Plaintiff testified that about 10 a. m. on 2 September 1976, she "closed down" her own cash register and relieved a co-worker, Mary Dingman, at cash register "D" in the cafeteria on defendant's campus. She began working, but the register would not ring. Plaintiff in a free moment looked for the plug with no success. When she again had no customers, plaintiff testified that she "decided to bend around and see where that outlet was, and it came down. The leg on the table came down and the cash register with it. The right leg of the table hit the top of my foot, on the arch." Plaintiff worked at cash register "D" about five minutes before the accident. She further testified that she had not noticed "any difficulty or any peculiarity about the condition of the cash register table" two days earlier when she worked with cash register "D," and that "[n]o one had made any statement to me or in my presence about the condition of the cash register table before I was injured."
Mary Dingman, the regular operator of cash register "D," testified that she noticed a problem with one of the legs of the cash register table and told her supervisor, Lucille Smith Jackson, of the problem about six weeks before the accident. She stated, "I had no trouble seeing the problem with the table because it was wobbly. I looked at it and saw what it was. You couldn't help but see it at that time. The table was wobbly. It wasn't lopsided." One of Dingman's supervisors told her not to worry about the condition of the table, it would be fixed.
Lucille Smith Jackson supervised the cashiers at the cafeteria at the time of the accident. She testified,
Robert Ernest Pardue, production manager of the cafeteria for ARA at the time of the accident, testified that he had talked to Royce Weatherly, defendant's superintendent of buildings, concerning the condition of the table under cash register "D." Pardue described the problem as "loose legs." He stated that "it looked like probably a screw was with—one screw was holding them, and, ..., then we'd knock them back under there and try to straighten them up. When I say `we' I mean myself, or some other employee of ARA." If one looked for the problem, Pardue testified, one could see it. Weatherly came to the cafeteria on one
In her first assignment of error, plaintiff argues that the trial judge erred in refusing to allow the following testimony of Pardue:
We sustain plaintiff's assignment.
State v. Clayton, 272 N.C. 377, 382, 158 S.E.2d 557, 561 (1968), quoting Finnerty v. Darby, 391 Pa. 300, 310, 138 A.2d 117, 122 (1958). Accord Boyd v. Blake, 1 N.C. App. 20, 159 S.E.2d 256 (1968). Thus, the mere fact that a witness says he is "guessing" does not per se exclude the evidence as conjecture, but goes to its weight for the jury to consider. See State v. Clayton, supra.
Pardue's excluded testimony that he called Weatherly's office about the table, "I would guess for you 4 or 5 times," was an expression of opinion based upon his personal knowledge, not "mere conjecture." See 1 Stansbury's N.C. Evidence (Brandis rev. 1973) § 122, pp. 382-83. Therefore, the jury should have been allowed to weigh Pardue's excluded testimony.
Plaintiff also argues that the trial judge erred in allowing defendant's motion for directed verdict at the conclusion of his evidence on the grounds stated above. The question raised by a directed verdict motion is whether the evidence is sufficient to go to the jury. Rappaport v. Days Inn of America, Inc., 296 N.C. 382, 250 S.E.2d 245 (1979); Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). In passing upon such a motion, the trial judge must consider the evidence in the light most favorable to the non-movant, resolving all conflicts and giving to him the benefit of every inference reasonably drawn in his favor. Rappaport v. Days Inn of America, Inc., supra; Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973). A directed verdict motion by defendant may be granted only if the evidence is insufficient as a matter of law to justify a verdict for plaintiff. Husketh v. Convenient Systems, Inc., 295 N.C. 459, 245 S.E.2d 507 (1978); Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974).
Since defendant's duty to plaintiff arises from the relationship subsisting between them, Matthieu v. Piedmont Natural Gas Co., 269 N.C. 212, 152 S.E.2d 336 (1967), our analysis of plaintiff's argument begins with the parties' disagreement over the proper characterization of the contractual relationship between defendant and ARA. Defendant contends that a stipulation by the parties which was read to the jury controls this question. The stipulation reads, in part, as follows:
(Emphasis added.) Thus, defendant argues that it, as lessor, is not liable for injuries to persons on the leased premises resulting from disrepair, even when the lessor is under a contractual obligation in the lease to repair and maintain the premises. See 8 Strong's N.C. Index 3d, Landlord and Tenant § 8.2, pp. 241-42. Despite the stipulation quoted above, however, plaintiff argues that ARA is an independent contractor, and that as ARA's employee, defendant owed her a duty of "due care under all circumstances." We agree with plaintiff.
