Sasser v. Beck

308 S.E.2d 722 (1983)

James Graham SASSER, by his Guardian ad Litem, Leslie Deleon SASSER, Sr. v. Sam BECK and wife, Mrs. Sam Beck, t/a The Princess Motel.

No. 8230SC1154.

Court of Appeals of North Carolina.

November 15, 1983.

Duke & Brown by John E. Duke, and Hulse and Hulse by Herbert B. Hulse, Goldsboro, for plaintiff-appellant.

Herbert L. Hyde, Asheville, and Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Samuel G. Thompson and Robin K. Vinson, Raleigh, for defendants-appellees.

WHICHARD, Judge.

To overcome the motion for directed verdict plaintiff was "required to offer evidence sufficient to establish, beyond mere speculation or conjecture, every essential element of negligence." Oliver v. Royall, *723 36 N.C.App. 239, 242, 243 S.E.2d 436, 439 (1978). The basic elements of negligence are a duty owed by defendants to plaintiff and nonperformance of that duty, proximately causing injury and damage. See Spake v. Pearlman, 222 N.C. 62, 65, 21 S.E.2d 881, 883 (1942); W. Prosser, Law of Torts § 30, at 143 (4th ed. 1971).

The parties stipulated that plaintiff suffered injuries, but on the evidence presented the jury could only speculate as to their cause. See Justice v. Prescott, 258 N.C. 781, 129 S.E.2d 479 (1963); Hahn v. Perkins, 228 N.C. 727, 46 S.E.2d 854 (1948); Adams v. Enka Corp., 202 N.C. 767, 164 S.E. 367 (1932). Plaintiff offered no evidence showing that he sustained his injuries by reason of some defect in the pool, that additional safety precautions would have prevented the injuries, or that their absence proximately caused the accident. See Adams v. Enka Corp., supra. He presented no evidence that additional safety measures were required by statute or ordinance. See Bell v. Page, 2 N.C.App. 132, 162 S.E.2d 693 (1968). He presented no medical evidence concerning the cause of his injuries.

The record indicates that plaintiff's brother accompanied him and apparently remained at the pool through the brief period preceding the discovery of plaintiff at the bottom of the pool. The brother did not testify, however.

In sum, "[e]vidence of actionable negligence is lacking." Justice, supra, 258 N.C. at 782, 129 S.E.2d at 480. The evidence shows that an unfortunate injury occurred, but leaves to pure speculation the question of the cause. Under these circumstances, pursuant to prior decisions of our appellate courts, a directed verdict for defendants was appropriate. Justice v. Prescott, supra; Hahn v. Perkins, supra; Adams v. Enka Corp., supra, Oliver v. Royall, supra; cf. Corda v. Brook Valley Enterprises, Inc., 63 N.C.App. 653, 306 S.E.2d 173 (1983) (directed verdict in swimming pool death case reversed where plaintiff presented expert safety evidence, expert medical evidence on causation, and medical reports).

Affirmed.

VAUGHN, C.J., and PHILLIPS, J., concur.