{
  "id": 8353204,
  "name": "DEBORAH FREEMAN, Plaintiff v. FOOD LION, LLC, BUDGET SERVICES, INC., and FRANK'S FLOOR CARE, Defendants",
  "name_abbreviation": "Freeman v. Food Lion, LLC",
  "decision_date": "2005-09-06",
  "docket_number": "No. COA04-1570",
  "first_page": "207",
  "last_page": "212",
  "citations": [
    {
      "type": "official",
      "cite": "173 N.C. App. 207"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "516 S.E.2d 643",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1999,
      "pin_cites": [
        {
          "page": "646-47",
          "parenthetical": "\"As a general proposition, there is no duty to protect a lawful visitor against dangers which are either known to him or so obvious and apparent that they reasonably may be expected to be discovered.\""
        },
        {
          "page": "647",
          "parenthetical": "internal quotation omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "134 N.C. App. 158",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11143479
      ],
      "weight": 2,
      "year": 1999,
      "pin_cites": [
        {
          "page": "162-63",
          "parenthetical": "\"As a general proposition, there is no duty to protect a lawful visitor against dangers which are either known to him or so obvious and apparent that they reasonably may be expected to be discovered.\""
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/134/0158-01"
      ]
    },
    {
      "cite": "395 S.E.2d 112",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1990,
      "pin_cites": [
        {
          "page": "115"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "327 N.C. 412",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2497334
      ],
      "year": 1990,
      "pin_cites": [
        {
          "page": "416"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/327/0412-01"
      ]
    },
    {
      "cite": "539 S.E.2d 331",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 2000,
      "pin_cites": [
        {
          "page": "333",
          "parenthetical": "citing Lamm v. Bissette Realty, Inc., 327 N.C. 412, 416, 395 S.E.2d 112, 115 (1990); Roumillat, 331 N.C. 57 at 64, 414 S.E.2d at 342-43"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "141 N.C. App. 135",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        9440413
      ],
      "year": 2000,
      "pin_cites": [
        {
          "page": "137",
          "parenthetical": "citing Lamm v. Bissette Realty, Inc., 327 N.C. 412, 416, 395 S.E.2d 112, 115 (1990); Roumillat, 331 N.C. 57 at 64, 414 S.E.2d at 342-43"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/141/0135-01"
      ]
    },
    {
      "cite": "507 S.E.2d 882",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1998,
      "pin_cites": [
        {
          "page": "892"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "349 N.C. 615",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        571622
      ],
      "year": 1998,
      "pin_cites": [
        {
          "page": "632"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/349/0615-01"
      ]
    },
    {
      "cite": "610 S.E.2d 293",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2005,
      "pin_cites": [
        {
          "page": "295",
          "parenthetical": "\"We limit our review to those arguments asserted in the pleadings before the trial court and properly preserved for review.\""
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "169 N.C. App. 630",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8472320
      ],
      "year": 2005,
      "pin_cites": [
        {
          "page": "632",
          "parenthetical": "\"We limit our review to those arguments asserted in the pleadings before the trial court and properly preserved for review.\""
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/169/0630-01"
      ]
    },
    {
      "cite": "175 S.E. 836",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "year": 1934,
      "pin_cites": [
        {
          "page": "838",
          "parenthetical": "\"the law does not permit parties to swap horses between courts in order to get a better mount in . . . [this Court]\""
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "207 N.C. 6",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8621595
      ],
      "year": 1934,
      "pin_cites": [
        {
          "page": "10",
          "parenthetical": "\"the law does not permit parties to swap horses between courts in order to get a better mount in . . . [this Court]\""
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/207/0006-01"
      ]
    },
    {
      "cite": "500 S.E.2d 86",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1998,
      "opinion_index": 0
    },
    {
      "cite": "347 N.C. 670",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        551143,
        551390,
        551342,
        551375
      ],
      "year": 1998,
      "opinion_index": 0,
      "case_paths": [
        "/nc/347/0670-01",
        "/nc/347/0670-02",
        "/nc/347/0670-03",
        "/nc/347/0670-04"
      ]
    },
    {
      "cite": "493 S.E.2d 58",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1997,
