Kearns v. Horsley

• Decision Date: 19 June 2001
• Docket Number: No. COA00-399.,COA00-399.
• Citation: 552 S.E.2d 1,144 NC App. 200
• Court: North Carolina Court of Appeals
• Parties: Judy C. KEARNS, Plaintiff, v. William F. HORSLEY, Donaldson & Black, P.A. f/k/a Donaldson & Horsley, P.A., Defendants.

552 S.E.2d 1

144 NC App. 200

Judy C. KEARNS, Plaintiff, v. William F. HORSLEY, Donaldson & Black, P.A. f/k/a Donaldson & Horsley, P.A., Defendants.

No. COA00-399.

Court of Appeals of North Carolina.

June 19, 2001.

Wyatt Early Harris & Wheeler, by Stanley F. Hammer, High Point, for plaintiff-appellant.

Bell, Davis & Pitt, P.A., by J. Dennis Bailey and Stephen M. Russell, Winston-Salem, for defendant-appellees.

HUNTER, Judge.

Judy C. Kearns ("plaintiff") appeals: (1) the trial court's judgment dismissing her legal malpractice claim against William F. Horsley, Donaldson & Black, P.A. f/k/a Donaldson & Horsley, P.A. (collectively herein, "defendants"), based on the jury's verdict, and (2) the trial court's order denying plaintiff's motions for directed verdict, judgment notwithstanding the verdict, and a new trial. We find no error.

Although plaintiff's claim against defendants emerges out of a prior claim against an entirely different entity (herein, "General Cinemas"), we will expound on the underlying claim's facts only as necessary in addressing the issues raised in the present action. Therefore, at the outset, the facts pertinent to this present appeal are as follows and are undisputed. On 1 June 1992, plaintiff attended the movies, with three colleagues, at a General Cinema in New Jersey. Just after the house lights dimmed, and while the previews began to show, plaintiff got up from her seat to use the restroom. While walking up the aisle, plaintiff tripped and fell, injuring her knee. On 5 May 1993, plaintiff hired defendants to represent her in her personal injury claim against General Cinemas on the basis that she believed she tripped on torn carpeting and General Cinemas was therefore negligent. Because "no action was filed on [plaintiff's] behalf within two years following the accident," plaintiff filed this action against the present defendants for legal malpractice, arguing that defendants had allowed the New Jersey statute of limitations to run on her claim against General Cinemas. Conversely, defendants deny "that her claim was time-barred."

The issues presented were originally tried before a jury "during the October 19, 1998 Civil Session of Superior Court, Guilford County," which trial ended in a mistrial. Thus, we deal solely with the second trial which ended with a jury verdict in defendants' favor rendered 30 April 1999. At that trial, defendants moved for bifurcation of the issues—specifically requesting that plaintiff be required to first prove that her "original claim was valid and would have resulted in a judgment in her favor against [General Cinemas,]" before she would be allowed to present evidence of the defendants' negligence in prosecuting that claim. The trial court granted defendants' motion. The trial court ruled, and so instructed the jury, that New Jersey law applied to plaintiff's personal injury claim of negligence against General Cinemas. However, the trial court denied plaintiff's requests to instruct the jury: (1) "that the plaintiff was not required to prove that a landowner had actual or constructive notice of the tear [in the carpet] if a mode of operation at the theatre created the tear," and (2) that defendants had the burden of proving that plaintiff was not injured by General Cinemas' negligence.

At the close of defendants' case-in-chief, plaintiff moved for a directed verdict, which motion was denied. Then after the jury returned its verdict finding no negligence on the part of General Cinemas, plaintiff moved for judgment notwithstanding the verdict or in the alternative, a new trial. These motions were also denied. Without a finding of negligence on the part of General Cinemas, plaintiff is unable to pursue her present claim against defendants. Thus, plaintiff appeals.

Plaintiff brings forward five assignments of error for this Court's review. First, plaintiff argues that the trial court misapplied the applicable New Jersey law and thus, erred in failing to grant either her directed verdict or judgment notwithstanding the verdict motions where she demonstrated that she tripped on General Cinemas' torn carpet. It is plaintiff's contention that New Jersey law does not require her to show that General Cinemas had actual or constructive knowledge of the defect or that it breached its duty to plaintiff in some way, because the incident at issue creates "an inference of negligence," which defendants did not overcome. We disagree.

Where the plaintiff bringing suit for legal malpractice has lost another suit allegedly due to h[er] attorney's negligence, to prove that but for the attorney's negligence plaintiff would not have suffered the loss, plaintiff must prove that:

(1) The original claim was valid;

(2) It would have resulted in a judgment in h[er] favor; and (3) The judgment would have been collectible.

