Manganello v. Permastone, Inc.

• Decision Date: 31 January 1977
• Docket Number: No. 158,158
• Citation: 291 N.C. 666,231 S.E.2d 678
• Court: North Carolina Supreme Court
• Parties: , 90 A.L.R.3d 525 Samuel MANGANELLO v. PERMASTONE, INC.

Page 678

231 S.E.2d 678

291 N.C. 666, 90 A.L.R.3d 525

Samuel MANGANELLO v. PERMASTONE, INC.

No. 158.

Supreme Court of North Carolina.

Jan. 31, 1977.

Smith, Geimer & Glusman, P.A., by Kenneth A. Glusman, Fayetteville, for plaintiff appellant.

Clark, Clark, Shaw & Clark by Heman R. Clark, Fayetteville, for defendant appellee.

COPELAND, Justice.

The sole issue presented by this appeal questions whether the trial court erred in directing a verdict for the defendant. We hold that the trial court did commit error.

Before discussing the merits of this case, one procedural point deserves mention. Where the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision on the motion and allow the case to be submitted to the jury. If the jury returns a verdict in favor of the moving party, no decision on the motion is necessary and an appeal may be avoided. If the jury finds for the nonmoving party, the judge may reconsider the motion and enter a judgment not withstanding the verdict under G.S. 1A--1, Rule 50(b), provided he is convinced the evidence was insufficient. On appeal, if the motion proves to have been improperly granted, the appellate court then has the option of ordering entry of the judgment on the verdict, thereby eliminating the expense and delay involved in a retrial. See, Comment, G.S. 1A--1, Rule 50 (1969); 5A Moore's Federal Practice and Procedure § 50.14 (2d ed. 1975).

A motion by a defendant for a directed verdict under G.S. 1A--1, Rule 50(a) tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. Investment Properties of Asheville v. Allen, 281 N.C. 174, 188 S.E.2d 441 (1972); Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971). On defendant's motion for a directed verdict, plaintiff's evidence must be taken as true and all the evidence must be considered in the light most favorable to the plaintiff, giving him the benefit of every reasonable inference to be drawn therefrom. Anderson v. Butler, 284 N.C. 723, 202 S.E.2d 585 (1974); Adler v. Insurance Co., 280 N.C. 146, 185 S.E.2d 144 (1971). As was true of a compulsory nonsuit, a directed verdict is not properly allowed 'unless it appears, as a matter of law, that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish.' See Lieb v. Mayer, 244 N.C. 613, 94 S.E.2d 658 (1956); Graham v. Gas Co., 231 N.C. 680, 58 S.E.2d 757 (1950).

We do not quarrel with the Court of Appeals' statement of the law in its opinion but do disagree with its application of the law to the facts in the instant case.

The duty imposed on the owner or proprietor of a swimming facility used for public amusement is stated generally in Wilkins v. Warren, 250 N.C. 217, 108 S.E.2d 230 (1959). The owner is not 'an insurer of the safety of his patrons' but he must exercise 'ordinary and reasonable care' for their safety lest he be held liable for injury to a patron resulting from breach of his duty. Wilkins, supra at 219, 108 S.E.2d at 232. We discussed a proprietor's duty to protect invitees against the acts, negligent or intentional, of third parties in Aaser v. City of Charlotte, 265 N.C. 494, 144 S.E.2d 610 (1965). In that case we said:

'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. (Citations omitted.)

"The proprietor is liable for injuries resulting from the Horseplay or Boisterousness of others, regardless of whether such conduct is negligent or malicious, if he had sufficient notice to enable him to stop the activity. But in the absence of a showing of timely knowledge of the situation on his part, there is no liability." (Emphasis added.) (Citation omitted.) Aaser, supra at 499--500, 144 S.E.2d at 615.

Webster's Third New International Dictionary at page 1093 (1971) defines 'horseplay' as 'rough or boisterous play.' In Aaser, supra, the boisterous activity complained of consisted of young boys knocking a hockey puck back and forth with hockey sticks in a corridor of the Charlotte Coliseum. The plaintiff, a paying spectator at an ice hockey game, sued for damages for injuries she sustained when struck by a puck while walking in the corridor during an intermission. We held in that case that a nonsuit should have been granted because there was no showing that the defendant had any knowledge of an unsafe condition in the corridor or that the defendant could have discovered the condition by the exercise of reasonable care in inspecting the corridors.

Aaser is distinguishable from the case at bar. In Aaser the plaintiff had passed through the same corridor a few minutes before she received her injury and had not observed the boys playing. In fact, she did not notice the boys' activity on her return trip through the hallway until after she was struck. Nor was there any evidence introduced tending to show that anyone else had seen these boys, or any others, playing in the corridor in any dangerous manner on the evening in question prior to the time the plaintiff was struck. In the instant case, uncontroverted testimony established that the 'horseplay' had continued unabated for at least 20 minutes before the plaintiff was injured.

The vigilance required of a proprietor in detecting potentially dangerous activity will vary with the circumstances. In Aaser, Justice Lake speaking for our Court said, '(T)he vigilance required of the owner of...