Opinion
No. 253A90
Filed 10 January 1991
Negligence 6.1 (NCI3d) — speaker falling on nightclub patron — absence of exclusive control — res ipsa loquitur inapplicable In an action to recover for injuries sustained by plaintiff when a large speaker fell on her knee while she was dancing at defendant's nightclub, plaintiff's evidence was insufficient to permit her recovery under a res ipsa loquitur theory because it established that a band playing at the nightclub had primary control and management responsibilities over the speaker and that the speaker was thus not in the exclusive control of defendant where the evidence showed that the band provided its own equipment, including speakers; defendant only designated an area for locating the speakers, and the band had control of setting up and operating the speakers as well as other band instruments; the only control shown to have been exercised by defendant over the band related to the volume at which the band played its music; and the band was not shown to be defendant's agent.
Am Jur 2d, Negligence 1870, 1872, 1890; Premises Liability 61.
APPEAL by plaintiff pursuant to N.C.G.S. 7A-30 (2) from the decision of a divided panel of the Court of Appeals, 98 N.C. App. 672, 391 S.E.2d 841 (1990), affirming a judgment granting defendant's motion for directed verdict entered by Allen (W. Steven, Sr), J., on 16 February 1989, nunc pro tunc 14 February 1989, in Superior Court, GUILFORD County. Heard in the Supreme Court 12 November 1990.
Smith, Patterson, Follin, Curtis, James, Harkavy Lawrence, by Norman B. Smith, for plaintiff appellant.
Henson Henson Bayliss Sue, by Jack B. Bayliss, Jr., for defendant appellee.
Justice MARTIN dissenting.
Plaintiff seeks recovery for injuries she sustained when a large speaker fell on her knee while she was dancing at defendant's nightclub. The trial court granted defendant's motion for directed verdict at the close of all the evidence, and the Court of Appeals affirmed. Shadkhoo v. Shilo East Farms, 98 N.C. App. 672, 391 S.E.2d 841 (1990). Judge Phillips dissented, id. at 674-75, 391 S.E.2d at 843, and plaintiff exercised her right to appeal. N.C.G.S. 7A-30 (2) (1989).
In the trial court, the Court of Appeals, and this Court, plaintiff argued that the case was for the jury under the theory of res ipsa loquitur. The dissenting opinion in the Court of Appeals relates solely to the "exclusive control" aspect of the res ipsa doctrine. Because this appeal is before us pursuant to N.C.G.S. 7A-30 (2), our review is limited to the issue raised in the dissent: whether plaintiff presented sufficient evidence to establish the requisite of the doctrine of res ipsa loquitur that the speaker, the instrumentality that caused her injury, was under defendant's exclusive control and management. N.C.R. App. P. 16 (b). We hold that she did not, and we thus affirm the Court of Appeals.
Plaintiff alleged in her complaint that on or about 15 January 1987 she was a patron of defendant's Carousel Lounge, a bar and nightclub. While she was dancing there, "a large and heavy amplifying speaker fell from its position atop another speaker, and struck [her] left knee with great force." The fall, she alleged, was caused by defendant's negligence in failing to secure the speaker properly, allowing it to remain in a position from which it was likely to fall, and "causing [it] to vibrate from loud musical noises in such a way that it was likely to move from its original position and fall." Plaintiff allegedly suffered serious injury to her kneecap and leg bones as a result of the incident. Defendant answered, denying the essential allegations of the complaint.
Plaintiff's evidence tended to show that she and Mark Phillips were dancing at defendant's Carousel Lounge on the evening of 15 January 1987. A band was playing, and high fidelity amplifying speakers were situated around the dance floor. The speakers were stacked by twos, one atop the other. One of the speakers fell, striking plaintiff on her left knee. Neither Phillips nor plaintiff struck the speaker prior to its fall, nor did they observe other patrons strike the speaker. In Phillips' opinion no one was close enough to the speaker to strike it. Neither plaintiff nor Phillips knew of any previous incidents of falling speakers at the Lounge.
Defendant's principal stockholder, Richard Henderson, testified that a band named "Savvy" was playing at the Lounge on the evening in question. The band was obtained through a booking agent and was paid by defendant in one lump sum at the end of its performance. The band provided its own equipment, including speakers. Defendant had no control over the band's musical instruments or its speakers. It only designated an area for locating the speakers, and the band or its road crew did the "setting up." Defendant only corrected dangerous situations that it observed. Defendant kept a manager and security guards on the premises, but they "had nothing to do with any of the band equipment." Defendant had no ownership interest in the speakers. The band had "the control of setting up and operating [the] speakers" as well as the other band instruments. The only semblance of control defendant exercised over any band playing at the club was to request a reduction in volume when the sound exceeded one hundred decibels.
Prior to 15 January 1987, Henderson had not known of any problems with speakers falling at the Lounge. No one had brought to his attention any unsafe condition regarding the speakers prior to the incident with plaintiff.
In reviewing the grant of a motion for directed verdict, the reviewing court "consider[s] the evidence in the light most favorable to the non-movant . . . . [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). "`On a motion by a defendant for a directed verdict in a jury case, the court must consider all the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff.'" Keuy v. Harvester Co., 278 N.C. 153, 158, 179 S.E.2d 396, 398 (1971) (quoting 5 Moore's Federal Practice, 41.13 (4) at 155 (2d ed. 1969)).
