Wood v. McDonald's Corp.

• Decision Date: 07 September 2004
• Docket Number: No. COA03-953.,COA03-953.
• Citation: 603 S.E.2d 539,166 NC App. 48
• Court: North Carolina Court of Appeals
• Parties: Jill Womble WOOD, Plaintiff, v. McDONALD'S CORPORATION, Johnny Lynn Tart, Johnny Tart Enterprises, Inc., and T & T Management Corporation, Defendants.

603 S.E.2d 539

166 NC App. 48

Jill Womble WOOD, Plaintiff, v. McDONALD'S CORPORATION, Johnny Lynn Tart, Johnny Tart Enterprises, Inc., and T & T Management Corporation, Defendants.

No. COA03-953.

Court of Appeals of North Carolina.

September 7, 2004.

Smith, James, Rowlett & Cohen, L.L.P., by J. David James, Greeson Law Offices, by Harold F. Greeson, Greensboro, Bell, Davis & Pitt, P.A., by Stephen M. Russell, Winston-Salem, for plaintiff appellant-appellee.

Smith Moore L.L.P., by Stephen P. Millikin, Richard A. Coughlin, and Lisa K. Shortt, Greensboro, for defendant appellants-appellees.

McCULLOUGH, Judge.

The issues in this appeal arise from the following undisputed facts: On 4 January 1998, plaintiff went to a McDonald's restaurant (the "restaurant") located in Greensboro, North Carolina. She and her husband were on their way to a matinee movie. Plaintiff's husband remained in the car while she entered the restaurant to purchase a cup of coffee. She entered by way of a single door in the rear of the restaurant and walked towards the front counter. To her left, plaintiff noticed an employee sweeping debris on the floor near the restaurant's side double-door entrance. Plaintiff veered slightly to the right to avoid stepping into any of the debris, and walked to the front of the counter without incident.

After being served her coffee, plaintiff turned to the condiment counter to get cream and sweetener. Finding there to be only cream, which she there added, she returned to the serving counter to get sweetener. Plaintiff was given sweetener, added it, placed a lid on the coffee, and then turned to leave.

She had intended to exit by means of the double doors on the side of the restaurant. She turned to her right from the counter and faced the double doors, but saw that the employee had swept the pile of debris in front of those doors. Plaintiff decided that she would exit from the rear door, by which she had entered, to avoid the debris. With her eyes on the debris so as not to step in it, she rounded the corner of the serving counter. Plaintiff's right foot suddenly shot out from under her and she fell to the floor landing on her back and right elbow. She immediately felt pain in her elbow, and then hot scalding pain as the coffee cup burst onto her stomach.

She lay there for a moment in pain, and saw the employee that had been sweeping the floor looking at her. He dropped his broom and walked past her. She got up and made her way to the serving counter where she spoke to the employee that had served her coffee, and told him what happened. He offered her another cup of coffee. Plaintiff left the store and ran to her car to tell her husband what happened.

Plaintiff's husband went back in the store to get plaintiff napkins to wipe off the coffee. He entered by the back door. Taking the same route to the counter his wife had taken, he saw the coffee spill. Nearby he saw a dirty, floor-colored french fry. The lone, half-mashed french fry was approximately five feet from the principal pile of debris that was blocking the side double doors. He proceeded to the counter and spoke with the manager. He then took the manager to the scene of the accident, and showed her the spot where the french fry remained with what he believed to be his wife's heel print in it.

Plaintiff's husband returned to the car and took her to the hospital where she arrived at approximately 4:00 p.m. On the day of the incident, X-rays showed no fracture. However, it was later determined that she had in fact fractured her elbow, and had median nerve damage. She contracted reflex sympathetic dystrophy.

The McDonald's restaurant in question was purchased outright from McDonald's Corporation by defendant Johnny Tart ("Mr. Tart") on 2 January 1997. He then assigned his ownership to T & T Management Corporation ("T & T").

Mr. Tart had formed T & T on 24 January 1994 for the purpose of assigning McDonald's franchises to the corporation. T & T was a C corporation, and owned everything but the building and land of franchises it was assigned (it owned the cookers, fryers, freezer, etc.). He formed two other C corporations for this same purpose: Tracor, Inc., was formed on 13 July 1994; and Kayln Corporation was formed on 8 March 1995. Additionally, on 3 July 1995, Mr. Tart formed Johnny Tart Enterprises, Inc. ("JT Enterprises"), an S corporation. He formed JT Enterprises for the purpose of charging a fee to his three C corporations for providing administrative services so that these fees would not be taxed as income to the C corporations and instead deductible as business expenses. JT Enterprises and T & T, by signature of Mr. Tart as president of each, entered into a Management Services Agreement ("MSA").

