{ "id": 8349702, "name": "JAMES CREECH HERRING, Plaintiff v. FOOD LION, LLC, Defendant", "name_abbreviation": "Herring v. Food Lion, LLC", "decision_date": "2005-12-20", "docket_number": "No. COA05-202", "first_page": "22", "last_page": "31", "citations": [ { "type": "official", "cite": "175 N.C. App. 22" } ], "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": "136 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1964, "pin_cites": [ { "page": "278-79" }, { "page": "278", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "262 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565369 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "61" }, { "page": "60-61" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0057-01" ] }, { "cite": "543 S.E.2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "168" }, { "page": "169" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 325", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440959 ], "year": 2001, "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0325-01" ] }, { "cite": "157 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "538" } ], "opinion_index": 0 }, { "cite": "271 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567280 ], "year": 1967, "pin_cites": [ { "page": "739" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0738-01" ] }, { "cite": "414 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "342-43", "parenthetical": "citing Hinson v. Cato's, Inc., 271 N.C. 738, 739, 157 S.E.2d 537, 538 (1967)" }, { "page": "345", "parenthetical": "citations omitted" }, { "page": "342-43" } ], "opinion_index": 0 }, { "cite": "331 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500046 ], "year": 1992, "pin_cites": [ { "page": "64", "parenthetical": "citing Hinson v. Cato's, Inc., 271 N.C. 738, 739, 157 S.E.2d 537, 538 (1967)" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0057-01" ] }, { "cite": "533 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132282, 131930, 132234, 132199 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0108-02", "/nc/350/0108-04", "/nc/350/0108-03", "/nc/350/0108-01" ] }, { "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": "583 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "320" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 408", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956450 ], "year": 2003, "pin_cites": [ { "page": "411-12" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0408-01" ] }, { "cite": "309 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "580-81", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 609", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525303 ], "year": 1983, "pin_cites": [ { "page": "610", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0609-01" ] }, { "cite": "596 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "461", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8898536 ], "year": 2004, "pin_cites": [ { "page": "505", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0499-01" ] }, { "cite": "617 S.E.2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633751 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "701" }, { "page": "701" } ], "opinion_index": 1, "case_paths": [ "/se2d/617/0698-01" ] }, { "cite": "401 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "838-39", "parenthetical": "stating that \"[t]he owner of a store is not an insurer of its customer's safety but is under a duty to exercise ordinary care in keeping the store's aisles and passageways reasonably safe so as not to unnecessarily expose customers to danger\"" } ], "opinion_index": 1 }, { "cite": "102 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523533 ], "year": 1991, "pin_cites": [ { "page": "294", "parenthetical": "stating that \"[t]he owner of a store is not an insurer of its customer's safety but is under a duty to exercise ordinary care in keeping the store's aisles and passageways reasonably safe so as not to unnecessarily expose customers to danger\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/102/0291-01" ] }, { "cite": "464 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "703" } ], "opinion_index": 1 }, { "cite": "121 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916101 ], "year": 1995, "pin_cites": [ { "page": "164" } ], "opinion_index": 1, "case_paths": [ "/nc-app/121/0161-01" ] }, { "cite": "315 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "94" } ], "opinion_index": 1 }, { "cite": "68 N.C. App. 424", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527327 ], "year": 1984, "pin_cites": [ { "page": "427" } ], "opinion_index": 1, "case_paths": [ "/nc-app/68/0424-01" ] }, { "cite": "303 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "334" } ], "opinion_index": 1 }, { "cite": "62 N.C. App. 419", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522781 ], "year": 1983, "pin_cites": [ { "page": "422" } ], "opinion_index": 1, "case_paths": [ "/nc-app/62/0419-01" ] }, { "cite": "547 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "51" }, { "page": "51" } ], "opinion_index": 1 }, { "cite": "138 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11081120 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "656" }, { "page": "656" } ], "opinion_index": 1, "case_paths": [ "/nc-app/138/0651-01" ] }, { "cite": "173 N.C. App. 207", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353204 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "211" }, { "page": "211" } ], "opinion_index": 1, "case_paths": [ "/nc-app/173/0207-01" ] }, { "cite": "539 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "333" }, { "page": "333" }, { "page": "333" } ], "opinion_index": 1 }, { "cite": "141 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440413 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "137" }, { "page": "137-38" }, { "page": "138" } ], "opinion_index": 1, "case_paths": [ "/nc-app/141/0135-01" ] } ], "analysis": { "cardinality": 935, "char_count": 22320, "ocr_confidence": 0.756, "pagerank": { "raw": 2.1004950486751146e-07, "percentile": 0.7617326338330922 }, "sha256": "1ecdd18dec1687bdddcebb1436b676acb3b784a49f3570e02d80f56a9032931c", "simhash": "1:f764d42a76e62d58", "word_count": 3705 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JUDGE STEELMAN concurs.", "JUDGE HUNTER concurs in part, dissents in part." ], "parties": [ "JAMES CREECH HERRING, Plaintiff v. FOOD LION, LLC, Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nFood Lion, LLC (\u201cdefendant\u201d) appeals from order entered setting aside an earlier order granting directed verdict in favor of defendant and granting James Creech Herring\u2019s (\u201cplaintiff\u2019) motion for a new trial. We affirm in part and reverse in part.\nI. Background\nOn 6 February 2003, plaintiff filed a complaint against defendant in Lenoir County Superior Court alleging he had sustained serious physical injuries as a result of defendant\u2019s negligence. Plaintiff\u2019s case was tried on 23 and 24 March 2004. Plaintiff presented evidence tending to show that on 3 March 2000, he sustained injuries while shopping at defendant\u2019s grocery store located in Snow Hill, North Carolina. Plaintiff testified he pushed a shopping cart down one or two aisles of the store and parked his cart by the meat counter, while he walked over to a display of two-liter soft drinks located at the end of the aisle. Plaintiff selected a bottle from the rear of the display and turned to return to his shopping cart, which remained parked by the meat counter. Plaintiff stated,\nWhen I took a step, I hit the edge of the [stock cart] . . . which I did not see. I hit the edge of it and I started to fall and it just took the skin off the front of my shin on my right leg so I didn\u2019t put my knee down or anything to try to break the fall. All the weight went on my hands.\nThe stock cart was empty, and its base was slightly lower than plaintiff\u2019s knee. Plaintiff described the stock cart as \u201cfour and a half feet long, maybe 17, 18 inches wide with \u2014 it had end posts that stuck up ... They were rounded and I\u2019d say they were maybe four and a half feet high\nIn order to illustrate his testimony, plaintiff submitted photographs of a stock cart substantially similar to the one upon which he was injured. Plaintiff testified that the stock cart was not \u201canyplace around that [he] noticed\u201d as he approached the soft drink display. Plaintiff testified he never observed the stock cart near the end of the aisle before he fell. In plaintiff\u2019s opinion as he approached the end display, the stock cart was \u201cin-between two displays and the ends were up against or very close to the end of these displays ... so they were hidden.\u201d When plaintiff turned away from the soft drink display to return to his shopping cart, he asserts the stock cart must have been directly behind him. Plaintiff testified he had no opportunity to see the stock cart before he tripped on it.\nAs a result of his fall, plaintiff suffered a shoulder impingement ultimately requiring surgery. No one was tending the stock cart at the time of plaintiffs injury, but one of defendant\u2019s employees, believed to be Carlos Gurley (\u201cGurley\u201d), was standing nearby and allegedly witnessed plaintiff\u2019s fall. Plaintiff left the store following his accident and did not contact defendant regarding the incident until after he learned his injury was serious and would result in permanent disability. Plaintiff spoke with the manager for defendant of the store, John Ashworth (\u201cAshworth\u201d), and informed him of the accident. Ashworth told plaintiff that Gurley no longer worked at the store and that no incident report had been filed for the accident. Plaintiff never located Gurley, and he did not testify at trial.