Lead Opinion
We first consider whether the trial court erred in granting defendant’s motion for judgment pursuant to Rule 50(b)(1) of the North Carolina Rules of Civil Procedure.
A motion for judgment pursuant to Rule 50(b)(1) is essentially a renewal of an
In ruling on a Rule 50(b)(1) motion, the trial court must consider the evidence in the light most favorable to the nonmoving party, giving it the benefit of all reasonable inferences to be drawn therefrom, resolving all conflicts in the evidence in its favor. Smith v. Price,
Thus, in order to survive defendant’s motion for judgment, plaintiffs were obligated to present evidence at trial setting forth a prima facie case of negligence, i.e., that defendant owed plaintiff Cook a duty of care, that defendant’s conduct breached that duty, that the breach was the actual and proximate cause of plaintiffs’ injury, and that damages resulted from the injury. Lamm v. Bissette Realty, Inc.,
Plaintiff Cook was an invitee on defendant’s premises because of his status as a doctor with privileges at the hospital: A status bestowing mutual economic benefit to him and the hospital. See Morgan v. Great Atlantic and Pacific Tea Co.,
Under our rules, an invitee cannot recover “unless he can show that the unsafe or dangerous condition had remained there for such length of time that the inviter knew, or by the exercise of reasonable care should have known, of its existence.” Long v. National Food Stores, Inc.,
In Smith v. Cochran,
Here there is also conflicting testimony about whether the'floor was wet, and whether defendant knew or should have known of the wet spot. Although Cook was
One defense witness testified that when she heard Cook yell, she ran to the doorway to the hall where she saw Cook’s body in mid-air and the wet floor sign sliding down the hallway. This circumstantial evidence corroborates Cook’s testimony concerning the location of the sign. Furthermore, because of the presence and location of the sign, this circumstantial evidence permits the inference that defendant had knowledge that the floor was wet. In addition, although an employee of defendant denied that she had mopped the floor in the hall where Cook fell, she admitted to mopping the floor in close proximity to where he fell shortly before the fall. While that same employee testified that her job is to mop the rooms of the hospital instead of the hallways, she admitted that she would at times mop the hallways when necessary.
Viewing the evidence in the light most favorable to plaintiffs, a reasonable trier of fact could conclude that Cook slipped on a wet floor, that defendant knew or should have known that the floor was wet, and that the wet floor proximately caused plaintiffs to sustain injury. Any inconsistencies in the evidence should be decided by the jury. Accordingly, we conclude that the trial court erred in granting defendant a directed verdict.
We next consider whether the trial court erred in denying plaintiff’s motion to compel production of the accident report.
Pursuant to the rules of discovery outlined by G.S. 1A-1, Rule 26(b)(3), documents prepared “in anticipation of litigation” are afforded a qualified immunity from discovery by the party seeking those documents. Willis v. Duke Power,
The phrase “in anticipation of litigation” is an elastic concept. The phrase itself indicates that its boundaries lack specific definition. In Willis, our Supreme Court defined this phrase as including “not only materials prepared after the party has secured an attorney, but those -prepared under circumstances in which a reasonable person might anticipate a possibility of litigation.” Willis,
Plaintiffs assert that the facts of this case present an issue of first impression, and we are inclined to agree. For this reason, we rely in part on federal decisions for guidance in defining “in anticipation of litigation” as it applies here. See Brewer v. Harris,
The Willis Court does instruct that “materials prepared in me ordinary course of business are not protected,” and are thus, not considered materials “prepared under circumstances in which a reasonable person might anticipate a possibility of litigation.” Willis, 291 N.C. at 35,
Prudent parties anticipate litigation, and begin preparation prior to the time suit is formally commenced. Thus the test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than for purposes of the litigation.
(emphasis added).
In Simon v. G.D. Searle & Co.,
Applying the analysis above, the Simon Court found G.D. Searle & Co.’s “risk management documents [to be] in the nature of business planning documents . . . .” Simon,
The Simon Court’s analysis is on all fours with the situation here. The record indicates that defendant had enacted an extensive risk management policy as part of its Administrative Manual and risk management plan. The stated purposes for the hospital policy, implementing a mandatory reporting procedure for incidents and accidents, go well beyond preparation for possible litigation. Policy 400.55 exists “[t]o identify areas of risk,” and to facilitate the “reporting of] any occurrence that is not consistent with the desired safe operation of the hospital or the care of the patients.” In essence, and in defendant’s own words, “[t]hese reports are administrative tools.” According to hospital policy, accident reports are not discretionary, but are a required “responsibility” of any “employee discovering, directly involved, or closest to [an] incident when it occurs.” They must be “turn[ed] in . . . within 24 hours to Risk Management.” Once a report is taken, “Administration and Risk Management will make the final decision to report potential claims of liability,” and “[a] monthly statistical summary of hospital incident reports is reviewed by the hospital’s insurance broker . . . .” These employee reports are then compiled into “[m]onthly summaries] ... for administrative and medical staff review and [are] presented to the Risk Management Committee and the Medical Staff Quality Assurance Committee and the Board of Directors.”
