Cook v. Wake County Hospital System, Inc.

APPEALS THE COURT OF v. WAKE COUNTY HOSPITAL SYSTEM (1997)] [125 COOK, HOSPITAL v. WAKE COUNTY Plaintiffs CHARLES A. COOK SHIRLEY and CENTER, SYSTEM, INC., d/b/a WAKE MEDICAL Defendant

No. COA96-76 1997) (Filed 18 March judgment treated (NCI4th)— for motion § 1. Trial for directed verdict renewal of motion 1A-1, pursuant to N.C.G.S. Rule judgment § for A motion the same as a renewal of treated the court 50(b)(1) should be a directed verdict. an earlier motion for judg- negligence Negligence (NCI4th)— § 2. — motion hospital—slip and fall —doctor— prima facie case — ment — invitee by plaintiff, a doctor who had brought action negligence In a hospital’s defendant privileges and thus was an invitee on staff hospital’s in premises, the trial court erred 1A-1, pursuant 50(b)(1) Rule judgment § to N.C.G.S. motion prima case of plaintiff’s evidence established where facie con- trier of fact could negligence and showed that reasonable floor; knew slipped on a wet that defendant clude that the doctor wet; that the floor was that defendant or should have known proxi- plaintiff dangers; and that the floor to warn injury. mately plaintiff caused to sustain (NCI4th)— Discovery Depositions motion com- 3. pursuant hospi- report pel accident — written — litigation anticipation policy tal in — not hospital’s report prepared by defendant An accident slip prepared “in and fall was not employee after doctor’s plaintiff’s in anticipation litigation” and was thus discoverable hospital’s reporting accident personal injury action where the purposes, and nonlitigation, business policy served a number of by defendant, pur- report compiled would have been the accident plaintiff intimated a policy, regardless of whether suant to its litigation or whether was against file a suit desire to 1A-1, 26(b)(3). Rule anticipated by N.C.C.S.§ ever part. dissenting concurring in Judge Smith April 1995, pur- entered 26 Appeal by plaintiffs judgment from Henry Barnette, Jr., V. Judge 1A-1, 50(b)(1), Rule suant to G.S.

COOK WAKE COUNTY HOSPITAL SYSTEM County Superior Appeals Wake Court. Heard in the Court of October 1996.

Plaintiff Dr. (Cook) physician Charles Cook is a specializing in internal medicine with privileges at Wake Medical Center. Plaintiff Shirley Cook is Dr. morning Cook’s wife. On the of 29 November making hospital Cook was rounds when his route took him to Surgical Intensive (SICU) hospital. Care Unit section of the As Cook doorway, entered the SICU allegedly Cook fell slipping on a spot on the floor. fell, spilled

As he cup Cook holding. coffee he had been impact Cook’s with the floor rendered him unconscious and caused injuries head, knee, to his parts body. left and other of his Prior to fall, housekeeper Cook’s employed by hospital damp had mopped SICU vicinity entryway. room which is in the of the SICU fall, After his Cook sign observed a wet floor near his feet. The exact position sign, of the both before and after Cook’s is a matter of dispute. However, employee at least one did see the wet floor sliding hallway down the fell.

Upon fallen, realization that Cook hospital per- a number of sonnel, including Dale (O’Neal), O’Neal the nurse manager of the SICU, hospital employees rushed to render aid. None of these saw or spot, spilled felt a wet other than coffee, entryway in the SICU area. Shortly accident, after the and in accordance with then existing hos- pital policy, report O’Neal a routine of the accident on a hospital standard form. form,

This “Hospital Report” denominated Incident or Accident (accident hospital report), personnel “complete directs [and report] within 24 . . . hours incident happening which is not [or] with operation hospital consistent the routine of the or the routine particular patient.” care of a report completed by After the accident employee, they an must forward it to Management,” “Risk Hospital In regard, “committee.” this administrative record Number responsibility employee 400.55 notes that it is the discover- “[t]he directly ing, involved, or closest to the incident when it occurs [to] complete report.” the [accident]

