Judy C. Kearns (“plaintiff’) appeals: (1) the trial court’s judgment dismissing her legal malpractice claim against William F. Horsley, Donaldson & Black, RA. f/k/a Donaldson & Horsley, P.A. (collectively herein, “defendants”), based on the jury’s verdict, and (2) the trial court’s order denying plaintiff’s motions for directed verdict, judgment notwithstanding the verdict, and a new trial. We find no error.
Although plaintiff’s claim against defendants emerges out of a prior claim against an entirely different entity (herein, “General Cinemas”), we will expound on the underlying claim’s facts only as necessary in addressing the issues raised in the present action. *202 Therefore, at the outset, the facts pertinent to this present appeal are as follows and are undisputed. On 1 June 1992, plaintiff attended the movies, with three colleagues, at a General Cinema in New Jersey. Just after the house lights dimmed, and while the previews began to show, plaintiff got up from her seat to use the restroom. While walking up the aisle, plaintiff tripped and fell, injuring her knee. On 5 May 1993, plaintiff hired defendants to represent her in her personal injury claim against General Cinemas on the basis that she believed she tripped on torn carpeting and General Cinemas was therefore negligent. Because “no action was filed on [plaintiffs] behalf within two years following the accident,” plaintiff filed this action against the present defendants for legal malpractice, arguing that defendants had allowed the New Jersey statute of limitations to run on her claim against General Cinemas. Conversely, defendants deny “that her claim was time-barred.”
The issues presented were originally tried before a jury “during the October 19, 1998 Civil Session of Superior Court, Guilford County,” which trial ended in a mistrial. Thus, we deal solely with the second trial which ended with a jury verdict in defendants’ favor rendered 30 April 1999. At that trial, defendants moved for bifurcation of the issues — specifically requesting that plaintiff be required to first prove that her “original claim was valid and would have resulted in a judgment in her favor against [General Cinemas,]” before she would be allowed to present evidence of the defendants’ negligence in prosecuting that claim. The trial court granted defendants’ motion. The trial court ruled, and so instructed the jury, that New Jersey law applied to plaintiff’s personal injury claim of negligence against General Cinemas. However, the trial court denied plaintiff’s requests to instruct the jury: (1) “that the plaintiff was not required to prove that a landowner had actual or constructive notice of the tear [in the carpet] if a mode of operation at the theatre created the tear,” and (2) that defendants had the burden of proving that plaintiff was not injured by General Cinemas’ negligence.
At the close of defendants’ case-in-chief, plaintiff moved for a directed verdict, which motion was denied. Then after the jury returned its verdict finding no negligence on the part of General Cinemas, plaintiff moved for judgment notwithstanding the verdict or in the alternative, a new trial. These motions were also denied. Without a finding of negligence on the part of General Cinemas, plaintiff is unable to pursue her present claim against defendants. Thus, plaintiff appeals.
*203 Plaintiff brings forward five assignments of error for this Court’s review. First, plaintiff argues that the trial court misapplied the applicable New Jersey law and thus, erred in failing to grant either her directed verdict or judgment notwithstanding the verdict motions where she demonstrated that she tripped on General Cinemas’ tom carpet. It is plaintiff’s contention that New Jersey law does not require her to show that General Cinemas had actual or constructive knowledge of the defect or that it breached its duty to plaintiff in some way, because the incident at issue creates “an inference of negligence,” which defendants did not overcome. We disagree.
Where the plaintiff bringing suit for legal malpractice has lost another suit allegedly due to h[er] attorney’s negligence, to prove that but for the attorney’s negligence plaintiff would not have suffered the loss, plaintiff must prove that:
(1) The original claim was valid;
(2) It would have resulted in a judgment in h[er] favor; and
(3) The judgment would have been collectible.
Rorrer v. Cooke,
where a substantial risk of injury is implicit in the manner in which a business is conducted [that is, a business’ mode of operation], and on the total scene it is fairly probable that the operator is responsible either in creating the hazard or permitting it to arise or to continue, it would be unjust to saddle the plaintiff with the burden of isolating the precise failure.
