{ "id": 12168797, "name": "JOHN GLEN TAYLOR and wife, NADA TAYLOR v. DOROTHY WALKER, and C&R AMUSEMENTS, d/b/a BJ'S LOUNGE", "name_abbreviation": "Taylor v. Walker", "decision_date": "1987-03-03", "docket_number": "No. 8618SC736", "first_page": "507", "last_page": "512", "citations": [ { "type": "official", "cite": "84 N.C. App. 507" } ], "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": "75 S.E. 2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618896 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0730-01" ] }, { "cite": "93 S.E. 2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "244 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219557 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/244/0334-01" ] }, { "cite": "110 S.E. 2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "251 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623745 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/251/0169-01" ] }, { "cite": "132 S.E. 2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574320 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0305-01" ] }, { "cite": "351 S.E. 2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "318 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737990, 4731502, 4734361, 4732348, 4740287 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/318/0691-01", "/nc/318/0691-05", "/nc/318/0691-02", "/nc/318/0691-03", "/nc/318/0691-04" ] }, { "cite": "345 S.E. 2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "82 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358264 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/82/0061-01" ] }, { "cite": "103 S.E. 2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "pin_cites": [ { "page": "857" } ], "opinion_index": 0 }, { "cite": "248 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624551 ], "year": 1958, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc/248/0506-01" ] }, { "cite": "268 S.E. 2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564386 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0669-01" ] }, { "cite": "279 S.E. 2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574016 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0462-01" ] }, { "cite": "329 S.E. 2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726773 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0362-01" ] }, { "cite": "277 S.E. 2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "52 N.C. App. 139", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170072 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0139-01" ] } ], "analysis": { "cardinality": 672, "char_count": 12374, "ocr_confidence": 0.879, "pagerank": { "raw": 9.00031497400043e-08, "percentile": 0.5031397583411233 }, "sha256": "1b4d85e7cec16a7fc70ea2915b92a95e273017d4abbb3f9919c60631c5a9cfa1", "simhash": "1:a162810a6b1d5d4d", "word_count": 2052 }, "last_updated": "2023-07-14T23:00:23.119892+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Parker concurs.", "Judge Wells dissents." ], "parties": [ "JOHN GLEN TAYLOR and wife, NADA TAYLOR v. DOROTHY WALKER, and C&R AMUSEMENTS, d/b/a BJ\u2019S LOUNGE" ], "opinions": [ { "text": "MARTIN, Judge.\nAlthough both plaintiffs gave notice of appeal, the only assignments of error contained in the record and brought forward in the brief relate to the granting of defendants\u2019 motion for judgment notwithstanding the verdict with respect to the claim of John Glen Taylor. Therefore, we conclude that Nada Taylor has abandoned her appeal. App. R. 10, 28.\nDefendants have moved, pursuant to App. R. 13(c), to dismiss the appeal for plaintiff-appellant\u2019s failure to timely file and serve his brief; plaintiff-appellant has moved, pursuant to App. R. 27(c), for a three-day extension of time within which to file the brief. Plaintiffs motion is allowed; defendant\u2019s motion is denied.\nNo question is raised on appeal as to the sufficiency of the evidence to support the jury finding that negligence on the part of the bar\u2019s owner and manager was a proximate cause of John Glen Taylor\u2019s injuries. We do not, therefore, consider that issue. The only question before us is whether John Glen Taylor\u2019s recovery is, as a matter of law, barred by his contributory negligence. We conclude that it is and affirm the trial court\u2019s entry of judgment notwithstanding the verdict.\nA motion for judgment notwithstanding the verdict, like a motion for a directed verdict, tests the legal sufficiency of the evidence to take the case to the jury. Everhart v. LeBrun, 52 N.C. App. 139, 277 S.E. 2d 816 (1981). In ruling on the motion, the court must consider the evidence in the light most favorable to the non-moving party, giving him the benefit of all reasonable inferences to be drawn therefrom and resolving all conflicts in the evidence in his favor. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 329 S.E. 2d 333 (1985). When, as in the present case, defendants\u2019 motion for judgment notwithstanding the verdict is grounded upon plaintiffs\u2019 contributory negligence as a matter of law, the motion should be granted only when the contributory negligence is so clearly established that no other reasonable inference may be drawn from the evidence. Norwood v. Sherwin-Williams Co., 303 N.C. 462, 279 S.E. 2d 559 (1981).