      "pin_cites": [
        {
          "page": "63"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "127 N.C. App. 649",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11799567
      ],
      "year": 1997,
      "pin_cites": [
        {
          "page": "658"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/127/0649-01"
      ]
    },
    {
      "cite": "195 S.E.2d 689",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1973,
      "opinion_index": 0
    },
    {
      "cite": "283 N.C. 257",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8558411,
        8558446,
        8558479,
        8558427,
        8558460
      ],
      "year": 1973,
      "opinion_index": 0,
      "case_paths": [
        "/nc/283/0257-01",
        "/nc/283/0257-03",
        "/nc/283/0257-05",
        "/nc/283/0257-02",
        "/nc/283/0257-04"
      ]
    },
    {
      "cite": "194 S.E.2d 638",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1973,
      "opinion_index": 0
    },
    {
      "cite": "17 N.C. App. 445",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8555951
      ],
      "year": 1973,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/17/0445-01"
      ]
    },
    {
      "cite": "381 S.E.2d 794",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1989,
      "pin_cites": [
        {
          "page": "796",
          "parenthetical": "citing Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, cert. denied, 283 N.C. 257, 195 S.E.2d 689 (1973)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "95 N.C. App. 96",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8519597
      ],
      "year": 1989,
      "pin_cites": [
        {
          "page": "99",
          "parenthetical": "citing Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, cert. denied, 283 N.C. 257, 195 S.E.2d 689 (1973)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/95/0096-01"
      ]
    },
    {
      "cite": "376 S.E.2d 425",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1989,
      "pin_cites": [
        {
          "page": "427"
        },
        {
          "page": "427"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "324 N.C. 63",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2488503
      ],
      "weight": 2,
      "year": 1989,
      "pin_cites": [
        {
          "page": "66"
        },
        {
          "page": "66"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/324/0063-01"
      ]
    },
    {
      "cite": "209 S.E.2d 795",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "opinion_index": 0
    },
    {
      "cite": "286 N.C. 24",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8563251
      ],
      "year": 1974,
      "opinion_index": 0,
      "case_paths": [
        "/nc/286/0024-01"
      ]
    },
    {
      "cite": "293 S.E.2d 405",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1982,
      "opinion_index": 0
    },
    {
      "cite": "306 N.C. 435",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8571111
      ],
      "year": 1982,
      "opinion_index": 0,
      "case_paths": [
        "/nc/306/0435-01"
      ]
    },
    {
      "cite": "218 S.E.2d 379",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1975,
      "opinion_index": 0
    },
    {
      "cite": "288 N.C. 375",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8568529
      ],
      "year": 1975,
      "opinion_index": 0,
      "case_paths": [
        "/nc/288/0375-01"
      ]
    },
    {
      "cite": "329 S.E.2d 350",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "opinion_index": 0
    },
    {
      "cite": "313 N.C. 488",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4725743
      ],
      "year": 1985,
      "opinion_index": 0,
      "case_paths": [
        "/nc/313/0488-01"
      ]
    },
    {
      "cite": "414 S.E.2d 339",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 9,
      "year": 1992,
      "pin_cites": [
        {
          "page": "342"
        },
        {
          "page": "342"
        },
        {
          "page": "342-43"
        },
        {
          "page": "344"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "331 N.C. 57",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2500046
      ],
      "weight": 7,
      "year": 1992,
      "pin_cites": [
        {
          "page": "62"
        },
        {
          "page": "63"
        },
        {
          "page": "63"
        },
        {
          "page": "63"
        },
        {
          "page": "64"
        },
        {
          "page": "66"
        },
        {
          "page": "57"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/331/0057-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 691,
    "char_count": 13615,
    "ocr_confidence": 0.749,
    "pagerank": {
      "raw": 5.12982294956584e-08,
      "percentile": 0.32358585384707755
    },
    "sha256": "7c1f66b11f1fdba3d014f2bed704b7366f6e16ab95031cab6e77b15aab5879cf",
    "simhash": "1:96155f2a4f2f6c4c",
    "word_count": 2248
  },
  "last_updated": "2023-07-14T20:45:28.578783+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges HUDSON and STEELMAN concur."
