Kilpatrick v. University Mall Shopping Center , 68 N.C. App. 629 ( 1984 )

315 S.E.2d 786 (1984)

William Guthrie KILPATRICK, III and Shirley Siler Kilpatrick, Individually and as Guardian Ad Litem for John Christopher Kilpatrick, A Minor Child
v.
UNIVERSITY MALL SHOPPING CENTER, A Partnership, North Hills, Inc., A General Partner, North Hills Properties, Inc., A General Partner, Provident Life and Accident Company, A General Partner; and University Mall Merchants Association, A Corporation, and Anheuser-Busch, Inc., A Corporation and Harris, Inc., A Corporation.
Daniel G. BADGETT and Barbara Tuck Badgett, Individually and Daniel G. Badgett, as Guardian Ad Litem for Lance Jeffrey Badgett, A Minor Child
v.
UNIVERSITY MALL SHOPPING CENTER, A Partnership, North Hills, Inc., A General Partner, North Hills Properties, Inc., A General Partner, Provident Life and Accident Company, A General Partner; and University Mall Merchants Association, A Corporation and Anheuser-Busch, Inc., A Corporation, and Harris, Inc., A Corporation.

No. 8315SC509.

Court of Appeals of North Carolina.

June 5, 1984.

Newsom, Graham, Hedrick, Bryson, Kennon & Faison by William P. Daniell and Samuel Roberti, Durham, for plaintiffs Badgett, et al.

Winston, Blue & Rooks by J. William Blue, Jr., Chapel Hill, for plaintiffs Kilpatrick, et al.

Glen & Bentley by Robert B. Glenn, Jr., Durham, for defendant Anheuser-Busch, Inc.

Teague, Campbell, Conely & Dennis by C. Woodrow Teague and George W. Dennis, III, Raleigh, for defendant Harris, Inc.

EAGLES, Judge.

I.

Defendants Anheuser-Busch and Harris, Inc. (Harris) assign as error the trial court's denial of their motions for directed verdict and judgment notwithstanding the verdict. These motions test the legal sufficiency of the evidence to take the case to the jury and support a verdict for the nonmoving party. On defendant's motion for a directed verdict, all the evidence must be considered in the light most favorable to plaintiff. Here, defendants were only entitled to directed verdicts or judgments notwithstanding the verdict if plaintiffs failed as a matter of law to establish the elements of actionable negligence or if the evidence showed contributory negligence as a matter of law. See Everhart v. LeBrun, 52 N.C. 139, 277 S.E.2d 816 (1981).

In order to establish negligence, plaintiffs must first show the existence of a legal duty owed by defendant to plaintiffs to use due care and then show a breach of that duty. Meyer v. McCarley & Co., Inc., 288 N.C. 62, 215 S.E.2d 583 (1975). However, no liability attaches unless the negligence charged was the proximate cause of the injury, rather than a remote cause or one merely causing a condition providing an opportunity for other causal agencies to act. Corprew v. Geigy Chemical Corp., 271 N.C. 485, 157 S.E.2d 98 (1967).

Here, plaintiffs alleged that defendants had a duty to provide to the spectators a safe place to observe the performance and that defendants were negligent in failing to adequately control the shopping center parking lot. Defendants Anheuser-Busch and Harris contend, and we agree, that the record is devoid of evidence to show that Anheuser-Busch and/or Harris owed any duty to the spectators to control the parking lot of the shopping center. Indeed, there was no evidence to show that either Anheuser-Busch or Harris had the authority or power to control the parking lot. All the evidence tends to show that Anheuser-Busch and Harris's duties were limited to meeting with the representatives of the mall to pick out a site for the exhibition that would be adequate in size for the performance, arranging for lodging for the crew and stabling for the horses, and controlling the Clydesdales during the exhibition so as to prevent injury to the spectators by the horses. There was no evidence of any breach of these duties. Because there was no evidence of a breach of duty owed by defendants Anheuser-Busch and Harris to plaintiffs, there was no actionable negligence on the part of these defendants.

II.

Although we hold that plaintiffs here failed as a matter of law to establish the elements of actionable negligence as to defendants Anheuser-Busch and Harris, we now address the "joint enterprise" theory by which plaintiffs seek to impute negligence of other defendants to Harris and Anheuser-Busch.

Under a "joint enterprise" theory, the negligence of one party may be imputed to others when there exists: (1) "a community of interest in the object and purpose of the undertaking" and (2) "an equal right to direct and govern the movements and conduct of each other in respect thereto." James v. Atlantic & East Carolina R.R. Co., 233 N.C. 591, 598, 65 S.E.2d 214, 219 (1951). Under the facts here, we find that the second required element, that of equal right to control, is clearly missing. The James court noted that "the control required is the legal right to exercise control." Id. Plaintiffs brought forth no evidence to show that defendants Anheuser-Busch and/or Harris, Inc. had any right to control the shopping center's parking lot. We therefore hold that any negligence on the part of those whose duty it was to control the parking lot, i.e., the shopping center's agents, may not be imputed to defendants Anheuser-Busch and Harris, Inc.

III.

Because we hold (1) that there was no actionable negligence on the part of defendants Anheuser-Busch and Harris and (2) that any negligence on the part of the shopping center may not be imputed to these defendants, we reverse the judgments and remand for entry of directed verdicts in favor of Anheuser-Busch and Harris.

Because of this disposition of defendants' appeal, it is unnecessary for us to consider plaintiff's assignments of error concerning expert witness testimony and the trial court's reduction of the jury verdict.

Reverse and remand.

WEBB and BECTON, JJ., concur.