Everhart v. LeBrun , 52 N.C. App. 139 ( 1981 )

277 S.E.2d 816 (1981)

Allen W. EVERHART
v.
Sidney LeBRUN, Trustee for Royal Villa of Greensboro, Inc., Debtor.

No. 8018SC981.

Court of Appeals of North Carolina.

May 19, 1981.

Charles M. Ivey, III, Ivey & Ivey, Greensboro, for plaintiff-appellee.

J. B. Winecoff and Harry Rockwell, Greensboro, for defendant-appellant.

WHICHARD, Judge.

Defendant first assigns error to the trial court's denial of his motions for directed verdict and for judgment notwithstanding the verdict. It contends evidence of its negligence was insufficient to go to the jury or, in the alternative, that the evidence established contributory negligence as a matter of law.

Motions for directed verdict pursuant to G.S. § 1A-1, Rule 50(a) and for judgment notwithstanding the verdict under G.S. § 1A-1, Rule 50(b) test the legal sufficiency of the evidence to take the case to the jury and support a verdict for the party opposing the motion. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977). On defendant's motion for a directed verdict, plaintiff's evidence must be taken as true; and all the evidence must be considered in the light most favorable to plaintiff, giving him the benefit of every reasonable inference. Hunt v. Montgomery Ward and Co., 49 N.C.App. 638, 272 S.E.2d 357 (1980). A directed verdict is not properly allowed "unless it appears, as a matter of law, that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish." Graham v. Gas Co., 231 N.C. 680, 683, 58 S.E.2d 757, 760 (1950). Under these principles defendant is not entitled to a directed verdict or to judgment notwithstanding the verdict unless plaintiff has failed as a matter of law to establish the elements of actionable negligence or unless the evidence, viewed in the light most favorable to plaintiff, shows contributory negligence as a matter of law.

Plaintiff introduced evidence tending to show the following: On 2 February 1978 approximately 1.5 inches of snow fell in the Greensboro area. On 5 February 1978, after two days of freezing weather with no precipitation, there were further traces of snow. During the evening approximately two hundredths of an inch of snow fell. On that evening plaintiff, a guest of defendant motel, attended a dance there sponsored by a cosmetology convention. When plaintiff arrived he noticed snow and ice all over the motel parking lot. Although he parked on the northeast side of the motel, he determined that the better way to enter was through the east entrance. Shortly after midnight plaintiff left the motel through the north exit with one of his employees. They had to walk carefully because of the ice and snow at the entrance. Plaintiff then had to return to the motel to get the key to a car owned by another employee. On his second trip out the north exit he stepped in an icy hole which was covered with snow, and he tripped and fell. Plaintiff testified there was no evidence that defendant had taken steps to remove any of the accumulated ice and snow. As a result of his fall plaintiff suffered a fractured wrist necessitating his wearing a cast for six and a half weeks. The wrist is now permanently deformed.

Viewing this evidence in the light most favorable to plaintiff, we find it sufficient to require jury determination of whether defendant failed to maintain its premises in a reasonably safe condition and, if so, whether this failure was the proximate cause of plaintiff's injuries. Thus, the court properly denied defendant's motions insofar as they related to the issue of its negligence.

Defendant's second contention in support of these motions is that plaintiff's failure to use a safer alternative route was contributory negligence as a matter of law. "This issue, too, ``necessitates an appraisal of [the] evidence in the light most favorable to [plaintiff].'" Hunt, 49 N.C.App. at 642, 272 S.E.2d at 361. While a plaintiff may be contributorily negligent by pursuing a dangerous route when a less dangerous one is available, when conflicting contentions are both supported by permissible inferences from the evidence the inferences are for the jury, not for the court. Broadway v. King-Hunter, Inc., 236 N.C. 673, 73 S.E.2d 861 (1953). The evidence here on contributory negligence was in conflict. While plaintiff testified that upon arrival he selected the east entrance because it appeared safer at that time, there is no evidence that it was, in fact, safer, then or later. Before his fall plaintiff and one of his employees had used the northeast entrance, the one closer to his automobile, without mishap. Further, there was evidence that snow and ice were scattered throughout defendant's parking areas. Plaintiff testified that he was attempting to select his steps carefully and that the place he stepped off "was the safest place [he] could see." Viewing the evidence in the light most favorable to plaintiff, whether plaintiff acted unreasonably in choosing the north entrance was a question of fact for the jury. Defendant's first assignment of error is overruled.

