{ "id": 8523481, "name": "RICHARD D. HELMS, JR. and MARGARET F. HELMS v. CHURCH'S FRIED CHICKEN, INC.", "name_abbreviation": "Helms v. Church's Fried Chicken, Inc.", "decision_date": "1986-06-17", "docket_number": "No. 8526SC1030", "first_page": "427", "last_page": "433", "citations": [ { "type": "official", "cite": "81 N.C. App. 427" } ], "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": "119 S.E. 2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "254 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627245 ], "year": 1961, "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0575-01" ] }, { "cite": "146 S.E. 2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "810", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "266 N.C. 564", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561607 ], "year": 1966, "pin_cites": [ { "page": "568", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0564-01" ] }, { "cite": "440 N.E. 2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "citing Prosser, Torts Sec. 53 (4th ed. 1971) for the general principle that a defendant owes a duty not to increase foreseeable risk of harm to another" } ], "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 102", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5449897 ], "year": 1982, "pin_cites": [ { "parenthetical": "citing Prosser, Torts Sec. 53 (4th ed. 1971) for the general principle that a defendant owes a duty not to increase foreseeable risk of harm to another" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0102-01" ] }, { "cite": "484 F. 2d 1362", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 238564 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/484/1362-01" ] }, { "cite": "72 A.L.R. 3d 1269", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1976, "pin_cites": [ { "page": "1273" } ], "opinion_index": 0 }, { "cite": "329 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724263, 4721773, 4721207, 4721948, 4722847 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0509-02", "/nc/313/0509-05", "/nc/313/0509-01", "/nc/313/0509-04", "/nc/313/0509-03" ] }, { "cite": "322 S.E. 2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "817", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 556", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525899 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "561-62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0556-01" ] }, { "cite": "281 S.E. 2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1981, "pin_cites": [ { "page": "38" }, { "page": "38", "parenthetical": "quoting the Restatement (Second) of Torts, Sec. 344 comment f (1965) (emphasis added)" }, { "page": "39" } ], "opinion_index": 0 }, { "cite": "303 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575062 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "638" }, { "page": "638-39" }, { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0636-01" ] }, { "cite": "218 S.E. 2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "288 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568529 ], "year": 1975, "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0375-01" ] }, { "cite": "186 S.E. 2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "403" } ], "opinion_index": 0 }, { "cite": "280 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572515 ], "year": 1972, "pin_cites": [ { "page": "464-65" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0460-01" ] } ], "analysis": { "cardinality": 620, "char_count": 12126, "ocr_confidence": 0.81, "pagerank": { "raw": 8.708504812193986e-08, "percentile": 0.4933994221284716 }, "sha256": "44191e1dc977db12c66c3d5953c921c13749eda19cc2b80f24668dc4ae6d7ee9", "simhash": "1:0a40e0836c2d9c00", "word_count": 2046 }, "last_updated": "2023-07-14T19:31:13.412578+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Martin concur." ], "parties": [ "RICHARD D. HELMS, JR. and MARGARET F. HELMS v. CHURCH\u2019S FRIED CHICKEN, INC." ], "opinions": [ { "text": "BECTON, Judge.\nThis is a negligence action brought by Richard and Margaret Helms (the Helmses) against Church\u2019s Fried Chicken, Inc. (Church\u2019s). The Helmses alleged that they were injured as a result of defendant\u2019s employee\u2019s negligence. The trial court granted summary judgment in favor of Church\u2019s, and the Helmses appeal. We reverse and remand for trial.\nI\nThe facts alleged in the complaint and the answers to interrogatories reveal that the Helmses went to Church\u2019s on 19 October 1981; that Richard went into the store, bought some food, and turned to leave; that one of Church\u2019s employees stated in a loud voice, \u201cwhen you leave call the police we are being robbed\u201d; that Richard was immediately assaulted by at least three robbers; that when Margaret Helms saw Richard Helms being attacked, she started out of the truck in the parking lot toward the store to help him; that Richard called out to Margaret to get in the truck and lock the door, but that she was attacked and robbed before she was able to do so; that Richard Helms was stabbed in the back, arm, thumb, both hands and eye, and that Margaret Helms was stabbed in the back, was bruised, suffered a concussion, and had her purse stolen.\nThe Helmses assign error to the trial court\u2019s conclusion that there was no genuine issue of any material fact and that the defendant was entitled to judgment as a matter of law.