Taylor v. Walker

• Decision Date: 07 October 1987
• Docket Number: No. 161A87,161A87
• Citation: 360 S.E.2d 796,320 N.C. 729
• Court: North Carolina Supreme Court
• Parties: John Glen TAYLOR and wife, Nada Taylor v. Dorothy WALKER, and C & R Amusements, d/b/a BJ's Lounge.

Page 796

360 S.E.2d 796

320 N.C. 729

John Glen TAYLOR and wife, Nada Taylor v. Dorothy WALKER, and C & R Amusements, d/b/a BJ's Lounge.

No. 161A87.

Supreme Court of North Carolina.

Oct. 7, 1987.

Gabriel, Berry, Weston & Weeks by M. Douglas Berry, Greensboro, for plaintiff-appellant John Glen Taylor.

Craige, Brawley, Liipfert & Ross by William W. Walker, Winston-Salem, for defendants-appellees.

MEYER, Justice.

The issue presented in this case is whether the trial court erred when it granted defendants' motion for judgment notwithstanding the verdict on the ground that plaintiff John Glen Taylor was contributorily negligent as a matter of law. The Court of Appeals, concluding that plaintiffs' claim against defendants was indeed barred as a matter of law by Taylor's own contributory negligence, held that the trial court did not err and affirmed its order accordingly. Because we find that the Court of Appeals misapplied the standard under our law for deciding the merits of a motion for judgment notwithstanding the verdict, we reverse and remand for entry of a judgment for plaintiff John Glen Taylor on the jury's original verdict.

The evidence presented at trial tended to show the following. Plaintiff John Taylor, his wife, Nada, and Nada's brother, Victor Huffman, went to BJ's Lounge in Greensboro, North Carolina, between 8:30 p.m. and 9:00 p.m. on Friday, 18 December 1981. BJ's Lounge was then owned by defendant C & R Amusements, Inc. The other defendant, Dorothy Walker, was the bartender and manager on that night.

Evidence revealed that BJ's Lounge was truly not a place for the faint of heart. The bar had a history of general rough-housing, fights, and knifings. In fact, during the eighteen months immediately preceding the incident which spawned this lawsuit, thirty-three calls were made to the Greensboro Police Department concerning incidents at BJ's Lounge. These included eleven assault calls, twelve investigative calls, five disturbance calls, three liquor violation calls, and one call each for traffic and sexual offense violations.

On the night in question, Taylor and his party went into BJ's Lounge and sat with friends in the front section of the bar. Taylor noticed that there was a group of fifteen to twenty "Indians" in the lounge's back poolroom. He knew that these men, who were regular patrons of the lounge, often carried guns or knives and that they often started fights when assembled in large groups. Taylor also knew that BJ's Lounge did not employ a bouncer and that defendant Dorothy Walker was the only employee on the premises that night.

At approximately 9:30 p.m., Taylor saw an Indian named Bear Suits chase another patron out of the lounge's poolroom and into the front section of the bar. Apparently with the help of Dorothy Walker, Bear Suits lifted the smaller patron onto the bar and beat him about the head and shoulders. Walker expelled the beaten patron from BJ's Lounge, but allowed Suits to remain.

Taylor was familiar with Bear Suits and was aware of his reputation for carrying a gun. He also knew that Bear Suits had been drinking that night while at BJ's Lounge. After witnessing this incident, Taylor remarked to his wife, Nada, that Suits was going to cause somebody some trouble that night.

Following the incident, the "Indians" in the lounge's poolroom became louder and more rowdy. Taylor's friends began leaving, telling Taylor as they departed that they did not like the atmosphere or the people remaining in the bar. At about 12:30 a.m., after all of their friends had departed, Taylor, Nada, and Victor prepared to leave BJ's Lounge for the evening. Taylor and Nada went to the lounge's bathroom while Victor waited in the front section of the bar.

As Taylor was returning from the bathroom, he saw Bear Suits push Victor. Taylor approached Bear Suits, telling him that Victor was mentally retarded and that Suits should therefore just ignore him. Suits, who was quite drunk at this point in the evening, responded that he did not want an apology and told Taylor, "Why don't you just take it up." Taylor challenged Suits to go outside and fight, but Suits laughed at him and refused. The verbal exchange between Taylor and Suits continued for several minutes.

At a certain point in the exchange, Suits slipped his hands off the bar and appeared to be reaching for his back pocket. Suspecting that Suits was reaching for a gun or a knife, Taylor struck Suits in the face, knocking him onto the floor unconscious. Taylor testified that he then reached down and picked up a gun off the floor near Suits' fallen body.

