Frye v. Lunsford

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GREGORY KEITH FRYE,
Plaintiff-Appellant,

v.
No. 95-1769
THOMAS L. LUNSFORD, d/b/a Cluck's
Recreation Center,
Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Russell A. Eliason, Magistrate Judge.
(CA-94-146)

Argued: February 1, 1996

Decided: October 1, 1996

Before HALL and ERVIN, Circuit Judges, and
BLAKE, United States District Judge for the District of Maryland,
sitting by designation.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded for a new trial by
unpublished opinion. Judge Ervin wrote the opinion, in which Judge
Hall and Judge Blake joined.

_________________________________________________________________

COUNSEL

ARGUED: Peter Duane Vieth, WOOTEN & HART, P.C., Roanoke,
Virginia, for Appellant. Frederick K. Sharpless, ELROD, LAWING
& SHARPLESS, P.A., Greensboro, North Carolina, for Appellee.
ON BRIEF: John L. Cooley, Jr., WOOTEN & HART, P.C., Roa-
noke, Virginia, for Appellant. Rachel B. Hall, ELROD, LAWING &
SHARPLESS, P.A., Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Gregory Keith Frye was badly injured during a fight in a nightclub
parking lot. He sued the club's owner, Thomas L. Lunsford, alleging
that Lunsford had failed to provide adequate security and had failed
to call for medical attention after Frye was injured. On appeal, Frye
contends that he was entitled to a directed verdict on his status as an
invitee. We agree, and reverse and remand for a new trial. We affirm,
however, the district court's instruction on reasonable care, its dis-
missal of Frye's insufficient security claim, and its refusal to instruct
the jury on Frye's lost earnings.

I.

On September 19, 1992, Frye and his friend Kenny Revis went to
Cluck's Recreation Center, a nightclub in the Danville, Virginia, area,
just over the North Carolina state line. The club, which features bil-
liard tables and live music on weekend nights, serves no alcoholic
beverages except beer.

At trial, the parties disputed where Frye parked his car that night.
Frye maintained that he parked in the club's side parking lot--some
twenty or thirty yards from the building's side door--went into the
club, and never left the property until after he was assaulted. Revis,
who rode with Frye, also testified that they parked in the side parking
lot. Frye testified that the parking lot had "kind of a grade."

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Lunsford contended that Frye had parked on a gravel road running
adjacent to the parking lot. Apparently, Cluck's customers often
parked along that road--especially on weekends--when the club's
parking lot was not large enough to accommodate the crowd. Luns-
ford admitted that he benefitted from the customers who parked on
the off-premises road, and that it was "fine with[him]." He also testi-
fied, however, that he occasionally announced over the loudspeaker
that his patrons could receive a $58.00 ticket for parking there. (Luns-
ford has since expanded his parking lot.) Lunsford pointed out that
before the litigation, Frye stated that he parked his car "up the hill,"
and described traversing the hill when he went back to his car that
evening. Lunsford produced photographs demonstrating that the only
hill in the area was off of his property. Thus, Lunsford contended, if
Frye went up a hill to get to his car, he must have left the premises.

Shortly before the 2:30 a.m. closing time, Lunsford left the Cluck's
building and walked around the parking lot. It was his practice to
stroll the grounds before closing to make sure everything was all
right. He noticed several cars and a few people standing in the lot and
talking, but did not ask any of them to leave. Lunsford went back into
the building at about 2:45. Lunsford testified that he customarily did
not ask people to leave the parking lot after the club had closed,
unless they were "causing a commotion."

While inside the club, Frye had met Corriene Pleasant, another cus-
tomer. Frye testified that, after closing time, Pleasant asked him for
a ride and he reluctantly agreed. Pleasant, in contrast, testified that she
reluctantly went to Frye's car after he called to her. In any case, the
two wound up in Frye's car together, waiting for Revis. When Revis
arrived, he told Frye that he had another ride, and then left. Frye testi-
fied that he then began to drive out of the Cluck's parking lot, but
never reached the adjacent road leading out to Route 86, the highway
in front of the club. According to Frye, as he passed the Cluck's side
entrance, Pleasant exclaimed that she saw the person with whom she
had originally planned to leave--Thomas Patterson. Frye testified that
he pulled up beside Patterson's car to allow Pleasant to go with him,
but Patterson apparently was angered to see Pleasant in Frye's car,
and began cursing at Frye. Patterson then got out of his car, Frye
explained, reached into Frye's car, and grabbed him by the collar.
Frye opened the door handle to push Patterson away, and Patterson

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began beating Frye in the face. Frye did not strike back and was
knocked to the ground. Patterson got on top of him, continuing to beat
him in the face, until the club's bouncer came and kicked him off of
Frye.