    ],
    "parties": [
      "DEBORAH FREEMAN, Plaintiff v. FOOD LION, LLC, BUDGET SERVICES, INC., and FRANK\u2019S FLOOR CARE, Defendants"
    ],
    "opinions": [
      {
        "text": "JACKSON, Judge.\nOn 22 December 2000, Deborah Freeman (\u201cplaintiff\u2019) was a patron at Delhaize America, Inc. (\u201cFood Lion\u201d) in Fayetteville, North Carolina. At approximately 11:30 p.m., plaintiff was walking in one of the store aisles when she was struck by a buffer machine being operated by an individual wearing headphones. The buffer machine ran over plaintiffs right foot entangling it in the machine and causing serious and permanent injury to it. There were orange cones located at the front of the grocery store that allegedly had been knocked down by John Robinson (\u201cRobinson\u201d), a person hired by Amron Janitorial to service the Food Lion store floors. However, there were no caution signs, warning signs, hazard signs, or orange cones on the aisle in which plaintiff was walking when the buffer machine ran over her foot. No store managers were on duty at the time of the accident. Plaintiff filled out an accident report form but received no copy of the report.\nOn 18 December 2003, plaintiff filed a complaint against (1) Food Lion, the owner and operator of the store in which she was injured; (2) Budget Services, who contracted with Food Lion to maintain the floors of the Food Lion store; (3) Frank\u2019s Floor Care, who contracted with Budget Services to maintain the floors of Food Lion; and (4) Amron Janitorial, who contracted with Budget Services to maintain the floors of Food Lion and who hired Robinson to operate the buffer machine that subsequently injured plaintiff. Plaintiff sought to recover compensatory damages in excess of ten thousand dollars ($10,000.00) from each of defendants.\nOn 22 July 2004, defendant Food Lion moved for entry of summary judgment. On 16 August 2004, approximately three weeks later, defendants Budget Services and Frank\u2019s Floor Care also filed a joint motion for summary judgment. Defendants Food Lion, Budget Services, and Frank\u2019s Floor Care supported their motions for summary judgment with an affidavit executed by Robinson.\nOn 23 August 2004, the trial court heard arguments in support of the summary judgment motions in the instant case. On 26 August and 31 August 2004, the trial court entered two separate orders, one granting summary judgment in favor of Food Lion and the other granting summary judgment in favor of Budget Services and Frank\u2019s Floor Care. Plaintiff appeals from these two orders.\nSummary judgment is appropriate when the \u201cpleadings, 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.\u201d Roumillat v. Simplistic Enter., Inc., 331 N.C. 57, 62, 414 S.E.2d 339, 342 (1992); N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2003).\nThe movant has the burden of showing that there are no triable issues that exist. Id. at 62-63, 414 S.E.2d at 341-42 (citing Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 329 S.E.2d 350 (1985)); see also Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975).\nThe movant may meet this burden by proving that an essential element of the opposing party\u2019s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.\nRoumillat, 331 N.C. at 63, 414 S.E.2d at 342 (citing Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982); Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974)). After the moving party satisfies its burden of proof, the nonmovant then must \u201c \u2018produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.\u2019 \u201d Roumillat, 331 N.C. at 63, 414 S.E.2d at 342 (quoting Collingwood v. General Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)).\nIt is well-established that upon examining whether a movant should be granted summary judgment, \u201c[a]ll inferences of fact must be drawn against the movant and in favor of the nonmovant.\u201d Roumillat, 331 N.C. at 63, 414 S.E.2d at 342 (citing Collingwood, 324 N.C. at 66, 376 S.E.2d at 427). While all inferences are drawn in favor of the nonmovant, however, \u201cit is only after it becomes clear to the court that the facts are established or admitted, and the issue of negligence has been reduced to a mere question of law that courts should grant such extreme remedies.\u201d Osborne v. Annie Penn Mem\u2019l Hosp., Inc. 95 N.C. App. 96, 99, 381 S.E.2d 794, 796 (1989) (citing Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, cert. denied, 283 N.C. 257, 195 S.E.2d 689 (1973)).