\nBenjamin Metz (\u201cMetz\u201d), the current manager for defendant of the store where plaintiff was injured, testified regarding defendant\u2019s employee handbook. The handbook, which was required to be distributed to all employees, contained the following statements:\nSTATEMENT OF POLICY\nThe safety of our employees and customers is an important priority at Food Lion. Employees must share in the responsibility by obeying established safety rules and being alert for unsafe working conditions. No manager or employee may be relieved of his or her part of this responsibility.\nDo not commit an unsafe act which might result in injury to yourself or another person. Be alert to the presence of other people to avoid accidentally injuring someone.\nReport any unsafe conditions or practices to your manager immediately.\nReport all accidents of any kind to your manager at once. If the accident results in an injury, regardless of how slight the injury may seem, it must be reported without delay.\nDon\u2019t leave containers such as cartons, baskets, and other stock carriers unattended in aisles. Empty them promptly and return them to their proper place.\nStock trucks and carts should be loaded to pass through aisles or doorways with ease. Unattended or empty trucks and carts should be placed out of the way.\nNotify the Store Manager or person in charge of the store of accidents immediately.\nMetz testified that all of the stock carts within defendant\u2019s store are owned by defendant and that defendant is responsible for their use and placement within the store. At the close of plaintiff\u2019s evidence, defendant moved for a directed verdict. The trial court granted defendant\u2019s motion by order dated 5 April 2004.\nPlaintiff filed a motion for a new trial and argued the trial court erred in granting defendant\u2019s motion for directed verdict. Upon review of plaintiff\u2019s motion for a new trial, the trial court determined defendant\u2019s motion for directed verdict had been improperly granted. The trial court entered an order setting aside the 5 April 2004 order and granted plaintiff\u2019s motion for a new trial. Defendant appeals.\nII. Issues\nDefendant argues the trial court erred by: (1) granting plaintiff\u2019s motion for a new trial after it had previously granted defendant\u2019s motion for directed verdict; and (2) admitting into evidence defendant\u2019s employee handbook.\nIII. Motion for New Trial\nPlaintiff\u2019s motion for a new trial asserted the trial court erred in granting defendant\u2019s motion for directed verdict. Defendant asserts the trial court properly granted its motion for directed verdict because plaintiff presented insufficient evidence that defendant: (1) negligently created the condition leading to plaintiff\u2019s injury; or (2) negligently failed to remove the stock cart after actual or constructive notice of its existence. To determine whether the trial court erred in granting plaintiffs motion for a new trial, we must determine whether the trial court erred in granting defendant\u2019s motion for directed verdict.\nIV.Motion for Directed Verdict\nThe standard of review for a motion for directed verdict is whether the evidence, considered in a light most favorable to the non-moving party, is sufficient to be submitted to the jury. Di Frega v. Pugliese, 164 N.C. App. 499, 505, 596 S.E.2d 456, 461 (2004) (citation omitted). A motion for directed verdict should be denied if more than a scintilla of evidence supports each element of the non-moving party\u2019s claim. Clark v. Moore, 65 N.C. App. 609, 610, 309 S.E.2d 579, 580-81 (1983) (citation omitted). This Court reviews a trial court\u2019s grant of a motion for directed verdict de novo. Denson v. Richmond Cty., 159 N.C. App. 408, 411-12, 583 S.E.2d 318, 320 (2003). The trial court properly granted defendant\u2019s motion for directed verdict.\nV.Employee Handbook\nDefendant argues the trial court erred in admitting the employee safety handbook into evidence. Defendant contends plaintiff failed to properly authenticate the document before offering it into evidence. We disagree.\nMetz, the store manager for defendant, testified that he obtained a copy of the employees\u2019 handbook effective in March 2000, the time of plaintiff\u2019s injury. Metz identified the document produced by plaintiff as defendant\u2019s employee handbook. Metz testified that it was the same handbook required to be distributed to all employees. \u201cThe requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 901(a) (2003). We conclude Metz\u2019s testimony was sufficient to support a finding that the document produced by plaintiff was a copy of defendant\u2019s employee handbook in effect at the time of plaintiff\u2019s accident. This assignment of error is overruled.