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2011-UP-062 - Roberts v. Elephant Inc.

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Charlotte Roberts, Individually and as Personal Representative of the Estate of Timothy G. Roberts, Appellant,

v.

Elephant, Inc. d/b/a Platinum Plus, Ken Wood Enterprises, Inc., and KWE Group, LLC, Respondents.


Appeal From Greenville County
Edward W. Miller, Circuit Court Judge


Unpublished Opinion No. 2011-UP-062
Submitted January 4, 2011 – Filed February 16, 2011   


AFFIRMED


 

Frank L. Eppes, of Greenville; and Ronald H. Colvin, of Spartanburg, for Appellant.

T. David Rheney and J. Kevin Couch, both of Greenville; and Harry T. Heizer, Jr, of Irmo, for Respondents.

PER CURIAM:  Charlotte Roberts appeals the circuit court's grant of summary judgment in her wrongful death suit against Elephant, Inc., doing business as Platinum Plus (Platinum Plus), for serving alcohol to her son, who was intoxicated at the time of sale and died in a related car crash.[1]  We affirm.[2]

Roberts argues the circuit court erred in granting summary judgment to Platinum Plus.  Under Rule 56(c) of the South Carolina Rules of Civil Procedure, "[s]ummary judgment is appropriate where there is no genuine issue of material fact and it is clear the moving party is entitled to a judgment as a matter of law."  Hancock v. Mid-South Mgmt. Co., Inc.,  381 S.C. 326, 329, 673 S.E.2d 801, 802 (2009).  Here, no material issues of fact exist because Roberts presented undisputed evidence Platinum Plus over-served her son, who was intoxicated and died in a car crash while driving from the club.  Therefore, the only remaining issue is whether Platinum Plus was entitled to judgment as a matter of law.  We hold it was. 

Roberts contends she is not precluded from bringing a first-party negligence per se action against Platinum Plus under Tobias v. Sports Club, Inc., 332 S.C. 90, 504 S.E.2d 318 (1998).  According to Roberts, Platinum Plus psychologically manipulated her son to purchase alcohol, and Tobias does not apply to situations where a patron is unable to resist an establishment's encouragement to buy alcohol.  We disagree.  "Negligence per se is established by showing a statute created a duty to the plaintiff and the defendant breached that duty by violating the statute."  Seals by Causey v. Winburn, 314 S.C. 416, 418, 445 S.E.2d 94, 96 (1994) (emphasis omitted).  South Carolina's alcohol control statutes provide, "A[n] . . . establishment licensed to sell alcoholic liquors or liquor by the drink pursuant to this article may not sell these beverages to persons in an intoxicated condition . . . ."  S.C. Code Ann. § 61-6-2220 (2009).  In Tobias, the South Carolina Supreme Court held, "South Carolina does not recognize a 'first party' cause of action against the tavern owner by an intoxicated adult predicated on an alleged violation" of its alcohol control statutes.  332 S.C. at 91, 504 S.E.2d at 319.  The supreme court specifically rejected this court's reasoning and conclusion that a purpose of the alcohol control statutes "was to protect the intoxicated person from their own incompetence and helplessness" and, therefore, an "intoxicated patron . . . was entitled to bring a negligence suit for a statutory violation."  Id. at 92, 504 S.E.2d at 319.  Accordingly, Tobias precludes Roberts from bringing her first-party negligence per se action against Platinum Plus because Roberts's alleged helplessness did not remove this case from Tobias's reasoning. 

Roberts also argues she has a common law cause of action against Platinum Plus for serving alcohol to her son in a reckless, grossly negligent, willful, and wanton manner.  However, she conceded to the circuit court that the common law precluded causes of action against taverns for serving alcohol to intoxicated patrons, and she cannot now assert that theory on appeal.  See Ex parte McMillan, 319 S.C. 331, 335, 461 S.E.2d 43, 45 (1995) (holding an issue conceded in circuit court cannot be argued on appeal).  Moreover, Roberts's remaining arguments are not properly before this court.  See S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301, 641 S.E.2d 903, 907 (2007) ("'[A]n issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.'") (citation omitted).  Accordingly, Roberts was not entitled to bring an action against Platinum Plus, and Platinum Plus was entitled to summary judgment.

AFFIRMED.

HUFF and LOCKEMY, JJ., and GOOLSBY, A.J., concur.


[1] Roberts brings this suit pursuant to South Carolina's wrongful death statute.  S.C. Code Ann. § 15-51-10 (2005) (providing that a representative of a decedent is entitled to bring a cause of action if a tortfeasor's act or negligence would have entitled the decedent to maintain the action).

[2] We decide this case without oral argument pursuant to Rule 215, SCACR.