Appeal by defendant from judgment entered 9 December 1996 by Judge Jay D. Hockenbury in New Hanover County Superior Court.
Walker, Judge. Judges Lewis and Timmons-goodson concur.
The opinion of the court was delivered by: Walker
Plaintiff filed this action on 5 April 1995 seeking damages for injuries sustained as a result of his fall in defendant's store in Wilmington, North Carolina. Defendant moved for summary judgment which was denied by the trial court.
At trial, the evidence tended to show that on the morning of 5 November 1993, plaintiff and his wife arrived at defendant's store around 11:00 a.m. Since it was raining, plaintiff dropped his wife off at the front of the store and proceeded to park the car. Plaintiff then walked across the parking lot and entered the store where he met his wife. After walking across a small mat, plaintiff took a few more steps before he slipped and fell, landing with the weight of his body on his right shoulder. While on the floor and awaiting medical attention, plaintiff felt the right side of his body and noticed that his sweatshirt was soaked with water. He then glanced at the floor around him and noticed that it was wet as well.
Plaintiff testified on his own behalf and then called as a witness Betsy Adams (Adams), who had been in the store approximately one hour prior to plaintiff. Adams stated that when she entered the store around 10:00 or 10:15 a.m. on the morning of 5 November 1993, the floor at the entrance of the store was "wet, slightly muddy, [and] kind of slippery." She further testified that she did not see any warning signs at the entrance of the store advising customers of the wet condition of the floor nor did she observe any mops or buckets at the entrance of the store.
Following Adams' testimony, plaintiff offered the videotaped deposition testimony of the physician that treated his injuries. Plaintiff then rested and defendant moved for a directed verdict, which the trial court reserved ruling upon.
Defendant offered evidence from Barbara Davis (Davis), who was an assistant manager at the store on 5 November 1993. She testified that she was at the snack bar, which is just to the right of the entrance, when she heard plaintiff slip and fall. She further stated that she did not observe any foreign substance on the floor on the morning in question nor did she observe any warning signs at the entrance, but that it was the regular practice of defendant's employees to mop the floors of any foreign substances as soon as they became aware of such condition, especially on rainy days. However, she was unable to determine the last time that the floor where plaintiff fell had been mopped on 5 November 1993. Defendant then rested and renewed its motion for a directed verdict, which the trial court again reserved ruling upon.
The jury returned a verdict finding defendant negligent, plaintiff not contributorily negligent, and awarded damages in the amount of $88,286.95. The trial court then denied defendant's motions for directed verdict, as well as defendant's motion for judgment not withstanding the verdict (JNOV), and entered judgment for plaintiff consistent with the jury's verdict.
Defendant assigns as error the trial court's denial of (1) its motion for summary judgment, and (2) its motions for directed verdict and JNOV, on the grounds that the evidence was insufficient to establish that defendant was negligent in causing plaintiff's injuries, and that plaintiff was barred from recovering for his injuries due to his contributory negligence.
As to defendant's first assignment of error, summary judgment is appropriate only "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 a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c)(1990); Pressman v. UNC-Charlotte, 78 N.C. App. 296, 300, 337 S.E.2d 644, 647 (1985), disc. review allowed, 315 N.C. 589, 341 S.E.2d 28 (1986). However, summary judgment is a somewhat drastic remedy and should be exercised with caution, especially in cases involving defendant's negligence and plaintiff's contributory negligence. Williams v. Power & Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979).
After a careful review of the evidence in this case, we find that a genuine issue of material fact existed as to whether defendant was negligent, as well as whether plaintiff was contributorily negligent. Therefore, the trial court did not err in denying defendant's motion for summary judgment as to both of these issues.
As to defendant's second assignment of error, a motion for directed verdict or JNOV pursuant to Rule 50 of the N.C. Rules of Civil Procedure presents the question of "whether the evidence, when considered in the light most favorable to plaintiff, was sufficient for submission to the jury." Kelly v. Harvester Co., 278 N.C. 153, 157, 179 S.E.2d 396, 397 (1971). Further, similar to cases involving summary judgment:
The heavy burden carried by the movant is particularly significant in cases [where] the principal issues are negligence and contributory negligence. Only in exceptional cases is it proper to enter a directed verdict or a judgment ...