515 S.E.2d 57 (N.C. Ct. App. 1999)
PROCEDURAL HISTORY: Plaintiff estate administrator and defendant driver appealed a judgment from Wake County Superior Court (North Carolina), which, inter alia, entered summary judgment on the issues of defendant driver's negligence and on decedent's contributory negligence.
-Defendant was drinking early on afternoon of accident when he dropped off Ms. Musso at her place of employment (Domino's Pizza).
-Musso knew that D was drinking when he stopped at Domino's and he stated that he planned on drinking later during an engagement party.
-Musso's boss, Hansma, begged Musso to not ride with D and she offered to pick up Musso at party, no matter how late she stayed.
-D picked up Musso, had a 12 pack of beer. The only alcohol he drank that night was consumed in Musso's presence.
-D's blood alcohol content at time of accident was .184 higher than legal limit, according to physician.
-Officer who arrived at scene said that it was obvious that D was under influence of alcohol.
- The court reversed the action of the trial court and found that no issues of material fact existed as to whether defendant, the driver of the automobile at issue, was grossly negligent and whether plaintiff's decedent was grossly contributorily negligent.
-In all other respects, the court affirmed the trial court's order in plaintiff estate administrator's wrongful death action.
-The court found that the trial court properly entered summary judgment on the issues of defendant's negligence and plaintiff's decedent's contributory negligence.
-The court also found that to the extent that the evidence established willful and wanton negligence on the part of defendant, it also established a similarly high degree of contributory negligence on the part of decedent.
-Accordingly, the court held as a matter of law that under the facts of this case, the actions of decedent rose to the same level of negligence as that of the driver. Plaintiff's claim for wrongful death was thus barred.
CONCLUSION: The court reversed the trial court's action, finding that no issues of material fact existed as to whether defendant driver was grossly negligent and whether decedent was grossly contributorily negligent. In all other respects, the order of the trial court was affirmed.
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