{ "id": 8524647, "name": "DONNA W. AARHUS v. WAKE FOREST UNIVERSITY", "name_abbreviation": "Aarhus v. Wake Forest University", "decision_date": "1982-06-01", "docket_number": "No. 8121SC878", "first_page": "405", "last_page": "415", "citations": [ { "type": "official", "cite": "57 N.C. App. 405" } ], "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": "292 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572053, 8572118, 8572088, 8572154, 8572029 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0587-02", "/nc/305/0587-04", "/nc/305/0587-03", "/nc/305/0587-05", "/nc/305/0587-01" ] }, { "cite": "286 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "55 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527554 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/55/0483-01" ] }, { "cite": "141 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "810" } ], "opinion_index": 0 }, { "cite": "264 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573458 ], "year": 1965, "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0387-01" ] }, { "cite": "87 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "242 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615106 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/242/0358-01" ] }, { "cite": "137 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "135" } ], "opinion_index": 0 }, { "cite": "262 N.C. 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567855 ], "year": 1964, "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0403-01" ] }, { "cite": "180 S.E. 2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560958, 8560969, 8560938, 8561008, 8560987, 8560926 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0522-03", "/nc/278/0522-04", "/nc/278/0522-02", "/nc/278/0522-06", "/nc/278/0522-05", "/nc/278/0522-01" ] }, { "cite": "179 S.E. 2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "10 N.C. App. 592", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555018 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/10/0592-01" ] }, { "cite": "129 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "258 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561801 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/258/0578-01" ] }, { "cite": "29 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "224 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594820 ], "year": 1944, "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0011-01" ] }, { "cite": "141 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "287" } ], "opinion_index": 0 }, { "cite": "264 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571898, 8571940 ], "year": 1965, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0168-01", "/nc/264/0168-02" ] }, { "cite": "276 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "379-80" }, { "page": "380" } ], "opinion_index": 0 }, { "cite": "302 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568054 ], "year": 1981, "pin_cites": [ { "page": "604-05" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0599-01" ] }, { "cite": "49 S.E. 946", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1905, "opinion_index": 0 }, { "cite": "137 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656669 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/nc/137/0431-01" ] }, { "cite": "121 S.E.2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569674 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0374-01" ] }, { "cite": "149 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560031 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0023-01" ] }, { "cite": "193 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565263 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0373-01" ] }, { "cite": "152 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562561 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0212-01" ] }, { "cite": "201 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563409 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0576-01" ] }, { "cite": "245 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 459", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563539 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0459-01" ] }, { "cite": "197 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.,C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559717 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0640-01" ] }, { "cite": "179 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559876 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0153-01" ] }, { "cite": "250 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566231 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0382-01" ] }, { "cite": "159 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "1 N.C. App. 20", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549759 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/1/0020-01" ] }, { "cite": "138 A.2d 117", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1958, "pin_cites": [ { "page": "122" } ], "opinion_index": 0 }, { "cite": "391 Pa. 300", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1276893 ], "year": 1958, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/pa/391/0300-01" ] }, { "cite": "158 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "561" } ], "opinion_index": 0 }, { "cite": "272 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573009 ], "year": 1968, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0377-01" ] } ], "analysis": { "cardinality": 1080, "char_count": 23156, "ocr_confidence": 0.781, "pagerank": { "raw": 4.568607526016744e-08, "percentile": 0.2866267492815218 }, "sha256": "b3566a4168c67148ac27fae3c5321add9293b2f874f0076dfdce6b4c3121e4cd", "simhash": "1:528774130e3b86f9", "word_count": 3775 }, "last_updated": "2023-07-14T20:31:38.946391+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BECTON concurs.", "Judge Hedrick concurs in result only." ], "parties": [ "DONNA W. AARHUS v. WAKE FOREST UNIVERSITY" ], "opinions": [ { "text": "HILL, Judge.\nPlaintiff testified that about 10 a.m. on 2 September 1976, she \u201cclosed down\u201d her own cash register and relieved a coworker, Mary Dingman, at cash register \u201cD\u201d in the cafeteria on defendant\u2019s campus. She began working, but the register would not ring. Plaintiff in a free moment looked for the plug with no success. When she again had no customers, plaintiff testified that she \u201cdecided to bend around and see where that outlet was, and it came down. The leg on the table came down and the cash register with it. The right leg of the table hit the top of my foot, on the arch.\u201d Plaintiff worked at cash register \u201cD\u201d about five minutes before the accident. She further testified that she had not noticed \u201cany difficulty or any peculiarity about the condition of the cash register table\u201d two days earlier when she worked with cash register \u201cD,\u201d and that \u201c[n]o one had made any statement to me or in my presence about the condition of the cash register table before I was injured.\u201d\nMary Dingman, the regular operator of cash register \u201cD,\u201d testified that she noticed a problem with one of the legs of the cash register table and told her supervisor, Lucille Smith Jackson, of the problem about six weeks before the accident. She stated, \u201cI had no trouble seeing the problem with the table because it was wobbly. I looked at it and saw what it was. You couldn\u2019t help but see it at that time. The table was wobbly. It wasn\u2019t lopsided.\u201d One of Dingman\u2019s supervisors told her not to worry about the condition of the table, it would be fixed.\nLucille Smith Jackson supervised the cashiers at the cafeteria at the time of the accident. She testified,\nDuring the 30 days before the accident to [plaintiff], I observed that cash register D was shaky, very shaky and both legs were really shaky, but none of them were out of proportion that I could see, but I felt that they were going to collapse on someone. I. reported what I had observed concerning the condition of cash register D to Mr. Pardue, my supervisor. ... It was before the accident. I made communication to Mr. Pardue concerning the condition of this particular table quite a few times.\nRobert Ernest Pardue, production manager of the cafeteria for ARA at the time of the accident, testified that he had talked to Royce Weatherly, defendant\u2019s superintendent of buildings, concerning the condition of the table under cash register \u201cD.\u201d Pardue described the problem as \u201cloose legs.\u201d He stated that \u201cit looked like probably a screw was with \u2014one screw was holding them, and, . . ., then we\u2019d knock them back under there and try to straighten them up. When I say \u2018we\u2019 I mean myself, or some other employee of ARA.\u201d If one looked for the problem, Pardue testified, one could see it. Weatherly came to the cafeteria on one occasion, looked at the table, and told Pardue, \u201c \u2018Yes, Bob, we\u2019ve got to get this done.\u2019 \u201d This conversation occurred \u201cright in the neighborhood of the time that the accident happened, right before that . . . .\u201d Pardue testified that he also telephoned Weatherly\u2019s office about the condition of the table on another occasion, but he never submitted a written request to have any work done on the table.\nIn her first assignment of error, plaintiff argues that the trial judge erred in refusing to allow the following testimony of Pardue:\nQ. Do you recall approximately how many occasions you called Mr. Weatherly\u2019s office concerning the condition on cash register D?\nA. The exact number I couldn\u2019t, I couldn\u2019t recall, but I would guess for you 4 or 5 times.\nMr. COMERFORD: Well, I object and move to strike.\nThe Court: How many times?\nA. 4 or 5 times.\nThe COURT: Sustained. Now don\u2019t consider that answer.\nQ. Give your best recollection as to the number of times that you telephone Mr. Weatherly\u2019s office concerning the condition of cash register D?\nA. 4. May I \u2014 Your Honor \u2014 May I clear this up?