In existing policy, completed accordance with O’Neal report, accident and forwarded (Sedwick), it to Jeannie Sedwick risk manager reported Sedwick the incident to Claire (Moritz), legal response Moritz counsel for Wake Medical Center. OF APPEALS THE COURT SYSTEM COUNTY HOSPITAL

COOK v. WAKE requested SICU, Moritz fall in the of Cook’s notification to Sedwick’s report sent to her. accident be against defendant Wake plaintiffs filed suit On 24 November During and loss of consortium. alleging negligence Center Medical report filled accident production of the discovery, refused pretrial motion to plaintiffs’ trial court denied O’Neal. The out report. trial, plaintiffs renewed At compel production of the accident court to report asked the trial production of the request for their court denied report. The trial review of the an in camera conduct requests. both jury not reach a unanimous merits, the could a trial on the

After granted The trial court a mistrial. the trial court declared verdict and 50(b)(1) of the pursuant to Rule judgment for defendant’s motion appeal trial Plaintiffs Procedure. Carolina Rules of Civil North decision compel and the trial court’s motions to court’s denial of their 50(b)(1). pursuant to Rule for defendant grant judgment Bell, P.A., by Charles L. Becton, Slifkin, Zaytoun & Fuller, Mangano, Maria J. Becton, L. Flowers and Michele for plaintiff-appellants. L.L.P, by Ronald C. Dilthey, Clay, Bryson, &

Patterson, Reeves, Jr., Easter and G. Lawrence Dilthey, Susan M. defendant-appellee.

EAGLES,Judge. ant’s motion for ^[1] Wefirst consider judgment whether the trial court pursuant to Rule erred in 50(b)(1) the North defend of Civil Procedure. Carolina Rules essentially is pursuant 50(b)(1) to Rule judgment

A motion Bryant v. verdict. motion for directed of an earlier renewal 333, 362, 368, 337 Co., N.C. 329 S.E.2d Ins. 313 Mut. Fire Nationwide judg- moving party asks that By motion, the making such a (1985). directed previous motion for with the be entered in accordance ment thereof, contrary verdict, lack ren- any or verdict, notwithstanding 640, 648, S.E.2d Cauthen, N.C. 197 jury. Summey v. 283 dered sufficiency of the evi- determining the The test for 549, (1973). 554 to that judgment is identical a motion for ruling when on dence 646, Id. at 197 verdict. a motion for directed applied ruling when on at 553. S.E.2d v. WAKE COUNTY HOSPITAL SYSTEM motion, must consid ruling 50(b)(1) on a Rule the trial court party, nonmoving light

er the evidence in the most favorable to to be drawn there giving it the benefit of all reasonable inferences from, resolving all conflicts in the in its favor. Smith v. evidence heavy Price, 523, 527, (1986). 340 S.E.2d The burden particularly in cases such as the significant carried the movant is Only principal negligence. is in us, one before in which the issue exceptional proper against to enter a directed verdict cases it Mills, negligence Inc., in a v. 296 N.C. case. Moore Fieldcrest (1979). arising negligence Issues cases 251 S.E.2d ordinarily susceptible summary adjudication not because application prudent person test, applicable stand other care, jury. King Allred, 309 N.C. generally ard of for the App. 427, appeal remand, 76 N.C. (1983), 305 S.E.2d after denied, 315 N.C. (1985), 333 S.E.2d 758 disc. review (1986). plain- Thus, judgment, to survive defendant’s motion for order prima present setting forth a obligated tiffs were evidence at trial i.e., plaintiff Cook a negligence, case of that defendant owed facie duty, care, breached that that the that defendant’s conduct injury, proximate plaintiffs’ breach was the actual and cause of injury. Realty, Inc., Lamm v. Bissette damages resulted from premises was an invitee on defendant’s because Plaintiff Cook privileges hospital: A status bestow his status as a doctor with at Morgan to him and the See v. ing mutual economic benefit 221, 226, 877, Co., 266 N.C. 145 S.E.2d Great Atlantic and Tea Pacific duty invitee, (1966). Because Cook was an keep reasonably for invitees the SICU entrances in a safe condition Inc., premises. Realty, entering leaving or Lamm v. Bissette 416, Additionally, at at 115. 395 S.E.2d “ha[d] about which knew or dangers warn invitees of hidden [defendant] Lamm, at S.E.2d at 115. should have known.” 327 N.C. ^[2] Under our rules, an invitee cannot recover “unless he can show there for such dangerous that the unsafe or condition had remained knew, the exercise of reasonable length of time that the inviter Long Food known, have of its existence.” v. National care should have Stores, (1964). As we Inc., 262 N.C. 136 S.E.2d an stated, of a condition which causes “the mere existence often injury does injury negligence per se, and the occurrence of the is not WAKE COUNTY HOSPITAL SYSTEM App. presumption Spell negligence.” not raise a v. Mechanical Contractors, Inc., 261 N.C. Cochran, App. 222, (1996),

