#### ANNIE C. SWANN and CAROLYN D. SMITH v. LEN-CARE REST HOME, INC., ANDREW STEWART, and SHELBIA NORRIS

No. 522A97

(Filed 3 April 1998)

Hospitals and Medical Facilities or Institutions § 62 (NCI4th)— rest home — failure to restrain resident — insufficient evidence of negligence

The evidence was insufficient for the jury on the issue of negligence by defendant rest home and its employees in failing to restrain a ninety-eight-year-old resident at the time she fell and was seriously injured.

Appeal by defendants pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 127 N.C. App. 471, 490 S.E.2d 572 (1997), affirming in part and reversing in part a judgment, entered by Brewer, J., 29 May 1996 in Superior Court, Cumberland County, directing a verdict for defendants on plaintiff Smith’s claim for negligent infliction of emotional distress and on plaintiff Swann’s claim for negligence. Heard in the Supreme Court 11 March 1998.

The Lee Law Firm, P.A., by C. Leon Lee, II, for plaintiff-appellee Swann.

Wishart, Norris, Henninger & Pittman, P.A., by Jim H. Joyner, Jr., for defendant-appellants.

PER CURIAM.

For the reasons stated in the dissenting opinion by Judge John C. Martin, Swann v. Len-Care Rest Home, 127 N.C. App. 471, 475-76, 490 S.E.2d 572, 575-76 (1997), the decision of the Court of Appeals reversing the directed verdict as to plaintiff Swann’s claim is reversed; and the case is remanded to the Court of Appeals for further remand to the Superior Court, Cumberland County, for reinstatement of the trial court’s judgment.

REVERSED AND REMANDED.