Hearing the commotion, many of the "Indians" who had been in the lounge's poolroom began to move toward Taylor, Nada, and Victor. Gun poised, Taylor backed out the front door of BJ's Lounge, allowing Nada and Victor to retreat ahead of him. As Taylor was preparing to get into his car in the parking lot, an unknown person fired two gunshots from the bar's doorway. Taylor was struck in the head and seriously injured.

In their complaint, plaintiffs alleged that BJ's Lounge was operated by C & R Amusements and that defendant Walker was the bartender and manager of the establishment at the time of the shooting. Plaintiffs also alleged that defendants were negligent in that they violated several administrative regulations promulgated by the then State Board of Alcohol Control (now the North Carolina Alcoholic Beverage Control Commission) for the control of alcoholic beverage sales and the protection of the public. Plaintiffs further alleged that defendants were negligent in that they violated their common law duty to protect patrons from the criminal acts of third persons. They alleged finally that defendants' negligence was the proximate cause of Taylor's injuries.

Defendants answered, denying any negligence and alleging as an affirmative defense that Taylor, by his own conduct on the night in question, was contributorily negligent in bringing about his own injuries. At the close of all the evidence, defendants moved for a directed verdict and that motion was denied. The jury answered the issues submitted to it to the effect that plaintiff Taylor was injured by the negligence of defendant and that he was not contributorily negligent. Accordingly, the jury awarded him compensatory damages of $382,400. The trial court then allowed defendants' motion for judgment notwithstanding the verdict on the ground that Taylor was contributorily negligent as a matter of law.

No question was raised on the appeal to the Court of Appeals as to the sufficiency of the evidence to support the jury finding that negligence on the part of defendants was a proximate cause of Taylor's injuries incurred as a result of being shot. The only question there, and here, is whether Taylor's recovery is, as a matter of law, barred by his contributory negligence. The Court of Appeals concluded that it was. We disagree.

A motion for judgment notwithstanding the verdict pursuant to Rule 50 of the North Carolina Rules of Civil Procedure is essentially a renewal of an earlier motion for a directed verdict. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 329 S.E.2d 333 (1985). By making such a motion, the moving party asks that judgment be entered in accordance with his previous motion for directed verdict, notwithstanding the contrary verdict actually rendered by the jury. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973). The test for determining the sufficiency of the evidence when ruling on a motion for judgment notwithstanding the verdict is identical to that applied when ruling on a motion for directed verdict. Smith v. Price, 315 N.C. 523, 340 S.E.2d 408 (1986); Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549.

The party moving for judgment notwithstanding the verdict, like the party seeking a directed verdict, bears a heavy burden under North Carolina law. Both motions ask whether the evidence presented at trial is legally sufficient to take the case to the jury. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977); Investment Properties of Asheville v. Allen, 281 N.C. 174, 188 S.E.2d 441 (1972). In ruling on the motion, the trial court must consider the evidence in the light most favorable to the nonmoving party, giving him the benefit of all reasonable inferences to be drawn therefrom and resolving all conflicts in the evidence in his favor. Smith v. Price, 315 N.C. 523, 340 S.E.2d 408; Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 329 S.E.2d 333; Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678. Ordinarily, such a judgment is not proper unless it appears as a matter of law that a recovery simply cannot be had by plaintiff upon any view of the facts which the evidence reasonably tends to establish. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678.

The heavy burden carried by the movant is particularly significant in cases, such as the one before us, in which the principal issues are negligence and contributory negligence. Only in exceptional cases is it proper to enter a directed verdict or a judgment notwithstanding the verdict against a plaintiff in a negligence case. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979); Millikan v. Guilford Mills, Inc., 70 N.C.App. 705, 320 S.E.2d 909 (1984), cert. denied, 312 N.C. 798, 325 S.E.2d 631 (1985). Issues arising in negligence cases are ordinarily not susceptible of summary adjudication because application of the prudent man test, or any other applicable standard of care, is generally for the jury. King v. Allred, 309 N.C. 113, 305 S.E.2d 554 (1983), appeal after remand, 76 N.C.App. 427, 333 S.E.2d 758 (1985), disc. rev. denied, 315 N.C. 184, 337 S.E.2d 857 (1986); Williams v. Power & Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979). Greater judicial caution is therefore called for in actions alleging negligence as a basis for plaintiff's recovery or, in the alternative, asserting...