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Date: 03-01-2016

Case Style: Blackmon v. Tri-Arc Food Sys., Inc.

Case Number: 15-721

Judge: Valerie Zachary


Plaintiff's Attorney: Ronald C. Dilthey; Robert V. Lucas, Sarah E. Ellerbe

Defendant's Attorney: Leigh R. Trigilio, John I. Malone

Description: The essential facts are not disputed and may be summarized as follows: In
December 2008, plaintiff was thirty-seven years old and was employed as a third shift
employee at Talecris Plasma Resources, located on Highway 70 in Clayton. After
completing his shift on 26 December 2008, plaintiff drove to the Bojangles restaurant
located at the intersection of Highway 70 and Shotwell Road, arriving just before 8:00
a.m. Bojangles is a fast food restaurant offering both drive-through and interior food
service. Bojangles has a parking lot with marked parking spaces for the use of its
customers. Plaintiff, however, chose not to park in a marked space in the parking lot.
Instead, plaintiff parked his truck in front of the restaurant along the curb of the
main driveway through Bojangles, an area with two-way traffic going east and west.
This was an unmarked stretch of roadway that had neither marked parking spaces
nor signs prohibiting parking. Plaintiff testified that he parked in this area because
he was driving a crew cab truck approximately twenty-two feet long, and his truck
would not fit into the marked parking spaces in the Bojangles parking lot, the longest
of which was nineteen feet long. In addition, he wanted to be able to observe his truck
while he ate. Plaintiff testified that he had chosen to park along the roadway in front
of Bojangles on hundreds of prior occasions. The record evidence indicates that
defendant’s manager and employees were aware that customers sometimes parked
along the front driveway. No evidence was introduced to suggest that it was a
violation of local ordinance or state law for plaintiff to park along the road in front of
Bojangles. Approximately two years earlier, in 2006, another vehicle parked in front
of Bojangles was struck from behind, causing damage to a trailer being towed by the
truck. No evidence was presented regarding any other accidents along the road in
front of Bojangles.
When plaintiff came out of the restaurant on 26 December 2008, he saw that
his rear tail light was damaged, and noticed that another truck parked in defendant’s
parking lot had corresponding damage to its side mirror. Plaintiff secured the
assistance of Officer Cook of the Clayton Police Department, who was eating in
Bojangles. Officer Cook directed plaintiff to stand behind plaintiff’s truck while
Officer Cook took down information from plaintiff’s driver’s license and truck
registration. While plaintiff and Officer Cook stood behind the truck, Ms. Patricia
Jones drove her SUV into defendant’s parking lot and turned right, heading east
along the roadway area where plaintiff had parked his truck. The SUV operated by
Ms. Jones struck the back of plaintiff’s pickup truck, pinning him between the two
vehicles. Ms. Jones testified that when she entered defendant’s parking lot and
turned right, her attention was diverted by the presence of several police cars in the
parking lot to her left and Ms. Jones turned her head to the left. When Ms. Jones
returned her attention to the roadway, she was “blinded” because the sun was in her
eyes and, as she reached for the overhead visor, her vehicle struck Officer Cook and
Opinion of the Court
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plaintiff. Ms. Jones did not recall slowing down or applying her brakes before the
accident. Ms. Jones was charged with careless and reckless driving, and in February
2009, Ms. Jones pleaded guilty to careless and reckless driving.
As a result of the accident, Plaintiff sustained severe injuries requiring three
months of hospitalization, including amputation of his right leg, loss of sight in his
left eye, and left leg and pelvis fractures. On 16 February 2011, plaintiff filed suit
against defendant. Prior to trial, Judge Thomas H. Lock denied defendant’s motion
for summary judgment. Plaintiff’s claim came on for trial at the 10 June 2013 Civil
Session of Johnston County Superior Court. During trial, the trial court excluded
plaintiff’s proffered expert testimony that the accident would not have occurred if
certain safety features, such as speed bumps, had been in place in defendant’s
parking lot. After the court made this ruling, plaintiff took a voluntary dismissal