The Cluck's bouncer, Hugh Barker, had seen the fight begin.
Barker, a friend and stipulated agent of Lunsford, provided unpaid
security for the club. Barker had left the building at about 2:45 and
encountered some friends, who were sitting in a car in the parking lot.
The friends were customers and had been inside that night. Lunsford
knew that Barker was outside talking to customers, but did not object.
Barker testified that, while standing on the sidewalk next to the club
talking, he saw two cars drive onto the parking lot and pull close to
where he was. He saw the man he later learned to be Patterson get out
of his car to talk to someone in the other car. Barker testified that he
then saw Frye get out of his car and stand, holding on to the car, as
if intoxicated. Patterson then reached for Frye, and Frye fell to the
ground. Patterson straddled Frye and began hitting him. Barker then
moved toward the fight, hollering at Patterson to get off and, as he
reached them, kicking Patterson off of Frye.

Frye testified that he had drunk only beer that night, and that he
was not intoxicated. To the contrary, Pleasant testified that while she
and Frye were waiting in his car, they shared a marijuana cigarette
and drank from a bottle of "Wild Turkey." Likewise, Patterson testi-
fied that he too shared the joint and the Wild Turkey with Frye and
Pleasant. Barker testified that only a few minutes passed between the
time when the cars drove into the lot and the time that the assault
occurred. During that interim, Barker testified, he was close enough
to see what transpired in the cars, but did not see any marijuana smok-
ing or alcohol consumption. Lunsford also admitted that he never saw
any such conduct. House rules, which were posted over the door,
barred illegal drug use and the consumption of alcoholic beverages
not purchased at Cluck's.

As a result of the fight, Frye suffered a burst fracture of the C-6
vertebra of the cervical spine and a large gash to the head. He was
unable to walk by himself. He claims that he repeatedly asked for
help and for an ambulance. He further claims that he heard either
Barker or Lunsford tell people in the area to "get that guy out of

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here." And, "we don't want no trouble." Lunsford testified that, after
the fight, he asked those gathered around if they knew Frye, and they
answered that he was a friend and that they had been drinking
together. Lunsford testified that he said, "well, if he's your friend pick
him up, take him to a doctor if he needs it, or take him home." Neither
Lunsford nor Barker called for medical help or gave any other assis-
tance.

Someone helped Frye across the parking lot and put him in the
back seat of Frye's car. Accompanied by Pleasant, someone then
drove Frye's car eight or nine miles to Pleasant's home, where Patter-
son had also returned. Frye was left to wait for a time in the car. At
one point, Pleasant came out and wiped blood from Frye's head, and
he asked her to call an ambulance. She told him that she did not have
a phone. Eventually, Pleasant's husband drove the car--with Frye
still in the back seat--to a convenience store, where emergency help
was finally summoned. Frye was taken to Danville Hospital emer-
gency room, where a fractured neck was diagnosed. Frye was then
sent to the University of Virginia Medical Center, where he remained
for several weeks. After his release, he wore a"halo" and lived with
his sister for about four months, until he was able to care for himself.

Frye worked as a transmission rebuilder for Aamco Transmissions
in Roanoke, Virginia from his high school graduation, until 1990.
Aamco fired and rehired him several times during that period. He was
unemployed for a time during 1990 until 1991, when he went to work
for Aamco in Danville. He testified that his work as a rebuilder
involved some lifting and some small precise work. When Frye
returned to work after his recuperation, he was unable to work full-
time. He worked one or two days per week at first, increasing to three
or four days per week. He testified that he could lift less and was
slower at rebuilding transmissions. He testified that he earned
$13,946.00 during 1992 before his injury, but he was unable to spec-
ify his rate of pay after he returned to work or the number of hours
he had worked after the accident compared to the hours he worked
before.

Frye, a Virginia resident, sued Lunsford, a North Carolina resident,
in the U.S. District Court for the Western District of Virginia. On the
motion of Lunsford, the action was transferred to the U.S. District

5
Court for the Middle District of North Carolina. Frye asserted dam-
ages resulting from Lunsford's failure to provide adequate security
and warnings despite a pattern of violence and Lunsford's failure to
aid him to prevent further injury after the assault.