\nThe COURT: Now, I will sustain the objection. I instruct you to strike that answer from your mind as to that.\nWe sustain plaintiff\u2019s assignment.\n\u201c[T]he word \u2018guess\u2019 does not necessarily mean .mere conjecture, but may connote judgment. If a person is asked to estimate the number of people in a crowd, he may say T guess\u2019 a certain number. By either term he is expressing an opinion based on observation.\u201d\nState v. Clayton, 272 N.C. 377, 382, 158 S.E.2d 557, 561 (1968), quoting Finnerty v. Darby, 391 Pa. 300, 310, 138 A.2d 117, 122 (1958). Accord Boyd v. Blake, 1 N.C. App. 20, 159 S.E.2d 256 (1968). Thus, the mere fact that a witness says he is \u201cguessing\u201d does not per se exclude the evidence as conjecture, but goes to its weight for the jury to consider. See State v. Clayton, supra.\nPardue\u2019s excluded testimony that he called Weatherly\u2019s office about the table, \u201cI would guess for you 4 or 5 times,\u201d was an expression of opinion based upon his personal knowledge, not \u201cmere conjecture.\u201d See 1 Stansbury\u2019s N.C. Evidence (Brandis rev. 1973) \u00a7 122, pp. 382-83. Therefore, the jury should have been allowed to weigh Pardue\u2019s excluded testimony.\nPlaintiff also argues that the trial judge erred in allowing defendant\u2019s motion for directed verdict at the conclusion of his evidence on the grounds stated above. The question raised by a directed verdict motion is whether the evidence is sufficient to go to the jury. Rappaport v. Days Inn of America, Inc., 296 N.C. 382, 250 S.E.2d 245 (1979); Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). In passing upon such a motion, the trial judge must consider the evidence in the light most favorable to the non-movant, resolving all conflicts and giving to him the benefit of every inference reasonably drawn in his favor. Rappaport v. Days Inn of America, Inc., supra; Summey v. Cauthen, 283 N.,C. 640, 197 S.E.2d 549 (1973). A directed verdict motion by defendant may be granted only if the evidence is insufficient as a matter of law to justify a verdict for plaintiff. Husketh v. Convenient Systems, Inc., 295 N.C. 459, 245 S.E.2d 507 (1978); Dickinson v. Poke, 284 N.C. 576, 201 S.E.2d 897 (1974).\nSince defendant\u2019s duty to plaintiff arises from the relationship subsisting between them, Matthieu v. Piedmont Natural Gas Co., 269 N.C. 212, 152 S.E.2d 336 (1967), our analysis of plaintiffs argument begins with the parties\u2019 disagreement over the proper characterization of the contractual relationship between defendant and ARA. Defendant contends that a stipulation by the parties which was read to the jury controls this question. The stipulation reads, in part, as follows:\nOn or about September 2, 1976, the Plaintiff was employed by ARA Food Service, Inc., which Corporation had a contract with Defendant, Wake Forest University, to provide food and services to the Defendant. Pursuant to that agreement, the Defendant leased premises and facilities for food service to ARA Food Service, Inc.\n(Emphasis added.) Thus, defendant argues that it, as lessor, is not liable for injuiries to persons on the leased premises resulting from disrepair, even when the lessor is under a contractual obligation in the lease to repair and maintain the premises. See 8 Strong\u2019s N.C. Index 3d, Landlord and Tenant \u00a7 8.2, pp. 241-42. Despite the stipulation quoted above, however, plaintiff argues that ARA is an independent contractor, and that as ARA\u2019s employee, defendant owed her a duty of \u201cdue care under all circumstances.\u201d We agree with plaintiff.\nStipulations are viewed favorably by the courts because their usage tends to simplify, shorten, or settle litigation, as well as save costs to litigants. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972); Rural Plumbing and Heating, Inc. v. H. C. Jones Construction Co., 268 N.C. 23, 149 S.E.2d 625 (1966); Chisolm v. Hall, 255 N.C. 374, 121 S.E.2d 726 (1961). Yet, the effect or operation of a stipulation will not be extended by the courts beyond the limits set by the parties or by the law. Rickert v. Rickert, supra; Lumber Co. v. Lumber Co., 137 N.C. 431, 49 S.E. 946 (1905). In determining the extent of the stipulation, it is appropriate to look to the circumstances under which it was entered, as well as to the intentions of the parties as expressed by the agreement. Rickert v. Rickert, supra. Stipulations will receive a reasonable construction so as to effect the intentions of the parties, but in ascertaining the intentions of the parties, the language employed in the agreement will not be construed in such a manner that a fact which is obviously intended to be controverted is admitted or that a right which is plainly not intended to be waived is relinquished.\nOuter Banks Contractors, Inc. v. Forbes, 302 N.C. 599, 604-05, 276 S.E.2d 375, 379-80 (1981).