without prejudice, pursuant to N.C. Gen. Stat. § 1A-1, Rule 41. Plaintiff refiled his
claim on 6 September 2013. Plaintiff’s complaint alleged that defendant had
negligently failed to maintain the parking lot area in a reasonably safe manner.
Defendant filed an answer on 6 November 2013, denying the material allegations of
plaintiff’s complaint and raising various defenses, including plaintiff’s contributory
negligence and Ms. Jones’s intervening and superseding negligence. Defendant
moved for summary judgment on 18 December 2014. 24) On 9 February 2015, the
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trial court entered an order granting defendant’s motion and dismissing plaintiff’s
action with prejudice. Plaintiff appealed.
II. Summary Judgment Standard of Review
The standard of review of a trial court’s ruling on a motion for summary
judgment is well-established:
Under N.C. Gen. Stat. § 1A-1, Rule 56(a), summary judgment is properly entered “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.” “In a motion for summary judgment, the evidence presented to the trial court must be admissible at trial, N.C.G.S. § 1A-1, Rule 56(e) (2003), and must be viewed in a light most favorable to the non-moving party.” “We review a trial court’s order granting or denying summary judgment de novo. Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.”
Patmore v. Town of Chapel Hill, N.C., __ N.C. App. __, __, 757 S.E.2d 302, 304
(quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 467, 597 S.E.2d 674, 692 (2004)
(internal citation omitted), and Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334,
337, 678 S.E.2d 351, 354 (2009) (internal quotation omitted)), disc. review denied, 367
N.C. 519, 758 S.E.2d 874 (2014).
The party moving for summary judgment bears the burden of establishing that there is no triable issue of material fact. This burden may be met “by proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his
Opinion of the Court
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claim or cannot surmount an affirmative defense which would bar the claim.”
DeWitt v. Eveready Battery Co., 355 N.C. 672, 681-82, 565 S.E.2d 140, 146 (2002)
(quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425,
427 (1989)) (other citation omitted).
“ ‘[O]nce the party seeking summary judgment makes the required showing,
the burden shifts to the nonmoving party to produce a forecast of evidence
demonstrating specific facts, as opposed to allegations, showing that he can at least
establish a prima facie case at trial.’ ” Pacheco v. Rogers & Breece, Inc., 157 N.C. App.
445, 448, 579 S.E.2d 505, 507 (2003) (quoting Gaunt v. Pittaway, 139 N.C. App. 778,
784-85, 534 S.E.2d 660, 664 (2000), cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001)).
III. Discussion
Plaintiff argues that the trial court erred by granting summary judgment for
defendant on plaintiff’s claim for negligence. After careful review of the record, we
conclude that plaintiff failed to produce evidence showing that he could make at least
a prima facie case of negligence, and that the trial court did not err by dismissing his
“To state a claim for common law negligence, a plaintiff must allege: (1) a legal
duty; (2) a breach thereof; and (3) injury proximately caused by the breach.” Stein v.
Asheville City Bd. of Educ., 360 N.C. 321, 328, 626 S.E.2d 263, 267 (2006).
“[S]ummary judgment is rarely an appropriate remedy in cases of negligence or
Opinion of the Court
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contributory negligence. However, summary judgment is appropriate in a cause of
action for negligence where ‘the forecast of evidence fails to show negligence on
defendant’s part, or establishes plaintiff’s contributory negligence as a matter of
law.’” Frankenmuth Ins. v. City of Hickory, __ N.C. App. __, __, 760 S.E.2d 98, 101
(2014) (quoting Stansfield v. Mahowsky, 46 N.C. App. 829, 830, 266 S.E.2d 28, 29
(1980)). “ ‘[A] [p]laintiff is required to offer legal evidence tending to establish beyond
mere speculation or conjecture every essential element of negligence, and upon
failure to do so, [summary judgment] is proper.’ ” Id. (quoting Young v. Fun Services
Carolina, Inc., 122 N.C. App. 157, 162, 468 S.E.2d 260, 263 (1996)).
In order to prove a defendant’s negligence in a premises liability case, the plaintiff must first show that the defendant either “(1) negligently created the condition causing the injury, or (2) negligently failed to correct the condition after actual or constructive notice of its existence.” “The ultimate issue which must be decided in evaluating the merits of a premises liability claim[, however,] is . . . whether [the defendant] breached the duty to exercise reasonable care in the maintenance of [its] premises for the protection of lawful visitors.”