Defendant next assigns error to the failure of the trial court to recapitulate the evidence to the extent necessary to explain the law arising thereon as required by G.S. § 1A-1, Rule 51(a). After summarizing the evidence the court gave the following instructions concerning the issue of negligence:

As to the first issue: "Was the plaintiff injured and damaged by the negligence of the defendant," on this issue,... the burden of proof is on the plaintiff. This means that the plaintiff must prove by the greater weight of the evidence that he suffered personal injury as a proximate cause of the negligence of the defendant.

Negligence is the lack of ordinary care. It is a failure to do what a reasonably careful and prudent person would have done, or the doing of something which a reasonably careful and prudent person would not have done, considering all the circumstances existing on the occasion in question.

Proximate cause is a real cause, a cause without which the damage or injury would not have occurred. Furthermore, it is a cause that a reasonably prudent person in the exercise of due care would have reasonably foreseen the results of his conduct [sic].

In determining whether a lack of ordinary care existed, you are instructed that a motel operated by and through its employees is required by law to exercise ordinary care to maintain in a reasonably safe condition those portions of its premises which the motel expects to be used by its guests, and to give warning of hidden perils or unsafe conditions insofar as they can be ascertained by reasonable inspection and supervision. A failure to exercise this care is negligence, and if such negligence was the proximate cause or a proximate cause of the injury to the plaintiff, the defendant would be liable.

Now, where unsafe conditions are created by a third party or independent agency, the defendant would not be negligent unless it is shown by the plaintiff by the greater weight of the evidence that such a condition has existed for a length of time that the motel knew, or by the exercise of reasonable care should have known of its existence in time to remove the danger, or give a warning of its presence, if a warning alone would be what a reasonable, careful and prudent person would have done, considering all the circumstances existing on the occasion in question.

A motel is not required to warn of obvious dangers or conditions, nor is a motel required to warn of dangerous conditions about which a guest of the motel has equal or superior knowledge. However, where a motel properly refrains from giving any warning, it can still be found to be negligent if the other actions or inactions of the motel represent a failure to do what was reasonable and prudent, considering all the circumstances existing on the occasion in question.

Under G.S. § 1A-1, Rule 51(a), as interpreted by our appellate courts, the trial court must relate to the jury the specific acts or omissions which, under the pleadings and evidence, could constitute negligence or contributory negligence. See e. g., Griffin v. Watkins, 269 N.C. 650, 153 S.E.2d 356 (1967); Hunt v. Montgomery Ward and Co., 49 N.C.App. 638, 272 S.E.2d 357 (1980). A mere recitation of the law in general terms is not sufficient. Redding v. Woolworth Co., 14 N.C.App. 12, 187 S.E.2d 445 (1972).

The court here failed to specify the acts or omissions of defendant which were supported by the evidence from which the jury could find negligence. "It failed to relate the contentions of negligence supported by the evidence. See N.C.P.I.—Civil 805.55." Hunt, 49 N.C.App. at 645, 272 S.E.2d at 363. It also failed to state the care required of plaintiff and the acts or omissions of plaintiff supported by the evidence from which the jury could find contributory negligence. Finally, it failed to recapitulate the evidence relating to damages so that the jury could apply the law to the facts in its determination of plaintiff's monetary remedy. These failures are inherently prejudicial and entitle defendant to a new trial. Investment Properties v. Norburn, 281 N.C. 191, 188 S.E.2d 342 (1972).

Defendant's remaining assignments of error relate to evidentiary rulings and to portions of the court's instructions to the jury. We have examined the contentions presented in these assignments, and we find no prejudicial error.

New trial.

ROBERT M. MARTIN and BECTON, JJ., concur.