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Unpublished Opinion No. 2011-UP-062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.