{ "id": 4180626, "name": "BARRY THOMAS BETTS, Plaintiff v. REGINA ANN JONES, JOSEPH L. GLOVER, ENTERPRISE LEASING COMPANY SE, INC. and LOWES FOODS, INC., Defendants", "name_abbreviation": "Betts v. Jones", "decision_date": "2010-11-16", "docket_number": "No. COA09-1572", "first_page": "169", "last_page": "173", "citations": [ { "type": "official", "cite": "208 N.C. App. 169" } ], "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": "649 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639168 ], "year": 2007, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0382-01" ] }, { "cite": "507 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571622 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0615-01" ] }, { "cite": "513 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "550", "parenthetical": "\"[A]lthough it is seldom appropriate to grant summary judgment in a negligence action, it is proper if there are no genuine issues of material fact, and the plaintiff fails to demonstrate one of the essential elements of the claim.\" (citations omitted)" } ], "opinion_index": 0 }, { "cite": "350 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132115 ], "year": 1999, "pin_cites": [ { "page": "236", "parenthetical": "\"[A]lthough it is seldom appropriate to grant summary judgment in a negligence action, it is proper if there are no genuine issues of material fact, and the plaintiff fails to demonstrate one of the essential elements of the claim.\" (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0231-01" ] }, { "cite": "349 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732261, 4737352, 4734837, 4731926, 4740443 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0506-01", "/nc/318/0506-05", "/nc/318/0506-03", "/nc/318/0506-02", "/nc/318/0506-04" ] }, { "cite": "346 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1986, "pin_cites": [ { "page": "304" }, { "page": "303" }, { "page": "439" }, { "page": "303-04" }, { "page": "441" }, { "page": "305" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359132 ], "year": 1986, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0438-01" ] }, { "cite": "281 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "38", "parenthetical": "citations omitted" }, { "page": "38", "parenthetical": "citations omitted" }, { "page": "39" } ], "opinion_index": 0 }, { "cite": "303 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575062 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "638", "parenthetical": "citations omitted" }, { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0636-01" ] }, { "cite": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "427", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "530 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "835", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "352 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684915 ], "year": 2000, "pin_cites": [ { "page": "83", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0077-01" ] }, { "cite": "361 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739573 ], "year": 2007, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0519-01" ] } ], "analysis": { "cardinality": 611, "char_count": 10915, "ocr_confidence": 0.751, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13733426157277895 }, "sha256": "a4f37d0f8a1b0be982ae05deadeb391f628071e2d6bcafc34cac24a0c2935807", "simhash": "1:f020945c2d7f6b7a", "word_count": 1820 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and HUNTER, JR. concur." ], "parties": [ "BARRY THOMAS BETTS, Plaintiff v. REGINA ANN JONES, JOSEPH L. GLOVER, ENTERPRISE LEASING COMPANY SE, INC. and LOWES FOODS, INC., Defendants" ], "opinions": [ { "text": "STEELMAN, Judge.\nLowe\u2019s Foods employees had the right to apprehend an observed shoplifter. Plaintiff failed to show that Lowe\u2019s Foods employees took any additional action to increase the likelihood of harm to plaintiff in apprehending the shoplifter. The trial court properly granted summary judgment in favor of Lowe\u2019s Foods, Inc.\nI. Factual and Procedural Background\nOn 1 October 2005, Lionel Hensley (Hensley) was working as a loss prevention officer at the Lowe\u2019s Foods store located at 737 West Dixie Drive in Asheboro, North Carolina. Hensley observed two women enter the store and proceed immediately to aisle 2 of the store. Hensley observed the women conceal 9 cans of Enfamil and 8 cans of Similac, both being high-dollar powdered baby formula products, in their pocketbooks. The two women, Regina Jones (Regina) and Adrian Jones (Adrian), then went to the end of aisle 2 and proceeded back down aisle 1, towards the store\u2019s entrance/exit. Hensley positioned himself at the end of aisle 1 between the two women and the exit. When they were approximately five feet from him, he displayed his badge and identified himself as being with loss prevention. Both women immediately moved towards Hensley in an aggressive manner, discarding their pocketbooks.