Husketh v. Convenient Systems, Inc.

• Decision Date: 14 July 1978
• Docket Number: No. 88,88
• Citation: 245 S.E.2d 507,295 N.C. 459
• Court: North Carolina Supreme Court
• Parties: Lenora HUSKETH, Plaintiff, v. CONVENIENT SYSTEMS, INC., d/b/a Mayberry Ice Cream Shoppe, Defendant and Third-Party Plaintiff, v. FOODCRAFT EQUIPMENT COMPANY, INC., Third-Party Defendant and Fourth-Party Plaintiff, v. L & B PRODUCTS CORPORATION, Fourth-Party Defendant.

Page 507

245 S.E.2d 507

295 N.C. 459

Lenora HUSKETH, Plaintiff, v. CONVENIENT SYSTEMS, INC., d/b/a Mayberry Ice Cream Shoppe, Defendant and Third-Party Plaintiff, v. FOODCRAFT EQUIPMENT COMPANY, INC., Third-Party Defendant and Fourth-Party Plaintiff, v. L & B PRODUCTS CORPORATION, Fourth-Party Defendant.

No. 88.

Supreme Court of North Carolina.

July 14, 1978.

Powe, Porter, Alphin & Whichard, P. A., by Willis P. Whichard and Charles R. Holton, Durham, for plaintiff-appellant.

Haywood, Denny & Miller, by George W. Miller, Jr., Durham, for defendant-appellee.

COPELAND, Justice.

The principal issue raised on this appeal is the propriety of the trial court's grant of a directed verdict against the plaintiff. For the reasons set out below, we have determined that this was error; therefore, the decision of the Court of Appeals must be reversed.

It is elementary that, in considering a defendant's motion for a directed verdict, the court must view the evidence in the light most favorable to the plaintiff, resolving all conflicts in his favor and giving the plaintiff the benefit of every inference that reasonably can be drawn in his favor. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973). Such a motion may be granted only if the evidence is insufficient, as a matter of law, to support a verdict for the plaintiff. Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974).

Plaintiff's evidence here tends to show the following:

On 2 September 1971, plaintiff and a friend entered the Mayberry Ice Cream Parlor in Durham to have lunch. The parlor was crowded at that time and, after waiting for a booth to become vacant, the pair elected to sit at the counter. As plaintiff seated herself on a bar stool at the counter, the rotating top of the stool "went backwards" and flipped her onto the floor, where she landed on her back and buttocks. Plaintiff had observed nothing unusual about the stool before she sat on it and had seen another person sitting on it just prior to this incident. Following her fall, however, plaintiff noted that the top of the seat from which she had fallen was hanging at an angle on the pedestal.

Plaintiff, after being helped to her feet, moved to another seat at the counter and finished her lunch. Before leaving, she spoke with the store manager, who asked her to see a doctor and send the bill to the parlor.

The ice cream parlor where this accident occurred had opened in May of 1971. In midsummer of that year, the store manager had discovered during a routine cleaning that two stools at the counter were loose and had removed their tops immediately in order to prevent an accident. Workmen repaired these two shortly thereafter and inspected the remaining stools for defects. Other than weekly cleanings, the stools were not inspected between the date of these repairs and the accident.

Although he is not an insurer, it is the legal duty of the proprietor of a restaurant 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. Sledge v. Wagoner, 248 N.C. 631, 104 S.E.2d 195 (1958). Moreover, invitees must be warned of any hidden dangers or unsafe conditions which have been or can be discovered by the proprietor in the course of reasonable inspection and supervision. Long v. National Food Stores, Inc., 262 N.C. 57, 136 S.E.2d 275 (1964).

Seating provided for use by customers of business establishments does not ordinarily collapse in the absence of negligent construction, maintenance or inspection. Scheuler v. Good Friend North Carolina Corporation,231 N.C. 416, 57 S.E.2d 324, 21 A.L.R.2d 417 (1950); Rose v. Melody Lane of Wilshire, 39 Cal.2d 481, 247 P.2d 335 (1952); See also, Byrd, Proof of Negligence in North Carolina, Part I. Res Ipsa Loquitur, 48 N.C.L.Rev. 452, 459 (1970). In addition, a business proprietor retains exclusive control of such seating while it is being used by patrons for the purpose for which it was intended. Schueler v. Good Friend North Carolina Corporation, supra ; Gow v. Multnomah Hotel, Inc., 191 Or. 45, 224 P.2d 552 (1950). Having established these factors, plaintiff made out a sufficient case for the jury on the issue of defendant's negligence under the doctrine of res ipsa loquitur. O'Quinn v. Southard, 269 N.C. 385, 152 S.E.2d 538 (1967).

The Court of Appeals held res ipsa to be inapplicable to the facts of the instant case, citing Smith v. McClung, 201 N.C. 648, 161 S.E. 91 (1931), and Springs v. Doll, 197 N.C. 240, 148 S.E. 251 (1929). This finding was grounded on the conclusion by the Court of Appeals that the...