Rorrer v. Cooke, 313 N.C. 338, 361, 329 S.E.2d 355, 369 (1985). Therefore in the case at bar, in order for plaintiff to be able to go forward with her malpractice claim against defendants, she must have first proven—in pertinent part and pursuant to New Jersey law—that she had a valid personal injury claim against General Cinemas. To validate her claim against General Cinemas, plaintiff relies on Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513 (1966), in which the Supreme Court of New Jersey opined that,

where a substantial risk of injury is implicit in the manner in which a business is conducted [that is, a business' mode of operation], and on the total scene it is fairly probable that the operator is responsible either in creating the hazard or permitting it to arise or to continue, it would be unjust to saddle the plaintiff with the burden of isolating the precise failure.

Id. at 430, 221 A.2d at 515. Thus, plaintiff argues that simply because she tripped on torn carpet in General Cinemas' place of business and was injured, Wollerman stands for the proposition that the burden shifted to General Cinemas to prove that it was not negligent in having a torn carpet.

For plaintiff's theory of burden-shifting to apply, we believe plaintiff must have shown (1) that there was an implicit yet substantial risk of injury in one of General Cinemas' modes of operations and, (2) that "it is fairly probable that [General Cinemas] is responsible either in creating the [torn carpet] or permitting [the carpet to be torn and not be repaired] ...." Id. Moreover, to show that her injury resulted from one of General Cinemas' modes of operation, plaintiff must have presented evidence that "the reasonable probability of having other than a minor accident from the use of [the torn carpet in General Cinemas' theatre] g[a]ve rise to a duty to take measures against it." Znoski v. Shop-Rite Supermarkets, Inc., 122 N.J.Super. 243, 248, 300 A.2d 164, 167 (1973). We note that in her brief to this Court, plaintiff failed to identify any mode of operation of General Cinemas which caused her injury. We further note that there is nothing in the record to show that plaintiff provided such information at trial. Yet, in oral argument to this Court, plaintiff's attorney contended that the darkened theatre was the mode of operation which, in conjunction with the torn carpeting, caused plaintiff's injury. We, like the trial court, are unconvinced that plaintiff's evidence has risen to the level which allows the burden to shift pursuant to the Wollerman case. This is because we believe that plaintiff has taken Wollerman out of context and therefore, Wollerman does not apply.

In that case, Ms. Wollerman was shopping in the defendant-grocery store and slipped on a green bean, injuring herself. The Wollerman court stated: "That someone was negligent seems clear enough. Vegetable debris carries an obvious risk of injury to a pedestrian. A prudent man would not place it in an aisle or permit it to remain there." Wollerman, 47 N.J. at 428, 221 A.2d at 514. The court then went on to discuss the inherent danger of selling vegetables

from open bins on a self-service basis, [and] the likelihood that some will fall or be dropped to the floor. If the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate; and this whether the risk arises from the act of his employee or of someone else he invites to the premises....

Id. at 429, 221 A.2d at 514 (emphasis added).

We see from the Wollerman court's statement that plaintiff is correct in assuming that: where it is shown that one of General Cinemas' "mode[s] of operation" caused the injuries sustained by plaintiff, the burden does shift to General Cinemas to prove that it was not negligent in that mode of operation. Znoski, 122 N.J.Super. at 247,300 A.2d at 166. However, the present plaintiff failed to make the necessary showing. It is not enough for plaintiff to show only that she was injured by tripping over torn carpet in General Cinemas' place of business. Plaintiff must also show that in some way the torn carpet was a direct result of one of General Cinemas' modes of operation. Wollerman, 47 N.J. at 429, 221 A.2d at 514. This plaintiff failed to do.

Even in arguing that the darkened theatre was the negligent mode of operation at issue, plaintiff's argument must fail—for the simple reasoning that, movie theatres could not do business at all if they could not be darkened. Falk v. Stanley Fabian Corp., 115 N.J.L. 141, 142, 178 A. 740, 741 (1935) ("[a] moving picture house necessarily operates in partial darkness. With a flood of diffused light, there would be no picture.") (Emphasis added.) Thus, this "mode of operation" is a theatre's only method of operation and as such, the theatre cannot be considered negligent but instead, its patrons must be considered to have assumed the risk in order to take part in the activity provided. Id. at 145, 178 A. at 742 ("[p]atrons of places of amusement assume the risk or dangers...