A jury trial took place in December 1994. At the conclusion of
Frye's evidence, the magistrate judge granted Lunsford's motion to
dismiss the insufficient security claim on the ground that Frye had
produced inadequate evidence of foreseeability and of insufficient
security measures. The court sent Frye's failure to aid claim to the
jury, instructing it to consider as its first issue:"Was the plaintiff an
invitee on defendant's property at the time and place of the assault by
Patterson?" If the jury found that Frye was not an invitee, the court
directed, it was to sign and return the verdict form; for Lunsford owed
Frye no duty of care. The jury found that Frye was not an invitee at
the time and place of assault, and based on that verdict the court
entered judgment for Lunsford.

II.

At the conclusion of the evidence, Frye moved for a directed ver-
dict on his status as an invitee. He argues that the district court erred
when it refused to rule, as a matter of law, that he was an invitee at
all relevant times. We agree. In North Carolina as under common law,
a landowner's standard of care depends upon the plaintiff's status as
an invitee, licensee, or trespasser. Newton v. New Hanover County
Bd. of Educ., 467 S.E.2d 58, 63 (N.C. 1996). Anyone who enters
property for "a purpose directly or indirectly connected with business
dealings with the possessor of the land" is a business invitee. Restate-
ment (Second) of Torts § 332 (1965). A business owner has a general
duty to exercise reasonable care for the personal safety of invitees on
the premises--including protecting patrons from intentional injuries
of third persons if the owner has reason to know that such acts are
likely to occur. Foster v. Winston-Salem Joint Venture, 281 S.E.2d
36, 38 (N.C. 1981). A parking lot provided for the use of patrons is
considered part of the business premises. Id. The mere fact than an
injury did not occur during business hours does not necessarily pre-
clude a customer's invitee status. Quinn v. P & Q Supermarket, Inc.,
171 S.E.2d 70, 73 (N.C.App. 1969); Brown v. Slack, 65 N.W.2d 382,
385 (Neb. 1954). Nor must an invitee's purpose be to immediately

6
engage in business dealings with the property owner; the benefit to
the proprietor "may be indirect and in the future." Restatement (Sec-
ond) of Torts § 332, cmt. f (1965). Rather, a business visitor is an
invitee so long as his or her purpose for entering the premises is rea-
sonably related to the business purpose for which the property is open
to the public. Id.

Lunsford contends that Frye lost his invitee status, based on two
theories. First, he argues that, because Frye broke house rules by
smoking marijuana and drinking Wild Turkey in his car, he became
a trespasser. A trespasser is one who goes onto the property of
another without any consent or permission of the owner, express or
implied. Hoots v. Pryor, 417 S.E.2d 269, 276 (N.C.App. 1992);
Restatement (Second) of Torts § 329 (1965).

Accepting as true the testimony that Frye smoked illegal drugs and
drank unauthorized alcohol on the premises the night of the assault,
that conduct does not, ex post facto, nullify Lunsford's implied invita-
tion to Frye and other Cluck's customers. Lunsford and his agent
Barker admitted that, on the night of Frye's injury, they were never
aware of any rule violations or illegal activity, and that they never
withdrew their consent to Frye's presence on the Cluck's property.
Yet Lunsford would have us recognize a definition of trespasser
which rests not upon whether an owner consented to the visitor's
presence, but upon whether the owner would have consented, had he
known what he admittedly did not know. We do not believe that the
law of torts requires such a metaphysical inquiry, and we hold that a
property owner's duty to a customer is not affected by undiscovered
facts which, if known, might have caused him to revoke his permis-
sion. Likewise, the fact that the conduct was illegal does not, in itself,
destroy a visitor's invitee status. See, e.g., Jones v. Bland, 108 S.E.
344, 345, 346 (N.C. 1921) (describing the general"principle that the
fact that plaintiff, at the time he suffered injuries to his person or
property from the negligence of defendant, was doing some unlawful
act will not prevent a recovery . . ." so long as plaintiff "come[s] [not]
as a mere trespasser or wrongdoer, but for some purpose lawful in
itself and such as the owner or occupier might reasonably expect to
bring him here.") (quotations omitted). Because Frye--like any other
Cluck's customer--was implicitly invited onto the premises, and
because Lunsford's agent specifically condoned Frye's presence at

7
the time and place of his assault, we find that Frye was not a tres-
passer as a matter of law.

