Preview:

BETTY S. BENTON (now ABSHER), Administratrix of the Estate of JAMES LEE POPWELL, Deceased, Plaintiff v. HILLCREST FOODS, INC.; WAFFLE HOUSE, INC.; DANIEL HERNANDEZ, JR.; PATSY LEFLER JONES; and WAFFLE HOUSE HOLDING COMPANY, INC., Defendants ______________________________________ ARTHUR FRANKLIN BROWN, Plaintiff v. HILLCREST FOODS, INC.; WAFFLE HOUSE, INC.; DANIEL HERNANDEZ, JR.; PATSY LEFLER JONES; and WAFFLE HOUSE HOLDING COMPANY, INC., Defendants No. COA98-936 (Filed 21 December 1999) 1. Negligence--contributory--initiation of confrontation

In an action against a restaurant owner and franchisor for wrongful death and personal injuries based on a fight occurring at the restaurant, the trial court did not err in denying plaintiffs' motion for directed verdict and judgment notwithstanding the verdict on the issue of contributory negligence because plaintiffs failed to use ordinary care for their own safety, as evidenced by the facts that: (1) plaintiffs provoked the Mexican men, who shot them, by referring to them as "wetbacks"; (2) plaintiffs were aware that defendant Jones and the Mexican men were about to reenter the restaurant with loaded guns, yet plaintiffs refused to leave through the back door when restaurant employees told them they could do so to avoid a confrontation; and (3) plaintiffs initiated confrontation with the Mexican men, even though plaintiffs had been informed that the police would arrive shortly to resolve the situation. 2. Negligence--contributory--instructions--intentional act

In an action filed for wrongful death and personal injuries based on a fight occurring at a Waffle House restaurant, the trial court did not err by submitting the issue of contributory negligence to the jury or by denying plaintiffs' motion for a new trial on the issue of contributory negligence even though plaintiffs' acts of initiating the physical confrontation were intentional and deliberate rather than negligent. 3. Appeal and Error--preservation of issues--failure to cite authority--abandonment of issue

Although plaintiffs contend the trial court erred in failing to instruct the jury on the doctrine of concurring acts of negligence in regard to its contributory negligence instruction, plaintiffs do not cite any legal authority nor do they make an argument for extension of the law in support of their argument as required by N.C. R. App. P. 28(b)(5), and therefore, this issue is abandoned. 4. Negligence--contributory--self-defense--instruction not required

In an action filed for wrongful death and personal injuries based on a fight occurring at a Waffle House restaurant, the trial court did not err by failing to instruct the jury on the issue of self-defense in regard to its contributory negligence instruction because there is no support in North Carolina law for the proposition that a plaintiff is entitled to an instruction on self-defense in order to rebut the affirmative defense of contributory negligence. 5. Damages and Remedies--punitives--willful or wanton conduct not shown

In an action filed for wrongful death and personal injuries based on a fight occurring at a Waffle House restaurant, the trial court did not err by granting defendant restaurant owner's motion for directed verdict as to the punitive damages claim based on willful or wanton negligence because: (1) willful or wanton conduct and gross negligence are the same standard of negligence under N.C.G.S.

Download 98-936-7.pdf

South Carolina Law