Did Bobby Kingston drunkenly stumble out of Ed’s Tavern two years ago? Or was he dragged from the bar and sent sprawling into traffic out on Park Road?
Was Kingston innocently flirting with another guy’s girlfriend that night? Or did he hound the woman for 45 minutes before aggressively pawing her on his way out of the Dilworth bar?
The answers could swing the upcoming second-degree murder trial of Kenan Gay, the former law student accused of Kingston’s death.
Now the same conflicting versions of events will shape a wrongful-death lawsuit filed by Kingston’s parents against Gay and Ed’s Tavern.
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The response to the suit by Gay’s attorneys also offers a glimpse of their strategy when their client’s criminal trial opens in late May.
The complaint filed this month by Robert and Lori Kingston of Columbus, Ohio, largely follows the account used by Charlotte-Mecklenburg Police in charging Gay. The parents accuse Gay of dragging their son from the bar on March 3, 2012, then “forcefully” shoving him into Park Road, where he tumbled into the path of a southbound car.
Shortly after the incident, tavern owner Alan Cole told the Observer that he saw Gay, a former UNC Chapel Hill walk-on football player, grab Kingston by the collar, run him out of the bar, then toss him into the two-lane street, where the 30-year-old Kingston “didn’t even have a chance to get to his feet” before being struck. (Cole could not be reached for comment Tuesday.)
After the collision, Gay ran. He was found about 10 minutes later a few blocks north on Park Road.
Kingston’s parents, through Charlotte attorney Fred Ervin, also want damages from the tavern because its bouncer did not stop the confrontation between Gay and Kingston before it escalated.
Their suit, which requests a jury trial, charges negligence against Gay and Ed’s Tavern, and gross negligence against Gay. The Kingstons have asked for an award of more than $10,000 and what “other and further relief as the Court may deem just and proper.”
Gay’s attorneys, David Rudolf, Chris Fialko and Sonya Pfeiffer, say the allegations in the lawsuit are untrue.
In a prepared statement, they say Kingston was “dangerously intoxicated” that night with a blood-alcohol level almost four times the legal limit. While the Kingstons say their son innocently put his arms around Gay’s girlfriend, Liz Wicker, and kissed her on the cheek, Gay’s attorneys say the tavern’s surveillance video shows Kingston “repeatedly” harassing Wicker.
After being rebuffed each time, they say Kingston used both hands to grab Wicker’s rear end and “forcibly tried to kiss her.” Gay, they contend, stepped in and pushed the 30-year-old Kingston out the front door to protect his girlfriend.
“What happened thereafter was a terrible accident,” the lawyers say. “...But the truth is that if Robert Kingston had not been intoxicated as he was, none of this would have happened, and he never would have stumbled and fallen in the street.”
Both men were drinking on March 3, the night of a UNC-Duke basketball game. And both were of good size. Records indicate that Gay was 6-foot-1 and 190 pounds at the time of his arrest. Kingston is described by Gay’s attorneys as 6-foot-2 and 220 pounds.
They also say Kingston’s blood-alcohol level was 0.29. Prosecutors in Gay’s second-degree murder case have not released his level from that night. Rudolf said Tuesday that as far as he knows his client was never tested. The lawsuit claims Gay “consumed a substantial quantity of alcohol” at the Tavern. Rudolf says he “had a few beers.”
Gay’s criminal case will be tried by assistant district attorneys Jay Ashendorf and Anna Greene. A spokeswoman with their office said prosecutors cannot comment on pending cases. Jury selection is expected to begin May 27.
Kingston, described by friends as fun-loving and generous, was a former accounts manager for the Charlotte Bobcats, which honored him with a moment of silence during a game shortly after his death. Citing the upcoming criminal case, Ervin, the family’s attorney, declined comment Tuesday.
Gay, 25, the son of a prominent family in Sanford, has since graduated from Charlotte School of Law and married Wicker, according to Fialko. The couple live in Charlotte.
Gay cannot take the bar exam until the criminal charges against him are resolved. If convicted, Gay faces a sentence ranging from probation to 20 years in prison. Staff Writer Elizabeth Leland contributed.