\nTo hold the parties in this action to a theory that defendant\u2019s liability to plaintiff is controlled by a lessor-lessee relationship between defendant and ARA would be to construe the stipulation quoted above as admitting \u201ca fact which is obviously intended to be controverted ....\u2019\u2019 Id. at 604, 276 S.E.2d at 380. For this reason, we do not believe that the parties intended that the nature of their relationship be admitted. Thus, we now must determine the true nature of the contractual relationship between defendant and ARA.\nOn 18 June 1968, defendant\u2019s Board of Trustees and Slater Corporation entered into an agreement providing, in part, as follows:\n1. Grant To Slater: College hereby grants to Slater the right to sell food, food products, candy and non-alcoholic beverages in the food service facilities on its campus in Winston-Salem, North Carolina, and further hereby agrees to purchase from Slater all of the foregoing items to the extent it sells them to its students, faculty, staff and guests.\n2. Facilities And Equipment: College will provide Slater with all facilities for food service including adequate office equipment and furniture (together with adequate sanitary toilet facilities and dressing rooms for Slater\u2019s employees) completely equipped and ready to operate, together with such heat, fuel, refrigeration and utilities service reasonably required for efficient operation. In the event that College requests service of food other than in the Student Union Building, College will furnish, at no cost to Slater, all transportation necessary to enable Slater to provide such service. College will make all equipment repairs and replacements and will furnish building maintenance and repair service for the premises. College will also provide an adequate initial inventory of glassware, chinaware and silverware but Slater will maintain the inventory of these items at its expense. Slater will be responsible for routine cleaning and housekeeping in the food preparation and service areas and for the cleaning of dining room tables, chairs and floors, but College will provide regular cleaning service for dining room walls, windows, light fixtures, draperies and blinds, and periodic buffing and waxing of floors. Slater will maintain high standards of sanitation; however, College will be responsible for trash and garbage removal and extermination service.\n3. Slater Agrees:\nA. FOOD Service: To purchase, prepare and serve food, food products, candy and non-alcoholic beverages on the campus and to provide College with meals for College to resell to its students, faculty, staff and guests on such hourly schedule as may be mutually agreed upon.\nB. MENUS: To submit menus at least one (1) week in advance of service to such person as College shall designate.\nC. Health Examinations: To cause all of its employees assigned to duty on College\u2019s premises to submit to periodic health examinations at least as frequent and as stringent as required by law, and to submit satisfactory evidence of compliance with all health regulations to College\u2019s medical department upon request.\nD. INSURANCE: To furnish College with a certificate in form acceptable to College, certifying that Slater carries workmen\u2019s compensation, comprehensive (including products), bodily injury and property damage liability insurance in such amounts as are acceptable to College. College hereby waives any and all right of recovery from Slater for loss caused by perils defined in fire, extended coverage and sprinkler leakage insurance policies.\nE. Return Of Equipment: To return to College at the expiration of this contract the food service premises and all equipment furnished by College in the condition in which received, except for ordinary wear and tear and except to the extent that said premises or equipment may have been lost or damaged by fire, flood or other unavoidable occurrence, or theft by person's other than employees of Slater without negligence on the part of Slater or its employees.\n4. PERSONNEL: Slater will at all times maintain! an adequate staff of its employees on duty on College\u2019s campus for efficient operation, thereat, and to provide expert administrative, dietetic, purchasing, equipment consulting and personnel advice and supervision. Slater employees will strictly adhere to campus regulations regarding personal behavior. Slater agrees to assign to duty at College only employees acceptable to College.\nSlater agrees that no employees of College will be hired by Slater without specific permission of College for the period of this contract and six months thereafter. College agrees that no employees of Slater will be hired by College without specific permission of Slater for the period of this contract and six months thereafter.\n5. STUDENT LABOR: College will furnish Slater with student labor to an extent mutually agreed upon, for which Slater will reimburse College at a rate which will at least be equal to the applicable state and/or federal minimum wage regulations.