Defense verdict in dram shop trial upheld.

Byline: Scott Baughman

A Buncombe County jury's verdict in favor of a Wild Wing Caf that had served more than a dozen drinks to a patron who was later involved in a car accident will be left undisturbed because the plaintiff's proposed jury instruction would have improperly focused the jury's attention on a particular aspect of the evidence, the North Carolina Court of Appeals has ruled.

William Erickson arrived at the Asheville restaurant on a Wednesday morning in August 2015, and in the following six to seven hours was served between 13 and 16 alcoholic beverages before he was cut off. Shortly after Erickson left, the car he was driving collided with a car being driven by Dung Thang Trang. Trang sued Erickson, and sued the restaurant under a theory of dram shop liability.

At trial, Superior Court Judge J. Thomas Davis denied Trang's request to give the jury an instruction that it could consider all of the evidence "including the evidence presented on the existence of Defendant L J Wings, Inc.'s own voluntarily adopted policies and procedures, and whether or not such voluntarily adopted policies and procedures were followed." The jury returned a verdict finding that the restaurant was not negligent, and Trang appealed.

In a unanimous Oct. 15 opinion written by Judge John M. Tyson, the Court of Appeals affirmed, finding that the jury had been properly instructed to consider all of the evidence without steering its attention toward any particular piece of evidence highlighted by either side.

At a charge conference, Davis told the attorneys that the proposed instruction "would be an indication that the Court is asking the jury to focus on a particular aspect of the evidence. And as a result thereof, I think that's improper that instruction invites the Court to focus on and call as important specific evidence that would not be proper."

The appeals court ratified the court's reasoning, saying that the proposed instruction would have run afoul of the state's Rules of Civil Procedure, which require judges to give "equal stress" to the contentions of each party when instructing the jury.

"If the...