Foster v. Winston-Salem Joint Venture

281 S.E.2d 36, 303 N.C. 636, 1981 N.C. LEXIS 1205
CourtSupreme Court of North Carolina
DecidedAugust 17, 1981
Docket124
StatusPublished
Cited by91 cases

This text of 281 S.E.2d 36 (Foster v. Winston-Salem Joint Venture) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. Winston-Salem Joint Venture, 281 S.E.2d 36, 303 N.C. 636, 1981 N.C. LEXIS 1205 (N.C. 1981).

Opinions

[638]*638COPELAND, Justice.

Plaintiff presents two issues for our determination; first, whether plaintiff has a cause of action against defendants in negligence for their alleged failure to provide adequate security-in the Hanes Mall parking lot, and second, if it is determined that plaintiff has stated a claim for relief, whether she has presented sufficient evidence in support of her claim to withstand defendants’ motion for summary judgment. For ' the reasons stated below, we affirm that portion of the Court of Appeals’ decision which held that plaintiff had stated a proper claim for relief, reverse that portion of the decision which found that plaintiff had failed to present sufficient evidence to withstand defendants’ motion for summary judgment, and remand for a trial on the merits.

It is well established that an individual who enters the premises of a store as a customer during business hours holds the status of a business invitee for purposes of establishing the duty owed to the individual by the owner of the premises. Smithson v. W. T. Grant Co., 269 N.C. 575, 153 S.E. 2d 68 (1967); Long v. National Food Stores, Inc., 262 N.C. 57, 136 S.E. 2d 275 (1964). A parking lot provided by the owner for the use of his invitees is considered part of the premises of the store to which the duty owed by the owner extends. Game v. Charles Stores Company, Inc., 268 N.C. 676, 151 S.E. 2d 560 (1966). The general duty imposed upon the owner is not to insure the safety of his customers, but to exercise ordinary care to maintain his premises in such a condition that they may be used safely by his invitees in the manner for which they were designed and intended. Husketh v. Convenient Systems, Inc., 295 N.C. 459, 245 S.E. 2d 507 (1978); Wagner v. Delly-Land Delicatessen, Inc., 270 N.C. 62, 153 S.E. 2d 804 (1967); Long v. National Food Stores, Inc., supra.

Ordinarily the store owner is not liable for injuries to his invitees which result from the intentional, criminal acts of third persons. It is usually held that such acts cannot be reasonably foreseen by the owner, and therefore constitute an independent, intervening cause absolving the owner of liability. Williams v. Mickens, 247 N.C. 262, 100 S.E. 2d 511 (1957); Ross v. Atlantic Greyhound Corp., 223 N.C. 239, 25 S.E. 2d 852 (1943); Ward v. Southern Railway, 206 N.C. 530, 174 S.E. 443 (1934). Nevertheless, the Court recognized in these cases that where circumstances ex[639]*639isted which gave the owner reason to know that there was a likelihood of conduct on the part of third persons which endangered the safety of his invitees, a duty to protect or warn the invitees could be imposed. In Aaser v. City of Charlotte, 265 N.C. 494, 499, 144 S.E. 2d 610, 615 (1965), this Court discussed a landowner’s general duty to protect his invitees from injury caused by the acts of third persons as follows:

“In the place of amusement or exhibition, just as in the store, when the dangerous condition or activity . . . arises from the act of third persons, whether themselves invitees or not, the owner is not liable for injury resulting unless he knew of its existence or it had existed long enough for him to have discovered it by the exercise of due diligence and to have removed or warned against it.”

See also Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E. 2d 678 (1977).

The Restatement (second) of Torts, Section 344, sets forth the duty owed by a store owner to protect his invitees from the acts of third persons as follows:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.”

Comment f to section 344 further provides:

“Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the [640]*640visitor even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of the third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.”

Thus, under both the Restatement (Second) of Torts and the prior decisions of this Court, foreseeability is the test in determining the extent of a landowner’s duty to safeguard his business invitees from the criminal acts of third persons. See Tyndall v. United States, 295 F. Supp. 448 (E.D.N.C. 1969). If an invitee, such as the plaintiff in this case, alleges in a complaint that he or she was on the premises of a store owner, during business hours for the purpose of transacting business thereon, and that while he or she was on the premises injuries were sustained from the criminal acts of a third person, which acts were reasonably foreseeable by the store owner, and which could have been prevented by the exercise of ordinary care, then the plaintiff has set forth a cause of action in negligence which, if proved, would entitle that plaintiff to recover damages from the store owner.

