{
  "id": 8525611,
  "name": "DEBRA KAY SHADKHOO v. SHILO EAST FARMS, INC.",
  "name_abbreviation": "Shadkhoo v. Shilo East Farms, Inc.",
  "decision_date": "1990-06-05",
  "docket_number": "No. 8918SC529",
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  "analysis": {
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  "last_updated": "2023-07-14T19:26:07.401162+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judge ORR concurs.",
      "Judge Phillips dissents."
    ],
    "parties": [
      "DEBRA KAY SHADKHOO v. SHILO EAST FARMS, INC."
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nPlaintiff contends that the trial court erred in granting defendant\u2019s motion for a directed verdict. She argues that the evidence was sufficient to go to the jury on the issue of defendant\u2019s negligence. We disagree and affirm the trial court\u2019s order.\nDefendant\u2019s motion for directed verdict, renewed at the close of all of the evidence, presents the question of whether the evidence viewed in the light most favorable to plaintiff will justify a verdict in plaintiff\u2019s favor. Rayfield v. Clark, 283 N.C. 362, 196 S.E.2d 197 (1973). \u201c[T]he evidence in favor of the non-movant must be deemed true, all conflicts in the evidence must be resolved in his favor and he is entitled to the benefit of every inference reasonably to be drawn in his favor.\u201d Summey v. Cauthen, 283 N.C. 640, 647, 197 S.E.2d 549, 554 (1973). \u201cIt is only when the evidence is insufficient to support a verdict in the non-movant\u2019s favor that the motion should be granted.\u201d Rappaport v. Days Inn of Am., Inc., 296 N.C. 382, 384, 250 S.E.2d 245, 247 (1979).\nPlaintiff contends that the doctrine of res ipsa loquitur applies here and that, aided by this doctrine, the evidence is sufficient to submit the case to the jury. The principle of res ipsa loquitur is generally stated:\n[W]hen a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use the proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.\nNewton v. Texas Co., 180 N.C. 561, 567, 105 S.E. 433, 436 (1920). \u201cFor the doctrine [of res ipsa loquitur] to apply the plaintiff must prove (1) that there was an injury, (2) that the occurrence causing the injury is one which ordinarily doesn\u2019t happen without negligence on someone\u2019s part, (3) that the instrumentality which caused the injury was under the exclusive control and management of the defendant.\u201d Jackson v. Neill McKay Gin Co., 255 N.C. 194, 197, 120 S.E.2d 540, 542 (1961).\nPlaintiff argues that the trial court erroneously concluded that there was no evidence that the cause of the injury was under the exclusive control and management of the defendant. We disagree. The evidence, in the light most favorable to plaintiff, shows that defendant did not control the placement of the speaker that fell on plaintiff. Although there was testimony that defendant\u2019s agents would direct bands not to place their equipment in front of exits and would generally patrol the premises for the safety of patrons, there is no evidence that the defendant had control over the speaker in question.\nSince the evidence failed to show that defendant had exclusive control over the instrumentality that caused the injury, i.e., the speaker, the order of the trial court is affirmed.\nAffirmed.\nJudge ORR concurs.\nJudge Phillips dissents.",
        "type": "majority",
        "author": "EAGLES, Judge."
      },
      {
        "text": "Judge Phillips\ndissenting.\nIn my opinion the statement by the majority that the evidence shows that defendant did not control the speakers that fell on plaintiff is incorrect. The speakers, which were about 2 and V2 feet high and weighed 3 or 4 hundred pounds, were situated where defendant directed. Defendant\u2019s own evidence was that the bands were \u201cgiven an area where they could set their speakers up,\u201d and that they were told, \u201cHere\u2019s the stage, and set up your equipment and your speakers.\u201d If the speakers were instruments being used by the band or somebody else this would not be evidence that they were in defendant\u2019s control; but the speakers were not used by anybody, they only reproduced sounds, and that they were placed where defendant directed that they be placed when one of them slipped off onto the dance floor and struck plaintiff is evidence that they were in defendant\u2019s control. Certainly, they were not in the control of the band, which could not have placed the speakers elsewhere; and since defendant could have had them placed anywhere it chose, and had employees on the floor who admittedly could have moved or changed the speakers as they saw fit, it can hardly be claimed that they were in no one\u2019s control. Since it is unlikely that the speaker would have fallen onto plaintiff if proper care had been used in placing it on the one under it, or further from the dance floor, the evidence raises a question for the jury in my opinion.",
        "type": "dissent",
        "author": "Judge Phillips"
      }
    ],
    "attorneys": [
      "Smith, Patterson, Foll\u00edn, Curtis, James & Harkavy, by Norman B. Smith, for plaintiff-appellant.",
      "Henson Henson Bayliss & Teague, by Jack B. Bayliss, Jr., for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "DEBRA KAY SHADKHOO v. SHILO EAST FARMS, INC.\nNo. 8918SC529\n(Filed 5 June 1990)\nNegligence \u00a7 6.1 (NCI3d) \u2014 night club patron \u2014 falling speaker \u2014 res ipsa loquitur \u2014directed verdict for defendant\nThe trial court properly directed verdict for defendant in an action in which a patron of defendant\u2019s nightclub alleged that she had been injured when a speaker fell from another speaker onto her knee while she was dancing. Although plaintiff relied on the doctrine of res ipsa loquitur, the evidence, viewed in the light most favorable to plaintiff, shows that defendant did not control the placement of the speaker that fell on plaintiff.\nAm Jur 2d, Negligence \u00a7\u00a7 1870-1872, 1876.\nJudge Phillips dissenting.\nAPPEAL by plaintiff from judgment entered 14 February 1989 by Judge Steve Allen in GUILFORD County Superior Court. Heard in the Court of Appeals 21 December 1989.\nThis is a personal injury action. Plaintiff alleged that she was injured by a speaker that fell on her knee while she was dancing in defendant\u2019s nightclub. Plaintiff alleged that the speaker was not properly fastened to the speaker on which it was stacked and that defendant should have known that vibrations from the music might cause it to fall. Plaintiff relied on the doctrine of res ipsa loquitur.\nThe evidence at trial tended to show that when the accident occurred, plaintiff was a patron at defendant\u2019s place of business, the Carousel Lounge. Plaintiff testified that she and a friend were dancing about five feet away from the speakers and that the speakers were placed close to the dance floor. During the time plaintiff and her friend were dancing on the dance floor no one else was near the speakers. Additionally, she testified that neither plaintiff nor her friend came into contact with the speakers before the accident. Plaintiff was injured when a speak\u00e9r that had been stacked on top of another speaker fell off the bottom speaker onto plaintiff while she was dancing, hitting her in the left knee. Defendant testified that the speaker that fell was owned by the band that was playing at the club and that the band had set up their own equipment.\nAt the close of all of the evidence the trial court granted defendant\u2019s motion for directed verdict. Plaintiff appeals.\nSmith, Patterson, Foll\u00edn, Curtis, James & Harkavy, by Norman B. Smith, for plaintiff-appellant.\nHenson Henson Bayliss & Teague, by Jack B. Bayliss, Jr., for defendant-appellee."
  },
  "file_name": "0672-01",
  "first_page_order": 700,
  "last_page_order": 703
}