\nVI.Duty to Lawful Visitors\nOwners and occupiers of land in this State owe \u201cthe 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), reh\u2019g denied, 350 N.C. 108, 533 S.E.2d 467 (1999). Where a plaintiff customer slips or falls on an object and is injured in a retail establishment, the \u201cplaintiff must 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.\u201d Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342-43 (1992) (citing Hinson v. Cato\u2019s, Inc., 271 N.C. 738, 739, 157 S.E.2d 537, 538 (1967)).\nA. Negligence\nHere, plaintiff produced no evidence that defendant, its agent, employees, or contractors, negligently placed the stock cart in a position that would cause plaintiff to become injured. Id. Plaintiff failed to produce any evidence that any of defendant\u2019s employees breached any of defendant\u2019s safety rules by leaving the stock cart unattended in plain vi\u00e9w in the aisle. No evidence whatsoever was presented regarding who left the stock cart in the position which caused plaintiff to fall, when it was placed there, or how long it remained.\nDefendant\u2019s evidence tended to show that vendors, such as Pepsi, Coca-Cola, and Frito Lay, are permitted to use stock carts owned by defendant. Based on plaintiff\u2019s evidence, the jury could only speculate who left the stock cart in a position causing plaintiff to fall, whether it be an employee, a vendor, or another customer, and how long it remained there. \u201cCases are not to be submitted to a jury on speculations, guesses, or conjectures . . . [P]roof of negligence must rest on a more solid foundation that mere conjecture.\u201d Id. at 69, 414 S.E.2d at 345 (citations omitted).\nB. Notice\nPlaintiff also presented no evidence that defendant failed to correct a dangerous condition after it received actual or constructive notice of the condition. Id. at 64, 414 S.E.2d at 342-43. This case can be distinguished from cases in which courts of this State have held a defendant retail store to have constructive notice of a dangerous condition. Evidence that the dangerous condition existed for some period of time prior to the fall may create an inference of constructive notice. Furr v. K-Mart Corp., 142 N.C. App. 325, 327, 543 S.E.2d 166, 168 (2001). In Furr, the plaintiff slipped in a K-Mart store on liquid detergent that had leaked from a container down the side of the shelving structure and onto the floor. Id. at 328, 543 S.E.2d at 169. The plaintiff presented evidence that the detergent on the shelving structure had dried and become pink at the time of his fall. Id. This Court held that evidence to be \u201csufficient to raise an inference that the liquid detergent had been leaking for such a length of time that defendant should have known of its existence in time to have removed the danger or to have given proper warning of its presence.\u201d Id. Similarly, in Long v. Food Stores, our Supreme Court held that evidence of grapes on the floor that were \u201cfull of lint and dirt\u201d was sufficient to show that the store owner had knowledge of their presence. 262 N.C. 57, 61, 136 S.E.2d 275, 278-79 (1964).\nHere, plaintiff presented no evidence to raise an inference the stock cart had been left in its position for some period of time prior to his fall to place defendant on notice. Plaintiff testified that he did not know how the stock cart got there and did not see the stock cart before falling over it. Plaintiff also testified that after he fell, he looked up and saw one of defendant\u2019s employees, who worked in the meat department,- speaking with an elderly lady \u201con the other side of the display.\u201d Plaintiff presented no evidence whether this or another employee had seen or should have seen the cart before plaintiff fell. Plaintiff also presented no evidence of how long the stock cart had been present in that position before he fell. Plaintiff testified the cart made \u201ccreaking\u201d noises as it moved.\nWithout plaintiff offering sufficient evidence, the jury would have to speculate about: (1) who placed the stock cart in that location; (2) the amount of time the stock cart had been placed there; (3) whether any of defendant\u2019s employees saw it; (4) whether any of defendant\u2019s employees should have seen it and recognized the danger; and (5) whether any of defendant\u2019s employees had time to move the stock cart or warn plaintiff before he fell.\nIt seems to be universally held that the res ipsa loquitur doctrine is inapplicable in suits against business proprietors to recover for injuries sustained by customers or invitees in falls during business hours on floors and passageways located within the business premises and on which there is litter, debris, or other substances.