defendant is a North Carolina corporation, which owns and operates a Wild Wing Café franchised restaurant in Buncombe County, North Carolina ("Café"). Defendant's franchisor established and issued policies and procedures regarding North Carolina's dram shop laws and alcohol practices to its franchisees and their employees, including information to monitor and prevent customer intoxication. Practices to prevent intoxication include the employee offering "[f]ood high in fat and/or protein such as . . . chicken wings" and counting the number of drinks each customer has. "If counting drinks will not work, then you must rely on observation to spot signs of intoxication."

         The co-defendant, William Erickson, arrived at the Café at about 11 a.m. on 5 August 2015. Erickson was one of the Café's regular customers. In the following six to seven hours, Erickson was served between thirteen-and-a-half and fifteen-and-a-half alcoholic beverages. Two bartenders, Anne Marie Paine and Christopher Nawrocki, served Erickson during this period. Paine served Erickson between eleven and thirteen beverages over roughly six hours, before her shift ended around 5 p.m. Nawrocki replaced Paine around 5 p.m. and served Erickson at least two beverages, and approximately half of a third, before cutting him off.

         Nawrocki stopped alcohol sales to Erickson because, "something was just a little different in Bill. . . . It was just something that made me uncomfortable, and when I'm uncomfortable it's time to go." Nawrocki also checked with Paine and learned Erickson had "been there all day." Nawrocki ordered chicken wings for Erickson to eat, and checked to make sure Erickson would not be driving home. Nawrocki also removed a previously served, half-full beer. Erickson ate the wings and left the Café sometime after 6 p.m.

         At about 7 p.m., Erickson was driving on Interstate-26 when his car made contact with a Honda Odyssey vehicle Plaintiff was driving, and allegedly injured Plaintiff. Plaintiff brought this negligence action against both Defendants. His claims against Defendant, L J Wings, Inc., included a dram shop claim and a negligent supervision claim as to the bar owner's supervision of its employees, Paine and Nawrocki. Erickson, the customer and driver, stipulated to his negligence liability before the case was submitted to the jury.

         At the close of Plaintiff's evidence, Defendant moved for a directed verdict. The trial court denied Defendant's motion to dismiss the dram shop claim, but dismissed all of Plaintiff's other claims, including for negligent supervision.

         The trial court's dismissal of the negligent supervision claim was based upon two reasons: primarily, Plaintiff presented insufficient evidence of incompetency or unfitness of either Paine or Nawrocki; and, secondarily, the negligent supervision claim served no independent purpose, as Plaintiff would recover ...


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