Blackmon v. Tri-Arc Food Sys., Inc., COA15–721.

Citation246 N.C.App. 38,782 S.E.2d 741
Decision Date01 March 2016
Docket NumberNo. COA15–721.,COA15–721.
Parties Daniel Gerald BLACKMON, Plaintiff, v. TRI–ARC FOOD SYSTEMS, INC., d/b/a Bojangles, Defendant.
CourtCourt of Appeal of North Carolina (US)

Patterson Dilthey, LLP, Raleigh, by Ronald C. Dilthey ; and Lucas Denning & Ellerbe, P.A., Selma, by Robert V. Lucas and Sarah E. Ellerbe, for plaintiff-appellant.

Goldberg Segalla LLP, Greensboro, by Leigh R. Trigilio and John I. Malone, Jr., for defendant-appellee.


Daniel Blackmon (plaintiff) appeals from an order granting summary judgment in favor of Tri–Arc Food Systems, Inc., d/b/a Bojangles (defendant) on plaintiff's claim for damages based on defendant's negligence in designing and maintaining its parking lot. On appeal plaintiff argues that the trial court erred by entering summary judgment, on the grounds that there were genuine issues of material fact regarding defendant's negligence. We disagree.

I. Background

The essential facts are not disputed and may be summarized as follows: In December 2008, plaintiff was thirty-seven years old and was employed as a third shift employee at Talecris Plasma Resources, located on Highway 70 in Clayton. After completing his shift on 26 December 2008, plaintiff drove to the Bojangles restaurant located at the intersection of Highway 70 and Shotwell Road, arriving just before 8:00 a.m.

Bojangles is a fast food restaurant offering both drive-through and interior food service. Bojangles has a parking lot with marked parking spaces for the use of its customers. Plaintiff, however, chose not to park in a marked space in the parking lot. Instead, plaintiff parked his truck in front of the restaurant along the curb of the main driveway through Bojangles, an area with two-way traffic going east and west. This was an unmarked stretch of roadway that had neither marked parking spaces nor signs prohibiting parking. Plaintiff testified that he parked in this area because he was driving a crew cab truck approximately twenty-two feet long, and his truck would not fit into the marked parking spaces in the Bojangles parking lot, the longest of which was nineteen feet long. In addition, he wanted to be able to observe his truck while he ate. Plaintiff testified that he had chosen to park along the roadway in front of Bojangles on hundreds of prior occasions. The record evidence indicates that defendant's manager and employees were aware that customers sometimes parked along the front driveway. No evidence was introduced to suggest that it was a violation of local ordinance or state law for plaintiff to park along the road in front of Bojangles. Approximately two years earlier, in 2006, another vehicle parked in front of Bojangles was struck from behind, causing damage to a trailer being towed by the truck. No evidence was presented regarding any other accidents along the road in front of Bojangles.

When plaintiff came out of the restaurant on 26 December 2008, he saw that his rear tail light was damaged, and noticed that another truck parked in defendant's parking lot had corresponding damage to its side mirror. Plaintiff secured the assistance of Officer Cook of the Clayton Police Department, who was eating in Bojangles. Officer Cook directed plaintiff to stand behind plaintiff's truck while Officer Cook took down information from plaintiff's driver's license and truck registration. While plaintiff and Officer Cook stood behind the truck, Ms. Patricia Jones drove her SUV into defendant's parking lot and turned right, heading east along the roadway area where plaintiff had parked his truck. The SUV operated by Ms. Jones struck the back of plaintiff's pickup truck, pinning him between the two vehicles. Ms. Jones testified that when she entered defendant's parking lot and turned right, her attention was diverted by the presence of several police cars in the parking lot to her left and Ms. Jones turned her head to the left. When Ms. Jones returned her attention to the roadway, she was "blinded" because the sun was in her eyes and, as she reached for the overhead visor, her vehicle struck Officer Cook and plaintiff. Ms. Jones did not recall slowing down or applying her brakes before the accident. Ms. Jones was charged with careless and reckless driving, and in February 2009, Ms. Jones pleaded guilty to careless and reckless driving.

