Jones v. Lake Hickory RV Resort, Inc.

• Decision Date: 17 February 2004
• Docket Number: No. COA02-1114.,COA02-1114.
• Citation: 162 NC App. 618,592 S.E.2d 284
• Parties: Jacquelyne JONES, Plaintiff, v. LAKE HICKORY R.V. RESORT, INCORPORATED, Defendant.
• Court: North Carolina Court of Appeals

592 S.E.2d 284

162 NC App. 618

Jacquelyne JONES, Plaintiff, v. LAKE HICKORY R.V. RESORT, INCORPORATED, Defendant.

No. COA02-1114.

Court of Appeals of North Carolina.

February 17, 2004.

Pipkin, Knott, Clark, & Berger, L.L.P., by Bruce W. Berger and Michael W. Clark, Raleigh, for plaintiff-appellee.

Golding, Holden, Cosper, Pope & Baker, L.L.P., by John G. Golding, Charlotte, for defendant-appellant.

GEER, Judge.

A jury awarded $600,000.00 to plaintiff Jacquelyne Jones for serious burns sustained during an annual Fourth of July parade at defendant's Lake Hickory R.V. Resort when she was set aflame by a 12-year-old boy dressed up as the Statute of Liberty, carrying a lit "tiki" torch, and skating on "in-line" roller blades. The parade had been organized by a "Lessee Association" formed of long-term lessees at the campground. Defendant Lake Hickory R.V. Resort, Inc. (the "Resort") argues on appeal primarily that the trial court erred in denying its motions for directed verdict, judgment notwithstanding the verdict, and a new trial because: (1) there did not exist any evidence that the Lessee Association was the agent of the Resort, (2) the Resort had no duty to supervise the parade, and (3) the "tiki" torch accident was not foreseeable. We agree that the Resort had no duty to supervise the parade and that the record contains insufficient evidence of control by the Resort over the Lessee Association's activities to support a finding that the Lessee Association was the Resort's agent. Because, however, the record contains evidence that would permit a jury to find that the Resort's Assistant Manager saw the roller-blading Statute of Liberty and yet took no action to eliminate the foreseeable hazard of the lit "tiki" torch, the trial court properly submitted the question of the Resort's liability to the jury. Since we cannot determine whether the jury based its verdict on its finding that the Lessee Association was the Resort's agent or on the inaction of the Assistant Manager, we must remand for a new trial.

The Resort leased individual lots or campsites at Lake Hickory on both a short-term and a long-term basis. The Resort's rules provided for a Lessee Association that was responsible for planning and conducting social activities for lessees or campers. For a number of years, the Lessee Association had arranged for a Fourth of July parade composed of decorated golf carts with the Lessee Association awarding prizes for the best decorations.

On 4 July 1996, members of the Lessee Association directed the golf cart drivers how and where to line up their golf carts. Plaintiff, who was 14 years old, her mother, and another young girl drove to the assembly area in their decorated cart and waited to join the procession.

Michael Morris, a 12-year-old camper, was dressed as the Statute of Liberty. He wore in-line roller blades and carried a "tiki" torch. His grandmother planned to pull him behind her golf cart with a water skiing rope. After lighting his torch, Michael began skating around the assembly area in order to display his costume for the best-decorated golf cart competition. He testified that at one point he saw Ernie Melton, the Resort's Assistant Manager, watching from in front of his house. No one told Michael to extinguish the torch.

While the golf carts were lining up, Michael skated toward plaintiff's golf cart. He lost control of the torch, causing it to set plaintiff and her clothes on fire. Plaintiff suffered severe burns to her neck, chin, chest, shoulders, and wrists and received lengthy and painful treatment for her burns at Frye Hospital, Baptist Hospital, and Shriner's Burn Hospital.

Plaintiff brought suit against the Resort for negligence. The case was tried at the 25 March 2002 civil session of Catawba County Superior Court with the Honorable W. Robert Bell presiding. After denying the Resort's motions for a directed verdict, the trial court submitted three issues to the jury:

1. Was the Lessee Association the agent of the defendant, Lake Hickory RV Resort, Inc., at the time of the July 4, 1996 accident, wherein the plaintiff, Jacquelyne Jones, was injured?

2. Was the plaintiff injured by the negligence of the defendant?

3. What amount is the plaintiff entitled to recover for personal injury?

The jury answered the first two questions "yes" and awarded plaintiff $600,000.00.

The trial court denied defendant's motions for judgment notwithstanding the verdict or, in the alternative, for a new trial. In addition, over defendant's objection, the court awarded plaintiff costs in the amount of $7,010.87, including reimbursement for the cost of copies of deposition transcripts, expenses for taking depositions, expert witness fees, and the cost of trial exhibits.

