              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-721

                                Filed: 1 March 2016

Johnston County, No. 13 CVS 2772

DANIEL GERALD BLACKMON, Plaintiff,

             v.

TRI-ARC FOOD SYSTEMS, INC., d/b/a BOJANGLES, Defendant.


      Appeal by plaintiff from order entered 9 February 2015 by Judge Robert F.

Floyd, Jr., in Johnston County Superior Court. Heard in the Court of Appeals 2

December 2015.


      Patterson Dilthey, LLP, by Ronald C. Dilthey; and Lucas Denning & Ellerbe,
      P.A., by Robert V. Lucas and Sarah E. Ellerbe, for plaintiff-appellant.

      Goldberg Segalla LLP, by Leigh R. Trigilio and John I. Malone, Jr., for
      defendant-appellee.


      ZACHARY, Judge.


      Daniel Blackmon (plaintiff) appeals from an order granting summary

judgment in favor of Tri-Arc Food Systems, Inc., d/b/a Bojangles (defendant) on

plaintiff’s claim for damages based on defendant’s negligence in designing and

maintaining its parking lot. On appeal plaintiff argues that the trial court erred by

entering summary judgment, on the grounds that there were genuine issues of

material fact regarding defendant’s negligence. We disagree.

                                      I. Background
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                                   Opinion of the Court



       The essential facts are not disputed and may be summarized as follows: In

December 2008, plaintiff was thirty-seven years old and was employed as a third shift

employee at Talecris Plasma Resources, located on Highway 70 in Clayton. After

completing his shift on 26 December 2008, plaintiff drove to the Bojangles restaurant

located at the intersection of Highway 70 and Shotwell Road, arriving just before 8:00

a.m.

       Bojangles is a fast food restaurant offering both drive-through and interior food

service. Bojangles has a parking lot with marked parking spaces for the use of its

customers. Plaintiff, however, chose not to park in a marked space in the parking lot.

Instead, plaintiff parked his truck in front of the restaurant along the curb of the

main driveway through Bojangles, an area with two-way traffic going east and west.

This was an unmarked stretch of roadway that had neither marked parking spaces

nor signs prohibiting parking. Plaintiff testified that he parked in this area because

he was driving a crew cab truck approximately twenty-two feet long, and his truck

would not fit into the marked parking spaces in the Bojangles parking lot, the longest

of which was nineteen feet long. In addition, he wanted to be able to observe his truck

while he ate. Plaintiff testified that he had chosen to park along the roadway in front

of Bojangles on hundreds of prior occasions. The record evidence indicates that

defendant’s manager and employees were aware that customers sometimes parked

along the front driveway. No evidence was introduced to suggest that it was a



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violation of local ordinance or state law for plaintiff to park along the road in front of

Bojangles. Approximately two years earlier, in 2006, another vehicle parked in front

of Bojangles was struck from behind, causing damage to a trailer being towed by the

truck. No evidence was presented regarding any other accidents along the road in

front of Bojangles.

      When plaintiff came out of the restaurant on 26 December 2008, he saw that

his rear tail light was damaged, and noticed that another truck parked in defendant’s

parking lot had corresponding damage to its side mirror.           Plaintiff secured the

assistance of Officer Cook of the Clayton Police Department, who was eating in

Bojangles. Officer Cook directed plaintiff to stand behind plaintiff’s truck while

Officer Cook took down information from plaintiff’s driver’s license and truck

registration. While plaintiff and Officer Cook stood behind the truck, Ms. Patricia

Jones drove her SUV into defendant’s parking lot and turned right, heading east

along the roadway area where plaintiff had parked his truck. The SUV operated by

Ms. Jones struck the back of plaintiff’s pickup truck, pinning him between the two

vehicles. Ms. Jones testified that when she entered defendant’s parking lot and

turned right, her attention was diverted by the presence of several police cars in the

parking lot to her left and Ms. Jones turned her head to the left. When Ms. Jones

returned her attention to the roadway, she was “blinded” because the sun was in her

eyes and, as she reached for the overhead visor, her vehicle struck Officer Cook and



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plaintiff. Ms. Jones did not recall slowing down or applying her brakes before the

accident. Ms. Jones was charged with careless and reckless driving, and in February

2009, Ms. Jones pleaded guilty to careless and reckless driving.