Here defendant’s accident reporting policy exists to serve a number of nonlitigation, business purposes. These business purposes impose a continuing duty on hospital employees to report any extraordinary occurrences within the hospital to risk management. These duties exist whether or not the hospital chooses to consult its attorney in anticipation of litigation. Here, absent any other salient facts, it cannot be fairly said that the employee prepared the accident report because of the prospect of litigation. In short, the accident report would have been compiled, pursuant to the hospital’s policy, regardless
Defendant contends that, under the circumstances of Cook’s fall, and “in the context of today’s litigious society . . . only a person of extraordinary naivete would not expect Dr. Cook, an educated, sophisticated professional, to make a claim against the hospital.” Were this the rule intended by the Willis Court, any accident report compiled by a business would be considered undiscoverable work product. We conclude that defendant’s position is contrary to the discovery rules established by the Willis and Simon Courts, and therefore, the trial court erred in denying plaintiffs’ motions to compel production of the accident report.
Reversed.
Concurrence Opinion
concurring in part and dissenting in part.
While I wholeheartedly agree with the majority that the accident report should have been produced, I dissent from that portion of the opinion which deals with defendant Hospital’s tort liability for Cook’s slip and fall.
It is well-settled in North Carolina that a business is not an insurer of its premises. Rone v. Byrd Food Stores,
In the instant case, there is simply no evidence, other than speculation based on inference, that the Hospital should have been aware of the alleged wet spot prior to Cook’s fall. Plaintiff Cook’s testimony reveals that his left foot slipped as he took his first step into the SICU — approximately thirty inches into the SICU doorway. By all accounts, there was a “Wet Spot” sign in the doorway of Room 6— over six feet from where plaintiff fell — just prior to plaintiff Cook’s fall. Not a single witness testified to the contrary. After Cook’s fall, the “Wet Spot” sign had moved outward toward the hall, in the vicinity of Room 7.
Even given the benefit of the doubt of all the evidence to plaintiffs, I fail to see how the pre-fall location of the sign — in a room doorway, two doors down and five-to-six-feet from where the fall initiated — could constitute notice of an entryway wet spot to defendant Hospital. Where the sign was located after the fall is irrelevant to such a question.
The majority’s after-the-fact determinations, addressed in the language of negligence, are really no more than a sub silentio application of the doctrine of res ipsa loquitur. A fact such as the housekeeper mopping Room 6 (whom we note, specifically denied spot-mopping in the hall on this occasion), two doors down from the SICU entryway, tells us nothing about the condition of the SICU entryway. One must ask the question, if the housekeeper had placed the sign in Room 10, rather than Room 6, would the majority’s inferences still obtain? What the majority is really saying is that, because a housekeeper mopped a room two doors down from where the doctor slipped and fell and there was a wet spot sign in that doorway, the Hospital must have caused a wet spot (or should have discovered it) in the SICU entryway over two yards away in another location. This is the exact inference of negligence from injury disclaimed by the Skipper Court. Id. at 709,
Moreover, even if we were to assume the existence of a wet spot at the entryway, plaintiffs’ case is still deficient. As the majority correctly states, an invitee cannot recover “unless he can show that the unsafe or
Once again, though, the majority hangs its hat on the facts that Room 6 was mopped and that a sign was placed in that room’s doorway. From this, the majority bootstraps the issues of: Actual or constructive notice of the wet spot, duration of the wet spot, and proximate cause. In essence, if a business mops in one discrete location, it becomes the insurer of all falls in all other tangential locations. I cannot concur in such an analysis. See Skipper,
Simply put, I do not find the post-fall location of the sign relevant to the issues of notice, duration of the wet spot, or whether defendant Hospital should have discovered the alleged wet spot upon reasonable inspection. Without competent evidence on these issues, a jury could not have found defendant Hospital negligent. Having failed to present competent evidence addressing necessary elements of their tort claim, plaintiffs’ case is ipso facto fatally deficient. Therefore, in my opinion, the trial court correctly granted defendant Hospital’s Rule 50(b)(1) motion. For these reasons,
I dissent.