\nNo inference of negligence on the part of defendant arises merely from a showing that plaintiff, a customer in defendant\u2019s store during business hours, fell and sustained an injury in the store.\nLong, 262 N.C. at 60-61, 136 S.E.2d at 278 (internal citations omitted).\nTo hold defendant liable in this case would be to effectively make defendant an insurer and held to be strictly liable for any torts committed by a third person while in defendant\u2019s store. A purported and unproven breach of a property owner\u2019s or tenant\u2019s internal safety policy or manual is not evidence of a breach of a duty by defendant to any plaintiff who is injured on defendant\u2019s premises, even though a breach may have been caused by a third-party. North Carolina only imposes strict liability upon owners and occupiers of real property for injuries caused by possessing wild animals or \u201cvicious\u201d domestic animals and engaging in \u201cabnormally dangerous activities.\u201d Charles E. Daye & Mark W. Morris, North Carolina Law of Torts \u00a7 20.10, 411 (1999). The trial court properly granted directed verdict for defendant.\nVII. Conclusion\nThe trial court did not err by admitting defendant\u2019s employee handbook into evidence. Plaintiff presented insufficient evidence to support his negligence claim against defendant. The trial court properly granted defendant\u2019s motion for directed verdict. On de novo review, the trial court erred by setting aside its previous order granting directed verdict in favor of defendant and granting plaintiff\u2019s motion for a new trial.\nAffirmed in part, Reversed in part.\nJUDGE STEELMAN concurs.\nJUDGE HUNTER concurs in part, dissents in part.", "type": "majority", "author": "TYSON, Judge." }, { "text": "HUNTER, Judge,\nconcurring in part and dissenting in part.\nI agree with the majority that the trial court did not err in admitting the employee handbook into evidence. I do not agree, however, that the trial court erred in granting plaintiff\u2019s motion for a new trial.\n\u201cA store has a duty 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 Stallings v. Food Lion, Inc., 141 N.C. App. 135, 137, 539 S.E.2d 331, 333 (2000); Kremer v. Food Lion, Inc., 102 N.C. App. 291, 294, 401 S.E.2d 837, 838-39 (1991) (stating that \u201c[t]he owner of a store is not an insurer of its customer\u2019s safety but is under a duty to exercise ordinary care in keeping the store\u2019s aisles and passageways reasonably safe so as not to unnecessarily expose customers to danger\u201d). Failure to do so constitutes negligence. Freeman v. Food Lion, LLC, 173 N.C. App. 207, 211, 617 S.E.2d 698, 701 (2005). Moreover, it is well established in North Carolina that the breach of a voluntarily-adopted safety rule may constitute evidence of a defendant\u2019s negligence. Thompson v. Wal-Mart Stores, Inc., 138 N.C. App. 651, 656, 547 S.E.2d 48, 51 (2000).\nOn a motion by a defendant for a directed verdict at the close of the plaintiff\u2019s evidence in a jury case, the evidence must be taken as true and considered in the light most favorable to the plaintiff. Stallings, 141 N.C. App. at 137-38, 539 S.E.2d at 333. The plaintiff must be given the benefit of every reasonable inference which may legitimately be drawn from the evidence, with conflicts, contradictions, and inconsistencies being resolved in the plaintiff\u2019s favor. Hornby v. Penn. Nat\u2019l Mut. Casualty Ins. Co., 62 N.C. App. 419, 422, 303 S.E.2d 332, 334 (1983). A directed verdict is not properly allowed unless it appears that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence tends to establish. Willis v. Russell, 68 N.C. App. 424, 427, 315 S.E.2d 91, 94 (1984). \u201cDirected verdict in a negligence case is rarely proper because it is the duty of the jury to apply the test of a person using ordinary care.\u201d Stallings, 141 N.C. App. at 138, 539 S.E.2d at 333.\nIn the instant case, defendant, as owner and operator of the store in which plaintiff was injured, owed a duty to plaintiff to keep its premises safe and to warn him of any hidden dangers on the premises. Freeman, 173 N.C. App. at 211, 617 S.E.2d at 701. Further, defendant voluntarily adopted certain safety rules to ensure the safety of all lawful visitors. Most notably, defendant instructed its employees not to leave \u201cstock carriers unattended in aisles.\u201d In addition, Metz testified that defendant was responsible for the use and placement of all of the stock carts within defendant\u2019s store. Plaintiff testified that the stock cart was unattended when he fell. Thus, notwithstanding the majority\u2019s assertion to the contrary, there was evidence from which the jury could find that defendant violated its own safety rule by leaving the stock cart unattended, which in turn would constitute some evidence of defendant\u2019s breach of the standard of care. Thompson, 138 N.C. App. at 656, 547 S.E.2d at 51. Even if a vendor or other third party placed the stock cart behind plaintiff, the jury could nevertheless find defendant negligent in leaving the stock cart unattended and in a position where anyone could push it behind plaintiff.