      As a result of the accident, Plaintiff sustained severe injuries requiring three

months of hospitalization, including amputation of his right leg, loss of sight in his

left eye, and left leg and pelvis fractures. On 16 February 2011, plaintiff filed suit

against defendant. Prior to trial, Judge Thomas H. Lock denied defendant’s motion

for summary judgment. Plaintiff’s claim came on for trial at the 10 June 2013 Civil

Session of Johnston County Superior Court. During trial, the trial court excluded

plaintiff’s proffered expert testimony that the accident would not have occurred if

certain safety features, such as speed bumps, had been in place in defendant’s

parking lot. After the court made this ruling, plaintiff took a voluntary dismissal

without prejudice, pursuant to N.C. Gen. Stat. § 1A-1, Rule 41. Plaintiff refiled his

claim on 6 September 2013.       Plaintiff’s complaint alleged that defendant had

negligently failed to maintain the parking lot area in a reasonably safe manner.

Defendant filed an answer on 6 November 2013, denying the material allegations of

plaintiff’s complaint and raising various defenses, including plaintiff’s contributory

negligence and Ms. Jones’s intervening and superseding negligence.         Defendant

moved for summary judgment on 18 December 2014. 24) On 9 February 2015, the




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trial court entered an order granting defendant’s motion and dismissing plaintiff’s

action with prejudice. Plaintiff appealed.

                       II. Summary Judgment Standard of Review

      The standard of review of a trial court’s ruling on a motion for summary

judgment is well-established:

             Under N.C. Gen. Stat. § 1A-1, Rule 56(a), summary
             judgment is properly entered “if the pleadings, depositions,
             answers to interrogatories, and admissions on file, together
             with the affidavits, if any, show that there is no genuine
             issue as to any material fact and that any party is entitled
             to a judgment as a matter of law.” “In a motion for
             summary judgment, the evidence presented to the trial
             court must be admissible at trial, N.C.G.S. § 1A-1, Rule
             56(e) (2003), and must be viewed in a light most favorable
             to the non-moving party.” “We review a trial court’s order
             granting or denying summary judgment de novo. Under a
             de novo review, the court considers the matter anew and
             freely substitutes its own judgment for that of the lower
             tribunal.”

Patmore v. Town of Chapel Hill, N.C., __ N.C. App. __, __, 757 S.E.2d 302, 304

(quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 467, 597 S.E.2d 674, 692 (2004)

(internal citation omitted), and Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334,

337, 678 S.E.2d 351, 354 (2009) (internal quotation omitted)), disc. review denied, 367

N.C. 519, 758 S.E.2d 874 (2014).

             The party moving for summary judgment bears the burden
             of establishing that there is no triable issue of material
             fact. This burden may be met “by proving that an essential
             element of the opposing party’s claim is nonexistent, or by
             showing through discovery that the opposing party cannot
             produce evidence to support an essential element of his

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               claim or cannot surmount an affirmative defense which
               would bar the claim.”

DeWitt v. Eveready Battery Co., 355 N.C. 672, 681-82, 565 S.E.2d 140, 146 (2002)

(quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425,

427 (1989)) (other citation omitted).

         “ ‘[O]nce the party seeking summary judgment makes the required showing,

the burden shifts to the nonmoving party to produce a forecast of evidence

demonstrating specific facts, as opposed to allegations, showing that he can at least

establish a prima facie case at trial.’ ” Pacheco v. Rogers & Breece, Inc., 157 N.C. App.

445, 448, 579 S.E.2d 505, 507 (2003) (quoting Gaunt v. Pittaway, 139 N.C. App. 778,

784-85, 534 S.E.2d 660, 664 (2000), cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001)).

                                         III. Discussion

         Plaintiff argues that the trial court erred by granting summary judgment for

defendant on plaintiff’s claim for negligence. After careful review of the record, we

conclude that plaintiff failed to produce evidence showing that he could make at least

a prima facie case of negligence, and that the trial court did not err by dismissing his

claim.

         “To state a claim for common law negligence, a plaintiff must allege: (1) a legal

duty; (2) a breach thereof; and (3) injury proximately caused by the breach.” Stein v.

Asheville City Bd. of Educ., 360 N.C. 321, 328, 626 S.E.2d 263, 267 (2006).

“[S]ummary judgment is rarely an appropriate remedy in cases of negligence or


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contributory negligence. However, summary judgment is appropriate in a cause of

action for negligence where ‘the forecast of evidence fails to show negligence on

defendant’s part, or establishes plaintiff’s contributory negligence as a matter of

law.’” Frankenmuth Ins. v. City of Hickory, __ N.C. App. __, __, 760 S.E.2d 98, 101

(2014) (quoting Stansfield v. Mahowsky, 46 N.C. App. 829, 830, 266 S.E.2d 28, 29

(1980)). “ ‘[A] [p]laintiff is required to offer legal evidence tending to establish beyond

mere speculation or conjecture every essential element of negligence, and upon

failure to do so, [summary judgment] is proper.’ ” Id. (quoting Young v. Fun Services-

Carolina, Inc., 122 N.C. App. 157, 162, 468 S.E.2d 260, 263 (1996)).