Outer Banks Contractors, Inc. v. Forbes, 302 N.C. 599, 604-05, 276 S.E.2d 375, 379-80 (1981).
To hold the parties in this action to a theory that defendant's liability to plaintiff is controlled by a lessor-lessee relationship between defendant and ARA would be to construe the stipulation quoted above as admitting "a fact which is obviously intended to be controverted ...." Id. at 604, 276 S.E.2d at 380. For this reason, we do not believe that the parties intended that the nature of their relationship be admitted. Thus, we now must determine the true nature of the contractual relationship between defendant and ARA.
On 18 June 1968, defendant's Board of Trustees and Slater Corporation entered into an agreement providing, in part, as follows:
The contract also provides that Slater must submit to defendant a statement of "gross manual sales" during each accounting period, and that defendant "shall have full access to the food service facilities with or without notice," including records which defendant may audit at any time.
The contract quoted above indicates that defendant granted to Slater, an independent entity, the right to manage the food service facilities on its campus. While defendant is to provide equipped facilities for food service, including responsibilities to "make all equipment repairs and replacements" and to "furnish building maintenance and repair service for the premises," Slater is to provide the food and beverages to serve as meals for defendant. It is Slater's responsibility to provide and maintain an adequate staff, but defendant retains approval of the employees hired by Slater during the contract period and six months thereafter. These facts are sufficient to show that Slater exercises an independent employment and generally employs and directs the activities of its employees without excessive interference by defendant. Specifically, defendant has not retained the right of control over ARA as to the details of its work. Therefore, from the record before us, we conclude that ARA is an independent contractor of defendant, not a lessee, and that defendant's liability to plaintiff, if any, must be governed under that relationship.
As in Maness v. Fowler-Jones Construction Co., 10 N.C. App. 592, 179 S.E.2d 816, cert. denied, 278 N.C. 522, 180 S.E.2d 610 (1971), plaintiff's action in the present case lies in tort and the contract between defendant and ARA "merely furnishes the occasion, or creates the relationship which furnishes the occasion, for the tort." Toone v. Adams, 262 N.C. 403, 407, 137 S.E.2d 132, 135 (1964). Accord Pinnix v. Toomey, 242 N.C. 358, 87 S.E.2d 893 (1955). Plaintiff, an employee of ARA, defendant's independent contractor, was an invitee of defendant. "Defendant's duty to plaintiff, therefore, was one of due care under all the circumstances." Spivey v. The Babcock & Wilcox Co., 264 N.C. 387, 388, 141 S.E.2d 808, 810 (1965). Accord Maness v. Fowler-Jones Construction Co., supra.
On the issue of defendant's negligence, it is clear that Weatherly, defendant's superintendent of buildings, was aware of the condition of the cash register table. In fact, Weatherly told Pardue, then ARA's production manager, that "we've got to get this done." Plaintiff's co-worker, Dingman, also was aware of the "wobbly" table; she was the regular operator of cash register "D." However, Dingman was told by her supervisors not to worry about the condition of the table, it would be fixed. Under this evidence, it was for the jury to determine whether defendant breached its duty to plaintiff of due care under all circumstances in failing to repair or replace the table or warn plaintiff of its condition. Therefore, the trial judge erred in granting a directed verdict for defendant on the ground that she has failed to show defendant's negligence. Our decision that plaintiff's evidence is sufficient to go to the jury on the above issue necessarily requires reversal of defendant's directed verdict on the remaining grounds specified by the trial judge.
We do not address plaintiff's second assignment of error concerning the exclusion of testimony elicited by a hypothetical question because the issue is unlikely to arise in a subsequent trial. See G.S. 8-58.12 & .13; see also Simons v. Georgiade, 55 N.C. App. 483, 286 S.E.2d 596, disc. rev. denied, ___ N.C. ___, 292 S.E.2d 571 (1982).
For these reasons, the trial judge erred in allowing defendant's motion for a directed verdict.
BECTON, J., concurs.
HEDRICK, J., concurs in result only.