\nII\nA. Summary Judgment\nSummary judgment is only proper when the pleadings and discovery, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Singleton v. Stewart, 280 N.C. 460, 464-65, 186 S.E. 2d 400, 403 (1972). The burden is on the party moving for summary judgment to establish the lack of a triable issue of fact. See Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E. 2d 379, 381 (1975). We hold that Church\u2019s has failed to meet this burden.\nChurch\u2019s denies that its employee ever made the alleged statement. Since we conclude that whether, and the manner in which, the statement was made are material factual issues on which the Helmses\u2019 case could rise or fall, it was error for the trial court to grant summary judgment to Church\u2019s.\nThe trial court also erred in ruling that Church\u2019s was entitled to summary judgment as a matter of law. The permissible inferences to be drawn from the non-moving party\u2019s forecast of the evidence were that the Helmses were business invitees of Church\u2019s; that the Helmses were owed a duty by Church\u2019s; that Church\u2019s employee, acting within the course and scope of his or her employment, breached that duty by negligently increasing the risk of harm to the Helmses during the armed robbery; and that as a proximate result of that breach, the Helmses were injured. It was error to conclude as a matter of law that the Helmses failed to make out a negligence claim against Church\u2019s.\nB. Negligence Principles\nAn individual who enters a store as a customer during business hours is a business invitee for purposes of establishing the duty owed to the individual by the owner of the premises. Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 638, 281 S.E. 2d 36, 38 (1981). The owner is not an insurer of the safety of customers, but must exercise ordinary care to maintain the premises in such a condition that they can be used safely by invitees in the manner for which they were designed and intended. Id.\nOrdinarily, the store owner is not liable for injuries to invitees resulting from the intentional, criminal acts of third persons, unless the owner has reason to know that there is a likelihood of this kind of conduct by third persons or the owner has reason to know such acts of third persons are occurring, or are about to occur. See Foster, 303 N.C. at 638-39, 281 S.E. 2d at 38 (quoting the Restatement (Second) of Torts, Sec. 344 comment f (1965) (emphasis added)). Foreseeability is the test to determine the extent of the owner\u2019s duty to safeguard business invitees from the criminal acts of third persons. Foster, 303 N.C. at 640, 281 S.E. 2d at 39.\nChurch\u2019s argues that foreseeability only relates to the question whether a duty to protect business invitees arises upon evidence of prior criminal activity on the premises or in the community. Church\u2019s reliance on Sawyer v. Carter, 71 N.C. App. 556, 322 S.E. 2d 813 (1984), disc. rev. denied, 313 N.C. 509, 329 S.E. 2d 393 (1985) is misplaced. The issue in Sawyer was whether prior criminal activity in the neighborhood was admissible to show foreseeability.\nIn the instant case, the question is whether Church\u2019s employee should have reasonably foreseen the consequences of his or her act, which may have increased the risk of harm to the Helmses. The foreseeability of the holdup is a separate issue.\nWe said in Sawyer:\n[E]vidence of similar prior criminal activity committed on the premises is the most strongly probative type of evidence on the question of foreseeability. . . .\n. . . The forecast of evidence in this case does not support a triable issue of fact on the question of reasonable foreseeability.\n71 N.C. App. at 561-62, 322 S.E. 2d at 817 (emphasis added). We do not read Sawyer to encompass any issue of foreseeability in the \u201cbusiness invitee-criminal act of third party\u201d context other than the one on which it was decided.\nInstead, we rely on the recognized corollary to an owner\u2019s duty to safeguard business invitees from criminal acts of third persons: if an owner (or owner\u2019s agent) acts, or fails to act, against an armed robber when he or she should reasonably foresee that such action or inaction could proximately result in injury to a customer, the owner may be liable for the customer\u2019s injuries. See Annot., 72 A.L.R. 3d 1269, 1273 (1976).\nThe Helmses allege that the armed robbers should have posed an obvious and apparent danger to customers in the eyes of Church\u2019s employee, and that the employee\u2019s action was negligent because it increased the hazard which in turn caused the injury. A similar situation arose in Kelly v. Kroger Co., 484 F. 2d 1362 (10th Cir. 1973). In Kelly, armed robbers held up a grocery store, and ordered an employee to open a safe. Knowing that the safe was equipped with a silent alarm heard only at the police station, the employee complied with the demand. The police arrived while the robbery was still in progress, and the robbers took a customer hostage, eventually killing her.\nThe Court of Appeals for the Tenth Circuit held that the district court\u2019s entry of summary judgment in defendant\u2019s favor was error. If plaintiff could present sufficient evidence to convince a jury that the employee, foreseeing the apparent risks and dangers of his action, acted unreasonably under the circumstances, increasing the hazard which ultimately caused the death, plaintiff would be entitled to recover. See also Orrico v. Beverly Bank, 109 Ill. App. 3d 102, 440 N.E. 2d 253 (1982) (citing Prosser, Torts Sec. 53 (4th ed. 1971) for the general principle that a defendant owes a duty not to increase foreseeable risk of harm to another). We hold that the forecast of evidence on the negligence issue is sufficient to go to the jury.