             In order to prove a defendant’s negligence in a premises
             liability case, the plaintiff must first show that the
             defendant either “(1) negligently created the condition
             causing the injury, or (2) negligently failed to correct the
             condition after actual or constructive notice of its
             existence.” “The ultimate issue which must be decided in
             evaluating the merits of a premises liability claim[,
             however,] is . . . whether [the defendant] breached the duty
             to exercise reasonable care in the maintenance of [its]
             premises for the protection of lawful visitors.”

Rolan v. Dept. of Agric. & Consumer Servs., __ N.C. App. __, __, 756 S.E.2d 788, 795

(2014) (quoting Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d

339, 342-43 (1992), and Burnham v. S&L Sawmill, Inc., __ N.C. App. __, __, 749

S.E.2d 75, 80, disc. review denied, 367 N.C. 281, 752 S.E.2d 474 (2013) (internal

quotation omitted)).




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                                  Opinion of the Court



      Plaintiff contends that defendant failed to exercise reasonable care for the

safety of its customers, on the grounds that defendant allowed two way traffic in the

roadway in front of the restaurant and failed to prevent its customers from parking

along the roadway in front of the restaurant. We conclude that:

             1. Assuming, arguendo, that defendant was negligent in
             the design of its parking lot, the careless and reckless
             driving of Ms. Jones was not foreseeable, and constituted
             intervening and superseding negligence; and

             2. Plaintiff’s choice to park in front of the restaurant,
             where two-way traffic was allowed, instead of utilizing a
             parking space, constitutes contributory negligence as a
             matter of law.

      Ms. Jones admitted in her deposition that when she entered the parking lot

she turned her vehicle to the right, while at the same time turning her head to the

left to look at law enforcement officers’ cars parked in the lot. Thus, as she drove

towards plaintiff, she was looking to the side. When Ms. Jones turned her attention

back to the road, the sun was in her eyes and she almost immediately struck plaintiff

and Officer Cook. Ms. Jones also admitted that after turning right onto the roadway

in front of Bojangles, she did not slow down or apply her brakes. In addition, Ms.

Jones pleaded guilty to careless and reckless driving. We conclude that Ms. Jones’s

negligent driving was the immediate proximate cause of plaintiff’s injuries. See, e.g.,

Thompson v. Bradley, 142 N.C. App. 636, 544 S.E.2d 258 (2001):

             “Negligence is the failure to exercise proper care in the
             performance of a legal duty owed by a defendant to a
             plaintiff under the circumstances.” The relevant duty in

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             this case is that of an automobile driver; the driver owes a
             duty towards his or her passengers to exercise reasonable
             and ordinary care for their safety. . . . This duty of care was
             breached if, as alleged in the complaint, [defendant]
             operated her car in a careless and reckless manner, drove
             at an unsafe speed, failed to decrease speed to avoid a
             collision, and generally failed to keep the car under proper
             control.

Thompson, 142 N.C. App. at 640, 544 S.E.2d at 261 (quoting Cassell v. Collins, 344

N.C. 160, 163, 472 S.E.2d 770, 772 (1996)) (other citations omitted).

      Defendant has no duty to protect its customers from the unforeseeable acts of

third parties.

             We have stated that “[n]o legal duty exists unless the
             injury to plaintiff was foreseeable and avoidable through
             due care.” The criminal acts of a third party are generally
             considered “unforeseeable and independent, intervening
             cause[s] absolving the [defendant] of liability.” For this
             reason, the law does not generally impose a duty to prevent
             the criminal acts of a third party.

Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796-97 (2013) (quoting Stein,

360 N.C. at 328-29, 626 S.E.2d at 267-68). In this case, plaintiff has not introduced

any evidence that Ms. Jones’s careless and reckless driving was foreseeable by

defendant.   We conclude that, even assuming that the parking lot design was

defective, Ms. Jones’s negligence constituted an unforeseeable intervening cause.

