An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA05-749


Filed: 7 March 2006


v .                         Haywood County
                            No. 03 CVS 737

    Appeal by plaintiff from order entered 6 April 2005 by Judge Ronald K. Payne in Haywood County Superior Court. Heard in the Court of Appeals 26 January 2006.

    Stanford K. Clontz, P.A., by Stanford K. Clontz, for plaintiff-appellant.

    Starnes, Aycock, Haire & Einstein, P.A., by Thomas M. Starnes, for defendant-appellee.

    HUDSON, Judge.

    Plaintiff Ruth Klebba filed her complaint alleging personal injury due to negligence by defendant Harrah's N.C. Casino Co., L.L.C. Defendant moved for summary judgment and plaintiff moved to amend her complaint. Following a hearing on 28 March 2005, the court granted summary judgment to defendant and denied plaintiff's motion to amend. Plaintiff appeals. As discussed below, we affirm.
    Defendant operates a hotel and casino in Cherokee. Plaintiff suffered injuries when an unknown person drove a motorizedwheelchair into her chair at defendant's casino. Plaintiff did not realize initially that she had been injured, and neither party learned the identity of the person operating the wheelchair.
    Plaintiff argues that the court erred in denying her motion to amend her complaint pursuant to Rule 15 of the North Carolina Rules of Civil Procedure. We do not agree.
    Plaintiff sought to add the following two allegations to her complaint:
        7(d). 'By failing to adequately investigate the incident wherein Plaintiff, Defendant's invitee, had been seriously injured, so as to obtain necessary information including, but not limited to, the identity of the individual who had driven her motorized wheelchair into Plaintiff.'
        9. That as a direct and proximate result of the negligent acts and omissions of Defendant as heretofore alleged in Paragraph 7(d), Plaintiff had been deprived of any reasonable opportunity to obtain recovery from the unknown third party who directly caused her injury.

    Rule 15 provides that
        [a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 30 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within 30 days after service of the amended pleading, unless the court otherwise orders.
N.C. Gen. Stat. § 1A-1, Rule 15(a)(2003). Here, plaintiff sought to amend her complaint more than thirty days after it had been served, and thus leave of court was required. “Denial of a motion to amend pleadings is a matter soundly within the discretion of the trial court. The trial court's decision regarding a party's motion to amend the pleadings will not be disturbed on appeal unless an abuse of discretion is shown.” Stetser v. TAP Pharm. Prods. Inc., 165 N.C. App. 1, 30, 598 S.E.2d 570, 589 (2004) (internal citation omitted).
    Here, the court denied plaintiff's motion to amend because the amendments would have been futile, given that they do not state the basis for a justiciable claim for relief in North Carolina and that the motion acknowledges that the direct proximate cause of plaintiff's injury was the action of an unknown third party. Plaintiff cites no authority in support of her novel cause of action for negligent failure to investigate against the operator of a business on whose premises a patron is injured by a third party. Under these circumstances, we cannot say that the court abused its discretion in denying plaintiff's motion to amend. This assignment of error is without merit.
    Plaintiff also argues that the court erred in granting summary judgment to defendant. We disagree.
    Summary judgment should be granted “if 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 ajudgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2004). “On appeal, the standard of review is (1) whether there is a genuine issue of material fact and (2) whether the movant is entitled to judgment as a matter of law.” NationsBank v. Parker, 140 N.C. App. 106, 109, 535 S.E.2d 597, 599 (2000). “The evidence presented is viewed in the light most favorable to the non-movant.” Id.
    “[U]nder established common law negligence principles, a plaintiff must offer evidence of four essential elements in order to prevail: duty, breach of duty, proximate cause, and damages.” Estate of Mullis by Dixon v. Monroe Oil Co., 349 N.C. 196, 201, 505 S.E.2d 131, 135 (1998).
        In a premises liability case involving injury to an invitee, the owner of the premises has a duty to exercise 'ordinary care to keep in a reasonably safe condition those portions of its premises which it may expect will be used by its customers during business hours, and to give warning of hidden perils or unsafe conditions insofar as they can be ascertained by reasonable inspection and supervision.”' Raper v. McCrory-McLellan Corp., 259 N.C. 199, 203, 130 S.E.2d 281, 283 (1963). In order to prove that the defendant-proprietor is negligent, plaintiff must show that the defendant either (1) negligently created the condition causing the injury, or (2) negligently failed to correct the condition after actual or constructive notice of its existence. Hinson v. Cato's, Inc., 271 N.C. 738, 739, 157 S.E.2d 537, 538 (1967). When the unsafe condition is attributable to third parties or an independent agency, plaintiff must show that the condition 'existed for such a length of time that defendant knew or by the exercise of reasonable care should have known of its existence, in time to have removed the danger or [to have] given proper warning of its presence.' Powell v. Deifells, Inc., 251 N.C. 596, 600, 112 S.E.2d 56, 58 (1960).
Roumillat v. Simplistic Enters., 331 N.C. 57, 64, 414 S.E.2d 339, 342-43 (1992). In Roumillat, the Court concluded that summary judgment was proper where the plaintiff failed to forecast evidence that defendant had actual or constructive notice of the dangerous condition for a sufficient time to correct it. Id. at 65, 414 S.E.2d at 343.
    Here, plaintiff alleged that defendant negligently caused her injury by allowing a motorized wheelchair into a crowded area where it could not be used safely, by failing to properly control the actions of the unknown patron who injured plaintiff, and by failing to timely intervene to prevent the injury to plaintiff. Defendant denied all of these allegations in its answer, and the undisputed evidence was that the aisles were not crowded and had ample room for a wheelchair. Plaintiff's deposition states that she was seated waiting for a show to begin when the motorized wheelchair suddenly struck her chair without warning. Beverly Lane was an employee of defendant who stood in the aisle near plaintiff and watched the patron operate her wheelchair down the aisle. According to Lane's affidavit, nothing in the patron's operation of the wheelchair suggested that she might strike plaintiff's chair and, “it happened so quickly that I couldn't have done anything to have prevented it in any event.” This evidence negates plaintiff's allegations, and plaintiff fails to forecast any evidence that defendant had actual or constructive notice of the danger to plaintiff and sufficient time to correct it. Thus, defendant hasmet its burden of showing no triable issue of fact. We overrule this assignment of error.
    Judges TYSON and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***