1. Appeal and Error--preservation of issues--failure to raise issue in complaint
Although plaintiff contends the trial court erred in a premises liability case by entering
summary judgment in favor of defendants when there was a genuine issue of material fact as to
whether the person who injured her was an employee, agent, or independent contractor of
defendants, this issue is dismissed because plaintiff failed to raise this issue in her complaint or to
base her theory of recovery from defendants on vicarious liability.
2. Premises Liability-_open and obvious danger--summary judgment--failure to allege
agents
The trial court did not err in a premises liability case by granting summary judgment in
favor of two of the defendants even though plaintiff contends the danger created by the high-
speed buffing machine that caused her injury was not so open or obvious that as a matter of law
defendants were relieved of their duty to protect visitors from or to warn visitors about such a
dangerous condition, because: (1) these defendants did not own or operate the store in which
plaintiff's injury occurred; and (2) plaintiff failed to allege in her complaint that either of these two
defendants were agents of defendant grocery store.
3. Premises Liability-_duty to keep premises safe and warn of hidden dangers--
summary judgment--genuine issue of material fact
The trial court erred by granting summary judgment in favor of defendant grocery store in
plaintiff's action to recover for injuries received when she was struck by a buffer machine in the
store because: (1) defendant as owner and operator of the store owed a duty to plaintiff to keep
its premises safe and to warn her of any hidden dangers on its premises; and (2) there was more
than one inference that could be drawn from the facts presented on the issues of negligence and
contributory negligence.
Washington & Pitts, P.L.L.C., by Marshall B. Pitts, Jr., for
the plaintiff-appellant.
Stephenson & Stephenson, LLP, by Dena White Waters, for Budget
Services, Inc. and Frank's Floor Care, defendants-appellees.
Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Julie
L. Bell and Lori P. Jones, for Food Lion, LLC, defendant-
appellee.
JACKSON, Judge.
On 22 December 2000, Deborah Freeman (“plaintiff”) was a
patron at Delhaize America, Inc. (“Food Lion”) in Fayetteville,
North Carolina. At approximately 11:30 p.m., plaintiff was walking
in one of the store aisles when she was struck by a buffer machine
being operated by an individual wearing headphones. The buffer
machine ran over plaintiff's right foot entangling it in the
machine and causing serious and permanent injury to it. There were
orange cones located at the front of the grocery store that
allegedly had been knocked down by John Robinson (“Robinson”), a
person hired by Amron Janitorial to service the Food Lion store
floors. However, there were no caution signs, warning signs,
hazard signs, or orange cones on the aisle in which plaintiff was
walking when the buffer machine ran over her foot. No store
managers were on duty at the time of the accident. Plaintiff
filled out an accident report form but received no copy of the
report.
On 18 December 2003, plaintiff filed a complaint against (1)
Food Lion, the owner and operator of the store in which she was
injured; (2) Budget Services, who contracted with Food Lion to
maintain the floors of the Food Lion store; (3) Frank's Floor Care,
who contracted with Budget Services to maintain the floors of Food
Lion; and (4) Amron Janitorial, who contracted with Budget Servicesto maintain the floors of Food Lion and who hired Robinson
(See footnote 1)
to
operate the buffer machine that subsequently injured plaintiff.
Plaintiff sought to recover compensatory damages in excess of ten
thousand dollars ($10,000.00) from each of defendants.
On 22 July 2004, defendant Food Lion moved for entry of
summary judgment. On 16 August 2004, approximately three weeks
later, defendants Budget Services and Frank's Floor Care also filed
a joint motion for summary judgment. Defendants Food Lion, Budget
Services, and Frank's Floor Care supported their motions for
summary judgment with an affidavit executed by Robinson.
On 23 August 2004, the trial court heard arguments in support
of the summary judgment motions in the instant case. On 26 August
and 31 August 2004, the trial court entered two separate orders,
one granting summary judgment in favor of Food Lion and the other
granting summary judgment in favor of Budget Services and Frank's
Floor Care. Plaintiff appeals from these two orders.
