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Cary Police Operating Under-Age Buying Sting on NYE

The Raleigh News & Observer reports that police in Cary are making well-known their plans to operate a New Year’s Eve sting targeting people selling alcohol to underage customers. Called Operation Blackjack, the sting uses high school volunteers who team with police officers and test whether sellers of alcoholic beverages are checking the buyers’ identifications. Police conducted a similar operation last year and found three locations, out of 36 targets, who were selling alcohol to underage customers.

The article states that when alcohol is sold to an underage person, the penalty falls on the individual person selling the alcohol rather than the store. A person selling alcohol to an underage person is guilty of a Class 1 misdemeanor, which can result in jail time of up to 45 days. If there is no jail time imposed, the person must pay a $250 fine and perform 25 hours of community service, pursuant to G.S. 18B-302.1(a).

Although the individual person selling the alcohol is held liable criminally, the store selling the alcohol to an underage person can be held liable for civil damages in the event that another person is injured in a car accident involving that underage person under the Dram Shop Act. G.S. 18B-121 states that

An aggrieved party has a claim for relief for damages against a permittee or local Alcoholic Beverage Control Board if:

(1)    The permittee or his agent or employee or the local board or its agent or employee negligently sold or furnished an alcoholic beverage to an underage person; and

(2)    The consumption of the alcoholic beverage that was sold or furnished to an underage person caused or contributed to, in whole or in part, an underage driver's being subject to an impairing substance within the meaning of G.S. 20-138.1 at the time of the injury; and

(3)    The injury that resulted was proximately caused by the underage driver's negligent operation of a vehicle while so impaired.

An “aggrieved party” is “a person who sustains an injury as a consequence of the actions of the underage person, but does not include the underage person or a person who aided or abetted in the sale or furnishing to the underage person.” (G.S. 18B-120(1)) An “injury” includes but is not limited to “personal injury, property loss, loss of means of support, or death. Damages for death shall be determined under the provisions of G.S. 28A-18-2(b). Nothing in G.S. 28A-18-2(a) or subdivision (1) of this section shall be interpreted to preclude recovery under this Article for loss of support or death on account of injury to or death of the underage person or a person who aided or abetted in the sale or furnishing to the underage person.” (G.S. 18B-120(2)) G.S. 18B-123 limits “[t]he total amount of damages that may be awarded to all aggrieved parties” to $500,000 per occurrence. And G.S. 18B-126 sets the statute of limitations at one year.

North Carolina courts have made clear that because the underage person is excluded from the definition of an aggrieved party, the personal representative of the underage person may not bring a claim for damages in the event of the death of the underage person. (Clark v. Inn West NC SCt. 1989) The Court reasoned that because G.S. 18B-120(1) excepts the “underage person” from the definition of aggrieved party, “had decedent lived, he could not have recovered for his injuries.” “The wrongful death statute provides for survivorship only of claims that could have been brought by the decedent had he lived.” The Court held that “[t]herefore, no claim survives his death, and his personal representative may not maintain an action under the Dram Shop Act.”

However, the court of appeals has held that the parents of an underage person can be included in the definition of an aggrieved party. (Storch v. Winn-Dixie Charlotte, Inc. 2002) The court of appeals reasoned that the definition for “injury” in G.S. 18B-120(2) specifically states that “[d]amages for death shall be determined under the provisions of G.S 28A-18-2(b).” “As applicable to the parent of the underage person, ‘injury’ would include funeral expenses of the underage person, G.S. § 28A-18-2(b)(3), as well as damages for loss of services, G.S. § 28A-18-2(b)(4)b, society, companionship, etc., G.S. § 28A-18-2(b)(4)c, and loss of support.” The court noted that this claim by the parents of an underaged decedent under the Dram Shop Act is distinct from the claim of a personal representative under the wrongful death statute.

In 1997, the court of appeals also examined the part of the definition of “aggrieved party” which excepts “a person who aided or abetted in the sale or furnishing to the underage person.” In Estate of Darby by Darby v. Monroe Oil Co., the decedent drove the underage driver to the store to purchase alcohol. The decedent did not contribute money but the other two passengers did. Later, all four occupants of the car died when the car ran off the road and crashed into a tree. The court held that the decedent who drove the underage driver to the store to purchase alcohol was not an “aggrieved party” because he “aided and abetted” the underage driver in the purchase of alcohol.

If you have been injured in a car accident, contact an attorney at Rosensteel Fleishman PLLC (704) 714-1450, to discuss your options.

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