Opinion
NO. COA12-473
01-15-2013
CINDY L. HOYLE and REX HOYLE, JR. Plaintiffs, v. K.B. TOYS RETAIL, INC., CBL & ASSOCIATES MANAGEMENT, INC., d/b/a HANES MALL and FRANCES RAMOS Defendants.
Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for plaintiff-appellants. Womble Carlyle Sandridge & Rice, LLP, by Reid C. Adams, Jr., Gemma L. Saluta, and Jonathan R. Reich, for defendant-appellees.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Forsyth County
No. 09 CVS 4599
Appeal by plaintiffs from judgment and order entered 29 July 2011 by Judge Judson D. DeRamus, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 29 November 2012.
Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for plaintiff-appellants.
Womble Carlyle Sandridge & Rice, LLP, by Reid C. Adams, Jr., Gemma L. Saluta, and Jonathan R. Reich, for defendant-appellees.
HUNTER, JR., Robert N., Judge.
Plaintiffs Cindy L. Hoyle and her husband Rex Hoyle (collectively, "Plaintiffs") appeal the trial court's judgment and order in favor of K.B. Toys Retail, Inc. ("K.B. Toys"), CBL & Associates Management, Inc. ("CBL," "Hanes Mall" or the "Mall") and Frances Ramos ("Ramos") (collectively, "Defendants"). Upon review, we affirm the trial court's decision.
I. Facts & Procedural History
On 17 June 2006, Cindy Hoyle ("Ms. Hoyle") took her two sons, Cameron and Chandler, to Hanes Mall to shop for Father's Day gifts. At the time, Cameron was eight years old and Chandler was four. At about 4:00 PM, Ms. Hoyle and her children passed by a K.B. Toys store while walking through the Mall's common area. As they walked by the store, K.B. Toys employee Frances Ramos was demonstrating a toy called the Hover Copter.
The Hover Copter is a soft Styrofoam flying toy. It weighs 1.9 ounces. It is launched by a hand-held device, which does not control the Hover Copter's direction once it is launched. The center of the Hover Copter contains a battery-powered motor encased in hard plastic.
Ramos was standing at the front entrance of the K.B. Toys store. As the Hoyles walked by, Ramos launched the Hover Copter. It flew about 10 feet into the Mall's common area and hit the right side of Ms. Hoyle's head. Ms. Hoyle testified the impact from the Styrofoam toy felt like she had "just been shot." Ms. Hoyle reported the incident to the store manager, Kristi Shay ("Shay"). Shay testified Ms. Hoyle did not appear disoriented or dizzy and was able to provide all her contact information. Ms. Hoyle was in K.B. Toys for about 15 to 20 minutes.
Ms. Hoyle and her children then left the store and walked through the Mall. At about 4:40 PM, after walking 500 feet, Ms. Hoyle fell to the floor in the Mall's common area. Another shopper called the paramedics, and Forsyth County EMS promptly arrived at 4:51 PM. EMS workers gave Ms. Hoyle the lowest possible rating for severity of injury and the highest possible "alertness" rating on the Glasgow Coma Scale. Ms. Hoyle denied having neck, back, or chest pain or shortness of breath. She did have a small abrasion on the right side of her head. Before EMS left, Ms. Hoyle signed a form indicating her refusal to go to the hospital. EMS left the Mall at 5:11 PM.
After his mother fell, Cameron called his father to tell him to come to the Mall. Mr. Hoyle soon arrived. At about 6:00 PM, Mr. Hoyle took Ms. Hoyle to the emergency room at Forsyth Medical Center, located directly across the street from Hanes Mall. Emergency Room staff also gave Ms. Hoyle a perfect score on the Glasgow Coma Scale and did not detect any acute injuries.
