Morrison v. Concord Kiwanis Club , 52 N.C. App. 454 ( 1981 )

279 S.E.2d 96 (1981)

Marie MORRISON, As Guardian ad Litem of Barbara Ann Morrison, An Infant, and Archie Morrison
v.
CONCORD KIWANIS CLUB, Phil W. Wilson, and Melanie Westbrook.

No. 8019SC895.

Court of Appeals of North Carolina.

June 16, 1981.

Helms, Mullis & Johnston by W. Donald Carroll, Jr., Charlotte, for plaintiff-appellants.

Homesley, Jones, Gaines & Fields by Edmund L. Gaines and Aimee A. Toth, Statesville, for defendant-appellees.

HEDRICK, Judge.

Plaintiffs first contend that the court erred in allowing defendants' motion for judgment notwithstanding the verdict as to defendant Kiwanis Club. Plaintiffs argue there was substantial evidence presented to support the jury's verdict that defendant Kiwanis Club negligently operated its 1976 camp for handicapped children. We disagree.

A motion for judgment notwithstanding the verdict presents the question of whether the evidence was sufficient to entitle the plaintiff to have a jury pass on it. Hunt v. Montgomery Ward and Co., Inc., 49 N.C.App. 638, 272 S.E.2d 357 (1980). The evidence must be considered in the light most favorable to the party opposing the motion, and the opponent is entitled to the benefit of every reasonable inference which may legitimately be drawn from the evidence, and all conflicts in the evidence are resolved in favor of the opponent. Potts v. Burnette, 301 N.C. 663, 273 S.E.2d 285 (1981).

An unincorporated association like defendant Kiwanis Club can certainly be held liable in tort for its own active negligence if such negligence is the proximate cause of the injury giving rise to damages. If, however, the injured party is proceeding upon the theory of respondeat superior, the unincorporated association could not be held liable in tort for negligence without a jury finding of negligence on the part of an employee of the unincorporated association while acting as such and within the scope of his employment. Johnson v. Lamb, 273 N.C. 701, 161 S.E.2d 131 (1968); Hudson v. Gulf Oil Co., 215 N.C. 422, 2 S.E.2d 26 (1939). See also 78 A.L.R. 365, 53 Am. Jur.2d Master and Servant § 406; 57 C.J.S. Master and Servant § 616.

The jury's verdict that defendant Kiwanis Club's employees, Wilson and Westbrook, were not negligent negates any liability of defendant Kiwanis Club to plaintiffs on the theory of respondeat superior. Thus, the only question remaining is whether the trial court erred in concluding that the evidence was insufficient to support a verdict against defendant Kiwanis Club on the theory that defendant Kiwanis Club's own negligence was a proximate cause of the accident and injury to Barbara Ann Morrison.

Plaintiffs argue that defendant Kiwanis Club was actively negligent in that it failed to comply with the customary standards for operating a camp for handicapped children in North Carolina in 1976, especially in the areas of staff training with respect to recognizing physical limitations of individual campers, obtaining medical information on prospective campers, and registration and intake procedures. Assuming arguendo that the evidence does disclose that defendant Kiwanis Club was negligent in one or more of these areas, we conclude that the evidence does not show that any such negligence on the part of defendant Kiwanis Club was a proximate cause of Barbara's slipping from the seat of the swing onto the floorboard, and any resulting injuries. There is no evidence in this record that the accident would not have occurred if defendant Kiwanis Club had followed the customary standards for operating camps for handicapped children in North Carolina in 1976 as presented by plaintiff's evidence. Therefore, the trial court did not err in entering judgment notwithstanding the verdict for defendant Kiwanis Club.

Plaintiffs also have brought forward several assignments of error based upon exceptions to rulings by the trial court with respect to the admission and exclusion of evidence. We have carefully considered all the excluded evidence and find that such evidence does not tend to show that the conduct of defendant Kiwanis Club was a proximate cause of the accident and resulting injury. Such evidence, therefore, could not have affected the result, and these assignments of error are meritless.

The judgment appealed from is

Affirmed.

ARNOLD and WEBB, JJ., concur.