Under Lunsford's second theory, Frye lost his invitee status by
going to his car, which was parked on the off-premises road, and then
reentering the parking lot before the assault. Again, we disagree.
Although our research has not uncovered North Carolina case law
addressing similar facts, many other states have decided that a cus-
tomer does not automatically lose his or her invitee status by exceed-
ing the property boundaries; rather a business owner's duty may
extend beyond the edge of his premises when he knows that his
invitees regularly use adjacent property for purposes related to his
business. For example, in Ember v. B.F.D., Inc. , 490 N.E.2d 764
(Ind.Ct.App. 1986), a bar customer was assaulted in a parking lot
located across the street from the bar and often used by its patrons.
The court found that the invitor's duty might extend beyond its busi-
ness property:

An invitor's duty normally extends only to its"premises."
However, we recognize that in this case "the premises" may
not be limited to the area actually owned or leased by the
Pub because its business activities extended beyond its legal
boundaries.

A duty of reasonable care may be extended beyond the
business premises when it is reasonable for invitees to
believe that the invitor controls premises adjacent to his own
or where the invitor knows his invitees customarily use such
adjacent premises in connection with the invitation. Here,
the record supports a reasonable inference the Pub knew its
parking lot was insufficient for its patrons' use; additionally,
the Pub was aware its patrons customarily used the parking
lot across the street while patronizing it. . . . Indeed, we are
unconvinced either Ember or other patrons of the Pub lost
their invitee status while waiting outside the Pub's legal
boundaries.

490 N.E.2d at 772 (citations omitted). See also , e.g., Southland Corp.
v. Superior Court, 250 Cal. Rptr. 57, 62-63 (Cal.Ct.App. 1988)
(where convenience store benefitted from use of adjacent parking lot,

8
and where its business attracted both customers and loiterers, it was
"overly simplistic for the issue of control to be resolved solely by ref-
erence to a property boundary line"); Holiday Inns, Inc. v. Shelburne,
576 So.2d 322, 329 (Fla.Dist.Ct.App. 1991) (bar had a "duty not only
to its patrons who parked on the premises, but also to those who
parked on the adjacent lots in accordance with the instructions of the
security guards."); Piedalue v. Clinton Elementary School Dist. No.
32, 692 P.2d 20, 23 (Mont. 1984) (duty of business owner to provide
invitees with safe ingress and egress includes adjacent areas beyond
premises, if he reasonably expects use of adjacent areas by customers
in connection with the invitation); Warrington v. Bird, 499 A.2d
1026, 1030 (N.J.App. 1985) ("when a business provides a parking lot
across the roadway from its establishment, the duty of the proprietor
to exercise reasonable care . . . requires that the patrons not be sub-
jected to an unreasonable risk of harm in traversing the expected route
between the two locations.") cert. denied 511 A.2d 653 (N.J. 1986);
Chapman v. Parking, Inc., 329 S.W.2d 439, 442 (Tex.Civ.App. 1959)
(owner may have duty to warn customers of danger on adjacent park-
ing lot where public might reasonably believe both lots operated as
one); Andrick v. Town of Buckhannon, 421 S.E.2d 247, 252 (W.Va.
1992) (restaurant owner who invited customers to park in lot owned
by another owed a duty of reasonable care to his invitees).

In the instant case, Cluck's shortage of weekend parking com-
monly led its customers to use the adjacent road. Lunsford admitted
that he was aware of and did not discourage the use of the road for
parking, and that he benefitted from the off-premises parking.
Because off-premises parking was a common and expected part of
egress and ingress from the nightclub, Lunsford's duty of reasonable
care to protect his customers may have remained with them while
they were on the adjacent road. But we need not go that far in this
case; for Frye was indisputably injured on the Cluck's premises. We
simply hold that Frye's alleged exit and reentry--whether to drop off
a passenger or to reach Route 86--did not destroy his invitee status.

Thus, while much of the dispute at trial concerned whether Frye
broke house rules and parked off-premises, we find those facts imma-
terial to his status. Finding no issue of material fact creating a jury
question, we conclude that Frye was an invitee as a matter of law, and

9
was therefore entitled to a directed verdict on that question. We
reverse and remand for a new trial.*

III.

On the issue of reasonable care, the district court instructed the
jury:

Now the defendant's duty to take reasonable action to
provide assistance or to render care is governed by what is
reasonable under the circumstances existing at that time.
You must examine the apparent needs of the plaintiff, and
whether they were obvious or not, and the opportunities
available to defendant to provide care and protection exist-
ing at that time and place. This duty will vary according to
the circumstances of each case. In some cases, reasonable
care may require actually giving medical assistance or to
call an ambulance or other assistance, or under some cir-
cumstances to turn the person over to friends or people who
will provide or obtain care, or to take some other action or
lesser action. It is for you to decide what is reasonable under
the circumstances of this case.