As a result of the accident, Plaintiff sustained severe injuries requiring three months of hospitalization, including amputation of his right leg, loss of sight in his left eye, and left leg and pelvis fractures

. On 16 February 2011, plaintiff filed suit against defendant. Prior to trial, Judge Thomas H. Lock denied defendant's motion for summary judgment. Plaintiff's claim came on for trial at the 10 June 2013 Civil Session of Johnston County Superior Court. During trial, the trial court excluded plaintiff's proffered expert testimony that the accident would not have occurred if certain safety features, such as speed bumps, had been in place in defendant's parking lot. After the court made this ruling, plaintiff took a voluntary dismissal without prejudice, pursuant to N.C. Gen.Stat. § 1A–1, Rule 41. Plaintiff refiled his claim on 6 September 2013. Plaintiff's complaint alleged that defendant had negligently failed to maintain the parking lot area in a reasonably safe manner. Defendant filed an answer on 6 November 2013, denying the material allegations of plaintiff's complaint and raising various defenses, including plaintiff's contributory negligence and Ms. Jones's intervening and superseding negligence. Defendant moved for summary judgment on 18 December 2014. 24) On 9 February 2015, the trial court entered an order granting defendant's motion and dismissing plaintiff's action with prejudice. Plaintiff appealed.

II. Summary Judgment Standard of Review

The standard of review of a trial court's ruling on a motion for summary judgment is well-established:

Under N.C. Gen.Stat. § 1A–1, Rule 56(a), summary judgment is properly entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." "In a motion for summary judgment, the evidence presented to the trial court must be admissible at trial, N.C.G.S. § 1A–1, Rule 56(e) (2003), and must be viewed in a light most favorable to the non-moving party." "We review a trial court's order granting or denying summary judgment de novo. Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal."

Patmore v. Town of Chapel Hill, N.C., 233 N.C.App. 133, 136, 757 S.E.2d 302, 304 (quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 467, 597 S.E.2d 674, 692 (2004) (internal citation omitted), and Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (internal quotation omitted)), disc. review denied, 367 N.C. 519, 758 S.E.2d 874 (2014).

The party moving for summary judgment bears the burden of establishing that there is no triable issue of material fact. This burden may be met "by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim."

DeWitt v. Eveready Battery Co., 355 N.C. 672, 681–82, 565 S.E.2d 140, 146 (2002) (quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989) ) (other citation omitted).

" [O]nce the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.’ " Pacheco v. Rogers & Breece, Inc., 157 N.C.App. 445, 448, 579 S.E.2d 505, 507 (2003) (quoting Gaunt v. Pittaway, 139 N.C.App. 778, 784–85, 534 S.E.2d 660, 664 (2000), cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001) ).

III. Discussion

Plaintiff argues that the trial court erred by granting summary judgment for defendant on plaintiff's claim for negligence. After careful review of the record, we conclude that plaintiff failed to produce evidence showing that he could make at least a prima facie case of negligence, and that the trial court did not err by dismissing his claim.

"To state a claim for common law negligence, a plaintiff must allege: (1) a legal duty; (2) a breach thereof; and (3) injury proximately caused by the breach." Stein v. Asheville City Bd. of Educ., 360 N.C. 321, 328, 626 S.E.2d 263, 267 (2006). "[S]ummary judgment is rarely an appropriate remedy in cases of negligence or contributory negligence. However, summary judgment is appropriate in a cause of action for negligence where ‘the forecast of evidence fails to show negligence on defendant's part, or establishes plaintiff's contributory negligence as a matter of law.’ " Frankenmuth Ins. v. City of Hickory, –––N.C.App. ––––, ––––, 760 S.E.2d 98, 101 (2014) (quoting Stansfield v. Mahowsky, 46 N.C.App. 829, 830, 266 S.E.2d 28, 29 (1980) ). " [A] [p]laintiff is required to offer legal evidence tending to establish beyond mere speculation or conjecture every essential element of negligence, and upon failure to do so, [summary judgment] is proper.’ " Id. (quoting Young v. Fun Services–Carolina, Inc., 122 N.C.App. 157, 162, 468 S.E.2d 260, 263 (1996) ).

In order to prove a defendant's negligence in a premises liability case, the plaintiff must first show that the defendant either "(1) negligently created the condition causing the injury, or (2) negligently failed to correct the condition after actual or constructive notice of its existence." "The ultimate issue which must be decided in evaluating the merits of a premises liability claim[, however,] is ...

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