In Smith v. 476 S.E.2d 364 this Court reversed the decision of the trial court defendants summary slip judgment in a and fall case. In Smith there was con- flicting testimony mopped plaintiff about who had the floor where fell, wet, whether the floor was still and whether there were warning placed signs on the floor. The Smith Court resolved the con- testimony flicting plaintiff grounds favor of the on the that there “was ‘at least a reasonable negligent inference that defendant was creating slippery adequately a wet failing condition and in warn ” presence slippery of the floor.’ 124 N.C. 476 S.E.2d at Byrd Stores, 365-66 Rone v. Food 109N.C. (1993)). testimony

Here there is conflicting also about whether the'floor wet, was and whether defendant knew or should have known of the spot. Although Cook was knocked unconscious Cook immediately pushed testified that open almost after he a set of solid leading hallway, stepped double doors down the SICU he and felt his slide; streaking foot he looked down and saw “a wet as if one can see when a floor is wet and something slides across it.” He further testi- lying fied that while on the sign feet; floor he saw a wet floor at his sign the wet floor hallway, he saw was in the middle of the a few feet inside the solid double doors.

One defense yell, witness testified that when she heard Cook she doorway ran body to the to the hall where saw she Cook’s in mid-air hallway. and the wet floor sliding down the This circumstantial testimony evidence corroborates concerning Cook’s the location of sign. Furthermore, presence because of the and location of the sign, permits this circumstantial evidence the inference that defend- knowledge ant had addition, although the floor was wet. In an employee mopped of defendant denied that she had the floor in the fell, hall where Cook mopping prox- she admitted to the floor in close imity shortly to where he fell before the fall. While that same employee job mop testified that her is to the rooms of the hallways, mop instead of the hallways she admitted that she would at times necessary. when

Viewing light plaintiffs, the evidence in the most favorable to a slipped reasonable trier of fact could conclude that Cook on a wet floor, that defendant knew or should have known that the floor was

COOK v. WAKE COUNTY HOSPITAL SYSTEM wet, proximately plaintiffs and that the wet floor caused to sustain injury. Any inconsistencies in the evidence should be decided jury. in Accordingly, we conclude that the trial court erred a defendant directed verdict.

[3] We next consider whether the trial court erred in denying plain compel production report. tiff’s motion to of the accident discovery 1A-1, Pursuant to the of rules outlined G.S. Rule 26(b)(3), prepared anticipation litigation” “in documents of qualified immunity discovery by party seeking afforded a from Power, those documents. Willis v. Duke general, anticipation In documents created of liti- product,” gation preparation” are considered “work or “trial materi- als, protected “[discovery hardly and are because was intended to profession perform enable a learned its functions either without adversary.” wits or on wits borrowed from the Id. Hickman Taylor, (1947)). 329 U.S. 91 L.Ed. phrase anticipation concept. “in litigation” The of is an elastic phrase specific The itself indicates that its boundaries lack definition. Willis, Supreme phrase including our Court defined this “not only prepared party attorney, materials after the has secured an but -prepared person those under in which a reasonable circumstances might anticipate possibility litigation.” Willis, a 291 N.C. at of Miller, (emphasis added) (citing Wright Civil, (1970)). Federal Practice and Procedure: 2024 at 197 Unfortunately, guidance the Willis decision offers little as to what “possibility litigation.” of conditions constitute of Our review jurisdictions authorities from other indicates that North Carolina’s anticipation unique litigation” phraseology. definition of “in of in its present Plaintiffs assert that the facts of this case an issue of first impression, reason, rely in agree. and we are inclined to For this we anticipation guidance defining on federal decisions for “in applies Harris, litigation” as it here. See Brewer v. to federal and New York state (1971) (directing

