Jenkins v. Stewart & Everett Theatres, Inc. , 41 N.C. App. 262 ( 1979 )

254 S.E.2d 776 (1979)

Shirley R. JENKINS
v.
STEWART & EVERETT THEATRES, INC.

No. 788SC610.

Court of Appeals of North Carolina.

May 15, 1979.

Hulse & Hulse by H. Bruce Hulse, Jr., Goldsboro, for plaintiff-appellant.

Taylor, Warren, Kerr & Walker by Gordon C. Woodruff, Goldsboro, for defendant-appellee.

MITCHELL, Judge.

The plaintiff assigns as error the judgment of the trial court granting summary judgment for the defendant. If the pleadings, deposition and affidavit in the present case showed that there was no genuine issue as to any material fact and that the defendant was entitled to judgment as a matter of law, the trial court did not err in granting summary judgment in favor of the defendant. See G.S. 1A-1, Rule 56(c). In order to bear its burden of showing that it was entitled to summary judgment, the defendant was required to present a forecast of the evidence which would be available at trial and which showed that there was no material issue of fact concerning an essential element of the plaintiff's claim and that such element could not be proved by the plaintiff through the presentation of substantial evidence. See Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979); Bank v. Evans, 296 N.C. 374, 250 S.E.2d 231 (1979).

There are four essential elements of a claim for relief based on negligence: (1) one of the parties must have been under a duty to conform to a certain standard of conduct, (2) there must have been a breach of that duty, (3) there must have been an injury, and (4) the injury must have been proximately caused by the breach. See W. Prosser, Torts § 30 (4th ed. 1971). The forecast of evidence presented by the defendant in the present case clearly failed to indicate that the plaintiff would not be able to prove at trial that the defendant was under a duty to conform to a certain standard of conduct or that the plaintiff was injured. Therefore, we turn to an examination of the defendant's forecast of evidence to determine whether it revealed that the plaintiff would be unable to prove that the defendant breached its duty and thereby proximately caused the plaintiff's injury.

The plaintiff alleged that she was the defendant's business invitee, and the defendant's forecast of evidence did not indicate that she would be unable to prove that allegation. The defendant owed a duty to its business invitees to conform to a certain standard of care. That standard required the defendant to exercise ordinary care in keeping its premises in a reasonably safe condition and to warn its invitees of any hidden perils or unsafe conditions that it knew or should have known existed on the premises. Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979); Dawson v. Light Co., 265 N.C. 691, 144 S.E.2d 831 (1965); Stoltz v. Hospital Authority, Inc., 38 N.C.App. 103, 247 S.E.2d 280 (1978). Although the standard of care to which the defendant must conform is established as a matter of law,

[T]he degree—that is the quantity—of care necessary to measure up to the standard is as variable as the attendant circumstances.. . . Hence the quantity of care required to meet the standard must be determined by the circumstances in which plaintiff and defendant were placed with respect to each other. And whether defendant exercised or failed to exercise ordinary care as understood and defined in our law of negligence is to be judged by the jury in the light of the attendant facts and circumstances.

In short, the standard of care is a part of the law of the case for the court to explain and apply. The degree of care required, under the particular circumstances, to measure up to the standard is for the jury to decide.

Rea v. Simowitz, 225 N.C. 575, 579-80, 35 S.E.2d 871, 874-75 (1945) (citations omitted).

The plaintiff alleged that the defendant breached its duty of care by failing to adequately clean the theater thereby creating an unsafe condition which proximately caused her injury. The defendant attempted to overcome that allegation and the plaintiff's forecast of evidence by a forecast of evidence showing that it cleaned its theater at least once a day and had cleaned the theater on the evening prior to the defendant's injury. However, we cannot say as a matter of law that the defendant's forecast of evidence was sufficient to reveal that it exercised a degree or quantity of care under the circumstances of this case such as would conform to the required standard of care. That determination can be made only by the jury. Although the defendant's forecast of evidence tended to establish that its cleaning procedures met or exceeded standard customs and practice, "negligence may exist notwithstanding [the fact that] the means and methods adopted are in accordance with those customary in the business." Watts v. Manufacturing Co., 256 N.C. 611, 616, 124 S.E.2d 809, 813 (1962). Therefore, the defendant's forecast of evidence did not show that the plaintiff would be unable to prove that the defendant breached its duty of care or that the breach proximately caused the plaintiff's injury. Since the defendant's forecast of evidence does not show that it is entitled to judgment as a matter of law, the judgment of the trial court was erroneous.

The plaintiff additionally asserted that the defendant was negligent in selling confections to its customers without maintaining trash containers and thereby caused its customers to throw and spill foreign substances on the theater floor creating a hazardous condition. That allegation was not specifically denied by the defendant. Our disposition of this case on appeal, however, makes it unnecessary for us to consider whether such an allegation by the plaintiff constitutes an allegation of negligent acts of commission imposing any higher or different standard upon the defendant than that previously discussed.

For errors previously discussed herein, the judgment of the trial court must be and is hereby

Reversed.

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