\nThe contract also provides that Slater must submit to defendant a statement of \u201cgross manual sales\u201d during each accounting period, and that defendant \u201cshall have full access to the food service facilities with or without notice,\u201d including records which defendant may audit at any time.\nAn independent contractor has been defined as one who exercises an independent employment, contracts to do a piece of work according to his own judgment and methods, and without being subject to his employer, except as to the result of the work, and who has the right to employ and direct the action of other workmen in the prosecution of the work without interference or right of control on the part of his employer.\nAskew v. Leonard Tire Co., 264 N.C. 168, 177, 141 S.E.2d 280, 287 (1965). The vital test is whether the employer \u201chas or has not retained the right of control or superintendence over the contractor or employee as to details.\u201d Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 15, 29 S.E.2d 137, 140 (1944). See also Cooper v. Asheville Citizen-Times Publishing Company, Inc., 258 N.C. 578, 129 S.E.2d 107 (1963).\nThe contract quoted above indicates that defendant granted to Slater, an independent entity, the right to manage the food service facilities on its campus. While defendant is to provide equipped facilities for food service, including responsibilities to \u201cmake all equipment repairs and replacements\u201d and to \u201cfurnish building maintenance and repair service for the premises,\u201d Slater is to provide the food and beverages to serve as meals for defendant. It is Slater\u2019s responsibility to provide and maintain an adequate staff, but defendant retains approval of the employees hired by Slater during the contract period and six months thereafter. These facts are sufficient to show that Slater exercises an independent employment and generally employs and directs the activities of its employees without excessive interference by defendant. Specifically, defendant has not retained the right of control over ARA as to the details of its work. Therefore, from the record before us, we conclude that ARA is an independent contractor of defendant, not a lessee, and that defendant\u2019s liability to plaintiff, if any, must be governed under that relationship.\nAs in Maness v. Fowler-Jones Construction Co., 10 N.C. App. 592, 179 S.E. 2d 816, cert. denied, 278 N.C. 522, 180 S.E. 2d 610 (1971), plaintiff\u2019s action in the present case lies in tort and the contract between defendant and ARA \u201cmerely furnishes the occa-\nsion, or creates the relationship which furnishes the occasion, for the tort.\u201d Toone v. Adams, 262 N.C. 403, 407, 137 S.E.2d 132, 135 (1964). Accord Pinnix v. Toomey, 242 N.C. 358, 87 S.E.2d 893 (1955). Plaintiff, an employee of ARA, defendant\u2019s independent contractor, was an invitee of defendant. \u201cDefendant\u2019s duty to plaintiff, therefore, was one of due care under all the circumstances.\u201d Spivey v. The Babcock & Wilcox Co., 264 N.C. 387, 388, 141 S.E.2d 808, 810 (1965). Accord Maness v. Fowler-Jones Construction Co., supra.\nOn the issue of defendant\u2019s negligence, it is clear that Weatherly, defendant\u2019s superintendent of buildings, was aware of the condition of the cash register table. In fact, Weatherly told Purdue, then ARA\u2019s production manager, that \u201cwe\u2019ve got to get this done.\u201d Plaintiffs co-worker, Dingman, also was aware of the \u201cwobbly\u201d table; she was the regular operator of cash register \u201cD.\u201d However, Dingman was told by her supervisors not to worry about the condition of the table, it would be fixed. Under this evidence, it was for the jury to determine whether defendant breached its duty to plaintiff of due care under all circumst\u00e1nces in failing to repair or replace the table or warn plaintiff of its condition. Therefore, the trial judge erred in granting a directed verdict for defendant on the ground that she has failed to show defendant\u2019s negligence. Our decision that plaintiff\u2019s evidence is sufficient to go to the jury on the above issue necessarily requires reversal of defendant\u2019s directed verdict on the remaining grounds specified by the trial judge.\nWe do not address plaintiff\u2019s second assignment of error concerning the exclusion of testimony elicited by a hypothetical question because the issue is unlikely to arise in a subsequent trial. See G.S. 8-58.12 & .13; see also Simons v. Georgiade, 55 N.C. App. 483, 286 S.E.2d 596, disc. rev. denied, 305 N.C. 587, 292 S.E.2d 571 (1982).\nFor these reasons, the trial judge erred in allowing defendant\u2019s motion for a directed verdict.\nNew Trial.\nJudge BECTON concurs.\nJudge Hedrick concurs in result only.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "House, Blanco, Randolph & Osborn, by Clyde C. Randolph Jr. and Reginald F. Combs, for plaintiff-appellant.", "Petree, Stockton, Robinson, Vaughn, Glaze & Maready, by W. Thompson Comerford Jr. and John F. Mitchell, for defendant-appellee." ], "corrections": "", "head_matter": "DONNA W. AARHUS v. WAKE FOREST UNIVERSITY\nNo. 8121SC878\n(Filed 1 June 1982)\n1. Evidence \u00a7 40\u2014 opinion testimony \u2014 use of \u201cguess\u201d\nA witness\u2019s testimony that he called a certain office \u201cI would guess for you 4 or 5 times\u201d was an expression of opinion based upon his personal knowledge, not mere conjecture, and was improperly excluded.