Id.
at 430,
For plaintiffs theory of burden-shifting to apply, we believe plaintiff must have shown (1) that there was an implicit yet substantial risk
*204
of injury in one of General Cinemas’ modes of operations and, (2) that “it is fairly probable that [General Cinemas] is responsible either in creating the [torn carpet] or permitting [the carpet to be torn and not be repaired] . ...”
Id.
Moreover, to show that her injury resulted from one of General Cinemas’ modes of operation, plaintiff must have presented evidence that “the reasonable probability of having other than a minor accident from the use of [the torn carpet in General Cinemas’ theatre] g[a]ve rise to a duty to take measures against it.”
Znoski v. Shop-Rite Supermarkets, Inc.,
In that case, Ms. Wollerman was shopping in the defendant-grocery store and slipped on a green bean, injuring herself. The
Wollerman
court stated: “That someone was negligent seems clear enough. Vegetable debris carries an obvious risk of injury to a pedestrian. A prudent man would not place it in an aisle or permit it to remain there.”
Wollerman,
from open bins on a self-service basis, [and] the likelihood that some will fall or be dropped to the floor. If the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate-, and this whether the risk arises from the act of his employee or of someone else he invites to the premises. . . .
Id.
at 429,
We see from the
Wollerman
court’s statement that plaintiff is correct in assuming that: where it is shown that one of General Cinemas’
“mode[s] of operation”
caused the injuries sustained by plaintiff, the burden does shift to General Cinemas to prove that it was not negligent in that mode of operation.
Znoski,
122 N.J. Super, at 247, 300
*205
A.2d at 166. However, the present plaintiff failed to make the necessary showing. It is not enough for plaintiff to show only that she was injured by tripping over tom carpet in General Cinemas’ place of business. Plaintiff must also show that in some way the torn carpet was a direct result of one of General Cinemas’ modes of operation.
Wollerman,
Even in arguing that the darkened theatre was the negligent mode of operation at issue, plaintiff’s argument must fail — for the simple reasoning that, movie theatres could not do business at all if they could not be darkened.
Falk v. Stanley Fabian Corp.,
It has been held that a moving picture operator violates no duty to a patron if, while a picture is being shown, the condition of light is that ordinarily used in exhibiting moving pictures to enable the audience to get a reasonably clear view of the image thrown on the screen. . . .
Id.
at 143,
The Wollerman case, upon which plaintiff relies, deals solely with a plaintiff who was injured through some negligence caused in the defendant-grocer’s mode of operation. However since, in the present case, plaintiff failed to show any negligent mode of operation through which she was injured, Wollerman is inapplicable. Thus, having offered no evidence regarding any mode of operation of the theatre that caused or could have caused the tear in the carpet, the present plaintiff could not shift the burden of proof to General Cinemas.
Instead, plaintiff was properly required to present the standard
prima facie
case of negligence against General Cinemas — including a
*206
showing that General Cinemas owed her a duty with regard to the carpet.
Endre v. Arnold,
Three elements are essential for the existence of a cause of action in negligence: (1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by defendant’s breach. Whether a duty exists is solely a question of law to be decided by a court and not by submission to a jury. Wang v. Allstate Ins. Co.,125 N.J. 2 , 15,592 A.2d 527 (1991).
Id.
at 142,
We are unable to say that a substantial risk of injury is implicit, or inherent, in [General Cinemas’ providing carpet for patrons to walk on. Carpets] are not dangerous instrumentalities, and they are uniquely suitable for the purpose for which furnished. [General Cinemas’ theatre] was under a legal duty of exercising ordinary care to furnish a reasonably safe place and safe equipment for its patrons consistent with its operation and the scope of its invitation. It is not an insurer for the safety of its patrons. The issue is not merely whether it was foreseeable that patrons, or other third parties, would negligently or intentionally [trip over the carpet — where torn], but whether a duty exists to take measures to guard against such happenings. . . .