\nRegina struck Hensley on his left forearm, and Hensley tried to grab her. Regina broke away. Hensley tried to grab her again, and Regina punched him in the chest. Regina was pepper sprayed by Hensley, then broke free, and ran out of the store. Hensley did not pursue Regina or see her again. Hensley had called for assistance, and observed one of the baggers struggling with Adrian. Hensley went to assist the bagger. The struggle with Adrian moved from the store onto the sidewalk, where she broke free from Hensley. Eventually, Adrian was subdued in the parking lot, handcuffed, and turned over to police. During the initial struggle with Adrian, Hensley heard a sound and saw the flash of a vehicle leaving the parking lot.\nBarry Thomas Betts (plaintiff) had come to the Lowe\u2019s Foods store on West Dixie Drive with his girlfriend to buy popsicles. They entered the store, got the popsicles, and plaintiff walked out of the store to the vehicle while his girlfriend paid for the items. On the way into the store he had observed a white Jeep parked in the fire lane about 20 feet from the store entrance. He was 40-45 feet from the store entrance when he heard a commotion. Plaintiff turned to see what was happening, and was suddenly struck by the white Jeep being operated by Regina. As a result of the impact, he suffered serious personal injuries.\nOn 15 May 2008, plaintiff filed this action against Regina, Joseph Glover (lessee of the Jeep), Enterprise Leasing Company, SE Inc. (lessor of the Jeep), and Lowe\u2019s Foods, Inc. Plaintiff alleged that Lowe\u2019s Foods employees were negligent in attempting to detain Regina, and that this caused Regina to flee in the white Jeep, which struck plaintiff and caused his injuries.\nOn 8 January 2009, Lowe\u2019s Foods, Inc. filed a motion for summary judgment. On 4 June 2009, the trial court granted Lowe\u2019s Foods, Inc.\u2019s motion and dismissed plaintiff\u2019s claims against Lowe\u2019s Foods, Inc. with prejudice.\nPlaintiff appeals.\nII. Standard of Review\nThe standard of review on a trial court\u2019s ruling on a motion for summary judgment is de novo. Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007). The entry of summary judgment is appropriate where \u201cthe 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.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2009). \u201cThe showing required for summary judgment may be accomplished by proving an essential element of the opposing party\u2019s claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense . . . .\u201d Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (citation omitted).\nTTT. Negligence of Lowe\u2019s Foods. Inc.\nIn his only argument, plaintiff contends that the trial court erred in granting summary judgment in favor of Lowe\u2019s Foods, Inc. because genuine issues of material fact existed as to whether its employees were negligent in the exercise of its lawful duty to apprehend Regina in a safe and reasonable manner. We disagree.\nIn order for plaintiff to establish a valid claim for negligence, he must show: \u201c(1) that there has been a failure to exercise proper care in the performance of some legal duty which defendant owed to plaintiff under the circumstances in which they were placed; and (2) that such negligent breach of duty was a proximate cause of the injury.\u201d Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989) (citation omitted). The general duty imposed upon a business owner is \u201cnot to insure the safety of his customers, but to exercise ordinary care to maintain his premises in such a condition that they may be used safely by his invitees in the manner for which they were designed and intended.\u201d Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 638, 281 S.E.2d 36, 38 (1981) (citations omitted). This Court has held that \u201c[a] store owner\u2019s duty to invitees to maintain the premises in a reasonably safe condition extends to the manner in which the store owner deals with the criminal acts of third persons.\u201d Jones v. Lyon Stores, 82 N.C. App. 438, 440, 346 S.E.2d 303, 304, disc. review denied, 318 N.C. 506, 349 S.E.2d 861 (1986). Our Supreme Court has held that \u201c[o]rdinarily the store owner is not liable for injuries to his invitees which result from the intentional, criminal acts of third persons. It is usually held that such acts cannot be reasonably foreseen by the owner, and therefore constitute an independent, intervening cause absolving the owner of liability.\u201d Foster, 303 N.C. at 638, 281 S.E.2d at 38 (citations omitted). Foreseeability is the test for determining a store owner\u2019s duty to safeguard his customers from the acts of third persons. Id. at 640, 281 S.E.2d at 39.