Rappaport v. Days Inn of America, Inc.
Rappaport v. Days Inn of America, Inc.
Dissenting Opinion
dissenting.
I dissent because I believe we are bound by Drumwright v. Theatres, Inc., 228 N.C. 325, 45 S.E. 2d 379 (1947). In that case, the patron of a movie theatre was directed to the balcony by an usher. The balcony was dark and there were no floor lights or seatlights. The steps were uneven in width — the succession being a narrow step, then a wider step. The plaintiff took a false step and fell when she thought she was on a wide step rather than a narrow one. The Supreme Court held that on this evidence, the case should have gone to the jury. I believe Drumwright is factually indistinguishable from this case. In each case, the plaintiff entered the premises of the defendant as a business invitee; the plaintiff was directed to an area of the premises by an agent of the defendant; the plaintiff could be expected to walk through a dark area of the premises, and there was an irregularity in the area in which the plaintiff was to walk.
The majority opinion holds that the cause of the plaintiff’s fall is left to speculation by the evidence. I believe that the evidence that the plaintiff was walking toward the curb, and immediately after the fall she was found approximately a “couple” of feet from the curb is sufficient upon a fair and reasonable consideration to permit the jury to find that the plaintiff tripped on the curb. Moore v. Moore, 268 N.C. 110, 150 S.E. 2d 75 (1966).
Opinion of the Court
The question presented is whether plaintiff’s evidence, considered in the light most favorable to her, was sufficient to support a finding of negligence by the defendant which was the proximate cause of plaintiff’s injuries. We agree with the trial court’s conclusion that it was not.
“An innkeeper is not an insurer of the personal safety of his guests.” Page v. Sloan, 281 N.C. 697, 702, 190 S.E. 2d 189, 192 (1972). He is only required to exercise due care to keep his premises in a reasonably safe condition and to give his guests or invitees warning of any hidden peril or unsafe condition of which he has knowledge or which he could discover by reasonable inspection and supervision. Jones v. Pinehurst, Inc., 261 N.C. 575, 135 S.E. 2d 580 (1964); Barnes v. Hotel Corp., 229 N.C. 730, 731, 51 S.E. 2d 180, 181 (1949). Moreover, “[t]here is no presumption or inference of negligence from the mere fact that an invitee fell to his injury while on the premises, and the doctrine or res ipsa loquitur does not apply to a fall or injury of a patron or invitee on the premises, but the plaintiff has the burden of showing negligence and proximate cause, and in this connection allegations of negligence in aspects not supported by the evidence must be disregarded.” 9 Strong’s N.C. Index 3d, Negligence § 53.4, pp. 482-83.
Plaintiff’s evidence in the present case, even when viewed in the light most favorable to her, leaves the cause of her fall a matter of conjecture. The theory advanced by her counsel is that she fell when she walked forward in the darkness and stumbled against the raised concrete walkway adjacent to the motel building, but her evidence leaves it to speculation whether this occurred. Plaintiff had the burden to show the cause of her fall. She failed to carry that burden.
Even if it be assumed that plaintiff fell in the manner her counsel contends, still her evidence fails to show that her fall and resulting injuries were caused by any actionable negligence on the part of the defendant. It was not negligence for the defendant to construct and maintain a concrete walkway adjacent to its motel building elevated some six or seven inches above the adjoining parking lot. Such walkways, requiring a step up by one walking from the parking area to the motel building, are so com
Plaintiff alleged that defendant was negligent in failing to provide proper lighting, and she presented evidence that two spotlights on the brick wall in the vicinity where she fell were not burning. However, she presented no evidence to show how long these had been out or to show that defendant knew the spotlights were out or should have discovered this by reasonable inspection. Her evidence leaves unexplained why the lighting, which was adequate for her companions, was inadequate for her. We find plaintiff’s evidence insufficient to show that any negligence of the defendant was the proximate cause of her injuries.
Drumwright v. Theatres, Inc., 228 N.C. 325, 45 S.E. 2d 379 (1947), cited and relied on by plaintiff, is distinguishable on its facts. In that case the plaintiff fell inside a darkened theatre when her foot slipped on a step of uneven width while she was walking down the aisle in the balcony where she had been directed to go by an usher. A majority of our Supreme Court reversed judgment of nonsuit for the defendant. In that case the plaintiff’s evidence disclosed the exact cause of her fall, the precise place it occurred, and the fact that defendant’s employee had directed her to go to the very place where she fell and was injured. In the present case plaintiff’s fall occurred, not in the darkened interior of a building, but out of doors; the cause of her fall is left to conjecture; the place where it occurred is not precisely fixed; and, finally, plaintiff and her companions were directed by defendant’s employees only as to the general area where they should go. We do not consider Drumwright v. Theatres, Inc., as controlling on the facts of this case.
Since we find that plaintiff’s evidence was insufficient to permit any inference of actionable negligence on the part of the defendant, it is not necessary that we pass on defendant’s additional contention that plaintiff’s evidence disclosed her con
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.