182S.E.2d us “enlightenment guidance” courts for on North Carolina’s rules procedure). civil instruct that “materials in me

The Willis Court does ordinary protected,” thus, and are not con- course business are not “prepared sidered materials under circumstances in which reason- Willis, person might anticipate possibility litigation.” able IN THE COURT OF APPEALS v. WAKE COUNTY HOSPITAL SYSTEM (1997)] [125 by added). The treatise cited (emphasis N.C. at 229 S.E.2d at Marcus, Practice and Court, Wright, the Willis Miller and Federal Civil, (1994), following guidance: at 343 offers the Procedure: § preparation prior parties anticipate litigation, begin Prudent formally to the time suit is commenced. Thus the test should be whether, light nature of the document and the factual sit- fairly particular case, in the the document can be said to uation prepared prospect litiga- have been or obtained because of the though litigation this tion. But the converse of even product immunity already prospect, there is no work for regular documents in the course business rather litigation. purposes than for (emphasis added). Co., (8th 1987),

In Simon v. G.D. Searle & 816 F.2d Cir. denied, Eighth (1987), cert. 484 U.S. 98 L.Ed.2d 225 Circuit of Appeals product argument United States Court of faced a work presented by There, almost identical to the one the defendant here. Management” defendant G.D. Searle & Co. claimed that its “Risk doc by protected product were work Id. at 400. uments doctrine. (like Court) Wright The Simon Court the Willis looked to and Miller’s authority, for “Materials in the ordi treatise nary and observed: assembled nonlitigation purposes . course of business . . or other immunity qualified provided not under the this subdivision.” Simon, (emphasis added) (quoting Wright 816 F.2d at 401 8 C. & Miller, (1970) A. Federal Practice and Procedure at 198-99 advisory 26(b)(3) notes)). Fed. R. Civ.P. committee

Applying analysis above, G.D. the Simon Court found Searle management & Co.’s“risk documents in the nature of business [to be] Simon, Among . . . .” at planning documents 816 F.2d 401. planning objectives & Co.’s risk business achieved G.D. Searle system profit management “budget, were and insurance considera- system management tions”—much like the risk used the defendant Simon, man- here. 816 F.2d at 401. Because G.D. Searle & Co.’s risk purpose agement nonlitigation (in documents served a addition to purposes admittedly helpful litigation context), some in a the Simon discovery 402; at Court allowed the documents issue. Id. see Disney Productions, Inc., (D. Brennan v. Walt 1987WL 15919at *1 Disney’s 1987) (finding “reports of accident to have a Del. use broad[] Disney’s [making discoverable”). use in business . . . them]

COOK WAKE COUNTY HOSPITAL SYSTEM analysis The Simon Court’s is on all fours with the situation here. The record indicates that defendant had enacted an extensive risk management policy of its Administrative Manual and risk management plan. purposes The stated policy, imple- for the menting mandatory reporting procedure for incidents and acci- dents, beyond go preparation well possible Policy litigation. identify 400.55 exists risk,” areas of and to facilitate the “[t]o any “reporting occurrence that is not consistent with the desired of] operation hospital safe patients.” or the care of essence, In and in words, defendant’s own reports are administrative “[t]hese tools.” According hospital policy, to reports accident are not discre- tionary, required but “responsibility” any “employee are a of discov- directly ering, involved, or closest to incident when it occurs.” [an] They must be in . . . within 24 Management.” hours to Risk “turn[ed] report Once a taken, “Administration and Management Risk will make the final report potential decision to liability,” claims of and “[a] monthly summary hospital statistical of reports incident is reviewed hospital’s insurance . . .” employee reports broker . These compiled “[m]onthly then into ... for administrative and summaries] medical staff presented review and Management to the Risk [are] Quality Committee and the Medical Staff Assurance Committee and the Board of Directors.”

