Sorrells v. M.Y.B. Hospitality Ventures of Asheville , 105 N.C. App. 705 ( 1992 )

EAGLES, Judge.

The sole issue before us is whether the trial court erred by granting the defendant’s motion to dismiss. We hold that the trial court did err and accordingly we reverse.

The essential question in considering the appropriateness of a Rule 12(b)(6) motion is whether the complaint, when liberally construed and taken to be true, states a claim upon which relief can be granted. See Barnaby v. Boardman, 70 N.C. App. 299, 302, 318 S.E.2d 907, 909 (1984), rev’d on other grounds, 313 N.C. 565, 330 S.E.2d 600 (1985); and Peele v. Provident Mut. Life Ins. Co., 90 N.C. App. 447, 449, 368 S.E.2d 892, 893, disc. review denied and appeal dismissed, 323 N.C. 366, 373 S.E.2d 547 (1988). Here, the plaintiff alleges that the “wilful, wanton and gross negligence” of the defendant proximately caused the intestate’s death. The defendant, however, argues that the plaintiff was contributorily negligent as a matter of law and is therefore barred from recovery. Brower v. Robert Chapel & Assoc., Inc., 74 N.C. App. 317, 328 S.E.2d 45, disc. review denied, 314 N.C. 537, 335 S.E.2d 313 (1985); Clark v. Inn West, 89 N.C. App. 275, 365 S.E.2d 682, rev’d on other grounds, 324 N.C. 415, 379 S.E.2d 23 (1989). We agree that the intestate here was contributorily negligent as a matter of law. Brower at 319-20, 279 S.E.2d at 47. However,

[i]t is well established that a party’s contributory negligence will not preclude recovery for injuries proximately caused by other’s willful and wanton negligence. Fry v. Southern Public Utilities Co., 183 N.C. 282, 111 S.E. 354 (1922). . . . The concept of willful and wanton negligence was explained by our Supreme Court in Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 36, 37-38 (1929):

An act is done willfully when it is done purposely and deliberately in violation of law (citations omitted), or when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason. (Citation omitted). “The true conception of willful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, which duty the person owing it has assumed by contract, or which is imposed on the person by operation of law.” (Citation omitted).

An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others. (Citations omitted). A breach of duty may be wanton and wilful while the act is yet negligent. . . . (Citation omitted).

Robinson v. Seaboard System Railroad, 87 N.C. App. 512, 519-20, 361 S.E.2d 909, 914 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988).

Here, the plaintiff has alleged sufficient facts of the defendant’s gross negligence, under the foregoing definitions, to survive the defendant’s Rule 12(b)(6) motion to dismiss. Plaintiff alleged that the intestate’s waitress was requested by intestate’s companions on three separate occasions that she not serve alcohol to the intestate because he was going to drive home and he had already had too much to drink. The complaint also alleges that when the intestate went to the bar to order another drink, the waitress told the manager what the intestate’s companions had told her. The manager disregarded this information, observed the plaintiff’s intestate and instructed his bartender to go ahead and serve the intestate a large mixed drink despite the waitress’ warnings.

We conclude that these allegations are sufficient to state a claim for injuries caused by the defendant’s wilful and wanton negligence. Accordingly, the Rule 12(b)(6) motion was improperly allowed. We base our ruling on the premise that while contributory negligence will bar a recovery for damages caused by negligence, allegations of the willful and wanton negligence of the defendant would survive a finding that the intestate was contributory negligent as a matter of law because he drove while impaired.

On remand the jury will consider whether the evidence shows that defendant’s conduct amounts to wilful and wanton negligence. If so, the additional issue that may arise is whether the actions of the plaintiff’s intestate in refusing requests not to drive himself and in refusing to allow someone else to drive him home were sufficient to establish contributory wilful and wanton negligence.

Reversed and remanded.

Judges JOHNSON and ORR concur.