82 N.C. App. 145 | N.C. Ct. App. | 1986
This appeal is from an order of summary judgment which dismissed plaintiffs suit to recover damages for injuries allegedly sustained when she stepped on a beer bottle while dancing in defendant’s restaurant and dance hall. Defendant denied plaintiffs principal allegations and pleaded plaintiffs contributory negligence. The following principles of law are dispositive of the appeal: The mere filing of a summary judgment motion requires
The evidence on which plaintiffs case was dismissed consists only of the discovery depositions of the plaintiff and defendant Hayner and plaintiff’s affidavit. In pertinent part plaintiff’s deposition and affidavit are to the following effect; On the evening involved while dancing in defendant’s place of business she stepped upon a beer bottle that broke and cut her foot. The incident occurred after she had been dancing on the same three foot space for about ten or fifteen minutes and when she was in the process of turning around preparatory to leaving the dance floor. She did not see the bottle until the instant that her foot hit it and before then had not seen any other bottle or debris on the dance floor. She does not know how the bottle came to be on the floor or who placed it there. Stepping on the bottle is what attracted her attention to it and though the place was dimly lit she saw the bottle, which was standing on its base, without difficulty when she looked to see what her foot had contacted. A fragment of broken glass penetrated her foot near the strap on her shoe. She had her shoes on then and did not take them off until after she was injured. Some people dancing had beer bottles or glasses in their hands and there were bottles and glasses on a nearby bookcase-like stand or cabinet. In pertinent part defendant Hayner’s deposition is to the following effect; He knew plaintiff cut her foot that night but it occurred after she left the premises barefooted. Defendant had no rule against patrons dancing with beer bottles or glasses in their hands and many usually did so. It was not unusual for a glass or beer bottle to drop or fall to the dance floor and break and when that happened defendant’s employees promptly cleaned the floor.
The case, pleadings, and rudimentary principles of negligence law being as they are plaintiff’s action is dismissible only if the
In reversing the order of dismissal we reiterate, however, that if plaintiff is in fact unable to produce evidence of defendant’s negligence in accord with the rule laid down in Revis
Reversed.