On 25 July 2000, plaintiff filed her complaint against McDonald's Corporation, Kayln Corporation, Mr. Tart individually, and JT Enterprises, alleging she was injured due to their negligence in her slip and fall on 4 January 1998. In their answers, all defendants named T & T as the owner and operator of the McDonald's where the incident occurred. On 30 May 2001, plaintiff filed a motion to amend the complaint to add T & T as an additional defendant. By order of Judge William Z. Wood, Jr., dated 5 September 2001, plaintiff's motion to amend was allowed. Additionally, Judge Wood ordered the following:

[T]he party being added as a party defendant, this being T & T Management Corporation, may plead and assert a statute of limitations defense as to all claims asserted and alleged against T & T Management Corporation, as may the other defendants, and an issue shall be presented to the jury at the trial of this case as to whether an agreement was or was not made for plaintiff and counsel for T & T Management Corporation and defendants that plaintiff could wait until after proposed depositions were taken in this action in April, 2001, to join T & T Management Corporation as a party defendant and to allege and assert claims against T & T Management Corporation by an Amended Complaint. If the jury should answer this issue "No," then the claims alleged and asserted by plaintiff against T & T Management Corporation would be and are barred as a matter of law. If the jury should answer this issue "Yes," that there was such an agreement, then the claims against T & T would not be barred as a matter of law.

Defendants filed a motion appealing Judge Wood's order. We dismissed the appeal as interlocutory on 28 January 2002.

An amended complaint naming T & T as an additional defendant, and dropping Kayln Corporation, was filed 21 September 2001. On 24 January 2003, plaintiff filed a voluntary dismissal without prejudice as to defendant McDonald's.

Defendants filed motions for summary judgment in May and June of 2002. These motions where heard by Judge McHugh on 27 January 2003. In an order filed 12 March 2003, Judge McHugh found that plaintiff had forecast evidence that a restaurant employee either created or had notice of the alleged hazardous condition that caused plaintiff's fall and therefore denied defendants' motions for summary judgment on that ground. The trial court also denied defendants' motion for summary judgment based upon the claim that plaintiff's own evidence showed that she had been contributorily negligent as a matter of law. The trial court did grant summary judgment to Mr. Tart and JT Enterprises. Lastly, the trial court ordered the following:

The Motion for Summary Judgment of T & T Management Corporation be and it is hereby denied for the reasons that the court finds and determines that the Order of Judge Wood of September 5, 2001, on Plaintiff's Motion to Amend under Rule 15 precludes this court from considering the Motion for Summary Judgment under Rule 56 of T & T Management Corporation on its merits, and the court has not done so for the reason that the Order of Judge Wood is the law of the case.

The trial court found that pursuant to N.C. Gen.Stat. § 1A-1, Rule 54(b) of the North Carolina Rules of Civil Procedure, there was no just reason to delay entering final judgment as to the dismissal of Mr. Tart and JT Enterprises. Both plaintiff and defendants filed notices of appeal.

In this appeal plaintiff argues that the trial court erred in granting summary judgment in favor of JT Enterprises and Mr. Tart because they are liable under various theories of agency and corporate law. Pursuant to Rule 10(d) of the North Carolina Rules of Appellate Procedure, without appeal, defendants cross-assigned as error the basis in law used by the lower court in granting summary judgment in favor of Mr. Tart and JT Enterprises.

In addition defendants argue in their appeal that the trial court erred in denying summary judgment on the claims of defendants' negligence and on their contention that plaintiff's own evidence showed she was contributory negligent. Furthermore, defendants raised the issue that Judge Wood's 5 September 2001 order was not the law of the case governing the trial court, and the trial court should have considered T & T's motion for summary judgment pursuant to Rule 56(b).

As a threshold matter, we hold that those issues raised by defendants' cross-appeal and appeal, are interlocutory and improperly before this Court. We then address the merits of plaintiff's two issues on appeal.

Interlocutory Orders

"A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal." Liggett Group v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993). "The reason for this rule is to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts." Fraser v. Di Santi, 75 N.C.App. 654, 655, 331 S.E.2d 217, 218, disc. review denied, 315 N.C. 183, 337 S.E.2d 856 (1985)."[I]n two instances a party is permitted to appeal interlocutory...