Defendant assigns error to the trial court's denial of its motion for a directed verdict and motion for judgment notwithstanding the verdict. Since defendant chose to offer evidence, defendant waived its motion for a directed verdict made at the close of plaintiff's evidence. Edwards v. West, 128 N.C.App. 570, 573, 495 S.E.2d 920, 923, cert. denied, 348 N.C. 282, 501 S.E.2d 918 (1998). The question presented by this appeal is whether the evidence of both plaintiff and defendant, when considered in the light most favorable to the plaintiff, was sufficient to submit the first two issues on the verdict sheet to the jury. Stallings v. Food Lion, Inc., 141 N.C.App. 135, 137, 539 S.E.2d 331, 333 (2000). A trial court should deny a motion for directed verdict and judgment notwithstanding the verdict when it finds more than a scintilla of evidence to support plaintiff's prima facie case. Lee v. Bir, 116 N.C.App. 584, 588, 449 S.E.2d 34, 37 (1994), cert. denied, 340 N.C. 113, 454 S.E.2d 652 (1995).

As an initial matter, plaintiff argues that defendant did not properly preserve its arguments for appellate review because defendant limited its motion for a directed verdict at the close of plaintiff's evidence to the issue of proximate cause. See Lee, 116 N.C.App. at 587, 449 S.E.2d at 37 (because defendant failed to assert certain arguments in connection with his motion for a directed verdict, "defendant has waived his right to appellate review of these issues"). Based on our review of the transcript of the argument on defendant's motion for a directed verdict at the close of plaintiff's evidence, we conclude that defendant did sufficiently raise the arguments that it now asserts on appeal.

Plaintiff contended and the trial court instructed the jury that defendant could be found negligent under two theories: (1) Defendant failed to supervise the parade adequately; or (2) defendant, after having actual notice of Michael Morris' conduct, failed to eliminate the hazard. Defendant argues on appeal that the evidence presented at trial fails to support liability under either theory.

Failure to Supervise the Parade

According to plaintiff, defendant had a duty to ensure that the Fourth of July parade on its property was conducted in a safe manner. Plaintiff relies upon Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977) (operator of recreational facility with swimming area could be held liable for failure to guard against potentially dangerous activities in the lake because water poses inherent danger); Dockery v. World of Mirth Shows, Inc., 264 N.C. 406, 142 S.E.2d 29 (1965) (carnival operator liable for defects in ride operated by independent contractor because the ride was inherently dangerous); Smith v. Cumberland County Agric. Soc'y., 163 N.C. 346, 79 S.E. 632 (1913) (operator of fair liable for failure to protect public from injury during balloon ascension performed by independent contractor).

This Court held in Blevins v. Taylor, 103 N.C.App. 346, 350, 407 S.E.2d 244, 246 (citations omitted; quoting Evans v. Rockingham Homes, Inc., 220 N.C. 253, 259, 17 S.E.2d 125, 128 (1941) and Deitz v. Jackson, 57 N.C.App. 275, 280-81, 291 S.E.2d 282, 286 (1982)), cert. denied, 330 N.C. 193, 412 S.E.2d 678 (1991), that this line of authority

does not recognize the existence of a duty to undertake safety precautions unless and until the activity is "sufficiently dangerous." Differently stated, the duty exists only if "harm will likely result if precautions are not taken" by the person with general oversight over the activities. Despite injury to [a lawful visitor], the landowner does not have a duty to inspect or protect against harm where the injury is caused by "a danger collaterally created" by the negligence of another.

This Court "`may pass upon the intrinsic dangerousness of an activity as a matter of law.'" Id. at 351, 407 S.E.2d at 247 (quoting Deitz, 57 N.C.App. at 280, 291 S.E.2d at 286). In making that determination, the Court must decide whether there is a "`recognizable and substantial danger inherent'" in the activity by considering the known conditions under which the activity was carried out and the time, place, and circumstances of the activity. Id. (quoting Deitz, 57 N.C.App. at 279, 291 S.E.2d at 286). "Intrinsic dangerousness is not `the ordinary dangerousness which accompanies countless activities when they are negligently performed.'" Id. (quoting Deitz, 57 N.C.App. at 281, 291 S.E.2d at 286).

In this case, the activity at issue was a parade of decorated golf carts traveling during the day along the Resort's road that had a speed limit of 5 m.p.h. This activity, standing alone, is not intrinsically dangerous. We cannot say that harm was likely to occur during the parade without oversight by the Resort. See Adamczyk v. Zambelli, 25 Ill.App.2d 121, 125, 166 N.E.2d 93, 96 (1960) ("A parade is of itself not a dangerous instrumentality...."). But see Morbillo v. Board of Educ., 269 A.D.2d 506, 507, 703 N.Y.S.2d 241, 242 (2000) ("Here, the school district furnished and invited the public to approach the moving floats, an activity that may be hazardous if left unsupervised.").

Further, the undisputed evidence established...