\nPlaintiff contends the trial court erred by entering summary judgment in favor of defendants, Food Lion, Budget Services, and Frank\u2019s Floor Care because there existed genuine issues of material fact. Specifically, plaintiff asserts that there were genuine issues as to whether the person who injured her was an employee, agent, or independent contractor of defendants. Plaintiff alleges in her brief that Robinson should be considered an agent of defendants \u2014 not an independent contractor \u2014 and therefore defendants should be held vicariously liable for her injuries.\nGenerally, employers are not held vicariously liable for the negligent acts of an independent contractor. Gordon v. Garner, 127 N.C. App. 649, 658, 493 S.E.2d 58, 63 (1997), disc. rev. denied, 347 N.C. 670, 500 S.E.2d 86 (1998). However, plaintiff failed to raise the issue of whether Robinson was an agent, employee, or independent contractor of defendants in her complaint or base her theory of recovery from Food Lion, Budget Services, or Frank\u2019s Floor Care on vicarious liability. Therefore, we conclude that whether or not plaintiff can hold Food Lion, Budget Services, or Frank\u2019s Floor Care vicariously liable is not an issue properly before this Court. See Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) (\u201cthe law does not permit parties to swap horses between courts in order to get a better mount in . . . [this Court]\u201d); Ellis-Don Const., Inc., v. HNTB Corp., 169 N.C. App. 630, 632, 610 S.E.2d 293, 295 (2005) (\u201cWe limit our review to those arguments asserted in the pleadings before the trial court and properly preserved for review.\u201d); N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b) (6) (2004). Accordingly, this assignment of error is overruled.\nPlaintiff next asserts that the trial court erred by granting summary judgment in favor of defendants Food Lion, Budget Services, and Frank\u2019s Floor Care because the danger created by the high-speed buffing machine was not so open or obvious that, as a matter of law, defendants were relieved of their duty to protect visitors from, and to warn visitors about, such a dangerous condition.\nIt is not this Court\u2019s intention to place on owners and occupiers of land an \u201cunwarranted burden[] in maintaining their premises. Rather, we impose upon them only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.\u201d Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998). Therefore, failure by \u201c[a] store ... to exercise ordinary care to keep its premises in a reasonably safe condition and to warn of any hidden dangers of which it knew or should have known\u201d constitutes negligence. Stallings v. Food Lion, Inc., 141 N.C. App. 135, 137, 539 S.E.2d 331, 333 (2000) (citing Lamm v. Bissette Realty, Inc., 327 N.C. 412, 416, 395 S.E.2d 112, 115 (1990); Roumillat, 331 N.C. 57 at 64, 414 S.E.2d at 342-43)). There is a presumption, however, that a reasonable person will be \u201cvigilant in the avoidance of injury\u201d when faced with a \u201cknown and obvious danger.\u201d Id. (quoting Roumillat, 331 N.C. at 66, 414 S.E.2d at 344); see Lorinovich v. K Mart Corp., 134 N.C. App. 158, 162-63, 516 S.E.2d 643, 646-47 (1999) (\u201cAs a general proposition, there is no duty to protect a lawful visitor against dangers which are either known to him or so obvious and apparent that they reasonably may be expected to be discovered.\u201d)\nIn the instant case, plaintiff contends that \u201cFood Lion, its agents and anyone performing a service contract at Food Lion were under a duty to exercise reasonable care to provide for [plaintiff\u2019s] safety while she was lawfully on its premises.\nBecause neither Budget Services nor Frank\u2019s Floor Care owned nor operated the store in which plaintiff\u2019s injury occurred and because plaintiff has failed to allege in her complaint that Budget Services or Frank\u2019s Floor Care were agents of Food Lion, we hold that they had no duty to plaintiff and that, therefore, they may not be held liable under a theory of premises liability. Accordingly, we proceed forward addressing the issue of whether the trial court erred in granting summary judgment in favor of only defendant Food Lion on the issue of premises liability.\nIn the instant case, Food Lion, as owner and operator of the store in which plaintiff was injured, owed a duty to plaintiff to keep their premises safe and to warn her of any hidden dangers on their premises. Based on the \u201cpleadings, depositions, answers to interrogatories, and admissions on file\u201d there was more than one inference that could be drawn from the facts presented. Roumillat, 331 N.C. at 57, 414 S.E.2d 339. These genuine issues of material fact should have been submitted for resolution by the jury \u2014 not this Court, id. at 139, 539 S.E.2d at 334 \u2014 such as whether (1) Food Lion properly warned plaintiff about the cleaning service buffing the floor nearby; (2) Food Lion failed to use ordinary care in providing a safe premise for plaintiff to shop; (3) plaintiff contributed to her own injury by failing to exercise the use of ordinary care; (4) the buffer machine presented an obvious danger to plaintiff; and (5) a reasonably prudent person exercising ordinary care would have, and should have, noticed the buffer prior to the collision and avoided the dangers of such machinery. When considered in the light most favorable to plaintiff, we decline to grant defendant Food Lion in this case an extreme or drastic remedy such as summary judgment.