Here reporting policy defendant’s accident exists to serve a num- ber of nonlitigation, purposes. purposes business These business impose a continuing hospital employees report any on extra- ordinary hospital occurrences within the management. to risk These duties exist whether or not the chooses to consult its attor- ney anticipation litigation. Here, absent facts, other salient fairly it employee cannot be said that the the accident report prospect because of the litigation. short, the accident report compiled, pursuant hospital’s would have been policy, to the regardless of whether Cook intimated a desire to sue the litigation anticipated by whether was ever that,

Defendant contends under the circumstances of Cook’s today’s society only and “in the litigious person context of . . . extraordinary expect naivete would Cook, educated, not Dr. an sophisticated professional, hospital.” against make claim Court, any Were this the rule intended report the Willis accident compiled by a business would be considered undiscoverable work product. position contrary We conclude that defendant’s to the dis- covery Courts, rules established the Willis and Simon and there- OF APPEALS THE COURT SYSTEM v. WAKE COUNTY HOSPITAL compel plaintiffs’ denying motions erred in

fore, the trial court report. production of the accident

Reversed. MARTIN, C., concurs. Judge John part. part and dissents concurs in Judge SMITH part. dissenting in concurring in Judge Smith majority that the accident wholeheartedly agree with the IWhile portion from that produced, I dissent report should have been liability Hospital’s for Cook’s tort opinion which deals with defendant slip and fall. not an that a business is in North Carolina

It is well-settled App. 666, Stores, Byrd Food premises. Rone v. insurer of its Greenville, Inc., Winn-Dixie (1993); Hull v. res 607, (1970). The doctrine of App. 234, 236, 175 S.E.2d 9 N.C. cases; is, no infer- apply slip to and fall ipsa loquitur does not injury. of an accident or from the mere fact negligence ence of arises 625, 107 S.E.2d Skipper Cheatham, 249 N.C. v. “ ‘ordi- Hospital’s plaintiff to Cook was that Thus, defendant reasonably Hospital] in safe condition... nary keep care to [the they as perils or unsafe conditions insofar give warning of hidden ” supervision.’ inspection and reasonable be ascertained c[ould] Raper v. 669, at 285-86 Rone, S.E.2d McCrory-McLellan Corp., 259 N.C. (1963)). evidence, spec- case, simply other than there is no

In the instant Hospital have been aware inference, that the should ulation based on testimony spot prior to Cook’sfall. Plaintiff Cook’s alleged wet step slipped he took his first into his left foot reveals that By doorway. all thirty the SICU approximately inches into SICU— doorway of Room 6— Spot” sign in the accounts, there was “Wet just prior plaintiff Cook’s from where over six feet fell— contrary. After Cook’s testified to the single fall. Not a witness hall, in the vicin- Spot” sign had moved outward toward the “Wet ity 7. of Room plain- of the doubt of all the evidence given

Even the benefit a room door- pre-fall sign location of the tiffs, I fail to see how the —in COOK WAKE COUNTY HOSPITAL SYSTEM way, two doors down and five-to-six-feet from where the fall initi- ated —could entryway spot constitute notice of an wet to defendant Hospital. Where sign was located after the fall is irrelevant to question. such a majority’s

The determinations, after-the-fact addressed in the language negligence, really ap- no more than a sub silentio plication of the ipsa loquitur. doctrine of res A fact such as the housekeeper mopping (whom note, specifically Room 6 we denied spot-mopping in the hall on occasion), this two doors down from the entryway, SICU tells us nothing about the condition of the SICU entryway. One question, must ask the housekeeper placed if the sign in Room rather than majority’s Room would the infer- ences still obtain? majority really What the saying that, is because housekeeper mopped a room two doors down from where the doc- slipped tor and fell spot and there was a sign in that doorway, the Hospital must spot have caused a wet (or should have it) discovered entryway yards the SICU away over two in another location. This is the exact negligence injury inference of from disclaimed Skipper Court. Id. at 107 S.E.2d at 628.