Frye argues that the district court erred in instructing that under
certain circumstances, a defendant could turn an injured person over
to "friends," because there was no evidence that Lunsford turned Frye
over to "friends." Frye contends that, where uncontroverted testimony
indicated that he had never before met Pleasant, Patterson, and others
present in the parking lot, the district court's use of the term "friends"
to describe the group of persons surrounding him after the assault
(including the assailant) improperly diminished Lunsford's responsi-
bility in the eyes of the jury.
_________________________________________________________________

*Because we conclude that Frye was an invitee as a matter of law, we
need not address his argument that Lunsford offered insufficient evi-
dence that he broke house rules and parked off-premises. Nor do we
reach the validity of the district court's instructions to the jury pertaining
to Frye's status.

10
We assume the adequacy and sufficiency of a jury charge in the
absence of a showing of plain error. Henderson v. Kibbe, 431 U.S.
145, 154-55 (1977), cited in Cooper v. North Carolina, 702 F.2d 481,
483-84 (4th Cir. 1983). We find that the district court's statement did
not amount to a factual assertion that the patrons surrounding Frye
were indeed his friends. While the term "friends" conceivably may
have slightly favored Lunsford, its use was not erroneous or prejudi-
cial within the context of the charge. The court clearly explained to
the jury that the defendant's duty would vary in different circum-
stances, and then provided examples of what conduct might constitute
reasonable care. The court never stated that the defendant could have
turned Frye over to his friends in this case, but stated that such action
could be reasonable under some circumstances. What's more, the
instruction was taken from the Restatement (Second) of Torts § 314A,
comment f, which was cited by Frye himself in his proposed jury
instructions. We find no error.

IV.

Frye also contests the district court's dismissal of his insufficient
security claim based on its finding that he had failed to adduce suffi-
cient proof that the assault was foreseeable and that the security mea-
sures in place were inadequate. Because we find that Frye
unquestionably failed to carry his burden concerning the adequacy of
Lunsford's security measures, we need not address Frye's arguments
pertaining to his evidence of foreseeability.

To prove inadequate security, Frye testified that he did not see any
bouncers in the parking lot that night, and that no bouncer intervened
while Patterson was cursing at him. He admitted, however, that he
would not have been able to distinguish the bouncers or the owners
from the customers. He also admitted that, in fact, a bouncer was
standing a short distance from him at the time of the assault, and
forced the assailant to stop beating Frye. Frye offered no evidence
regarding how many bouncers were on duty that night, how many
bouncers are customarily employed at similar establishments, how
many bouncers, if any, should have been stationed in the parking lot,
and how additional bouncers could have prevented his injury. In sum,
Frye offered no evidence to show that Lunsford's negligence in any
of these respects was the likely cause of his injury. Accordingly, we

11
affirm the district court's dismissal of Frye's insufficient security
claim.

V.

Finally, we consider Frye's contention that his testimony on the
amount of his pre-injury earnings in 1992 and his monthly earnings
after returning to work in 1993 were sufficient to permit the jury to
consider his claim for lost earnings. Frye testified that before his
injury on September 19, 1992, he had earned $13,946.00 that year as
a transmission rebuilder. He also testified that he was unable to work
again until some time in March 1993. After his return, he testified he
only was able to work part-time, and found his abilities diminished.
In North Carolina, "[b]oth loss of time and loss of earning capacity
are recoverable when established by evidence . . . ." Kim v. Hansen,
359 S.E.2d 253, 255 (N.C.App. 1987). However, Frye failed to offer
evidence which would allow a jury to compute his lost earnings. He
offered no figures revealing his rate of pay before the injury, his num-
ber of hours worked in 1992 before the injury, his rate of pay after
the injury, his number of hours worked after the injury, or his lost
future earning capacity. Such information was surely available to Frye
and should have been prepared before trial. But without it, the jury
could only have based an award on guesswork. We conclude that the
district court's refusal to instruct the jury on Frye's lost wages was
not clear error.

VI.

We affirm the lower court's instruction on reasonable care, its dis-
missal of the insufficient security claim, and its refusal to instruct the
jury on lost earnings. But because the district court erred in refusing
to direct a verdict on Frye's status as an invitee, we reverse and
remand the case for a new trial on the remaining claim.

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR A NEW TRIAL

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