\nViewed in the light most favorable to plaintiff, the evidence tended to show that plaintiff, his wife Nada, and Nada\u2019s brother, Victor Huffman, went to BJ\u2019s Lounge at approximately 9:00 p.m. on 18 December 1981. They sat with friends, talking and drinking beer. Plaintiff noticed a group of men, described by him as \u201cIndians,\u201d in the poolroom at the back of the lounge. Plaintiff testified that these men had reputations as \u201cguntoters and knifetoters\u201d and for engaging in fights. He testified that he knew of the bar formerly frequented by these men, and that he knew, prior to 18 December 1981, that they had begun to frequent BJ\u2019s Lounge. He was also aware that BJ\u2019s Lounge did not employ a \u201cbouncer\u201d or security guard.\nAfter plaintiff had been at the lounge for approximately 45 minutes, he observed one of these men, Bear Suits, chase another man from the back of the lounge and around behind the bar. Suits and defendant Walker, who was the bartender, beat the man about the head and shoulders. Walker then ordered the man to leave the lounge, but permitted Suits to remain. Suits was very intoxicated. Plaintiff knew Suits and knew that he had a reputation for carrying a gun.\nAs the evening progressed, the atmosphere in BJ\u2019s Lounge grew louder and more \u201crowdy.\u201d Due to the situation, the friends with whom plaintiff had been sitting began to leave, a few at a time, to go to a different lounge. By about 12:30, plaintiff, his wife, and Victor Huffman were the only ones remaining at BJ\u2019s Lounge, other than defendant Walker and the group of men, including Bear Suits.\nPlaintiff went to the restroom and when he returned he saw Bear Suits shove Victor Huffman, who, according to the evidence, suffers from some mental disability. Plaintiff went over to Suits and told Suits that \u201cVictor wasn\u2019t right mentally, and if he said anything to you, just overlook it.\u201d Suits laughed at plaintiff and suggested that he \u201ctake up\u201d Huffman\u2019s fight. Plaintiff responded, \u201cif that\u2019s the way it\u2019s going to be, we\u2019ll just go outside.\u201d Suits continued to laugh at plaintiff, but declined to go outside. This exchange continued for several minutes and then Suits dropped his hand from the bar. Thinking that Suits was probably reaching for a gun, plaintiff struck Suits with his fist, knocking him off the bar stool and onto the floor unconscious. A crowd quickly gathered around Suits. Plaintiff saw a pistol on the floor where Suits had fallen and picked it up. One of the men in the crowd reached into his pocket, but defendant Walker intervened and positioned herself between the man and plaintiff. While holding the pistol, plaintiff made sure that his wife and Victor Huffman got out of the lounge safely and then he backed out the door. As he was attempting to reach his car, he was struck by a shot which was apparently fired from the door of BJ\u2019s Lounge.\nIt is well established in this State that a plaintiffs claim will be barred by the doctrine of contributory negligence when he fails to exercise ordinary care for his own safety, and such failure, concurring with the actionable negligence of the defendant, contributes to his injury. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E. 2d 504 (1980). Contributory negligence is\nan act or omission on the part of the plaintiff amounting to a want of ordinary care concurring and cooperating with some negligent act or omission on the part of the defendant as makes the act or omission of the plaintiff a proximate cause or occasion of the injury complained of.\nAdams v. Board of Education, 248 N.C. 506, 511, 103 S.E. 2d 854, 857 (1958). The existence of contributory negligence does not depend upon the plaintiffs subjective appreciation of danger; the standard of ordinary care is applied objectively such that the plaintiff is held to that level of care which an ordinarily prudent person would exercise to avoid injury in the same or similar circumstances. Allen v. Pullen, 82 N.C. App. 61, 345 S.E. 2d 469 (1986), disc. rev. denied, 318 N.C. 691, 351 S.E. 2d 738 (1987). When a person deliberately exposes himself to a danger of which he is, or in the exercise of reasonable care should be, aware, he is con-tributorily negligent as a matter of law. Burgess v. Mattox, 260 N.C. 305, 132 S.E. 2d 577 (1963).\nApplying these principles to the present case, we conclude that plaintiffs own conduct so clearly contributed as at least one of the proximate causes of his injury that he is barred as a matter of law from any recovery based upon the alleged negligent operation of the bar by defendants. Plaintiff had knowledge at least equal to that of defendants of the violent nature of Suits and his companions and of the volatile atmosphere present in the bar when he confronted Suits over the shoving of Huffman. With that knowledge, plaintiff confronted Suits and invited him outside to fight. When Suits refused, plaintiff continued to stand beside him, repeating the invitation, even though he could have left. The potential for danger and physical harm inherent in the confrontation with Suits was as well known to plaintiff as to defendants, yet, with such knowledge, plaintiff exposed himself to the danger by approaching Suits, engaging in a heated verbal exchange and delivering the first, and only, blow. It was certainly foreseeable to plaintiff that his physical attack on Suits would provoke a violent response from Suits\u2019 companions. Plaintiff had a duty not to needlessly expose himself to danger, which he clearly violated in this case. See Witherspoon v. Owen, 251 N.C. 169, 110 S.E. 2d 830 (1959). Moreover, plaintiff voluntarily participated in the affray, thereby helping to create the situation from which his injuries arose. It is elementary that one may not recover damages for injuries resulting from a hazard he helped to create. Blevins v. France, 244 N.C. 334, 93 S.E. 2d 549 (1956); Blake v. Great Atlan tic & Pacific Tea Co., 237 N.C. 730, 75 S.E. 2d 921 (1953). The trial court\u2019s entry of judgment notwithstanding the verdict is affirmed.