This holding is supported by the decisions of other jurisdictions. Under facts nearly identical to those of the case before us, the court in Morgan v. Bucks Association, 428 F. Supp. 546 (E.D. Pa. 1977), followed Section 344 of the Restatement (Second) of Torts and upheld a jury verdict in favor of plaintiff against the defendant shopping center owner where plaintiff presented sufficient evidence to submit to the jury the question of whether defendant knew or had reason to know that assaults on customers might occur in the shopping center parking lot. The court in O’Brien v. Colonial Village, Inc., 119 Ill. App. 2d 105, 255 N.E. 2d 205 (1970), likewise acknowledged that a cause of action in negligence could be established under facts similar to those of the case sub judice. In O’Brien the plaintiff’s complaint was dismissed for failure to allege that defendants had knowledge of previous incidents or circumstances which would indicate their awareness of any danger of criminal activity occurring in the shopping mall parking lot. The court noted that had plaintiff amended her complaint to allege such awareness on the part of defendants, the [641]*641court would have been compelled to deny defendants’ motion to dismiss. Accord Kenny v. Southeastern Pennsylvania Transportation Authority, 581 F. 2d 351 (3d Cir. 1978); Taylor v. Centennial Bowl, Inc., 65 Cal. 2d 114, 416 P. 2d 793, 52 Cal. Rptr. 561 (1966); Atamian v. Supermarkets General Corp., 146 N.J. Super. 149, 369 A. 2d 38 (1976).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lynne Kritter v. Brent Mooring
Fourth Circuit, 2025
Brown v. Tm Northlake Mall, Lp
2025 NCBC 13 (North Carolina Business Court, 2025)
STIMPSON v. WALMART, INC.
M.D. North Carolina, 2025
Williams v. AT&T Mobility, LLC
E.D. North Carolina, 2022
Keith v. Health-Pro Home Care Servs., Inc.
Supreme Court of North Carolina, 2022
Osborne v. Yadkin Valley Econ. Dev. Dist. Inc.
Court of Appeals of North Carolina, 2021
Stricklin v. Stefani
358 F. Supp. 3d 516 (W.D. North Carolina, 2018)
Greenfield v. Budget of Delaware, Inc.
Superior Court of Delaware, 2017
Leonard v. Transylvania Cnty. Dep't of Soc. Servs.
775 S.E.2d 695 (Court of Appeals of North Carolina, 2015)
County of Catawba v. Frye Reg'l Med. Ctr., Inc.
2014 NCBC 27 (North Carolina Business Court, 2014)
Red Fox Future, LLC v. Holbrooks
2014 NCBC 8 (North Carolina Business Court, 2014)
Bridges v. Parrish
742 S.E.2d 794 (Supreme Court of North Carolina, 2013)
Bognc, LLC v. Cornelius Nc Self-Storage LLC
2013 NCBC 26 (North Carolina Business Court, 2013)
Allen Smith Inv. Props., LLC v. Barbarry Props., LLC
2013 NCBC 1 (North Carolina Business Court, 2013)
Wake County v. hotels.com, L.P.
2012 NCBC 61 (North Carolina Business Court, 2012)
Cabrera v. Hensley
2012 NCBC 41 (North Carolina Business Court, 2012)
Lampkin Ex Rel. Lapping v. Housing Management Resources, Inc.
725 S.E.2d 432 (Court of Appeals of North Carolina, 2012)
Davenport v. D.M. Rental Properties, Inc.
718 S.E.2d 188 (Court of Appeals of North Carolina, 2011)
Betts v. Jones
702 S.E.2d 100 (Court of Appeals of North Carolina, 2010)
Bennett v. EQUITY RESIDENTIAL
692 S.E.2d 489 (Court of Appeals of North Carolina, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
281 S.E.2d 36, 303 N.C. 636, 1981 N.C. LEXIS 1205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-winston-salem-joint-venture-nc-1981.