Trang v. L J Wings

Opinions

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-142

Filed: 15 October 2019

Buncombe County, No. 15 CVS 4472

DUNG THANG TRANG, Plaintiff,

v.

L J WINGS, INC. and WILLIAM ROBERT ERICKSON, Defendants.

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.

Heard in the Court of Appeals 18 September 2019.

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

Opinion of the Court

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.

-2-

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 damages upon a

verdict of negligently serving an intoxicated patron under the dram shop claim.

Plaintiff requested a special jury instruction, which contained the following

sentence:

In deciding whether this law was, or was not violated, you may consider all of the evidence you have heard, including

-3-

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 trial court declined to include the specific proffer in its instructions. The

court reasoned it would be improper to ask, or pre-empt, “the jury to focus on a

particular aspect of the evidence.” The jury returned a verdict, which found

Defendant not negligent on 27 March 2018. The court entered its judgment on 1 May

2018.

Plaintiff moved for a new trial on 18 May 2018. He argued, inter alia, the

partial grant of Defendant’s motion for directed verdict and the denial of Plaintiff’s

requested jury instruction were prejudicial errors of law. The court denied Plaintiff’s

amended motion for a new trial on 26 July 2018. Plaintiff entered and served his

notice of appeal on 23 August 2018. Plaintiff appeals both the judgment, as well as

the order denying his motion for a new trial.

II. Jurisdiction

An appeal of right lies with this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(2)

(2017).

III. Issues

Plaintiff asserts the trial court committed reversible error by: (1) denying his

request for a special jury instruction; and, (2) granting Defendant’s motion for

directed verdict on his claim of negligent supervision.

-4-

IV. Standard of Review

“A specific jury instruction should be given when: (1) the requested instruction

was a correct statement of law and (2) was supported by the evidence, and that (3)

the instruction given, considered in its entirety, failed to encompass the substance of

the law requested and (4) such failure likely misled the jury.” Outlaw v. Johnson, 190

N.C. App. 233, 243, 660 S.E.2d 550, 559 (2008) (citation and internal quotation marks

omitted). “Failure to give a requested and appropriate jury instruction is reversible

error if the requesting party is prejudiced as a result of the omission.” Id. (citation

omitted).

“The standard of review of directed verdict is whether the evidence, taken in

the light most favorable to the non-moving party, is sufficient as a matter of law to

be submitted to the jury.” N.C. Indus. Capital, LLC v. Clayton, 185 N.C. App. 356,

362, 649 S.E.2d 14, 19-20 (2007) (quoting Davis v. Dennis Lilly Co., 330 N.C. 314,

322–23, 411 S.E.2d 133, 138 (1991)).

V. Analysis

Plaintiff’s two arguments interrelate. Counsel conceded at argument in order

for the partial grant of directed verdict on negligent supervision to be prejudicial and

rise to reversible error, the trial court’s failure to provide Plaintiff’s requested special

instruction must have misled the jury.

A. Jury Instructions

-5-

Plaintiff argues the trial court prejudiced him and committed reversible error

by denying his request for a special jury instruction, which stated in relevant part:

In deciding whether this law was, or was not violated, you may consider all of the evidence you have heard, 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.

“While the court is not required to give the instruction in the exact language of

the request, if request be made for a specific instruction, which is correct in itself and

supported by evidence, the court must give the instruction at least in substance.” In

re Estate of Lowe, 156 N.C. App. 616, 619, 577 S.E.2d 315, 317 (2003) (quoting State

v. Hooker, 243 N.C. 429, 431, 90 S.E.2d 690, 691 (1956)). However, these two

requirements of correctness and evidentiary support guarantee neither the

entitlement to nor the delivery of all proposed or proffered special instructions.

Under the North Carolina Rules of Civil Procedure,

In charging the jury in any action governed by these rules, a judge . . . shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence. If the judge undertakes to state the contentions of the parties, he shall give equal stress to the contentions of each party.

N.C. R. Civ. P. 51(a) (emphasis supplied).

Presuming Plaintiff’s proposed special instruction was correct in itself and

supported by evidence in the record, the trial court would have been required to

-6-

highlight and “state, summarize or recapitulate the evidence” as specified by

Plaintiff.

As the trial court explained at the charge conference, “it 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 trial court’s analysis is correct. Plaintiff’s proposed special jury

instructions run afoul of Rule 51(a)’s plain “equal stress” language. Even if the

proposed instruction is correct and is supported in the record, the requested

instructions could have improperly focused the jury on a particular aspect of

Plaintiff’s evidence. Rather than undertaking to state the contentions of the parties

in this sense, the trial court properly declined to give the requested special jury

instruction, or to “state, summarize or recapitulate the evidence.” Id.

While the trial court did not give the instruction in the exact language as

requested, the court did properly instruct the jury on its substance. Both parties

extensively litigated and argued the voluntarily adopted policies and procedures at

trial. All relevant evidence regarding Defendant’s policies and procedures was

admitted and argued before the jury. The trial court instructed the jury “to consider

all the evidence, all contentions arising from that evidence, and the arguments and

positions of the attorneys.”

-7-

If the trial court had instructed the jury with any more specificity, as Plaintiff’s

special instructions requested, the instructions would have improperly pre-empted or

focused the jury’s attention, and denied “equal stress to the contentions of each

party.” Id. Plaintiff admitted the employer’s policies into evidence, cross-examined

the witnesses, and freely argued the purported violations of Defendant’s policies by

the bartenders to the jury.

The trial court did not err by denying Plaintiff’s requested specific wording

from the jury instructions. Plaintiff’s argument is overruled.

B. Directed Verdict

Defendant argues, viewing the evidence in the light most favorable to Plaintiff,

giving him the benefit of all reasonable inferences to be drawn therefrom and

resolving all conflicts in the evidence in his favor, the trial court’s ruling that

Plaintiff’s evidence did not support a claim of negligent supervision as a matter of law

was error. We need not reach this issue.

Presuming, arguendo, the trial court erred by concluding Plaintiff failed to

present sufficient evidence, Plaintiff has failed to show any purported error was

prejudicial. An essential element Plaintiff must prove is an employee committed

some tortious act proximately causing the injuries. Waddle v. Sparks, 331 N.C. 73,

87, 414 S.E.2d 22, 29 (1992) (citation omitted). Here, the jury necessarily found that

-8-

Defendant’s employee had not been negligent in this matter, by returning a verdict

Defendant was not liable on the dram shop claim.

Plaintiff’s counsel conceded during oral argument that unless this Court holds

the jury verdict must be reversed with a new trial on the dram shop claim due to

Plaintiff’s assertion of improper jury instructions, his assertion concerning error in

the directed verdict on the negligent supervision claim is moot. As we hold there was

no error in the jury instructions, there was no reversible error in the trial court’s

entry of a directed verdict on the negligent supervision claim.

VI. Conclusion

Plaintiff’s proposed special jury instruction would have required the court to

“state, summarize or recapitulate the evidence” and highlight specified evidence

without the trial court giving “equal stress” to the parties’ evidence and contentions.

N.C. R. Civ. P. 51(a). The trial court properly denied Plaintiff’s request to improperly

focus or pre-empt the jury’s attention. The jury instructions provided were proper.

Plaintiff cannot show any purported prejudice in the trial court’s directed

verdict as a result of the jury’s verdict on negligence. We find no error in the jury’s

verdict or the judgment entered thereon. It is so ordered.

NO ERROR.

Judges DILLON and BROOK concur.

-9-