An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 21 December 2004
. New Hanover County
FOOD LION, L.L.C.,
Appeal by Defendant from rulings entered 1 and 2 May 2003 by
Judge Ernest B. Fullwood in Superior Court, New Hanover County.
Heard in the Court of Appeals 13 September 2004.
Ward & Smith, P.A., by Lynwood P. Evans and E. Bradley
Evans, for plaintiff-appellee.
Poyner & Spruill L.L.P., by Douglas M. Martin, for
Defendant Food Lion, L.L.C. appeals the trial court's denial
of its motions for a directed verdict and the admission of
deposition transcript excerpts of two Food Lion employees into
evidence during the jury trial. For the reasons stated herein,
we uphold the trial court's rulings. The factual and procedural background of this case is as
follows: While shopping at Food Lion's Landfall Center store in
Wilmington, North Carolina on 4 July 2001, Plaintiff Sally
Elliott stepped on grapes or cherries and fell to the floor,
fracturing her kneecap. Elliott contended that Food Lion's
grapes were displayed in overfilled and tilted produce bins, out
of which Food Lion should have known produce would fall. Elliott
further alleged that Food Lion's produce area flooring was
insufficiently carpeted and littered with crushed and dried fruit
_ a claim substantiated by witnesses Judy Murphy and Maria
Murphy and Cassalls had also been shopping at Food Lion's
Wilmington store at the time of Elliott's fall. Cassalls had
seen grapes on the floor in the area where Elliott fell twenty
minutes to a half hour prior to her fall, and Murphy and Cassalls
noted that the produce area floor was very messy and really
dirty. After Elliott's fall, Amy Bass, Customer Service Manager
of the Landfall Food Lion and the highest level employee at the
Landfall Center Food Lion at the time of Elliott's fall, failed,
according to her own testimony, to enact certain procedures _
such as photographing the accident site and maintaining the
surveillance video from the day of Elliott's fall _ mandated byFood Lion's policy manual. Food Lion contended, as evidenced by
Thomas David Smith, Assistant Manager of Food Lion's Landfall
Center store, that it had accidentally preserved the surveillance
video for a day other than that of Elliott's accident. This
contention was contradicted at trial by Food Lion's claims
adjustor Bobby Lee Clontz, who suggested no video had been made
on the day on Elliott's fall.
On or around 6 September 2001, Elliott brought suit against
Food Lion, alleging Food Lion's negligence caused her injury and
demanding an award in excess of $10,000. On or around 9 October
2001, Food Lion filed an answer to Elliott's complaint, denying,
inter alia, Elliott's negligence claims. From 30 April 2003
through 2 May 2003, this case was tried before a jury in Superior
Court, New Hanover County, the Honorable Ernest B. Fullwood
presiding. The trial court allowed Elliott to read into evidence
excerpts from the Bass and Smith depositions regarding accident
policies and procedures and the 4 July 2001 surveillance tape.
Food Lion twice moved unsuccessfully for a directed verdict,
alleging that Elliott failed to present sufficient evidence of
negligence for the case to be submitted to the jury. The case
went to the jury, which found that Food Lion's negligence caused
Elliott's injury and awarded Elliott $120,000. Food Lion did notfile for a judgment notwithstanding the verdict but appealed the
denial of its motions for a directed verdict, as well as the
admission of Bass and Smith deposition excerpts into evidence at
trial. For the reasons stated below, we deny Food Lion's appeal
in all respects.
A. Motions for Directed Verdict
(Assignment of Error Number 1)
In reviewing a motion for a directed verdict, the Court must
consider the evidence in the light most favorable to the non-
moving party, giving it the benefit of all reasonable inferences
to be drawn therefrom, and resolving all conflicts in the
evidence in its favor. Carter v. Food Lion, Inc.
, 127 N.C. App.
271, 273, 488 S.E.2d 617, 619 (1997);
Smith v. Price, 315 N.C.
523, 527, 340 S.E.2d 408, 411 (1986).
The burden carried by the
movant is particularly significant in cases in which the
principal issue is negligence.
Cook v. Wake County Hosp. Sys.,
Inc., 125 N.C. App. 618, 621, 482 S.E.2d 546, 549 (1997).
the court should deny such a motion if it finds any
evidence more than a scintilla to support plaintiff's prima facie
case. Smith v. Pass
, 95 N.C. App. 243, 255, 382 S.E.2d 781, 789
Clark v. Moore, 65 N.C. App. 609, 309 S.E.2d 579
In this case, Elliott alleged that Food Lion's negligence
caused her injury. Under North Carolina law, in order to
maintain a suit for negligence, Elliott needed to demonstrate
that Food Lion, who owed her a duty of reasonable care: (1)
negligently created a condition causing Elliott's injury, or (2)
negligently failed to correct a condition causing Elliott's
injury after receiving actual or constructive notice of that
condition. Thompson v. Wal-Mart Stores, Inc.
