Enns v. Zayre Corp.

JOHNSON, Judge. I. We first address defendant’s cross-assignment of error to the trial court’s conclusion as a matter of law that plaintiff’s objection to the submission of contributory negligence is the equivalent of a motion for directed verdict. We agree with defendant. Motions for judgments notwithstanding the verdict are based on N.C.R. Civ. P. 50(b)(1), which states that “a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict[.]” Clearly, from the plain meaning of this Rule, a motion for judgment notwithstanding the verdict cannot be allowed unless a proper motion for directed verdict was entered earlier in the trial. Rule 50(a) sets out the guidelines for motions for directed verdict. By this rule, motions for directed verdict must “state the specific grounds therefor.” N.C.R. Civ. P. 50(a). Further, the motion for directed verdict must be made “at the close of all the evidence.” N.C.R. Civ. P. 50(b)(1). The rationale behind these timing and specificity requirements is to give the opposing side a chance to correct any curable errors of proof. Feibus & Co. v. Construction Co., 301 N.C. 294, 271 S.E.2d 385 (1980), reh’g denied, 301 N.C. 727, 274 S.E.2d 228 (1981). Therefore, it is important that the directed verdict be in its proper form and at the proper time in order to serve the purpose of allowing for any corrections in the record by the opposing party. Plaintiff’s objections to the issue of contributory negligence made at the conference or to the jury instructions are not the equivalent of a motion for directed verdict made pursuant to Rule 50(a). Plaintiff could have made a proper motion at the close of evidence, as is required under N.C.R. Civ. P. 50(b)(1), but did not do so. Plaintiff’s objection during the jury instruction conference would not allow defendant a proper chance to correct any errors in its proof of contributory negligence. Thus, the trial court erred in holding that plaintiff’s objection to the contributory negligence issue was the equivalent of a directed verdict. II. Plaintiff, in addition to assigning as error the trial court’s denial of the judgment notwithstanding the verdict motion, also assigned as error the submission of the issue of contributory negligence. This — 691 — assignment of error is based on plaintiffs objection during the court’s conference on jury instructions. Accordingly, we reach the substantive issue of whether contributory negligence should have been submitted to the jury on the basis of the evidencé presented at trial and agree with plaintiff that the contributory negligence was improperly submitted to the jury. Review of the appropriateness of submission of contributory negligence is discussed in Jones v. Holt, 268 N.C. 381, 150 S.E.2d 759 (1966). Holt was an automobile accident case in which contributory negligence was submitted to the jury. The Court held that the “burden of proof being upon the defendant, the issue of contributory negligence should not be submitted to the jury if the evidence is not sufficient to support an affirmative finding.” Id. at 384, 150 S.E.2d at 762. The defendant’s evidence must be considered in a light most favorable to him. Id. As well, the plaintiff’s evidence, except insofar as it tends to support the defendant’s proof of contributory negligence, must be disregarded. Id. Finally, all “reasonable inferences” in favor of the defendant’s proof must be drawn from the evidence. Id. Construing the evidence in this favorable manner, “the issue may not properly be submitted to the jury unless there is evidence from which the inference of contributory negligence may be drawn by men of ordinary reason, evidence which merely raises a conjecture being insufficient.'" Id. (emphasis added). In order to prove contributory negligence satisfactorily enough to allow it to be submitted to the jury, the defendant must show that the plaintiff’s failure to. perform a legal duty proximately resulted in injuries. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504 (1980). The legal duty in this case is the duty to exercise reasonable care in protecting oneself against injury. Id. “Every person having the capacity to exercise ordinary care for his own safety against injury is required by law to do so, and if he fails to exercise such care ... he is guilty of contributory negligence.” Id. at 673, 268 S.E.2d at 507, quoting Clark v. Roberts, 263 N.C. 336, 343, 139 S.E.2d 593, 597 (1965). Smith uses an objective standard, meaning that the plaintiff “may be contributorily negligent if his conduct ignores unreasonable risks or dangers which would have been apparent to a prudent person exercising ordinary care for his own safety.” Id. Such disregard of a legal duty is contributory negligence if there is proximate cause between the conduct and the injury. — 692 — Applying the rule of contributory negligence to the instant case, it is necessary to interpret all evidence and reasonable inferences therefrom in the light most favorable to defendant. Susan Sebastian’s testimony only establishes at best that plaintiff touched a can opener on the display or attempted to put a can opener back on the shelf. Danny Chadwick’s testimony establishes the same fact. As well, the reasonable inference from plaintiff’s “reaching back” statement during cross-examination is that she was touching an object on the shelf. The conclusion from Susan Sebastian’s, Danny Chadwick’s, and plaintiff’s testimony is that plaintiff made physical contact with one of the can openers on the shelf. Defendant incorrectly asserts that this conclusion is an adequate basis to support a submission of contributory negligence. Defendant must show that plaintiff disregarded her legal duty to exercise due care for herself. This burden is not met by merely showing that plaintiff touched one of the can openers on the shelf; it is common practice for shoppers to touch merchandise before buying. Defendant has not offered any evidence that plaintiff unreasonably placed herself in danger. No evidence was offered to show that plaintiff, for example, attempted to remove the bottom can opener from a stack of can openers, or jostled or bumped the shelf. Thus, defendant offers no evidence that plaintiff disregarded her legal duty to protect herself as a reasonable person would. Only by pure conjecture could a jury conclude contributory negligence from evidence that plaintiff touched the product. Defendant relies on cases which