Swinson v. Lejeune Motor Company, Inc.

• Decision Date: 18 December 2001
• Docket Number: No. COA00-1447.,COA00-1447.
• Citation: 557 S.E.2d 112,147 NC App. 610
• Court: North Carolina Court of Appeals
• Parties: Dallas SWINSON, Plaintiff, v. LEJEUNE MOTOR COMPANY, INC., Defendant.

557 S.E.2d 112

147 NC App. 610

Dallas SWINSON, Plaintiff, v. LEJEUNE MOTOR COMPANY, INC., Defendant.

No. COA00-1447.

Court of Appeals of North Carolina.

December 18, 2001.

Jeffrey S. Miller, Jacksonville, for plaintiff-appellant.

Wallace, Morris & Barwick, P.A., by P.C. Barwick, Jr., Kinston, for defendant-appellee.

WYNN, Judge.

To grant a directed verdict for a defendant under N.C. Gen.Stat. § 1A-1, Rule 50, the trial court must determine that the evidence, when considered in the light most favorable to the plaintiff, was insufficient for submission to the jury. Smith v. Wal-Mart Stores, Inc., 128 N.C.App. 282, 495 S.E.2d 149 (1998). In this appeal, Dallas Swinson argues that a jury should have been allowed to determine whether her trip and fall resulted from an obvious condition, and whether she was contributorily negligent in causing her injury. Since the record shows controverted issues of fact for a jury to decide, we reverse the trial court's directed verdict favoring defendant.

This appeal arises from allegations that after having her car serviced by Lejeune Motor Company, Ms. Swinson tripped, fell and broke her arm while walking in the company's parking lot to get her car. However, at the close of her evidence during the trial, the trial court granted directed verdict in favor of Lejeune Motor stating that "the plaintiff has failed to offer any evidence from which a jury might find actionable negligence on the part of the defendant and the plaintiff's evidence shows that the plaintiff was contributorily negligent as a matter of law."

In ruling on a motion for directed verdict under N.C. Gen.Stat. § 1A-1, Rule 50, the trial court must consider "whether the evidence, when considered in the light most favorable to the plaintiff, was sufficient for submission to the jury." Smith v. Wal-Mart Stores, Inc., 128 N.C.App. at 285, 495 S.E.2d at 149. "The plaintiff must receive the benefit of every inference which may reasonably be drawn in his favor." Hill v. Williams, 144 N.C.App. 45, 54, 547 S.E.2d 472, 477 (2001). The trial court should deny a motion for directed verdict when it finds any evidence more than a scintilla to support plaintiff's prima facie case. See Broyhill v. Coppage, 79 N.C.App. 221, 339 S.E.2d 32 (1986); Clark v. Moore, 65 N.C.App. 609, 309 S.E.2d 579 (1983).

"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." Stallings v. Food Lion, Inc., 141 N.C.App. 135, 138, 539 S.E.2d 331, 333 (2000). "[A] landowner has a duty to any lawful visitor on his property `to take reasonable precautions to ascertain the condition of [his] property and to either make it reasonably safe or give warnings as may be reasonably necessary to inform ... of any foreseeable danger.'" Hussey v. Seawell, 137 N.C.App. 172, 175, 527 S.E.2d 90, 92 (2000) (quoting Lorinovich v. K Mart Corp., 134 N.C.App. 158, 161, 516 S.E.2d 643, 645,cert. denied,351 N.C. 107, 541 S.E.2d 148 (1999)). Moreover, a store owner has a duty of "ordinary care to keep in a reasonably safe condition those portions of its premises which it may expect will be used by its customers during business hours, and to give warning of hidden perils or unsafe conditions insofar as they can be ascertained by reasonable inspection and supervision." Raper v. McCrory-McLellan Corp., 259 N.C. 199, 203, 130 S.E.2d 281, 283 (1963). However, "[t]here is no duty to protect a lawful visitor against dangers which are either known to him or so obvious and apparent that they reasonably may be expected to be discovered." Lorinovich v. K Mart Corp., 134 N.C.App. at 162, 516 S.E.2d at 646.

Applying this case law which requires looking at the evidence in the light most favorable to Ms. Swinson, we hold that she presented sufficient evidence to submit this case to the jury. The record reveals there are factual questions as to whether the condition in the sidewalk was open and obvious. In their brief, Lejeune Motor Company argued that the condition of the pavement was obvious because nothing blocked the view of where Ms. Swinson was walking. It contended that Ms. Swinson should have or could have seen any defect, hole or elevation in the pavement and avoided the area. The president of Lejeune Motor, Leonard O. Stevenson, described the condition in the pavement where Ms. Swinson fell as being "probably three-quarters of an inch to an inch." Mr. Stevenson testified that the area was not a hole, where Ms. Swinson fell but that the area was raised or elevated. Mr. Stevenson was aware that the condition was present in the parking lot for many years and had never taken any steps toward repairing it or providing warnings. Mr. Stevenson also testified that he did not see Ms. Swinson fall, and personally he did not know where she fell in the parking lot.

