Trang v. L J Wings ( 2019 )

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
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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.
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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
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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.
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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
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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
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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.”
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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
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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.
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