Foster v. Winston-Salem Joint Venture

Decision Date17 August 1981
Docket NumberNo. 124,WINSTON-SALEM,124
Citation303 N.C. 636,281 S.E.2d 36
CourtNorth Carolina Supreme Court
PartiesIrene B. FOSTER v.JOINT VENTURE, a general partnership; Jacobs, Visconsi & Jacobs Company; Center Ridge Co.; Belk-Hensdale Company of Fayetteville, N. C., Inc.; Sears, Roebuck and Company; and J. C. Penney Properties, Inc.

Hutchins & Tyndall by Richard D. Ramsey, Winston-Salem, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter and James M. Stanley, Jr., Winston-Salem, for defendants-appellees.

Johnson, Gamble & Shearon by Samuel H. Johnson, Raleigh, amicus curiae for North Carolina Merchants Association.

COPELAND, Justice.

Plaintiff presents two issues for our determination; first, whether plaintiff has a cause of action against defendants in negligence for their alleged failure to provide adequate security in the Hanes Mall parking lot, and second, if it is determined that plaintiff has stated a claim for relief, whether she has presented sufficient evidence in support of her claim to withstand defendants' motion for summary judgment. For the reasons stated below, we affirm that portion of the Court of Appeals' decision which held that plaintiff had stated a proper claim for relief, reverse that portion of the decision which found that plaintiff had failed to present sufficient evidence to withstand defendants' motion for summary judgment, and remand for a trial on the merits.

It is well established that an individual who enters the premises of a store as a customer during business hours holds the status of a business invitee for purposes of establishing the duty owed to the individual by the owner of the premises. Smithson v. W. T. Grant Co., 269 N.C. 575, 153 S.E.2d 68 (1967); Long v. National Food Stores, Inc., 262 N.C. 57, 136 S.E.2d 275 (1964). A parking lot provided by the owner for the use of his invitees is considered part of the premises of the store to which the duty owed by the owner extends. Game v. Charles Stores Company, Inc., 268 N.C. 676, 151 S.E.2d 560 (1966). The general duty imposed upon the owner is not to insure the safety of his customers, but to exercise ordinary care to maintain his premises in such a condition that they may be used safely by his invitees in the manner for which they were designed and intended. Husketh v. Convenient Systems, Inc., 295 N.C. 459, 245 S.E.2d 507 (1978); Wagner v. Delly-Land Delicatessen, Inc., 270 N.C. 62, 153 S.E.2d 804 (1967); Long v. National Food Stores, Inc., supra.

Ordinarily the store owner is not liable for injuries to his invitees which result from the intentional, criminal acts of third persons. It is usually held that such acts can not be reasonably foreseen by the owner, and therefore constitute an independent, intervening cause absolving the owner of liability. Williams v. Mickens, 247 N.C. 262, 100 S.E.2d 511 (1957); Ross v. Atlantic Greyhound Corp., 223 N.C. 239, 25 S.E.2d 852 (1943); Ward v. Southern Railway, 206 N.C. 530, 174 S.E. 443 (1934). Nevertheless, the Court recognized in these cases that where circumstances existed which gave the owner reason to know that there was a likelihood of conduct on the part of third persons which endangered the safety of his invitees, a duty to protect or warn the invitees could be imposed. In Aaser v. City of Charlotte, 265 N.C. 494, 499, 144 S.E.2d 610, 615 (1965), this Court discussed a landowner's general duty to protect his invitees from injury caused by the acts of third persons as follows:

"In the place of amusement or exhibition, just as in the store, when the dangerous condition or activity ... arises from the act of third persons, whether themselves invitees or not, the owner is not liable for injury resulting unless he knew of its existence or it had existed long enough for him to have discovered it by the exercise of due diligence and to have removed or warned against it."

See also Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977).

The Restatement (Second) of Torts, Section 344, sets forth the duty owed by a store owner to protect his invitees from the acts of third persons as follows:

"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it."

Comment f to section 344 further provides:

"Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of the third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection."

Thus, under both the Restatement (Second) of Torts and the prior decisions of this Court, foreseeability is the test in determining the extent of a landowner's duty to safeguard his business invitees from the criminal acts of third persons. See Tyndall v. United States, 295 F.Supp. 448 (E.D.N.C.1969). If an invitee, such as the plaintiff in this case, alleges in a complaint that he or she was on the premises of a store owner, during business hours for the purpose of transacting business thereon, and that while he or she was on the premises injuries were sustained from the criminal acts of a third person, which acts were reasonably foreseeable by the store owner, and which could have been prevented by the exercise of ordinary care, then the plaintiff has set forth a cause of action in negligence which, if proved, would entitle that plaintiff to recover damages from the store owner.

This holding is supported by the decisions of other jurisdictions. Under facts nearly identical to those of the case before us, the court in Morgan v. Bucks Association, 428 F.Supp. 546 (E.D.Pa.1977), followed Section 344 of the Restatement (Second) of Torts and upheld a jury verdict in favor of plaintiff against the defendant shopping center owner where plaintiff presented sufficient evidence to submit to the jury the question of whether defendant knew or had reason to know that assaults on customers might occur in the shopping center parking lot. The Court in O'Brien v. Colonial Village, Inc., 119 Ill.App.2d 105, 255 N.E.2d 205 (1970), likewise acknowledged that a cause of action in negligence could be established under facts similar to those of the case sub judice. In O'Brien the plaintiff's complaint was dismissed for failure to allege that defendants had knowledge of previous incidents or circumstances which would indicate their awareness of any danger of criminal activity occurring in the shopping mall parking lot. The court noted that had plaintiff amended her complaint to allege such awareness on the part of defendants, the court would have been compelled to deny defendants' motion to dismiss. Accord Kenny v. Southeastern Pennsylvania Transportation Authority, 581 F.2d 351 (3d Cir. 1978); Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114, 416 P.2d 793, 52 Cal.Rptr. 561 (1966); Atamian v. Supermarkets General Corp., 146 N.J.Super. 149, 369 A.2d 38 (1976). But see Cornpropst v. Sloan, Tenn., 528 S.W.2d 188 (1975). We find the holdings of the courts in Morgan and O'Brien well reasoned and in compliance with the general established principles of tort liability for negligence.

Plaintiff in the present action alleged in her complaint that at the time she was assaulted in defendants' parking lot, she was present on the premises during business hours for the purpose of shopping at the mall owned by defendants. She further stated that had defendants taken adequate precautions to provide for the safety of their customers, she would not have sustained the injuries complained of. She thus contends that defendants breached their duty to adequately patrol and provide security for the mall parking lot, and that the breach of this duty was the proximate cause of her injuries. In support of her claim that defendants had a duty to provide security measures to protect their customers in the parking lot, plaintiff contends that in the year preceding the assault upon her, at least twenty-nine incidents of crime were reported as having taken place in the mall parking lot. These incidents, she maintains, were sufficient to charge defendants with the knowledge that the parking lot was unreasonably dangerous to the customers who used it. We find these allegations sufficient to state a cause of action against defendants in negligence.

In addition, we hold that plaintiff presented sufficient evidence in support of her claims to withstand defendants' motion for summary judgment. Summary judgment is properly granted only "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." G.S. 1A-1, Rule 56(c); Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). The party moving for summary judgment has the burden of establishing the absence of any...

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