\nAffirmed.\nJudge Parker concurs.\nJudge Wells dissents.", "type": "majority", "author": "MARTIN, Judge." }, { "text": "Judge WELLS\ndissenting.\nI cannot agree that it can be said as a matter of law that plaintiff John Glen Taylor (Taylor) acted unreasonably in failing to anticipate the violent and unlawful conduct which resulted in his injury. In my opinion, reasonable minds might differ as to whether Taylor needlessly exposed himself to the type of danger which led to his injury, and therefore the question of Taylor\u2019s contributory negligence was correctly submitted to the jury.\nFor the reasons stated, I vote to reverse the trial court and to order that judgment for Taylor be entered on the jury\u2019s verdict.", "type": "dissent", "author": "Judge WELLS" } ], "attorneys": [ "Gabriel, Berry, Weston & Weeks, by M. Douglas Berry for plaintiff-appe llant.", "Craige, Brawley, Lipfert & Ross, by William W. Walker for defendants-appellees." ], "corrections": "", "head_matter": "JOHN GLEN TAYLOR and wife, NADA TAYLOR v. DOROTHY WALKER, and C&R AMUSEMENTS, d/b/a BJ\u2019S LOUNGE\nNo. 8618SC736\n(Filed 3 March 1987)\nNegligence \u00a7 35.1\u2014 plaintiif injured after altercation in bar \u2014 contributory negligence as matter of law\nPlaintiff s own conduct so clearly contributed as at least one of the proximate causes of his injury that he was barred as a matter of law from any recovery based upon the alleged negligent operation of a bar by defendants where plaintiff had knowledge at least equal to that of defendants of the violent nature of other patrons and of the volatile atmosphere present in the bar when he confronted one of the patrons over the shoving of plaintiffs brother-in-law; with that knowledge plaintiff confronted the patron and invited him outside to fight; when the patron refused plaintiff continued to stand beside him, repeating the invitation, even though he could have left; the potential for danger and physical harm inherent in the confrontation with the patron was as well known to plaintiff as to defendants, but with such knowledge plaintiff exposed himself to the danger by approaching the patron, engaging in a heated verbal exchange, and delivering the first and only blow; it was foreseeable to plaintiff that his physical attack on the patron would provoke a violent response from the patron\u2019s companions; and plaintiff clearly violated his duty not to expose himself needlessly to danger.\nJudge Wells dissenting.\nAppeal by plaintiffs from Albright, Judge. Judgment entered 7 February 1986 in Superior Court, GUILFORD County. Heard in the Court of Appeals 16 December 1986.\nOn 19 December 1981, John Glen Taylor was shot and seriously wounded by an unknown assailant outside BJ\u2019s Lounge, a Greensboro bar. The shooting occurred shortly after Taylor had been involved in an altercation with another patron of the bar, and as Taylor, his wife, Nada, and his brother-in-law, Victor Huffman, were attempting to reach their automobile in the bar\u2019s parking lot. Plaintiffs brought this suit to recover for John Glen Taylor\u2019s personal injuries and Nada Taylor\u2019s loss of consortium with her husband.\nIn their complaint, plaintiffs alleged that the bar was operated by C & R Amusements and that defendant Walker was the bartender and manager of the establishment at the time of the shooting. Plaintiffs alleged that defendants were negligent in that they violated several administrative regulations promulgated by the State Board of Alcoholic Control (now North Carolina Alcoholic Beverage Control Commission) for the control of alcoholic beverage sales and the protection of the public, as well as common law duties to protect patrons from the criminal acts of third persons, and that such negligence was a proximate cause of John Glen Taylor\u2019s injuries.\nDefendants answered, denying negligence and alleging as an affirmative defense that John Glen Taylor, by his own conduct at the bar, was contributorily negligent in bringing about the situation which resulted in his injury. A jury answered the issues of negligence and contributory negligence in favor of John Glen Taylor and awarded compensatory damages of $382,400. The jury answered the issue of loss of consortium unfavorably to Nada Taylor.\nThe trial court allowed defendants\u2019 motion for judgment notwithstanding the verdict, concluding that John Glen Taylor was contributorily negligent as a matter of law. Plaintiffs appeal.\nGabriel, Berry, Weston & Weeks, by M. Douglas Berry for plaintiff-appe llant.\nCraige, Brawley, Lipfert & Ross, by William W. Walker for defendants-appellees." }, "file_name": "0507-01", "first_page_order": 535, "last_page_order": 540 }