Kremer v. Food Lion, Inc. , 102 N.C. App. 291 ( 1991 )

401 S.E.2d 837 (1991)

Adelaide M. KREMER and husband, H.H. Kremer, Plaintiffs,
v.
FOOD LION, INC., Defendant.

No. 9020SC597.

Court of Appeals of North Carolina.

March 19, 1991.

Brown, Robbins, May, Pate, Rich, Scarborough & Burke by P. Wayne Robbins and Carol M. White, Pinehurst, for plaintiffs-appellees.

Anderson, Broadfoot, Johnson & Pittman by T. Alan Pittman, Fayetteville, for defendant-appellant.

WELLS, Judge.

Defendant first assigns error to the trial court's denial of defendant's motions for directed verdict and judgment notwithstanding the verdict. The party moving for a directed verdict bears a heavy burden. Taylor v. Walker, 320 N.C. 729, 360 S.E.2d 796 (1987). The movant's burden is even heavier in cases such as the one before us in which the principal issues are negligence and contributory negligence. Id. Issues arising in negligence cases are ordinarily not susceptible to summary adjudication because application of the applicable standard of care is generally for the jury. Williams v. Power & Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979) (Citation omitted). A motion by a defendant for a directed verdict under N.C.Gen.Stat. § 1A-1, Rule 50(a) of the Rules of Civil Procedure tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977). On such a motion, the plaintiff's evidence must be taken as true and the evidence must be considered in the light most favorable to the plaintiff, giving the plaintiff the benefit of every reasonable inference to be drawn therefrom. Id. A directed verdict for the defendant is not properly allowed unless it appears as a matter of law that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish. Id. (Citations omitted). A motion for judgment notwithstanding the verdict is essentially a renewal of a motion for directed verdict and the rules regarding the sufficiency of the evidence to go to the jury are equally applicable. Taylor v. Walker, supra.

The owner of a store is not an insurer of its customer's safety but is under a duty to exercise ordinary care in keeping the store's aisles and passageways reasonably safe so as not to unnecessarily expose customers to danger. Rives v. Great Atlantic & Pacific Tea Co., 68 N.C.App. 594, 315 S.E.2d 724 (1984) (Citations omitted). Viewing the evidence in the light most favorable to plaintiff, defendant created a hazard and unnecessarily exposed customers to danger by leaving two bags of dog food protruding into the aisle next to the ice cream cooler. Plaintiff testified that the store manager reprimanded the stock boy upon discovering the bags in that location, saying, "You don't leave anything in an aisle protruding the way that was. That's not the way we put up a display. Get those damn bags out of here." Plaintiff also testified that the stock boy failed to deny responsibility. This evidence was sufficient to take the issue of defendant's negligence to the jury.

Defendant further contends that the trial court erred by admitting the statements made by the store manager as being inadmissible hearsay. However, the manager's statements are admissible as an exception to the hearsay rule for admissions by a party opponent which include "statements by [a party's] agent or servant concerning a matter within the scope of his agency or employment made during the existence of his relationship." N.C.Gen.Stat. § 8-C, Rule 801(d)(D) (1988).

Defendant also contends that the trial court erred in denying defendant's motions for directed verdict and judgment notwithstanding the verdict because the evidence showed that plaintiff was contributorily negligent. Defendant is not entitled to a directed verdict or a judgment notwithstanding the verdict unless the evidence, viewed in the light most favorable to the plaintiff, shows contributory negligence as a matter of law. Norwood v. Sherwin-Williams Co., 303 N.C. 462, 279 S.E.2d 559 (1981). Although failure to discover an obvious defect will usually be considered contributory negligence as a matter of law, this general rule does not apply when circumstances divert the attention of an ordinarily prudent person from discovering an existing dangerous condition. Id. Our Supreme Court has stated that in such cases the issue of contributory negligence is not whether the reasonable prudent person would have seen the object had he looked, but whether a person using ordinary care for his or her own safety under similar circumstances would have looked down at the floor. Id.; See also, Hicks v. Food Lion, Inc., 94 N.C.App. 85, 379 S.E.2d 677 (1989). Viewing the evidence in the light most favorable to the plaintiff, plaintiff walked along the left wall of defendant's store and after deciding against purchasing beer, she turned to the left in the direction of the ice cream cooler and store front. Evidence was offered that items were placed above the cooler designed to draw the attention of shoppers. The dog food bags were at her feet and after taking two steps she fell over the dog food bags protruding into the aisle. No other displays were in this five foot area and this evidence supports a finding that plaintiff acted prudently in looking ahead of herself and not at her feet. The trial court properly denied defendant's motions for directed verdict and judgment notwithstanding the verdict.

Defendant also assigns error to the trial court's failure to set aside the verdict and order a new trial pursuant to N.C.Gen.Stat. § 1A-1, Rule 59 on the grounds of the manifest disregard by the jury of the proper instructions of the court and insufficiency of the evidence to justify the verdict. Having determined that sufficient evidence exists to support a verdict for plaintiff, we find no error in the trial court's failure to set aside the verdict.

Defendant assigns error to the trial court's failure to grant defendant's motion for "remittitur" on the grounds that the jury manifestly disregarded the court's proper jury instructions and the insufficiency of the evidence to justify the verdict as to damages. Defendant contends the verdict is excessive and that the jury manifestly disregarded the trial court's instructions to the jury to refrain from basing their verdict on anger for the defendant or sympathy for the plaintiff. In his assignment of error and the discussion found in his brief, defendant fails to mention N.C.Gen.Stat. § 1A-1, Rule 59. Nevertheless, we address defendant's contention involving "remittitur" in the context of Rule 59. Rule 59 of the North Carolina Rules of Civil Procedure states "A new trial may be granted ... [when] ... (6) excessive or inadequate damages appear[ ] to have been given under the influence of passion or prejudice...."

[I]t is plain that a trial judge's discretionary order pursuant to G.S. [§] 1A-1, Rule 59 for or against a new trial upon any ground may be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown.... [A]n appellate court should not disturb a discretionary Rule 59 motion unless it is reasonably convinced by the cold record that the trial judge's ruling probably amounted to a miscarriage of justice.

Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982). Initially we note that defendant did not request that the trial court make findings of fact or enter conclusions of law on its motion. See Andrews v. Peters, 318 N.C. 133, 347 S.E.2d 409 (1986). Second, we note that defendant's brief only makes limited reference to the evidence on plaintiff's injuries and damages, attempting to cast the evidence in a light favorable to defendant. Plaintiff's injuries were substantial, requiring two operations on her hip. Her recuperation was slow and she suffered a partial permanent disability in the use of her right leg. On this record, we can find no abuse of discretion in the trial court's ruling.

No error.

Chief Judge HEDRICK and Judge ORR concur.