1. Civil Procedure--slip and fall--directed verdict granted--procedural error
The trial court's order granting directed verdict in favor of defendant store in a slip and
fall case must be reversed based on a procedural error, because: (1) 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 defendant at the
close of all evidence, and the judge's ruling must be based upon the evidence of both plaintiff and
defendant; and (2) in this case, defendant moved for directed verdict at the close of plaintiff's
evidence, the trial court reserved its ruling on the motion and defendant proceeded to offer
evidence, and defendant renewed its motion for directed verdict before resting its case and the
trial court granted that motion.
2. Premises Liability--slip and fall--directed verdict--negligence--contributory
negligence--sufficiency of evidence
The trial court erred in a slip and fall case by granting directed verdict under N.C.G.S. §
1A-1, Rule 50 in favor of defendant store, because: (1) in regard to plaintiff's case of negligence,
the record reveals that there are factual questions as to whether defendant properly warned
plaintiff about the dangerous condition it had created when it mopped the floor in the produce
section; and (2) in regard to defendant's claim of contributory negligence, there was controverted
evidence regarding whether plaintiff actually saw or should have seen the warning sign in the
exercise of ordinary care.
Jones Martin Parris & Tessener Law Offices P.L.L.C., by Hoyt
G. Tessener, for plaintiff-appellant.
Poyner & Spruill, L.L.P., by Keith H. Johnson, 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 setdown 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. [1]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. at518, 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 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.
[2]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 of 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 ordistraction, 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 appropriate in determining contributory negligence and
should only be allowed when the “plaintiff's evidence, considered
in the light most favorable to him, together with inferences
favorable to him that may reasonably be drawn therefrom, so clearly
establishes the defense of contributory negligence that no other
conclusion can reasonably be drawn.” Smith v. Wal-Mart, 128 N.C.
App. at 286, 495 S.E.2d at 151 (quoting Peeler v. Southern Railway
Co., 32 N.C. App. 759, 760, 233 S.E.2d 685, 686 (1977)). When more
than one interpretation of the facts is possible, the issues of
negligence and contributory negligence are matters to be decided by
a jury. See Maness v. Fowler-Jones Constr. Co., 10 N.C. App. 592,598, 179 S.E.2d 816, 819, cert. denied, 278 N.C. 522, 180 S
.E.2d
610 (1971); Smith v. Wal-Mart.
In the case at bar, the record is unclear as to whether the
trial court granted Food Lion's motion for a directed verdict
because Ms. Stallings did not show that Food Lion was negligent or
because it found as a certainty that she was contributorily
negligent. We will address each possibility in turn.
First, regarding Ms. Stallings' case of negligence, the record
reveals that there are factual questions as to whether Food Lion
properly warned her about the dangerous condition it had created.
The parties presented conflicting evidence as to whether Ms.
Stallings could see the bucket, whether she could see the mopper
over the produce table, and whether a yellow warning cone on one
side of the table should have alerted her to a wet floor on the
other side. The resolution of these factual issues is a job for
the jury.
Next, regarding Food Lion's claim of contributory negligence,
we again note the controverted evidence regarding what Ms.
Stallings actually saw or should have seen in the exercise of
ordinary care. After reviewing the videotape of the fall, we
cannot say as a matter of law that the cone, bucket and mopper
should have been noticed by a reasonably prudent person exercising
ordinary care. Again, the resolution of these factual issues and
the application of the reasonably prudent person test are matters
for a jury.
Food Lion strenuously argues that Ms. Stallings must have seenthe warnings or at least would have seen them if she
were careful;
however, because there is conflicting evidence, the resolution of
the facts is a matter for a jury, not the court. Since it is the
province of a jury to decide issues of negligence and contributory
negligence when the evidence is inconclusive, the trial court erred
when it granted directed verdict for Food Lion.
In sum, we conclude that Ms. Stallings is entitled to a new
trial on both procedural and substantive grounds.
Reversed and remanded.
Judges GREENE and FULLER concur.
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