suggest that consumers must exercise reasonable care when shopping. Bodenheimer v. Food Stores, 255 N.C. 743, 122 S.E.2d 715 (1961). Bodenheimer, the only North Carolina case cited by defendant which concerns both falling products and contributory negligence, states that the plaintiff “did not see any loose bottles about the rack. If she could not see it, there is nothing to indicate the management was negligent in failing to discover it.” Id. at 744, 122 S.E.2d at 716. Defendant relies on Bodenheimer to show that consumers have a legal duty to exercise reasonable care while shopping. However, defendant’s proof of contributory negligence is inadequate because it did not show such a failure to exercise reasonable care while shopping. Defendant also relies on “slip and fall” cases to argue that contributory negligence should have been submitted to the jury. In Norwood v. Sherwin-Williams Co., 303 N.C. 462, 279 S.E.2d 559 — 693 — (1981), the plaintiff slipped in the defendant’s store and was injured. Evidence was presented by both sides on the issue of the plaintiff’s contributory negligence. The jury concluded that the defendant was negligent. The trial court granted the defendant’s motion for a judgment notwithstanding the verdict on the grounds that the plaintiff was contributorily negligent. After this Court affirmed the trial court’s decision, the Supreme Court reversed and reinstated the jury verdict. The Court stated that the “basic issue with respect to contributory negligence is whether the evidence shows that, as a matter of law, plaintiff failed to keep a proper lookout for her own safety.” Id. at 468, 279 S.E.2d at 563. The Court found that there was sufficient evidence to reasonably infer that the danger of slipping would not have been seen by a person exercising ordinary care. Id. Defendant contends that Norwood suggests that the trial court should allow the jury latitude to resolve discrepancies in the evidence concerning contributory negligence. However, in Norwood the jury chose between reasonable inferences either favoring the plaintiff or the defendant. In the instant case, there are no reasonable inferences favoring defendant on the issue of contributory negligence. As stated above, any inferences of contributory negligence based on defendant’s evidence would be pure conjecture. Defendant argues that submission of the issue of contributory negligence to the jury is necessary to avoid strict liability in this case. This argument is mistaken. Defendant’s negligence and plaintiff’s contributory negligence are entirely separate questions for the jury to address. Accordingly, whether plaintiff was found contributorily negligent or not, or whether the jury was even instructed to decide the issue or not, there is no impact on the jury’s decision concerning defendant’s negligence. Plaintiff must still prove defendant had a legal duty, failed to fulfill this duty, and that such failure proximately caused injury. The issue of plaintiff’s contributory negligence is a separate question from plaintiff’s proof of these three elements. Accordingly, the failure to submit the issue of contributory negligence will not alter the proof required of plaintiff, and as a result will not create strict liability. We also note that plaintiff objects to the jury instructions on contributory negligence. Because plaintiff does not assign the jury instructions as error, we do not reach this issue. See Koufman v. Koufman, 330 N.C. 93, 408 S.E.2d 729 (1991). — 694 — III. Plaintiff also assigns error to the trial court’s failure to allow her to amend the complaint under N.C.R. Civ. P. 15(b). Rule 15(b) states that [i]f evidence is objected to at the trial on the ground that it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and, the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. This Court considered facts similar to this case in Paris v. Kreitz, 75 N.C. App. 365, 331 S.E.2d 234, disc. review denied, 315 N.C. 185, 337 S.E.2d 858 (1985). In Paris, the plaintiff moved to amend his complaint to include a punitive damages cause of action concerning an altercation between the parties that was not the subject of the original complaint. The trial court denied the motion. Despite the fact that the plaintiff had put the defendant on warning of such an action by including the words “reckless and wanton disregard” in his complaint, this Court held that allowing the plaintiffs amendment would have “severely prejudiced defendants. ‘Despite the broad remedial purposes of this provision, however, Rule 15(b) does not permit judgment by ambush.’ ” Id. at 375, 331 S.E.2d at 242, quoting Eudy v. Eudy, 288 N.C. 71, 76, 215 S.E.2d 782, 786 (1975), overruled on other grounds by Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982). Paris further holds that when an “issue purportedly raised by the evidence was not tried by the consent of the parties, it was not error for the court to refuse to amend the proceedings.” Id. at 376, 331 S.E.2d at 242. Applying Paris to the instant case, there was no warning in the complaint of a punitive damages claim. As well, there was no consent by defendant to such a claim. Accordingly, it was within the discretion of the trial court to deny plaintiff’s motion to amend to add a claim for punitive damages based upon gross negligence. As we noted earlier, whether plaintiff was found contributorily negligent or not, there is no impact on the jury’s decision concerning defendant’s negligence. The issue of plaintiff’s contributory negligence was a separate question from plaintiff’s proof of defendant’s negligence. Accordingly, we remand this action for a new trial solely on the issue of damages. See Jacobs v. Locklear, 310 N.C. 735, 314 S.E.2d 544 (1984), where our Supreme Court noted that the trial court — 695 — erred as a matter of law in submitting the issue of contributory negligence to the jury, and the Court remanded the case and ordered a new trial for the plaintiff on the issue of damages only. (See also Whiteside v. McCarson, 250 N.C. 673, 110 S.E.2d 295 (1959), where the defendant was found to be negligent and the plaintiff found not to be con-tributorily negligent; our Supreme Court noted that a partial new trial is properly granted where the error or reason for the new trial is confined to an issue which is entirely separable from the others.) New trial on the issue of damages. Judge WYNN concurs. Judge ORR concurs in part and dissents in part.