, 138 N.C. App. 651,
653-54, 547 S.E.2d 48, 50 (2000); Carter
, 127 N.C. App. at 274-
75, 488 S.E.2d at 620
. We therefore look to whether Elliott
presented more than a scintilla of evidence that Food Lion
negligently created a condition causing her injury, or
negligently failed to correct the condition causing her injury.
At trial, Elliott contended that Food Lion negligently
created a condition causing Elliott's injury by displaying
produce in a manner causing unreasonable risk of injury. The
manner in which a store displays goods may negligently cause
injury to patrons. See, e.g., Rives v. Great Atl. & Pac. Tea
, 68 N.C. App. 594, 315 S.E.2d 724 (1984) (directed verdict
should have been denied where plaintiff claimed that hazardous
grape display proximately caused her injuries); Keith v. Kresge
, 29 N.C. App. 579, 581-82, 225 S.E.2d 135, 137 (1976)(summary judgment for defendant properly denied where plaintiff
claimed store's product display caused her injuries).
Elliott alleged, inter alia
, that Food Lion had displayed
grapes in overfilled, tilted produce bins that created an
unreasonable risk of injury, especially at the beach on the
Fourth of July, where produce aisle traffic was high. Moreover,
Elliott alleged that, as she lay on the floor after her fall, she
saw grapes rolling onto the insufficiently carpeted floor from a
customer's merely moving by the produce bins. [Tr. 86-88] This
evidence constituted more than a scintilla of evidence that Food
Lion negligently created a condition causing Elliott's injury.
The trial court therefore properly denied Food Lion's motions for
a directed verdict.
Elliott also contended that Food Lion negligently failed to
correct the condition causing Elliott's injury after receiving
constructive notice of that condition. Constructive notice of a
dangerous condition may be shown in two ways: the plaintiff can
present direct evidence of the duration of the dangerous
condition, or the plaintiff can present circumstantial evidence
from which the fact finder could infer that the dangerous
condition existed for some time. Thompson
, 138 N.C. App. at
654, 547 S.E.2d at 50. Elliott offered both direct and circumstantial evidence of
the duration of the dangerous condition, not only through her own
contentions but also through the testimony of Murphy and
Cassalls. Murphy and Cassalls testified that the area in which
Elliott fell was very messy, littered extensively with dried
up and smooshed grapes that had shopping cart tracks through
them. Cassalls testified that grapes littered the floor when she
passed through the produce area twenty to thirty minutes prior to
Elliott's fall. Murphy testified that, given the grapes'
appearance, they had been there a while. Evidence of dried,
smashed fruit with cart tracks and general dirtiness supports a
finding that the fruit had been on the floor for a substantial
period and that Food Lion therefore had constructive notice.
, 127 N.C. App. at 273, 488 S.E. 2d at 619; Nourse v. Food
, 127 N.C. App. 235, 488 S.E.2d 608 (1997). Because
Elliott clearly offered more than a scintilla of direct and
circumstantial evidence that Food Lion had constructive notice of
the dangerous condition that Elliott alleged caused her injury,
the trial court properly denied Food Lion's motions for a
(See footnote 1)
B. Admission of Bass Deposition Transcript Excerpts at Trial
(Assignment of Error Number 2)
Food Lion asserts that deposition testimony of Food Lion
Customer Service Manager Bass was improperly admitted into
evidence at trial. Food Lion contends that, because Bass was
available to testify live, use of the deposition at trial
violated North Carolina General Statute section 1A-1, Rule 32.
(See footnote 2)
North Carolina General Statute section 1A-1, Rule 32(a)(3)
permits a party to introduce deposition testimony of a witness
who is a managing agent of a corporation that is a party to theaction, regardless of witness availability. N.C. Gen. Stat. §
1A-1, Rule 32 (2003). An employee's status as a managing agent
is a factual question left to the discretion of the trial court.
1 G. Gray Wilson, North Carolina Civil Procedure
§ 32-4 (2003).
[W]here matters are left to the discretion of the trial court,
appellate review is limited to a determination of whether there
was a clear abuse of discretion. A trial court may be reversed .
. . only upon a showing that its actions are manifestly
unsupported by reason. White v. White
, 312 N.C. 770, 777, 324
S.E.2d 829, 833 (1985) (citations omitted)
North Carolina case law has not yet addressed the meaning of
managing agent under North Carolina General Statute section 1A-
1, Rule 32(a)(3). For the corresponding Federal Rule of Civil
Procedure 32, a United States District Court within the Fourth
Circuit and other federal courts have applied the following
factors in analyzing whether a person is a managing agent:
(1) whether the corporation has invested the
person with discretion to exercise his
judgment, (2) whether the employee can be
depended upon to carry out the employer's
directions, and (3) whether the individual
can be expected to identify him or herself
with the interests of the corporation as
opposed to the interests of the adverse
party. Other factors to consider include the
degree of supervisory authority which a
person is subject to in a given area and the
general responsibilities of the individualregarding the matters at issue in the
In re Honda Am. Motor Co., Inc. Dealership Relations Litig.
