Shadkhoo v. Shilo East Farms, Inc.

Court of Appeals of North Carolina
Shadkhoo v. Shilo East Farms, Inc., 98 N.C. App. 672 (1990)
391 S.E.2d 841; 1990 N.C. App. LEXIS 440
Eagles, Orr, Phillips

Shadkhoo v. Shilo East Farms, Inc.

Opinion of the Court

EAGLES, Judge.

Plaintiff contends that the trial court erred in granting defendant’s motion for a directed verdict. She argues that the evidence was sufficient to go to the jury on the issue of defendant’s negligence. We disagree and affirm the trial court’s order.

Defendant’s motion for directed verdict, renewed at the close of all of the evidence, presents the question of whether the evidence viewed in the light most favorable to plaintiff will justify a verdict in plaintiff’s favor. Rayfield v. Clark, 283 N.C. 362, 196 S.E.2d 197 (1973). “[T]he evidence in favor of the non-movant must be deemed true, all conflicts in the evidence must be resolved in his favor and he is entitled to the benefit of every inference reasonably to be drawn in his favor.” Summey v. Cauthen, 283 N.C. 640, 647, 197 S.E.2d 549, 554 (1973). “It is only when the evidence is insufficient to support a verdict in the non-movant’s favor that the motion should be granted.” Rappaport v. Days Inn of Am., Inc., 296 N.C. 382, 384, 250 S.E.2d 245, 247 (1979).

Plaintiff contends that the doctrine of res ipsa loquitur applies here and that, aided by this doctrine, the evidence is sufficient to submit the case to the jury. The principle of res ipsa loquitur is generally stated:

[W]hen a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use the proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.

Newton v. Texas Co., 180 N.C. 561, 567, 105 S.E. 433, 436 (1920). “For the doctrine [of res ipsa loquitur] to apply the plaintiff must *674prove (1) that there was an injury, (2) that the occurrence causing the injury is one which ordinarily doesn’t happen without negligence on someone’s part, (3) that the instrumentality which caused the injury was under the exclusive control and management of the defendant.” Jackson v. Neill McKay Gin Co., 255 N.C. 194, 197, 120 S.E.2d 540, 542 (1961).

Plaintiff argues that the trial court erroneously concluded that there was no evidence that the cause of the injury was under the exclusive control and management of the defendant. We disagree. The evidence, in the light most favorable to plaintiff, shows that defendant did not control the placement of the speaker that fell on plaintiff. Although there was testimony that defendant’s agents would direct bands not to place their equipment in front of exits and would generally patrol the premises for the safety of patrons, there is no evidence that the defendant had control over the speaker in question.

Since the evidence failed to show that defendant had exclusive control over the instrumentality that caused the injury, i.e., the speaker, the order of the trial court is affirmed.

Affirmed.

Judge ORR concurs. Judge Phillips dissents.

Dissenting Opinion

Judge Phillips

dissenting.

In my opinion the statement by the majority that the evidence shows that defendant did not control the speakers that fell on plaintiff is incorrect. The speakers, which were about 2 and V2 feet high and weighed 3 or 4 hundred pounds, were situated where defendant directed. Defendant’s own evidence was that the bands were “given an area where they could set their speakers up,” and that they were told, “Here’s the stage, and set up your equipment and your speakers.” If the speakers were instruments being used by the band or somebody else this would not be evidence that they were in defendant’s control; but the speakers were not used by anybody, they only reproduced sounds, and that they were placed where defendant directed that they be placed when one of them slipped off onto the dance floor and struck plaintiff is evidence that they were in defendant’s control. Certainly, they *675were not in the control of the band, which could not have placed the speakers elsewhere; and since defendant could have had them placed anywhere it chose, and had employees on the floor who admittedly could have moved or changed the speakers as they saw fit, it can hardly be claimed that they were in no one’s control. Since it is unlikely that the speaker would have fallen onto plaintiff if proper care had been used in placing it on the one under it, or further from the dance floor, the evidence raises a question for the jury in my opinion.

Reference

Full Case Name
DEBRA KAY SHADKHOO v. SHILO EAST FARMS, INC.
Cited By
2 cases
Status
Published