On 17 June 2009, Plaintiffs filed a complaint in Forsyth County Superior Court against Defendants. The complaint alleged negligence and loss of consortium. Plaintiffs also requested punitive damages. The case came up for trial during the 2 May 2011 extended session of Forsyth County Superior Court. After Plaintiffs' case-in-chief, defense counsel moved for a directed verdict for CBL. The trial court granted this motion. On 20 May 2011, the jury reached a verdict that Frances Ramos' alleged negligence did not proximately cause Ms. Hoyle's injuries. On 29 July 2011, the trial court entered judgment on the verdict for Defendants. Because the trial court did not award compensatory damages, it also entered a directed verdict denying Plaintiffs' claim for punitive damages. On 26 August 2011, Plaintiffs filed timely notice of appeal.
II. Jurisdiction & Standard of Review
This Court has jurisdiction to hear the instant case pursuant to N.C. Gen. Stat. § 7A-27(b) (2011). "Conclusions of law are reviewed de novo and are subject to full review." State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). Additionally, "[t]his Court reviews a trial court's grant of a motion for directed verdict de novo." Ocean Hill Joint Venture v. Currituck Cnty. Bd. Of Com'rs, 178 N.C. App. 182, 187, 630 S.E.2d 714, 718 (2006) (citation and quotation marks omitted). "'Under a de novo review, the court considers the matter anew and freely substitutes its own judgment' for that of the lower tribunal." State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
The parties dispute the standard of review regarding jury instructions: Plaintiffs seek de novo review and Defendants claim the proper standard is "abuse of discretion." Defendants cite Alston v. Britthaven, Inc., which states "[t]he standard of review on appeal from a trial court's refusal to submit requested issues to a jury is whether the refusal was an abuse of the court's discretion." 177 N.C. App. 330, 334, 628 S.E.2d 824, 828 (2006); see also Murrow v. Daniels, 321 N.C. 494, 499-500, 364 S.E.2d 392, 396 (1988) ("[T]he trial court has wide discretion in presenting the issues to the jury and no abuse of discretion will be found where the issues are 'sufficiently comprehensive to resolve all factual controversies and to enable the court to render judgment fully determining the cause.'" (quoting Chalmers v. Womack, 269 N.C. 433, 435-36, 152 S.E.2d 505, 507 (1967))).
Nonetheless, those cases only involve the "number, form and phraseology of the issues," not questions of law. Chalmers, 269 N.C. at 435, 152 S.E.2d at 507. For instance, in Alston, the trial judge simply consolidated two claims that raised the exact same legal issue. See Alston, 177 N.C. App. at 332, 628 S.E.2d at 827. In the instant case, however, Plaintiffs raise a question of law by arguing the jury instructions did not address the substance of all their claims; therefore, they receive de novo review. See State v. Boyd, __ N.C. App. __, __, 714 S.E.2d 466, 471 (2011) ("As a question of law, this Court reviews the sufficiency of jury instructions de novo.").
III. Analysis
On appeal, Plaintiffs argue the trial court erred by: (i) denying their request for jury instructions on "failure to warn"; (ii) granting CBL's motion for directed verdict; (iii) failing to instruct the jury regarding injuries arising from Ms. Hoyle's later collapse; (iv) declining to instruct the jury on Plaintiffs' independent negligence claim against K.B. Toys; and (v) dismissing Plaintiffs' punitive damages claim. Upon review, we affirm the trial court's decisions.
A. Jury Instructions
Since our discussion of Plaintiffs' third and fourth arguments resolves all the issues on appeal, we address them first. Plaintiffs contend: (i) the trial court erred because the jury instruction asks whether Ramos' actions proximately caused Ms. Hoyle's injury in the vicinity of the KB Toys Store; and (ii) the trial court erred because the jury instruction does not encompass their independent negligence claims against K.B. Toys. We disagree.
In North Carolina, jury instructions are adequate "if they are sufficiently comprehensive to resolve all factual controversies and to enable the court to render judgment fully determining the cause." Chalmers, 269 N.C. at 436, 152 S.E.2d at 507.
To establish a prima facie case of actionable negligence, a plaintiff must allege facts showing: (1) the defendant owed the plaintiff a duty of reasonable care, (2) the defendant breached that duty, (3) the defendant's breach was an actual and proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages as the result of the defendant's breach.Gibson v. Ussery, 196 N.C. App. 140, 143, 675 S.E.2d 666, 668 (2009).