"Res ipsa loquitur is an evidentiary rule which . . . permits a party to prove the existence of negligence by merely establishing the circumstances of an occurrence that produces injury or damage." Snow v. Power Co., 297 N.C. 591, 596, 256 S.E.2d 227, 231 (1979). "For the doctrine to apply the plaintiff must prove (1) that there was an injury, (2) that the occurrence causing the injury is one which ordinarily does [not] 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. Gin Co., 255 N.C. 194, 197, 120 S.E.2d 540, 542 (1961).
Plaintiff has the burden of proving each of these elements.
In cases where the plaintiff's evidence is such as to justify the application of the doctrine of res ipsa loquitur[,] the nature of the occurrence itself and the inferences to be drawn therefrom are held to supply the requisite degree of proof to carry the case to the jury and to enable the plaintiff to make out a prima facie case without direct proof of negligence. However, this does not dispense with the requirement that the plaintiff who alleges negligence must prove negligence, but relates only to the mode of proving it. The fact of the accident furnishes merely some evidence to go to the jury and does not relieve the plaintiff of the burden of showing negligence. Before the plaintiff can be entitled to a verdict he must satisfy the jury by the preponderance of the evidence that the injuries complained of were proximately caused by the negligence of the defendant in the respects alleged.
Young v. Anchor Co., 239 N.C. 288, 291, 79 S.E.2d 785, 788 (1954).
"The doctrine of res ipsa loquitur does not apply `when the instrumentality causing the injury is not under the exclusive control or management of the defendant.'" Wyatt v. Equipment Co., 253 N.C. 355, 363, 117 S.E.2d 21, 26 (1960) (quoting Smith v. Oil Corp., 239 N.C. 360, 367, 79 S.E.2d 880, 884 (1954)). See also O'Quinn v. Southard, 269 N.C. 385, 152 S.E.2d 538 (1967). This Court has stated:
The rule of res ipsa loquitur never applies when the facts of the occurrence, although indicating negligence on the part of some person, do not point to the defendant as the only probable tortfeasor. In such a case, unless additional evidence which eliminates negligence on the part of all others who have had control of the instrument causing the plaintiff's injury, is introduced, the court must nonsuit the case. When such evidence is introduced and the only inference remaining is that the fault was the defendant's, the plaintiff has produced sufficient circumstantial evidence to take his case to the jury.
Kekelis v. Machine Works, 273 N.C. 439, 444, 160 S.E.2d 320, 323 (1968) (emphasis in original). See also Sharp v. Wyse, 317 N.C. 694, 697-98, 346 S.E.2d 485, 487-88 (1986).
Under the facts here, even when viewed in the light most favorable to her, "plaintiff has failed to show that defendant is the only probable tortfeasor." Sharp v. Wyse, 317 N.C. at 698, 346 S.E.2d at 488. To recover on a res ipsa theory, plaintiff must show that defendant had exclusive control and management of the speaker, the instrumentality that caused her injury. The most the evidence shows is that defendant designated the general area in which the speaker was located. The band, which is not a party to this litigation, provided its own equipment. Defendant had no ownership interest in the equipment and "had nothing to do with" it. The band had control of setting up and operating the speakers as well as the other band instruments.
There was neither allegation nor evidence that the band was defendant's agent. The only control shown to have been exercised by defendant over the band related to the volume at which the band played its music. Under the evidence presented, the band, not defendant, had at least primary control and management responsibilities over the speaker. The speaker therefore was not in the exclusive control of defendant. Thus, "[u]nder the principles governing the application of the doctrine of res ipsa loquitur, we hold that this is not a case in which the doctrine may be appropriately applied." Sharp v. Wyse, 317 N.C. at 699, 346 S.E.2d at 488.
The other cases from this Court on which plaintiff relies are distinguishable. In Husketh v. Convenient Systems, 295 N.C. 459, 245 S.E.2d 507 (1978), the plaintiff was injured when the rotating top of the stool on which she sat in a business establishment suddenly "went backwards" and flipped her onto the floor. Defendant there owned the stools, had been having problems with them, had removed two other stool tops after discovering that they were loose, and had knowledge that children came into the establishment and turned the tops. This Court noted that "a business proprietor retains exclusive control of such seating while it is being used by patrons for the purpose for which it was intended," Husketh, 295 N.C. at 462, 245 S.E.2d at 509, and held that the case was properly for the jury under a res ipsa loquitur theory. Similarly, in Schueler v. Good Friend Corp., 231 N.C. 416, 57 S.E.2d 324 (1950), the plaintiff was injured when she sat in one of a tier of four chairs attached together and the entire row of seats toppled over backward. This Court concluded that the tier of chairs "was in the complete control of the defendant" and that "under the circumstances `the accident presumably would not have happened if due care had been exercised.'" Schueler, 231 N.C. at 418, 57 S.E.2d at 325.
Thus, in Husketh and Schueler the plaintiffs established exclusive control and management of the injury-producing instrumentalities in the defendants. Here, by contrast, the evidence established that at least primary control was in another entity which was not shown to be defendant's agent and which is not a party to this litigation.
For the foregoing reasons, the decision of the Court of Appeals is
Affirmed.