F.R.D. 535, 540-41 (D. Md. 1996) (citations omitted).
Here, the trial court considered a number of these factors
in determining that Bass was indeed a managing agent. The trial
court was aware of Bass's title of Customer Service Manager
confirmed that Bass was the person in charge of the Landfall
Center Food Lion at the time of Elliott's fall, contemplated
Bass's not necessarily being a managing agent of Food Lion for
all purposes, such as shareholder derivative suits, but found
Bass to be a managing agent for purposes of North Carolina
General Statute section 1A-1, Rule 32(a)(3) in this litigation.
Because the trial court's finding Bass to be a managing agent was
clearly not manifestly unsupported by reason, the Court affirms
the trial court's admitting into evidence Bass's deposition
testimony pursuant to North Carolina General Statute section 1A-
1, Rule 32(a)(3).
Food Lion further alleges that Bass's deposition testimony
was irrelevant to the issues the jury would decide and therefore
the trial court erred in admitting the testimony. Evidence is
relevant when it has any tendency to make the existence of any
fact that is of consequence to the determination of the actionmore probable or less probable than it would be without the
evidence. N.C. Gen. Stat. § 8C-1, Rule 401 (2003). [T]his
standard gives the judge great freedom to admit evidence because
the rule makes evidence relevant if it has any
to prove any fact that is of consequence. State v. Wallace
N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991) (citations
In this case, the admitted testimony pertained to Food
Lion's policies regarding accidents such as Elliott's, as well as
Bass's lack of training in and failure to execute those policies.
It covered, inter alia
, Bass's failure to photograph the accident
and Bass's making, but Food Lion's failing to maintain or
produce, documentary and video evidence of the store conditions
on the day of Elliott's fall. The trial court found that these
matters were relevant, not least to the application of the
spoilation of evidence doctrine, on which the trial court
instructed the jury. Under the spoilation of evidence doctrine,
'where a party fails to introduce in evidence documents that are
relevant to the matter in question and within his control . . .
there is a presumption, or at least an inference that the
evidence withheld, if forthcoming, would injure his case.'
Jones v. GMRI, Inc.
, 144 N.C. App. 558, 565, 551 S.E.2d 867, 872(2001) (quoting Yarborough v. Hughes
, 139 N.C. 199, 209, 51 S.E.
904, 907-08 (1905)). Because Bass's deposition testimony was
relevant, inter alia
, as to spoilation of evidence, the trial
court did not err in admitting it despite Food Lion's relevancy
C. Admission of Smith Deposition Transcript Excerpts at Trial
(Assignment of Error Number 3)
Finally, Food Lion asserts that the trial court erred in
admitting into evidence deposition testimony of Smith because
Smith was not identified as a witness in the trial court's
pretrial order. We disagree. Deposition were explicitly listed
in Attachment C to the pretrial conference order signed by Food
Lion's counsel as exhibits Elliott was allowed to offer at trial.
For the reasons stated herein, we affirm the trial court's
denial of Food Lion's motions for a directed verdict and the
trial court's admitting into evidence excerpts of the Bass and
Smith deposition transcripts.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
Food Lion relies on Williamson v. Food Lion, Inc.
, 131 N.C.
App. 365, 507 S.E.2d 313 (1998), France v. Winn-Dixie
, 70 N.C. App. 492, 320 S.E.2d 25 (1984), and
the unpublished opinion Worthington v. Food Lion, Inc. LLC
, No.COA03-98, 2003 N.C. App. LEXIS 2280 (N.C. App. Dec. 16, 2003), to
argue that Elliott failed to provide sufficient evidence of
constructive notice for the issue to go to the jury.
Importantly, however, in Williamson
, the plaintiffs
lacked evidence establishing the amount of time the dangerous
condition existed prior to the plaintiffs' respective injuries.
Here, Elliott presented a witness who saw the dangerous condition
at least 20 minutes prior to the fall and who was present when
the fall occurred. The jury could reasonably find from the
evidence that [the dangerous condition] had been on the floor for
at least 20 minutes. Mizell v. K-Mart Corp.
, 103 N.C. App. 570,
574, 406 S.E.2d 310, 312 (1991). The Court refrains from
analysis of Worthington
, which is unpublished and thus not
controlling precedent, and which does not have
to a material issue for which there is no published opinion that
would serve as well. N.C. R. App. P. 30(e).
In its second assignment of error, Food Lion cites to Rule
33. Because North Carolina General Statute section 1A-1, Rule 33
addresses party interrogatories and has no relevance to the
admission of deposition testimony at trial, and because Food
Lion, in its appellate briefing, refers to North Carolina General
Statute section § 1A-1, Rule 32, the Court will address Food
Lion's second assignment of error only as to Rule 32, not as to
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