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Jones v. Lake Hickory R.V. Resort2/17/2004
274, 278, 357 S.E.2d 394, 397 (a franchise agreement did not give rise to an agency relationship even though it required the franchisee to comply with certain standards in order to maintain the premises in a clean, safe, and orderly manner and even though the franchisor retained the right to make inspections of the hotel), disc. review denied, 320 N.C. 631, 360 S.E.2d 87 (1987). Because of the lack of evidence that the Resort exercised control over the details of the Lessee Association's work, the trial court erred in submitting the issue of agency to the jury and erred in instructing the jury that it could find defendant liable based on notice to the Lessee Association.
B. Liability Based on Notice to the Resort's Assistant Manager
The conclusion as to the Lessee Association does not, however, mandate judgment for defendant if defendant received actual notice of the hazardous conduct through some other means. Plaintiff has also contended that the Resort received notice of the hazard through its Assistant Manager, Ernie Melton. The parties stipulated that Melton was an agent of the Resort and that he was acting within the course of his employment on 4 July 1996. If plaintiff offered evidence suggesting that Melton had notice of Michael Morris' conduct, that notice could provide a basis for imposing liability on defendant.
Michael testified that when he was skating with his lit torch, he saw Melton sitting in front of his house. Michael's view of Melton was unobstructed. In arguing that this evidence was insufficient, defendant attacks Michael's credibility and suggests that Michael's ability to see Melton does not establish that Melton saw Michael. These arguments addressing credibility and weight are properly presented to a jury. State v. Hovis, 233 N.C. 359, 363, 64 S.E.2d 564, 566 (1951). They are not properly asserted in connection with a motion for a directed verdict or for judgment notwithstanding the verdict. Freeman v. St. Paul Fire & Marine Ins. Co., 72 N.C. App. 292, 299, 324 S.E.2d 307, 311, disc. review denied, 313 N.C. 599, 330 S.E.2d 609 (1985). Michael's testimony was sufficient to permit the jury to find that defendant had actual notice of Michael's conduct.
We cannot, however, affirm the jury's verdict finding defendant negligent based on this testimony. Because the jury verdict form did not distinguish between liability based on a failure to supervise, liability based on notice to the Lessee Association, and liability based on notice to Melton, we cannot determine upon which basis the jury found defendant liable. We must, therefore, remand for a new trial. State v. Lynch, 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990) ("Where the trial court erroneously submits the case to the jury on alternative theories, one of which is not supported by the evidence and the other which is, and, as here, it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict, the error entitles defendant to a new trial.").
Duty to Warn Versus Duty to Correct
Defendant also argues that it could not be held liable because the hazard was obvious and because the President of the Lessee Association warned plaintiff's mother to leave room between her golf cart and Michael Morris. Under the circumstances of this case, however, a jury could conclude that a warning was not adequate and that defendant, upon learning of Michael's conduct, was negligent in not requiring Michael to douse the torch.
In some instances, neither a warning nor the obvious nature of the hazard will be sufficient for the landlord to avoid liability for negligence. A warning will not satisfy a landowner's duty " f a reas
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