\nPlaintiff testified that, as he approached the soft drink display, the stock cart was not \u201canyplace around that [he] noticed.\u201d The evidence showed that the stock cart was quite large, at least as long as the soft drink display at the end of the aisle, and with end posts four and a half feet high. When plaintiff turned away from the drink display, the low, unloaded stock cart was then directly behind him where he could not see it. This evidence contradicts the majority\u2019s assertion that plaintiff presented \u201cno evidence of how long the stock cart had been present in that position before he fell.\u201d Plaintiff was only at the end aisle long enough to retrieve the soft drink bottle. It would be unreasonable to infer that the stock, cart was present in front of the end aisle the entire time and plaintiff simply failed to notice it, as plaintiff would have had to walk around the large stock cart to reach the soft drink display on the end aisle. In the light most favorable to plaintiff, which is the standard we must apply, the jury could reasonably conclude from the evidence that someone placed or pushed the stock cart to its position behind plaintiff while he stood at the display. As plaintiff turned, he immediately struck the stock cart and fell. Although the stock cart was unattended at the time, plaintiff observed one of defendant\u2019s employees standing nearby, speaking with a customer, directly after his fall. The employee witnessed plaintiff\u2019s injury, but he did not report the accident to management, in violation of store policy. No accident report was made of plaintiff\u2019s accident until several months after the incident. Taken in the light most favorable to plaintiff, there was evidence from which the jury could find that defendant failed to adhere to its own safety policies by neglecting to properly supervise the stock cart that caused plaintiff\u2019s injury.\nAs issues of fact existed requiring resolution by a jury, the trial court improperly granted a directed verdict in favor of defendant. A new trial may be granted for \u201c[e]rror in law occurring at the trialf.]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 59(a)(8) (2003). This Court reviews de novo the trial court\u2019s granting of a motion for a new trial based upon error of law. Chiltoski v. Drum, 121 N.C. App. 161, 164, 464 S.E.2d 701, 703 (1995). The trial court\u2019s error of law in granting a directed verdict for defendant supports the trial court\u2019s subsequent decision to grant a new trial. I would hold the trial court did not err in granting plaintiffs motion for a new trial.", "type": "concurring-in-part-and-dissenting-in-part", "author": "HUNTER, Judge," } ], "attorneys": [ "White & Allen, P.A., by Gregory E. Floyd, for plaintiff-appellee.", "Poyner & Spruill LLP, by Timothy W. Wilson, for defendant-appellant." ], "corrections": "", "head_matter": "JAMES CREECH HERRING, Plaintiff v. FOOD LION, LLC, Defendant\nNo. COA05-202\n(Filed 20 December 2005)\n1. Evidence\u2014 employee handbook \u2014 authentication\nThe trial court did not err in a slip and fall case by admitting defendant company\u2019s employee handbook into evidence, because: (1) N.C.G.S. \u00a7 8C-1, Rule 901(a) provides that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims; and (2) the testimony of the store manager for defendant company was sufficient to support a finding that the document produced by plaintiff was a copy of defendant\u2019s employee handbook in effect at the time of plaintiff\u2019s accident.\n2. Premises Liability\u2014 fall in grocery store \u2014 negligence by . store owner \u2014 sufficiency of evidence\nPlaintiff customer\u2019s evidence was insufficient for the jury in an action to recover for injuries plaintiff received when he fell over a stock cart in defendant\u2019s grocery store where plaintiff produced no evidence as to who left the stock cart in the position which caused plaintiff to fall and no evidence that defendant failed to correct a dangerous condition after it received actual or constructive notice of the condition.\nJudge Hunter concurring in part and dissenting in part.\nAppeal by defendant from order entered 6 August 2004 by Judge Russell J. Lanier, Jr., in Lenoir County Superior Court. Heard in the Court of Appeals 21 September 2005.\nWhite & Allen, P.A., by Gregory E. Floyd, for plaintiff-appellee.\nPoyner & Spruill LLP, by Timothy W. Wilson, for defendant-appellant." }, "file_name": "0022-01", "first_page_order": 56, "last_page_order": 65 }