Stallings v. Food Lion, Inc.

• Decision Date: 19 December 2000
• Docket Number: No. COA99-1592.,COA99-1592.
• Parties: Cynthia STALLINGS, Plaintiff, v. FOOD LION, INC., Defendant.
• Court: North Carolina Court of Appeals

539 S.E.2d 331

141 NC App. 135

Cynthia STALLINGS, Plaintiff, v. FOOD LION, INC., Defendant.

No. COA99-1592.

Court of Appeals of North Carolina.

December 19, 2000.

Jones Martin Parris & Tessener Law Offices P.L.L.C., by Hoyt G. Tessener, Raleigh, for plaintiff-appellant.

Poyner & Spruill, L.L.P., by Keith H. Johnson, Raleigh, for defendant-appellee.

WYNN, Judge.

While Cynthia Stallings shopped at a Food Lion, Inc. store on 2 April 1997, a store employee mopped the floor in the produce section. The mopper cleaned an area between two tables, then set down a yellow "wet floor" cone between the two tables. He then began to mop on the other side of the far table, leaving his bucket next to a pole and display, away from the area already mopped.

As Ms. Stallings approached the produce section, she stopped at the corner of the first table to pick up some apples. She then walked past the area between the tables that had just been mopped—the yellow cone was several feet away. As soon as she rounded the corner of the second table she slipped and fell, injuring her shoulder. A surveillance camera recorded the entire event, and employees of Food Lion wrote a report and took photographs of the accident scene.

This appeal arises from Ms. Stallings' action alleging that Food Lion negligently created the dangerous condition on the floor and failed to warn her about the danger. Food Lion answered and asserted the defense of contributory negligence.

At the close of Ms. Stallings' evidence, Food Lion moved for directed verdict. The trial court reserved ruling on the motion and Food Lion proceeded with its case. Before resting its case, Food Lion sought permission to renew its motion for directed verdict. The trial court granted this motion and Ms. Stallings appealed to this Court.

Before addressing the merits of this appeal, we note a procedural error that provides an alternate basis for reversing the trial court's order. A defendant may move for a directed verdict at the close of the plaintiff's evidence. N.C.R. Civ. P. 50(a). When a motion is made for directed verdict at the close of the plaintiff's evidence, the trial court may either rule on the motion or reserve its ruling on the motion. Overman v. Gibson Products Co., 30 N.C.App. 516, 519-20, 227 S.E.2d 159, 161-62 (1976). By offering evidence, however, a defendant waives its motion for directed verdict made at the close of plaintiff's evidence. Id. at 518, 227 S.E.2d at 161. Accordingly, if a defendant offers evidence after making a motion for directed verdict, "any subsequent ruling by the trial judge upon defendant's motion for directed verdict must be upon a renewal of the motion by the defendant at the close of all the evidence, and the judge's ruling must be based upon the evidence of both plaintiff and defendant." Id. at 520, 227 S.E.2d at 162. In this case, Food Lion moved for directed verdict at the close of Ms. Stallings' evidence. The trial court reserved its ruling on the motion and Food Lion proceeded to offer evidence. Before resting its case, Food Lion renewed its motion for directed verdict and the trial court granted that motion. As in Overman, this procedural error requires reversal of the trial court's order granting directed verdict in favor of Food Lion. See id. at 521, 227 S.E.2d at 162.

Alternatively, we agree with Ms. Stallings that the grant of directed verdict was improper since there were unresolved issues that should have been decided by a jury.

A store has a duty to exercise ordinary care to keep its premises in a reasonably safe condition and to warn of any hidden dangers of which it knew or should have known. See, e.g., Lamm v. Bissette Realty, Inc., 327 N.C. 412, 416, 395 S.E.2d 112, 115 (1990)

. Failure to do so constitutes negligence. See Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342-43 (1992). "Reasonable persons are assumed, absent a diversion or distraction, to be vigilant in the avoidance of injury in the face of a known and obvious danger." Id. at 66, 414 S.E.2d at 344. A person who can understand and avoid a known danger but fails to do so is chargeable with contributory negligence. See Presnell v. Payne, 272 N.C. 11, 13, 157 S.E.2d 601, 602 (1967). The test for contributory negligence is whether a person using ordinary care for his or her safety under similar circumstances would have recognized the danger. See Norwood v. Sherwin-Williams Co., 303 N.C. 462, 468, 279 S.E.2d 559, 563 (1981).

A motion for directed verdict under N.C.R. Civ. P. 50 presents the question of "whether the evidence, when considered in the light most favorable to the plaintiff, was sufficient for submission to the jury." See Smith v. Wal-Mart Stores, Inc., 128 N.C.App. 282, 285, 495 S.E.2d 149, 151 (1998)

(quoting Kelly v. International Harvester Co., 278 N.C. 153, 157, 179 S.E.2d 396, 397 (1971)). Directed verdict in a negligence case is rarely proper because it is the duty of the jury to apply the test of a person using ordinary care. See Smith v. Wal-Mart; Taylor v. Walker, 320 N.C. 729, 734, 360 S.E.2d 796, 799 (1987). Likewise, directed verdict is rarely...