[Nevertheless, where] a duty exists is ultimately a question of fairness. . . .
Znoski,
Thus, specific to General Cinemas’ business as a movie theatre, the general rule is that:
The proprietor of a theater conducted for reward or profit, to which the general public are invited to attend performances, must use ordinary care to make the premises as reasonably safe as is consistent with the practical operation of the theater, and, if he fails in this duty, he may be held liable for personal injuries occasioned thereby; and this rule applies to the proprietor of a moving picture show.
Lancaster v. Highlands Finance Corp.,
Further, even if plaintiff could have produced evidence that General Cinemas owed her a duty of care with regard to the carpet, without evidence that General Cinemas knew of the tear in the carpet or of how long the tear had been there before she fell, plaintiff lacked the necessary evidence to support a jury’s finding that General Cinemas was on notice of the dangerous condition. Our research reveals that New Jersey courts have long held that to support a finding of culpable negligence, a plaintiff must show that the defendant either: (1) created the defect; (2) actually knew of the defect and permitted the continued hazardous use thereof; or (3) failed to discover the defect’s existence in the exercise of reasonable care in the form of inspection.
Nierman,
46 N.J. Super, at 571,
Since a motion for judgment notwithstanding the verdict is simply a renewal of a party’s earlier motion for directed verdict, the standard of review is the same for both motions.
Tomika Invs., Inc. v. Macedonia True Vine Pent. Holiness Ch. of God,
On appeal the standard of review for a JNOV [judgment notwithstanding the verdict] is the same as that for a directed verdict, that is whether the evidence was sufficient to go to the jury. The hurdle is high for the moving party as the motion should be denied if there is more than a scintilla of evidence to support the plaintiff’s prima facie case.
Id.
at 498-99,
Furthermore, our Supreme Court has held that:
In ruling on a motion for directed verdict pursuant to N.C.G.S. § 1A-1, Rule 50(a), the trial court must consider the evidence in the light most favorable to the plaintiff. The evidence supporting the plaintiff’s claims must be taken as true, and all contradictions, conflicts, and inconsistencies must be resolved in the plaintiff’s favor, giving the plaintiff the benefit of every reasonable inference. [Additionally, a] directed verdict is seldom appropriate in a negligence action. . . .
Newton v. New Hanover County Bd. of Education,
We need not address plaintiffs next assignment of error: that the trial court erred by refusing to instruct the jury according to the New Jersey Model Jury Charges — Civil § 5.24B, paragraphs 9 and 11 which is based on Wollerman. Having already held that Wollerman is inapplicable to plaintiff’s case, it necessarily follows that plaintiff was not entitled to the Wollerman jury instruction.
Thirdly, plaintiff argues that the trial court committed reversible error by granting defendants’ motion to bifurcate the trial. It is plaintiff’s contention that the issues of liability and damages “were inextricably related.” N.C. Gen. Stat. § 1A-1, Rule 42(b) (1999) provides:
The court may in furtherance of convenience or to avoid prejudice and shall for considerations of venue upon timely motion order a separate trial of any claim, crossclaim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party claims, or issues.
In her brief to this Court, plaintiff concedes that pursuant to N.C. Gen. Stat. § 1A-1, Rule 42(b), “[t]he trial court is vested with broad discretionary authority in determining whether to bifurcate a trial. .. and this Court will not disturb the ruling unless it is manifestly unsupported by reason.” However, plaintiff further states that this Court has held “that discretion should be exercised only in furtherance of convenience or to avoid prejudice.” Thus, it is plaintiff’s argument that the trial court abused its discretion because severance was unnecessary to avoid prejudice, and defendants’ motion was untimely. We disagree.
In granting defendants’ motion for severance, the trial court opined:
Legal negligence cases, such as this case, involve the trying of a “case within a case.” The plaintiff must first demonstrate that plaintiff must prove that: (1) the original claim was valid; (2) it would have resulted in a judgment in h[er] favor; and (3) the judg- *209 merit would have been collectible. Rorer [sic] v. Cook,313 N.C. 338 , 355,329 S.E.2d 355 , 365-6 (1985). In this case the determination of the first of these three things would require the application of the laws of the State of New Jersey, while the remaining issues in this case would involve the application of the laws of the State of North Carolina.