Summary judgment is appropriate when the “pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” Roumillat v. Simplistic Enter.,
Inc., 331 N.C. 57, 62, 414 S.E.2d 339, 342 (1992); N.C. Gen. Stat.
§ 1A-1, Rule 56(c)(2003). The movant has the burden of showing that there are no triable
issues that exist. Id. at 62-63, 414 S.E.2d at 341-42 (citing
Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 329
S.E.2d 350 (1985)); see also Caldwell v. Deese, 288 N.C. 375, 218
S.E.2d 379 (1975).
The movant may meet this burden by proving
that an essential element of the opposing
party's claim is nonexistent, or by showing
through discovery that the opposing party
cannot produce evidence to support an
essential element of his claim or cannot
surmount an affirmative defense which would
bar the claim.
Roumillat, 331 N.C. at 63, 414 S.E.2d at 342 (citing Bernick v.
Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982)); Zimmerman v. Hogg &
Allen, 286 N.C. 24, 209 S.E.2d 795 (1974)). After the moving party
satisfies its burden of proof, the nonmovant then must “'produce a
forecast of evidence demonstrating that the plaintiff will be able
to make out at least a prima facie case at trial.'” Roumillat, 331
N.C. at 63, 414 S.E.2d at 342 (quoting Collingwood v. General Elec.
Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427
(1989)).
It is well-established that upon examining whether a movant
should be granted summary judgment, “[a]ll inferences of fact must
be drawn against the movant and in favor of the nonmovant.”
Roumillat, 331 N.C. at 63, 414 S.E.2d at 342 (citing Collingwood,
324 N.C. at 66, 376 S.E.2d at 427). While all inferences are drawn
in favor of the nonmovant, however, “it is only after it becomes
clear to the court that the facts are established or admitted, and
the issue of negligence has been reduced to a mere question of lawthat courts should grant such extreme remedies.” Osborne v. Annie
Penn Mem'l Hosp., Inc. 95 N.C. App. 96, 99, 381 S.E.2d 794, 796
(1989)(citing Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638,
cert. denied, 283 N.C. 257, 195 S.E.2d 689 (1973)).
[1] Plaintiff contends the trial court erred by entering
summary judgment in favor of defendants, Food Lion, Budget
Services, and Frank's Floor Care because there existed genuine
issues of material fact. Specifically, plaintiff asserts that
there were genuine issues as to whether the person who injured her
was an employee, agent, or independent contractor of defendants.
Plaintiff alleges in her brief that Robinson should be considered
an agent of defendants -not an independent contractor_ and
therefore defendants should be held vicariously liable for her
injuries.
Generally, employers are not held vicariously liable for the
negligent acts of an independent contractor. Gordon v. Garner, 127
N.C. App. 649, 658, 493 S.E.2d 58, 63 (1997), disc. rev. denied,
347 N.C. 670, 500 S.E.2d 86 (1998). However, plaintiff failed to
raise the issue of whether Robinson was an agent, employee, or
independent contractor of defendants in her complaint or base her
theory of recovery from Food Lion, Budget Services, or Frank's
Floor Care on vicarious liability. Therefore, we conclude that
whether or not plaintiff can hold Food Lion, Budget Services, or
Frank's Floor Care vicariously liable is not an issue properly
before this Court. See Weil v. Herring, 207 N.C. 6, 10, 175 S.E.
836, 838 (1934)(“the law does not permit parties to swap horsesbetween courts in order to get a better mount in . . . [this
Court]”); Ellis-Don Const., Inc., v. HNTB Corp., ___ N.C. App. ___,
___, 610 S.E.2d 293, 295 (2005)(“We limit our review to those
arguments asserted in the pleadings before the trial court and
properly preserved for review.”); N.C. Gen. Stat. § 1A-1, Rule
12(b)(6)(2004). Accordingly, this assignment of error is
overruled.