"Generally, employers are liable for torts committed by their employees who are acting within the scope of their employment under the theory of respondeat superior." Matthews v. Food Lion, LLC, 205 N.C. App. 279, 281, 695 S.E.2d 828, 830 (2010). Additionally, a plaintiff may retain a separate negligence claim against an employer alleging the employer "did not provide proper supervision and direction." Johnson v. Lamb, 273 N.C. 701, 703, 161 S.E.2d 131, 134 (1968). Still, "failure to instruct or supervise an employee does not impose liability upon the employer if, in fact, the employee was guilty of no negligence in the performance of [her] work." Id. at 707, 161 S.E.2d at 137.
In the present case, Plaintiffs contest the sufficiency of the following jury instruction: "Issue No. 1: Was negligence of the defendant Frances Ramos a proximate cause of personal injury to the plaintiff Cindy L. Hoyle initially sustained in the vicinity of the KB Toys Store?" Specifically, they argue: (i) the trial court erred because the instruction describes Ms. Hoyle's injury as occurring in the vicinity of the KB Toys Store; and (ii) the trial court erred because this instruction does not address their independent negligence claim against K.B. Toys. We do not find Plaintiffs' arguments persuasive.
1. Location of the Injury
Plaintiffs contend Issue No. 1 is insufficient because it only addresses the initial incident in front of K.B. Toys, not Ms. Hoyle's fall nearly an hour later in another area of the Mall. We disagree.
For Plaintiffs to succeed on their negligence claim, the jury must determine Defendants' actions proximately caused Ms. Hoyle's injury. See Gibson, 196 N.C. App. at 143, 675 S.E.2d at 668. The only action connecting Defendants to Ms. Hoyle's later collapse is the incident with the Hover Copter in front of the K.B. Toys store. Therefore, if the impact from the Hover Copter did not proximately cause injury to Ms. Hoyle, Plaintiffs' negligence claim is without merit.
Furthermore, we note the jury instructions describe injuries initially sustained near the K.B. Toys store. Ms. Hoyle admits she suffered initial injuries (an abrasion on her right temple) from the direct impact of the Hover Copter. The instruction does not preclude consideration of Ms. Hoyle's additional injuries when she collapsed an hour later.
Consequently, we hold the trial court did not err by instructing the jury about the injury "initially sustained in the vicinity of the KB Toys Store."
2. Independent Negligence Claim against K.B. Toys
Plaintiffs next argue Issue No. 1 does not resolve all their claims because it fails to address their independent claim against K.B. Toys for negligent supervision of its employees. We do not agree.
K.B. Toys cannot face liability for failure to supervise or instruct its employees if Ramos was not primarily negligent in operating the Hover Copter. See Johnson, 273 N.C. at 707, 161 S.E.2d at 137. In turn, the success of Plaintiffs' negligence claim against Ramos depends on whether her actions proximately caused Ms. Hoyle's injuries. See Gibson, 196 N.C. App. at 143, 675 S.E.2d at 668 (describing how proximate cause is an element of a negligence claim). Thus, Plaintiffs' independent negligence claim against K.B. Toys will not survive unless Ramos proximately caused Ms. Hoyle's injuries.
Here, the trial court's jury instruction succinctly encapsulates this concept by asking the jury, as a threshold issue, to determine whether Ramos' actions were a "proximate cause of personal injury to" Ms. Hoyle. Since the jury decided negatively, the trial court needed no further factual determinations to issue a judgment for K.B. Toys.
Therefore, we determine the trial court did not err in presenting Issue No. 1 to the jury.
B. Premises Liability
Plaintiffs' first two arguments involve: (i) the trial court's denial of their request for jury instructions on "failure to warn"; and (ii) the trial court's granting of CBL's motion for directed verdict. Both of these arguments center around "premises liability" as a theory of negligence.
