An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-486


Filed: 15 April 2003


v .                         Wake County
                            No. 00 CVS 00228

    Appeal by plaintiff from judgment entered 1 November 2001 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 29 January 2003.

    W. Brian Howell, PA, by W. Brian Howell and T. Cooper Howell, for plaintiff-appellant.

    Higgins, Frankstone, Graves & Morris, PA, by David J. Hart, for defendant-appellee.

    STEELMAN, Judge.

    Plaintiff, Kathlyn D. Ditscheiner, appeals the trial court's granting of a motion for directed verdict in favor of defendant, Jelly Beans, L.L.C., at the close of her evidence. For the reasons discussed herein, we affirm.
    On 11 January 1997, plaintiff was injured while roller skating at a skating rink owned by defendant when another skater ran into her and caused her to fall. At the time she was hit by the otherskater, she was attempting to exit the skating rink. As a result of the fall, plaintiff fractured her right wrist, requiring extensive medical treatment.
    On 6 January 2000, plaintiff filed a complaint alleging defendant was negligent in: (a) failing to provide adequate or sufficient personnel to direct, supervise and monitor activity on the skating rink; (b) failing to take reasonable precautions to prevent negligent, reckless or unsafe activity on the skating rink surface; and (c) failing to render timely or effective assistance to plaintiff after she fell down. Plaintiff further alleged that defendant's conduct was grossly and wantonly negligent. Plaintiff sought both actual and punitive damages.
    At the close of plaintiff's evidence, the trial court granted defendant's motion for a directed verdict and entered judgment dismissing plaintiff's complaint. The trial court held that there was no evidence “that the unidentified skater who collided with the plaintiff: (1) was an agent or employee of the defendant; or (2) was skating in a reckless or otherwise dangerous manner at the moment of the collision.” Plaintiff appeals and makes only one assignment of error, that the trial court erred in granting the motion for directed verdict. We disagree.
    Upon a motion for a directed verdict, the court must view the evidence in the light most favorable to the nonmovant, resolvingall conflicts in her favor and giving her the benefit of every inference that could reasonably be drawn from the evidence. N.C. Gen. Stat. § 1A-1, Rule 50 (2001); Norman v. Banasik, 304 N.C. 341, 283 S.E.2d 489 (1981). A directed verdict is proper only if the nonmovant failed to show a right to recover 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 (1977).
    Negligence is not presumed from the mere fact of injury. Winters v. Burch, 284 N.C. 205, 200 S.E.2d 55 (1973). A plaintiff must offer legal evidence establishing every essential element of negligence beyond mere speculation or conjecture. Myrick v. Peeden, 113 N.C. App. 638, 439 S.E.2d 816, rev. denied, 336 N.C. 781, 447 S.E.2d 816 (1994). Failure to do so renders a motion for directed verdict proper. Id.
    Our Supreme Court addressed the duty of an operator of a public swimming facility to its patrons in Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977). The duty set forth in Manganello is applicable in the instant case because swimming and skating both involve patrons engaging in physical activities in a confined area where there is likely to be physical contact between patrons. It is thus appropriate to apply the standard of care for the operator of the facility as set forth inManganello to the present case.
    The Manganello court held that “[t]he owner is not 'an insurer of the safety of his patrons' but he must exercise 'ordinary and reasonable care' for their safety lest he be held liable for injury to a patron resulting from breach of his duty.” Id. at 670-71, 231 S.E.2d at 680 (citing Wilkins v. Warren, 250 N.C. 217, 219, 108 S.E.2d 230, 232 (1959)). Manganello further provided that
“The proprietor is liable for injuries resulting from the horseplay or boisterousness of others, regardless of whether such conduct is negligent or malicious, if he had sufficient notice to enable him to stop the activity. But in the absence of a showing of timely knowledge of the situation on his part, there is no liability.”

Manganello, supra, 291 N.C. at 671, 231 S.E.2d at 681 (citing Aaser v. City of Charlotte, 265 N.C. 494, 499-500, 144 S.E.2d 610, 615 (1965)). In Manganello, the plaintiff was injured when he was struck by a swimmer who jumped backwards off the shoulder of another swimmer. At the time the injury took place, this type of activity had been going on in the pool for some twenty minutes. The Supreme Court reversed the trial court's granting of a directed verdict in favor of the defendant at the close of the plaintiff's evidence.
    The instant case is distinguishable from Manganello in thatthe Manganello plaintiff was injured as a result of the horseplay and boisterous conduct which had been going on for some twenty minutes. Here, although plaintiff presented evidence of fast skating, horseplay and boisterous conduct by other skaters for a period of time prior to her being knocked down, there was absolutely no evidence as to why or how she was knocked down. Plaintiff testified that she did not see the other skater immediately prior to the collision and did not know how that person was skating at the time of the collision. No other witnesses testified that they saw the collision.
    This case is also similar to Young by & Through Young v. Fun Services-Carolina, 122 N.C. App. 157, 468 S.E.2d 260, rev. denied, 344 N.C. 444, 476 S.E.2d 134 (1996). In Young, a child was injured while playing in a “moonwalk” inflatable device. The plaintiff had produced evidence that earlier in the day the moonwalk had shifted. However, there was no evidence that the moonwalk shifted prior to the plaintiff's injury. This Court held that “[n]othing in the record allows the inference that a shifting of the moonwalk caused [the victim's] accident. The mere fact that the moonwalk shifted earlier in the day, without more, is not enough to satisfy our Supreme Court's definition of proximate cause set forth in Adams [v. Mills], 312 N.C. 181, 322 S.E.2d 164.” Id. at 161, 468 S.E.2d at 263. In the present case, there was no evidence that any fastskating, horseplay or boisterous conduct caused plaintiff's injury.
    Plaintiff's evidence thus failed to show that her injury was the result of the type of conduct that defendant was under a legal duty to stop. It would have been error for the trial court to have allowed the jury to engage in speculation as to whether the collision occurred as a result of fast skating, horseplay or boisterous conduct on the part of another skater, or was merely the result of incidental contact between two skaters. The trial court properly dismissed plaintiff's complaint at the close of her evidence.
    We note that the General Assembly enacted Article 2 of Chapter 99E, titled “Roller Skating Rink Safety and Liability.” This statute sets forth in detail the duties of operators and patrons of roller skating rinks for causes of action arising after 1 January 1998. See Session Laws 1997-376, s. 2. Plaintiff's injury occurred in January 1997. This statute is thus inapplicable to this case.
    Judges MARTIN and HUDSON concur.
    Report per Rule 30(e).

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