[2] Plaintiff next asserts that the trial court erred by
granting summary judgment in favor of defendants Food Lion, Budget
Services, and Frank's Floor Care because the danger created by the
high-speed buffing machine was not so open or obvious that, as a
matter of law, defendants were relieved of their duty to protect
visitors from, and to warn visitors about, such a dangerous
condition.
It is not this Court's intention to place on owners and
occupiers of land an “unwarranted burden[] in maintaining their
premises. Rather, we impose upon them only the duty to exercise
reasonable care in the maintenance of their premises for the
protection of lawful visitors.” Nelson v. Freeland, 349 N.C. 615,
632, 507 S.E.2d 882, 892 (1998). Therefore, failure by “[a] store
. . . to exercise ordinary care to keep its premises in a
reasonably safe condition and to warn of any hidden dangers of
which it knew or should have known” constitutes negligence.
Stallings v. Food Lion, Inc., 141 N.C. App. 135, 137, 539 S.E.2d
331, 333 (2000)(citing Lamm v. Bissette Realty, Inc., 327 N.C. 412,
416, 395 S.E.2d 112,115 (1990); Roumillat, 331 N.C. 57 at 64, 414S.E.2d at 342-43)). There is a presumption, however, that a
reasonable person will be “vigilant in the avoidance of injury”
when faced with a “known and obvious danger.” Id. (quoting
Roumillat, 331 N.C. at 66, 414 S.E.2d at 344); see Lorinovich v. K
Mart Corp., 134 N.C. App. 158, 162-63, 516 S.E.2d 643, 646-47
(1999)(“As a general proposition, there is no duty to protect a
lawful visitor against dangers which are either known to him or so
obvious and apparent that they reasonably may be expected to be
discovered.”)
(See footnote 2)
In the instant case, plaintiff contends that “Food Lion, its
agents and anyone performing a service contract at Food Lion were
under a duty to exercise reasonable care to provide for
[plaintiff's] safety while she was lawfully on its premises.
Because neither Budget Services nor Frank's Floor Care owned
nor operated the store in which plaintiff's injury occurred and
because plaintiff has failed to allege in her complaint that Budget
Services or Frank's Floor Care were agents of Food Lion, we hold
that they had no duty to plaintiff and that, therefore, they may
not be held liable under a theory of premises liability.
Accordingly, we proceed forward addressing the issue of whether the
trial court erred in granting summary judgment in favor of only
defendant Food Lion on the issue of premises liability. [3] In the instant case, Food Lion, as owner and operator of
the store in which plaintiff was injured, owed a duty to plaintiff
to keep their premises safe and to warn her of any hidden dangers
on their premises. Based on the “pleadings, depositions, answers
to interrogatories, and admissions on file” there was more than one
inference that could be drawn from the facts presented. Roumillat,
331 N.C. at 57, 414 S.E.2d 339. These genuine issues of material
fact should have been submitted for resolution by the jury -not
this Court, id. at 139, 539 S.E.2d at 334 _such as whether (1) Food
Lion properly warned plaintiff about the cleaning service buffing
the floor nearby; (2) Food Lion failed to use ordinary care in
providing a safe premise for plaintiff to shop; (3) plaintiff
contributed to her own injury by failing to exercise the use of
ordinary care; (4) the buffer machine presented an obvious danger
to plaintiff; and (5) a reasonably prudent person exercising
ordinary care would have, and should have, noticed the buffer prior
to the collision and avoided the dangers of such machinery. When
considered in the light most favorable to plaintiff, we decline to
grant defendant Food Lion in this case an extreme or drastic remedy
such as summary judgment.
Accordingly, there were genuine issues of material fact
pertaining to defendant Food Lion's negligence and plaintiff's duty
to exercise ordinary care and the trial court erred in precluding
plaintiff and defendant from submitting those issues to the jury.
Therefore, we reverse this assignment of error and remand it to the
trial court consistent with the findings of this opinion. Affirmed in part; Reversed and remanded in part.
Judge HUDSON and STEELMAN concur.
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