The Court, in its discretion finds and concludes that in furtherance of convenience and to avoid prejudice in this matter, that the issues of whether the plaintiffs original claim was valid and would have resulted in a judgment in her favor against the original party should be tried separately from the other issues in this matter. The Court further finds that these issues should be tried first before a different jury than will try the other issues.
Noting that the first of plaintiffs trials ended in mistrial, we believe the issues of the two cases against different defendants (even if only hypothetically), requiring the application of different state laws were, .no doubt, confusing. We, therefore, agree with the trial court that the trying of both cases at once would likely have prejudiced the present defendants in defending themselves. Thus, we do not agree with plaintiff that the severance was in error.
See In re Will of Hester,
However, plaintiff argues that the motion was untimely made. Neither Rule 42(b) nor this Court has defined what is a “timely” motion for severance, and plaintiff does not attempt to either. Yet, plaintiff argues that because discovery was completed and the motion was made two weeks before trial, the motion was untimely and she was prejudiced. Contrary to plaintiffs argument and reversing this Court, our Supreme Court held that the severance of issues at the time they were submitted to the jury was proper.
Hester,
Plaintiffs fourth assignment of error is that the trial court committed reversible error by not allowing her to “put on a voir dire as to some of the things [she] would have put in[to evidence] had this not been severed.” Plaintiff further argues that she was prejudiced by the trial court’s ruling “[t]o the extent that [she] has been unable to persuade this Court that severance was improper . ...” We are unpersuaded.
We first note that by her last statement above, plaintiff suggests that if the trial court had allowed her voir dire, she would — definitively — be able to persuade this Court that severance was improper. However, in making her request to the trial court, plaintiff never clearly outlined just what “things [she] would have put in[to]” the record. Thus, plaintiff essentially is arguing that this Court should grant her a new trial even when the request made sheds no light on what evidence she intended to introduce. We hold plaintiff was not entitled to such voir dire and is not now entitled to a new trial.
We note additionally, that all the case law on which plaintiff relies specifically supports a litigant’s being “afforded a meaningful opportunity to be heard
when [s]he proposes to present evidence to support a
motion.” (Emphasis added.) That, however, is not the case here. Plaintiff’s request for
voir dire
was made at the end of trial, “[a]t the close of the charge conference,” and not at the time when defendants requested severance and the trial court was considering it. Therefore, the cases cited by plaintiff are inapplicable because plaintiff’s request was not made “in support of [or in opposition of the] motion” to sever.
State v. Battle,
Plaintiff’s final assignment of error is that the trial court erred by not shifting the burden to defendants to prove that plaintiff would have failed to recover in her claim against General Cinemas, even if defendants had filed within the statute of limitations. It is plaintiff’s contention that although North Carolina’s seminal case of Rorrer v. Cooke, supra, requires a plaintiff in a legal malpractice case to demonstrate that the underlying claim was valid and would have resulted in a favorable and collectible judgment, since defendants *211 here missed filing within the applicable statute of limitations, “defendant-attorney[s] should be required to demonstrate that plaintiff would not have prevailed on the underlying claim.” We disagree.
To support her argument, plaintiff cites a Louisiana Supreme Court decision,
Jenkins v. St. Paul Fire & Marine Ins. Co.,
Instead, we find
Bamberger v. Bernholz,
The standard in a legal malpractice case is set out in Rorrer v. Cooke .... [Pursuant to which] the plaintiff would have to prove the original claim against [the original defendants] was valid. . . .
The plaintiff’s forecast of the evidence as to the defendant[-attorney]’s quality of representation is certainly unflattering but that is not the main point of this case; the law is clear as to the requirement for the success of a legal malpractice action and in this case the first hurdle [of meeting the Rorrer elements] cannot be cleared.
Id.
at 563-64,
No error.