Moreover, even if we were to assume the spot existence of a wet entryway, plaintiffs’ at the majority case is still deficient. As the cor- rectly states, an invitee cannot recover “unless he can show that the dangerous unsafe or condition had length remained there for such knew, time that the inviter the exercise of reasonable care known, should have Long of its existence.” Stores, v. National Food Inc., 278 (1964) (emphasis added). majority virtually The issue, silent on this duration save for this presence statement: and location of the . .. cir- “[B]ecause permits cumstantial evidence the inference that defendant had knowledge the floor was wet.” I submit that no evidence exists as to long alleged entryway how spot prior existed to Cook’sfall. again, though, majority

Once hangs its hat on the facts mopped placed Room 6 was and that a sign was in that room’s doorway. this, majority bootstraps From the issues of: Actual or spot, constructive notice of the wet spot, duration of the wet and proximate essence, mops cause. In if a business in one discrete loca- tion, it becomes the of all tangential insurer falls all other loca- analysis. Skipper, tions. I cannot concur in such an See 249 N.C. at safety (A S.E.2d at 628 business is “not of the [an] insurer[] customers.”). of [its] APPEALS THE COURT OF COUNTY v. STANLY

CARTER relevant post-fall location Simplyput, I do not find the spot, whether defend- the wet notice, duration of issues of to the spot upon rea- alleged wet Hospital should have discovered ant issues, a these competent evidence on inspection. Without sonable Having failed Hospital negligent. jury have found defendant could not necessary of addressing elements competent evidence present to fatally deficient. ipso claim, plaintiffs’ case is their tort facto correctly granted my opinion, the trial court Therefore, in reasons, For these Hospital’s 50(b)(1) motion. Rule I dissent. McCROSKY, ATKINS, HOUSTON CARTER, LARRY ANDREW WILLIAM

RONALD LEE SMITH, SMITH, DRYE, MAULDIN, ELWOOD WALTER S. ROBERT SHERRILL F. STOKER, SMITH, SMITH, LILLY ROSE FREDERICK LANE BILLY PATRICK HUNEYCUTT, GARNER, AND KENNETH Plaintiffs SMITH BETTY JANE OF STANLY the BOARD OF COUNTY COMMISSIONERS COUNTY and STANLY consisting LOWDER, HALL, MORGAN, JOHN DAVID MARTHA SUE COUNTY SMITH, EFIRD, SHERRILL GERALD Defendants No. COA96-705 1997) (Filed 18 March property purchase (NCI4th)— 54§ 1. Counties — con- statutory prison authorization veyance to State —no by county acquire property for use permitting a The statute 153A-158, authorizing statute county, and the § N.C.G.S. gov- county joint property its with another engage in use of limited Dillon’s unit, 160A-274(b), as § ernmental N.C.G.S. county property and purchase real Rule, do not authorize a to build convey State as an economic inducement it to the prison on the site. Municipal Corporations, Counties, 2d,

Am Jur seq. et §§ Subdivisions Other Political property (NCI4th)— purchase 2. Counties — con- legislative veyance prison to State — authorization act purpose of Stanly County’s purchase property real for the prison on an inducement to build a conveying it to the State as Assembly’s of an the General ratification the site was validated

Case Details

Case Name: Cook v. Wake County Hospital System, Inc.

Court Name: Court of Appeals of North Carolina

Date Published: Mar 18, 1997

Citation: 482 S.E.2d 546

Docket Number: COA96-76

Court Abbreviation: N.C. Ct. App.