Rolan v. Dept. of Agric. & Consumer Servs., __ N.C. App. __, __, 756 S.E.2d 788, 795
(2014) (quoting Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d
339, 342-43 (1992), and Burnham v. S&L Sawmill, Inc., __ N.C. App. __, __, 749
S.E.2d 75, 80, disc. review denied, 367 N.C. 281, 752 S.E.2d 474 (2013) (internal
quotation omitted)).
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Plaintiff contends that defendant failed to exercise reasonable care for the
safety of its customers, on the grounds that defendant allowed two way traffic in the
roadway in front of the restaurant and failed to prevent its customers from parking
along the roadway in front of the restaurant. We conclude that:
1. Assuming, arguendo, that defendant was negligent in the design of its parking lot, the careless and reckless driving of Ms. Jones was not foreseeable, and constituted intervening and superseding negligence; and
2. Plaintiff’s choice to park in front of the restaurant, where two-way traffic was allowed, instead of utilizing a parking space, constitutes contributory negligence as a matter of law.
Ms. Jones admitted in her deposition that when she entered the parking lot
she turned her vehicle to the right, while at the same time turning her head to the
left to look at law enforcement officers’ cars parked in the lot. Thus, as she drove
towards plaintiff, she was looking to the side. When Ms. Jones turned her attention
back to the road, the sun was in her eyes and she almost immediately struck plaintiff
and Officer Cook. Ms. Jones also admitted that after turning right onto the roadway
in front of Bojangles, she did not slow down or apply her brakes. In addition, Ms.
Jones pleaded guilty to careless and reckless driving. We conclude that Ms. Jones’s
negligent driving was the immediate proximate cause of plaintiff’s injuries. See, e.g.,
Thompson v. Bradley, 142 N.C. App. 636, 544 S.E.2d 258 (2001):
“Negligence is the failure to exercise proper care in the performance of a legal duty owed by a defendant to a plaintiff under the circumstances.” The relevant duty in
Opinion of the Court
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this case is that of an automobile driver; the driver owes a duty towards his or her passengers to exercise reasonable and ordinary care for their safety. . . . This duty of care was breached if, as alleged in the complaint, [defendant] operated her car in a careless and reckless manner, drove at an unsafe speed, failed to decrease speed to avoid a collision, and generally failed to keep the car under proper control.
Thompson, 142 N.C. App. at 640, 544 S.E.2d at 261 (quoting Cassell v. Collins, 344
N.C. 160, 163, 472 S.E.2d 770, 772 (1996)) (other citations omitted).
Defendant has no duty to protect its customers from the unforeseeable acts of
third parties.
We have stated that “[n]o legal duty exists unless the injury to plaintiff was foreseeable and avoidable through due care.” The criminal acts of a third party are generally considered “unforeseeable and independent, intervening cause[s] absolving the [defendant] of liability.” For this reason, the law does not generally impose a duty to prevent the criminal acts of a third party.
Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796-97 (2013) (quoting Stein,
360 N.C. at 328-29, 626 S.E.2d at 267-68). In this case, plaintiff has not introduced
any evidence that Ms. Jones’s careless and reckless driving was foreseeable by
defendant. We conclude that, even assuming that the parking lot design was
defective, Ms. Jones’s negligence constituted an unforeseeable intervening cause.
We further conclude that plaintiff’s actions were contributorily negligent. It is
undisputed that, although defendant provided clearly marked parking spaces for the
use of its customers, plaintiff chose to park along the roadway in front of the
Opinion of the Court
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restaurant for his own convenience. Plaintiff admitted that he had patronized
Bojangles on hundreds of occasions and had parked in the area in front of the
restaurant hundreds of times. Assuming, for the purposes of argument, that allowing
two way traffic along the roadway in front of Bojangles increased the likelihood of
injury to a customer who chose to park there, this is not a hidden danger, but one