\nC. Sudden Emergency\nChurch\u2019s argues that even if its employee made the alleged statement, there is no negligence as a matter of law based on the doctrine of sudden emergency. We do not agree.\n\u201cSudden emergency\u201d is not a legal defense which may operate to bar an action; it is only one factor to consider in making the reasonable person determination. The factual issue to be decided is whether Church\u2019s employee had the opportunity to exercise the kind of judgment expected of a person of ordinary prudence faced with such an emergency.\nThe doctrine of sudden emergency is simply that one confronted with an emergency is not liable for an injury resulting from . . . acting as a reasonable [person] might act in such an emergency. If [one] does so, he [or she] is not liable for failure to. follow a course which calm, detached reflection at a later date would recognize to have been a wise choice.\nThat one was faced with an emergency before the injury occurred does not, however, necessarily shield [one] from liability. He [or she] must still act, after being confronted with the emergency, as a reasonable person so confronted would then act. The emergency is merely a fact to be taken into account in determining whether he [or she] has acted as a reasonable [person] so situated would have done.\nRodgers v. Carter, 266 N.C. 564, 568, 146 S.E. 2d 806, 810 (1966) (emphasis added); see also Restatement (Second) of Torts, Sec. 296 (1965). The question whether an actor used due care in an emergency is ordinarily for the jury. Rouse v. James, 254 N.C. 575, 582, 119 S.E. 2d 628, 633 (1961).\nWe hold that it was for the jury to decide whether Church\u2019s employee made the alleged statement. The jury must also be allowed to determine the manner in which the statement was made and whether, under the circumstances, Church\u2019s employee acted as a reasonably prudent person would have acted.\nShouting, \u201cFire!\u201d in a crowded theatre when there is in fact a fire may, in most circumstances, be the reasonably prudent thing to do, while the same act done to warn of a single piece of paper burning in a trashcan in the theatre vestibule may not be. The jury will decide into which realm this case will fall.\nThe entry of summary judgment is, therefore, reversed, and the case is remanded for trial.\nReversed and remanded.\nJudges Johnson and Martin concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Campbell, Morrison and Bush, by Dale S. Morrison, for plaintiff appellants.", "Hedrick, Eatman, Gardner & Kincheloe, by Edward W. Hed-rick, for defendant appellee." ], "corrections": "", "head_matter": "RICHARD D. HELMS, JR. and MARGARET F. HELMS v. CHURCH\u2019S FRIED CHICKEN, INC.\nNo. 8526SC1030\n(Filed 17 June 1986)\n1. Master and Servant \u00a7 35.2\u2014 employee\u2019s statement during robbery \u2014injury to patron \u2014 negligence action against employer \u2014 summary judgment for employer improper\nThe trial court erred in entering summary judgment for defendant in plaintiffs\u2019 negligence action where there was a genuine issue of material fact as to whether defendant\u2019s employee made a statement during a robbery which negligently increased the risk of harm to plaintiffs. Furthermore, it was error for the court to conclude as a matter of law that plaintiffs failed to make out a negligence claim against defendant where the permissible inferences to be drawn from plaintiffs\u2019 forecast of evidence were that plaintiffs were business invitees of defendant; plaintiffs were owed a duty by defendant; defendant\u2019s employee, acting within the course and scope of his or her employment, breached that duty by negligently increasing the risk of harm to plaintiffs during the armed robbery; and as a proximate result of that breach, plaintiffs were injured.\n2. Master and Servant \u00a7 35.2\u2014 employee\u2019s statement during robbery \u2014 injury to patron \u2014 negligence action against employer \u2014 summary judgment for employer improper\nIn an action to recover for the negligence of one of defendant\u2019s employees during an armed robbery which allegedly greatly increased the risk to plaintiffs, evidence on the negligence issue was sufficient to withstand defendant\u2019s motion for summary judgment where a question for the jury existed as to whether defendant\u2019s employee should have reasonably foreseen the consequences of his behavior in stating to one plaintiff in a loud voice, \u201cwhen you leave call the police we are being robbed.\u201d\n3. Master and Servant \u00a7 35.2; Negligence \u00a7 35.3\u2014 employee\u2019s statement during robbery \u2014 injury to patron \u2014sudden emergency \u2014 jury question\nWhere plaintiffs alleged that they suffered serious injury during an armed robbery because of the negligence of defendant\u2019s employee in telling one plaintiff to \u201ccall the police we are being robbed,\u201d a jury question existed as to whether the employee exercised the kind of judgment expected of a person of ordinary prudence faced with a sudden emergency.\nAppeal by plaintiffs from Burroughs, Judge. Order entered 8 May 1985 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 7 February 1986.\nCampbell, Morrison and Bush, by Dale S. Morrison, for plaintiff appellants.\nHedrick, Eatman, Gardner & Kincheloe, by Edward W. Hed-rick, for defendant appellee." }, "file_name": "0427-01", "first_page_order": 451, "last_page_order": 457 }