\n2. Landlord and Tenant \u00a7 1; Trial \u00a7 6.1\u2014 stipulation not admission of lessor-lessee relationship\nA stipulation stating that defendant \u201cleased\u201d premises and facilities for food service to plaintiffs employer was not intended as an admission that a lessor-lessee relationship existed between defendant and plaintiffs employer and that plaintiffs employer was thus not an independent contractor.\n3. Master and Servant \u00a7\u00a7 3.1, 19; Negligence \u00a7 52.1\u2014 employee of independent contractor \u2014 invitee\u2014duty of premises owner\nPlaintiffs employer was an independent contractor, not a lessee of defendant university, where the contract between defendant and plaintiffs employer granted the employer the right to manage the food service facilities on its campus; required the employer to provide food and beverages to serve as meals for defendant; required defendant to provide equipped facilities for food service, to make all equipment repairs and replacements, and to furnish maintenance and repair services for the premises; and required the employer to maintain an adequate staff but gave defendant the right of approval of the employees hired by the employer during the contract period and for six months thereafter. Therefore, plaintiff employee was an invitee of defendant, and defendant owed plaintiff the duty of due care under all the circumstances.\n4. Master and Servant \u00a7 19; Negligence \u00a7 57.3\u2014 employee o\u00ed independent contractor-fall of table on foot \u2014 negligence of premises owner\nIn an action to recover damages for an injury to plaintiff caused by the collapse of a cash register table onto plaintiffs foot while she was working on defendant university\u2019s premises as a cashier for an independent food service contractor and thus was an invitee of defendant, plaintiffs evidence was sufficient to be submitted to the jury on the issue of defendant\u2019s negligence in failing to repair or replace the table or to warn plaintiff of its condition where it tended to show that defendant\u2019s superintendent of buildings was aware of the wobbly condition of the cash register table and, after looking at the table on one occasion, stated that \u201cwe\u2019ve got to get this done,\u201d but no repair work was done on the table.\nAPPEAL by plaintiff from Wood, Judge. Judgment entered 1 April 1981 in Superior Court, FORSYTH County. Heard in the Court of Appeals 6 April 1982.\nThis is a negligence action arising from an injury to plaintiff caused by the collapse of a cash register table onto her foot. At the time of this incident, plaintiff was employed as a cashier by ARA Food Services, Inc. [hereinafter referred to as ARA], which operated the cafeteria on defendant\u2019s campus. Plaintiff alleges that defendant was negligent in that (1) its agents and employees failed to repair or replace the table after repeated requests from plaintiffs employer to do so, (2) defendant\u2019s agents and employees failed to warn plaintiff of the defective condition of the table, (3) defendant\u2019s agents and employees failed to authorize or request plaintiffs employer to replace or repair the table, (4) defendant failed to provide a safe place to work for plaintiff, and (5) defendant failed to provide a table suitable for the purposes for which it was used. Defendant answered, denied plaintiffs allegations, and asserted the further defenses that (1) the accident was unavoidable, (2) plaintiff was contributorily negligent, (3) plaintiff assumed the risk of injury since such risk was open and obvious, (4) plaintiff\u2019s employer\u2019s negligence is a bar to its subrogation interests or that of its workers\u2019 compensation carrier, and (5) the negligence of plaintiff and her employer constituted independent causes which intervened between any negligence of defendant and plaintiff\u2019s injuries.\nAt trial, the judge granted defendant\u2019s motion for a directed verdict at the close of plaintiff\u2019s evidence on the grounds that (1) plaintiff\u2019s evidence did not show defendant\u2019s negligence, (2) the intervening negligence of plaintiff\u2019s employer was the proximate cause of the accident, and (3) the negligence of plaintiff\u2019s employer would have combined with defendant\u2019s negligence \u2014if there had been any such negligence \u2014and barred the subrogation claim as a matter of law. Plaintiff appeals from the judgment entered thereon.\nHouse, Blanco, Randolph & Osborn, by Clyde C. Randolph Jr. and Reginald F. Combs, for plaintiff-appellant.\nPetree, Stockton, Robinson, Vaughn, Glaze & Maready, by W. Thompson Comerford Jr. and John F. Mitchell, for defendant-appellee." }, "file_name": "0405-01", "first_page_order": 435, "last_page_order": 445 }