that was equally apparent to plaintiff. “Reasonable care requires that the landowner
not unnecessarily expose a lawful visitor to danger and give warning of hidden
hazards of which the landowner has express or implied knowledge.” . . . Thomas v.
Weddle, 167 N.C. App. 283, 290, 605 S.E.2d 244, 248-49 (2004) (internal quotation
mark omitted). “ ‘A landowner is under no duty to protect a visitor against dangers
either known or so obvious and apparent that they reasonably may be expected to be
discovered . . . [and] need not warn of any apparent hazards or circumstances of which
the invitee has equal or superior knowledge.’ ” Burnham, __ N.C. App. at __, 749
S.E.2d at 80 (quoting Von Viczay v. Thoms, 140 N.C. App. 737, 739, 538 S.E.2d 629,
631 (2000), aff'd, 353 N.C. 445, 545 S.E.2d 210 (2001) (per curiam)). Rather, “[a]
reasonable person should be observant to avoid injury from a known and obvious
danger.” Farrelly v. Hamilton Square, 119 N.C. App. 541, 546, 459 S.E.2d 23, 27
(1995) (citation omitted).
Not only was the traffic pattern in front of Bojangles readily visible to plaintiff,
but the alleged risk arose not from a condition or circumstance of the parking lot,
Opinion of the Court
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such as the presence of ice, but from plaintiff’s voluntary choice to park along an
unmarked stretch of the driveway instead of in a parking space. “Prudence, rather
than convenience, should have motivated the plaintiff’s choice. . . . ‘If two ways are
open to a person to use, one safe and the other dangerous, the choice of the dangerous
way, with knowledge of the danger, constitutes contributory negligence . . . which will
bar his recovery.’ ” Rockett v. City of Asheville, 6 N.C. App. 529, 533, 170 S.E.2d 619,
621 (1969) (quoting Dunnevant v. R. R., 167 N.C. 232, 233, 83 S.E. 347, 348 (1914)).
For example, in Kelly v. Regency Ctrs. Corp., 203 N.C. App. 339, 343, 691 S.E.2d 92,
95-96 (2010), the plaintiff qualified for handicapped parking but chose to park in a
non-handicapped parking space and was injured when she stumbled at the curb. We
held that:
Evidence forecast that [the plaintiff] had been a frequent patron of the K&W Cafeteria prior to the accident. It is well settled that a person is contributorily negligent if he or she knows of a dangerous condition and voluntarily goes into a place of danger. In other words, “[w]hen an invitee sees an obstacle not hidden or concealed and proceeds with full knowledge and awareness, there can be no recovery.”
(citing Dunnevant, and quoting Wyrick v. K-Mart Apparel Fashions, 93 N.C. App. 508,
509, 378 S.E.2d 435, 436 (1989)). In this case, plaintiff’s own actions in parking on
the roadway in front of Bojangles constitutes contributory negligence.
On appeal, plaintiff argues that he cannot be deemed to be contributorily
negligent, on the grounds that he stood behind his truck at the direction of a law
enforcement officer, and that the law enforcement officer executed an affidavit stating
Opinion of the Court
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that the officer did not perceive any danger in standing behind the truck. Plaintiff’s
argument suffers from two flaws. First, plaintiff’s contributory negligence did not
consist of standing behind his truck with the law enforcement officer, but of parking
along the lane of traffic rather than in a marked parking space. Secondly, to the
extent that the officer’s affidavit tends to establish that standing in the road behind
the truck was not unreasonable, this only serves to underscore the fact that Ms.
Jones’s criminally negligent driving was not foreseeable. The undisputed evidence
established that in twelve years of defendant’s operation, only one accident had
occurred in the roadway area in front of the restaurant, resulting in property damage
to a trailer towed a by truck but no personal injury.

Outcome: Having reached these conclusions, we do not need to address the issues of
whether plaintiff produced evidence that the design of the parking lot was a breach of defendant’s duty to exercise reasonable care, or whether plaintiff produced any evidence that the design of the parking lot, rather than plaintiff’s voluntary choice to park in an unmarked area along the roadway instead of in a marked parking space, was a proximate cause of his injuries. For the reasons discussed above, we conclude that the trial court did not err by granting summary judgment in favor of defendant.


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