\nAccordingly, there were genuine issues of material fact pertaining to defendant Food Lion\u2019s negligence and plaintiff\u2019s duty to exercise ordinary care and the trial court erred in precluding plaintiff and defendant from submitting those issues to the jury. Therefore, we reverse and remand this issue to the trial court for additional findings consistent with this opinion.\nAffirmed in part; Reversed and remanded in part.\nJudges HUDSON and STEELMAN concur.\n. Robinson was dismissed voluntarily from the case due to plaintiff\u2019s inability to effectuate service of process on him.\n. \u201cAlthough this \u2018no duty\u2019 rule for obvious dangers bears a strong resemblance to the doctrine of contributory negligence, ... it in fact negates the defendant\u2019s duty of care and eliminates any occasion for reliance on the defense of contributory negligence.\u201d Lorinovich, 134 N.C. App. at 163 n.1, 516 S.E.2d at 647 (internal quotation omitted) (internal citation omitted).",
        "type": "majority",
        "author": "JACKSON, Judge."
      }
    ],
    "attorneys": [
      "Washington & Pitts, P.L.L.C., by Marshall B. Pitts, Jr., for the plaintiff-appellant.",
      "Stephenson & Stephenson, LLP, by Dena White Waters, for Budget Services, Inc. and Frank\u2019s Floor Care, defendants-appellees.",
      "Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P, by Julie L. Bell and Lori P. Jones, for Food Lion, LLC, defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "DEBORAH FREEMAN, Plaintiff v. FOOD LION, LLC, BUDGET SERVICES, INC., and FRANK\u2019S FLOOR CARE, Defendants\nNo. COA04-1570\n(Filed 6 September 2005)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to raise issue in complaint\nAlthough plaintiff contends the trial court erred in a premises liability case by entering summary judgment in favor of defendants when there was a genuine issue of material fact as to whether the person who injured her was an employee, agent, or independent contractor of defendants, this issue is dismissed because plaintiff failed to raise this issue in her complaint or to base her theory of recovery from defendants on vicarious liability.\n2. Premises Liability\u2014 open and obvious danger \u2014 summary judgment \u2014 failure to allege agents\nThe trial court did not err in a premises liability case by granting summary judgment in favor of two of the defendants even though plaintiff contends the danger created by the high-speed buffing machine that caused her injury was not so open or obvious that as a matter of law defendants were relieved of their duty to protect visitors from or to warn visitors about such a dangerous condition, because: (1) these defendants did not own or operate the store in which plaintiff\u2019s injury occurred; and (2) plaintiff failed to allege in her complaint that either of these two defendants were agents of defendant grocery store.\n3. Premises Liability\u2014 duty to keep premises safe and warn of hidden dangers \u2014 summary judgment \u2014 genuine issue of material fact\nThe trial court erred by granting summary judgment in favor of defendant grocery store in plaintiffs action to recover for injuries received when she was struck by a buffer machine in the store because: (1) defendant as owner and operator of the store owed a duty to plaintiff to keep its premises safe and to warn her of any hidden dangers on its premises; and (2) there was more than one inference that could be drawn from the facts presented on the issues of negligence and contributory negligence.\nAppeal by plaintiff from orders entered 30 August 2004 and 31 August 2004 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 16 June 2005.\nWashington & Pitts, P.L.L.C., by Marshall B. Pitts, Jr., for the plaintiff-appellant.\nStephenson & Stephenson, LLP, by Dena White Waters, for Budget Services, Inc. and Frank\u2019s Floor Care, defendants-appellees.\nPatterson, Dilthey, Clay, Bryson & Anderson, L.L.P, by Julie L. Bell and Lori P. Jones, for Food Lion, LLC, defendant-appellee."
  },
  "file_name": "0207-01",
  "first_page_order": 237,
  "last_page_order": 242
}