\nIn the instant case, plaintiff was not injured as a result of a criminal act, but rather was injured by conduct incident to criminal activity. Plaintiff cites Jones v. Lyon Stores, supra, as the seminal case on this issue. In Jones, a person ran out of the store after being detained by the store manager for suspected shoplifting. Id. at 438, 346 S.E.2d at 303. It was the store\u2019s policy to lock the \u201cOut\u201d door while the suspected shoplifter was detained and the police were called. Id. The suspected shoplifter ran out of the store, using the \u201cIn\u201d door, and collided with a customer entering the store causing injury to her. Id. at 439, 346 S.E.2d at 303-04. This Court held that summary judgment for the defendant was improper because the issue of whether it was reasonably foreseeable that locking the \u201cOut\u201d door increased the risk of harm to the customers was a question for a jury. Id. at 441, 346 S.E.2d at 305.\nThe facts of the instant case are distinguishable. Hensley observed Regina and Adrian conceal several powdered baby formula products in their pocketbooks. Hensley stopped the women and identified himself as a loss prevention officer. The women subsequently threw down their pocketbooks and moved aggressively towards Hensley. Regina struck Hensley\u2019s left arm and chest, and ran out the store exit into the parking lot. Hensley did not pursue her into the parking lot nor was she pursued by any other Lowe\u2019s Foods employee.. The tape from the store\u2019s video surveillance cameras revealed that a full twenty-six seconds elapsed between the time Regina exited the store and when plaintiff was struck by the vehicle operated by Regina. During that time, Hensley and the other Lowe\u2019s Foods employees were focused entirely upon detaining Adrian. Plaintiff had walked out into the parking lot and was approximately 40-45 feet from the store entrance, standing in the middle of a traffic aisle, when he heard a commotion. Regina sped away in the white Jeep parked in the fire lane, made a left hand turn into the parking lot, struck plaintiff, and drove away. At no time did any Lowe\u2019s Foods employee chase Regina in the parking lot in an attempt to apprehend her.\nBecause \u201c[t]he store owner unquestionably has the right to apprehend a shoplifter to retrieve his goods[,]\u201d Id., and no Lowe\u2019s Foods employee took any additional action to increase the likelihood and foreseeability of harm to plaintiff, Lowe\u2019s Foods Inc. did not breach its duty to safeguard its customers from the acts of third persons. We hold that it was not foreseeable that when Hensley revealed his identity to Regina that she would exit the store, enter a vehicle parked 20 feet from the store entrance, speed through the parking lot, turn left down the traffic aisle where plaintiff was standing, and strike plaintiff. The trial court properly granted summary judgment in favor of Lowe\u2019s Foods, Inc. See Parish v. Hill, 350 N.C. 231, 236, 513 S.E.2d 547, 550 (1999) (\u201c[A]lthough it is seldom appropriate to grant summary judgment in a negligence action, it is proper if there are no genuine issues of material fact, and the plaintiff fails to demonstrate one of the essential elements of the claim.\u201d (citations omitted)).\nAFFIRMED.\nJudges STEPHENS and HUNTER, JR. concur.\n. We note that the premises liability trichotomy, i.e., invitee, licensee, and trespasser classifications, was abolished by our Supreme Court in Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998), and a reasonable care standard adopted. However, because reasonable care was the standard applied to invitees, or store customers, this change in the law does not impact our analysis.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Rodney C. Mason, for plaintiff-appellant.", "Smith Moore Leatherwood LLP, by Richard A. Coughlin and Elizabeth Brooks Scherer, and Burton & Sue LLP, by Gary K. Sue, for defendant-appellee Lowe\u2019s Foods, Inc." ], "corrections": "", "head_matter": "BARRY THOMAS BETTS, Plaintiff v. REGINA ANN JONES, JOSEPH L. GLOVER, ENTERPRISE LEASING COMPANY SE, INC. and LOWES FOODS, INC., Defendants\nNo. COA09-1572\n(Filed 16 November 2010)\nPremises Liability\u2014 store\u2019s duty to protect customers from third parties \u2014 acts of fleeing shoplifter \u2014 not foreseeable\nThe trial court correctly granted summary judgment for defendant Lowe\u2019s Foods on a negligence claim by a bystander in the parking lot who was injured when Regina Jones fled after being discovered shoplifting. It was not foreseeable that Jones would \u00e9xit the store after the loss prevention officer revealed his identity, enter a vehicle parked 20 feet from the entrance, speed through the parking lot, turn left down the traffic aisle where plaintiff was standing, and strike plaintiff.\nAppeal by plaintiff from order entered 4 June 2009 by Judge Henry E. Frye, Jr. in Randolph County Superior Court. Heard in the Court of Appeals 9 June 2010.\nRodney C. Mason, for plaintiff-appellant.\nSmith Moore Leatherwood LLP, by Richard A. Coughlin and Elizabeth Brooks Scherer, and Burton & Sue LLP, by Gary K. Sue, for defendant-appellee Lowe\u2019s Foods, Inc." }, "file_name": "0169-01", "first_page_order": 193, "last_page_order": 197 }