At trial, Ms. Swinson testified that on the day of the incident, she was looking for her car and did not see the depression. She stated that she "just stepped into it." She referred to the depression as a hole, and stated that "I didn't look back to see how deep it was." She also testified that no one warned her about the hole in the parking lot. Indeed, the depression was in the asphalt pavement of the parking lot. The asphalt had come off the concrete and the depression was eight to twelve inches wide and several feet long. Moreover, there were no markers to indicate its presence. After a careful review of the record, we find that the resolution of these factual issues are for the jury to discern. "Contradictions or discrepancies in the evidence even when arising from plaintiff's evidence must be resolved by the jury rather than the trial judge." Clark v. Bodycombe, 289 N.C. 246, 251, 221 S.E.2d 506, 510 (1976).

In her final argument, Ms. Swinson contends that the trial court erred in granting defendant's motion for directed verdict on the grounds that plaintiff's evidence did not show that plaintiff was contributorily negligent as a matter of law. For issues of contributory negligence, a motion for directed verdict is appropriate when the "plaintiff's evidence, considered in the light most favorable to him, together with inferences favorable to him that may be reasonably drawn therefrom, so clearly establishes the defense of contributory negligence that no other conclusion can reasonably be drawn." Wilburn v. Honeycutt, 135 N.C.App. 373, 375, 519 S.E.2d 774, 775 (1999). "Consequently, the issue of contributory negligence is ordinarily a question for the jury rather than an issue decided as a matter of law." Hill v. Williams, 144 N.C.App. at 56, 547 S.E.2d at 479.

"As a general rule, one who has capacity to understand and avoid a known danger and fails to take advantage of that opportunity ... is chargeable with contributory negligence." Presnell v. Payne, 272 N.C. 11, 13, 157 S.E.2d 601, 602 (1967).

Every person having the capacity to exercise ordinary care for his own safety against injury is required by law to do so, and if he fails to exercise such care ... he is guilty of contributory negligence. Ordinary care is such care as an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury.

Clark v. Roberts, 263 N.C. 336, 343, 139 S.E.2d 593, 597 (1965). "Circumstances may exist under which forgetfulness or inattention to a known danger may be consistent with the exercise of ordinary care, as ... where conditions arise suddenly which are calculated to divert one's attention momentarily from the danger." Walker v. Randolph, 251 N.C. 805, 808, 112 S.E.2d 551, 553 (1960). When a plaintiff does not discover and avoid an obvious defect, that plaintiff will usually be considered to have been contributorily negligent as a matter of law. However, where there is some fact, condition, or circumstance which would or might divert the attention of an ordinarily prudent person from discovering or seeing an existing dangerous condition, the general rule does not apply. Price v. Jack Eckerd Corp., 100 N.C.App. 732, 736, 398 S.E.2d 49, 52 (1990).

In the case at bar, again we note the controverted evidence of what Ms. Swinson actually saw or should have seen in the exercise of ordinary care. Ms. Swinson testified that she was looking for her automobile in defendant's parking lot. When she initially surrendered her car at Lejeune Motor she was at the entrance to the service department. However, when the repairs were completed, no one told her where her car was located. It was difficult for Ms. Swinson to find her car in the parking lot because her car was white and there were a lot of white cars in the lot. Lejeune Motors argues that plaintiff should have or could have seen the condition of the parking lot because there was nothing blocking her view of the area where she was walking.

"The basic issue with respect to contributory negligence is whether the evidence shows that, as a matter of law, plaintiff failed to keep a proper lookout for [her] own safety." Wal-Mart, 128 N.C.App. at 287, 495 S.E.2d at 152 (citing Norwood v. Sherwin-Williams Co., 303 N.C. 462, 468, 279 S.E.2d 559, 563 (1981)). The question is not whether a reasonably prudent person would have seen a depression in the parking lot had he or she looked but whether a person using ordinary care for his or her own safety under similar circumstances would have looked down at the condition of the pavement. See Smith v. Wal-Mart, 128 N.C.App. at 287, 495 S.E.2d at 152.

Applying these principles to this case, the question is whether the evidence in the light most favorable to the plaintiff allows no reasonable inference except her negligence; i.e., whether "a reasonably prudent and careful person exercising due care for his or her safety would have looked down" and seen the indentation of the pavement. Id. Because there is conflicting evidence of whether or not Ms. Swinson acted as a reasonably prudent person would have acted under like circumstance,...