      We further conclude that plaintiff’s actions were contributorily negligent. It is

undisputed that, although defendant provided clearly marked parking spaces for the

use of its customers, plaintiff chose to park along the roadway in front of the


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restaurant for his own convenience.       Plaintiff admitted that he had patronized

Bojangles on hundreds of occasions and had parked in the area in front of the

restaurant hundreds of times. Assuming, for the purposes of argument, that allowing

two way traffic along the roadway in front of Bojangles increased the likelihood of

injury to a customer who chose to park there, this is not a hidden danger, but one

that was equally apparent to plaintiff. “Reasonable care requires that the landowner

not unnecessarily expose a lawful visitor to danger and give warning of hidden

hazards of which the landowner has express or implied knowledge.” . . . Thomas v.

Weddle, 167 N.C. App. 283, 290, 605 S.E.2d 244, 248-49 (2004) (internal quotation

mark omitted). “ ‘A landowner is under no duty to protect a visitor against dangers

either known or so obvious and apparent that they reasonably may be expected to be

discovered . . . [and] need not warn of any apparent hazards or circumstances of which

the invitee has equal or superior knowledge.’ ” Burnham, __ N.C. App. at __, 749

S.E.2d at 80 (quoting Von Viczay v. Thoms, 140 N.C. App. 737, 739, 538 S.E.2d 629,

631 (2000), aff'd, 353 N.C. 445, 545 S.E.2d 210 (2001) (per curiam)). Rather, “[a]

reasonable person should be observant to avoid injury from a known and obvious

danger.” Farrelly v. Hamilton Square, 119 N.C. App. 541, 546, 459 S.E.2d 23, 27

(1995) (citation omitted).

      Not only was the traffic pattern in front of Bojangles readily visible to plaintiff,

but the alleged risk arose not from a condition or circumstance of the parking lot,



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such as the presence of ice, but from plaintiff’s voluntary choice to park along an

unmarked stretch of the driveway instead of in a parking space. “Prudence, rather

than convenience, should have motivated the plaintiff’s choice. . . . ‘If two ways are

open to a person to use, one safe and the other dangerous, the choice of the dangerous

way, with knowledge of the danger, constitutes contributory negligence . . . which will

bar his recovery.’ ” Rockett v. City of Asheville, 6 N.C. App. 529, 533, 170 S.E.2d 619,

621 (1969) (quoting Dunnevant v. R. R., 167 N.C. 232, 233, 83 S.E. 347, 348 (1914)).

For example, in Kelly v. Regency Ctrs. Corp., 203 N.C. App. 339, 343, 691 S.E.2d 92,

95-96 (2010), the plaintiff qualified for handicapped parking but chose to park in a

non-handicapped parking space and was injured when she stumbled at the curb. We

held that:

             Evidence forecast that [the plaintiff] had been a frequent
             patron of the K&W Cafeteria prior to the accident. It is well
             settled that a person is contributorily negligent if he or she
             knows of a dangerous condition and voluntarily goes into a
             place of danger. In other words, “[w]hen an invitee sees an
             obstacle not hidden or concealed and proceeds with full
             knowledge and awareness, there can be no recovery.”

(citing Dunnevant, and quoting Wyrick v. K-Mart Apparel Fashions, 93 N.C. App. 508,

509, 378 S.E.2d 435, 436 (1989)). In this case, plaintiff’s own actions in parking on

the roadway in front of Bojangles constitutes contributory negligence.

      On appeal, plaintiff argues that he cannot be deemed to be contributorily

negligent, on the grounds that he stood behind his truck at the direction of a law

enforcement officer, and that the law enforcement officer executed an affidavit stating

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                                   Opinion of the Court



that the officer did not perceive any danger in standing behind the truck. Plaintiff’s

argument suffers from two flaws. First, plaintiff’s contributory negligence did not

consist of standing behind his truck with the law enforcement officer, but of parking

along the lane of traffic rather than in a marked parking space. Secondly, to the

extent that the officer’s affidavit tends to establish that standing in the road behind

the truck was not unreasonable, this only serves to underscore the fact that Ms.

Jones’s criminally negligent driving was not foreseeable. The undisputed evidence

established that in twelve years of defendant’s operation, only one accident had

occurred in the roadway area in front of the restaurant, resulting in property damage

to a trailer towed a by truck but no personal injury.

      Having reached these conclusions, we do not need to address the issues of

whether plaintiff produced evidence that the design of the parking lot was a breach

of defendant’s duty to exercise reasonable care, or whether plaintiff produced any

evidence that the design of the parking lot, rather than plaintiff’s voluntary choice to

park in an unmarked area along the roadway instead of in a marked parking space,

was a proximate cause of his injuries.

      For the reasons discussed above, we conclude that the trial court did not err by

granting summary judgment in favor of defendant.

      AFFIRMED.

      Judges CALABRIA and ELMORE concur.



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