In North Carolina, a trial court must instruct the jury on every "substantial feature" of a case. See Mosley & Mosley Builders, Inc. v. Landin Ltd., 87 N.C. App. 438, 445, 361 S.E.2d 608, 612 (1987) ("[I]t remains the duty of the court to instruct the jury upon the law with respect to every substantial feature of the case."). "As such, 'the trial court must instruct on a claim or defense if the evidence, when viewed in the light most favorable to the proponent, supports a reasonable inference of such claim or defense.'" Holtman v. Reese, 119 N.C. App. 747, 750, 460 S.E.2d 338, 341 (1995) (quoting Wooten v. Warren, 117 N.C. App. 350, 358, 451 S.E.2d 342, 347 (1994)).
Moreover, when reviewing a trial court's decision regarding a directed verdict, we must examine "whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury." Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991) (citing Kelly v. Int'l Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971)). Furthermore, we "giv[e] the non-movant the benefit of every reasonable inference which may legitimately be drawn therefrom and resolv[e] contradictions, conflicts, and inconsistencies in the non-movant's favor." Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989).
Under the premises liability doctrine, "property owners have 'the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.'" Goynias v. Spa Health Clubs, Inc., 148 N.C. App. 554, 555, 558 S.E.2d 880, 881 (2002) (quoting Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998)). "This duty includes the 'duty to . . . keep the premises in a reasonably safe condition and to warn the invitee of hidden perils or unsafe conditions that can be ascertained by reasonable inspection and supervision.'" Id. (quoting Byrd v. Arrowood, 118 N.C. App. 418, 421, 455 S.E.2d 672, 674 (1995)). Still, since premises liability is a theory of negligence, it requires a showing of proximate cause. See Hahn v. Perkins, 228 N.C. 727, 731, 46 S.E.2d 854, 857 (1948) (holding in a premises liability case that "[e]ven if it be conceded that the neglect of the defendants to [warn of a danger] constituted negligence, there is a lack of testimony indicating any causal relation between such negligence and the [injury]").
In the present case, Plaintiffs argue the trial court erred by (i) failing to instruct the jury on "failure to warn" as a component of premises liability; and (ii) entering a directed verdict for CBL when it owed a duty to mall patrons under the premises liability doctrine to warn them of the Hover Copter demonstrations.
As we determined supra, the trial court did not err in presenting the threshold issue of proximate cause to the jury. The jury subsequently determined Ramos' actions did not proximately cause Ms. Hoyle's injuries. Therefore, Plaintiffs have no actionable negligence claim against any of Defendants. See id.; Gibson, 196 N.C. App. at 143, 675 S.E.2d at 668. We thus determine any alleged error regarding the trial court's denial of instructions on "failure to warn" or its directed verdict for CBL is not prejudicial. See Robinson v. Seaboard System R.R., Inc., 87 N.C. App. 512, 528, 361 S.E.2d 909, 919 (1987) ("[T]he party asserting the error must demonstrate that he has been prejudiced thereby."); Collins v. Lamb, 215 N.C. 719, 720, 2 S.E.2d 863, 864 (1939) ("Verdicts and judgments are not to be set aside for harmless error." (citation and quotation marks omitted)). Consequently, we decline to analyze Plaintiffs' arguments further.
C. Punitive Damages Claim
Lastly, Plaintiffs argue the trial erred in dismissing their punitive damages claim. We disagree.
In North Carolina, "[p]unitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages." N.C. Gen. Stat. § 1D-15(a) (2011). Here, we have determined Plaintiffs do not succeed on any of their substantive claims. Consequently, since they will not receive compensatory damages, they do not prevail on their claim for punitive damages. Paris v. Michael Kreitz, Jr., P.A., 75 N.C. App. 365, 377, 331 S.E.2d 234, 243 (1985) (holding the plaintiffs could not subsequently claim punitive damages against a doctor when they did not prevail on their medical malpractice claim).
IV. Conclusion
We conclude the trial court did not err by (i) denying Plaintiffs' request for jury instructions on "failure to warn"; (ii) granting CBL's motion for a directed verdict; (iii) failing to instruct the jury regarding injuries arising from Ms. Hoyle's later collapse; (iv) declining to instruct the jury on Plaintiffs' independent negligence claim against K.B. Toys; and (v) dismissing Plaintiffs' punitive damages claim. Therefore, the trial court's judgment is
Affirmed.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).