Premises Liability--contributory negligence--slip and fall
The trial court did not err in granting summary judgment in favor of defendant-store in a
slip and fall case because: (1) plaintiff-customer's testimony demonstrates that the hazard was
obvious, making the defense of contributory negligence relevant; and (2) plaintiff did not
forecast evidence to indicate that defendant did anything which could or did divert plaintiff's
attention from the hazard.
Doran and Shelby, P.A., by Michael Doran, for the plaintiff-
appellant.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Allen C.
Smith, for the defendant-appellee.
LEWIS, Judge.
This case arises from a slip-and-fall incident that occurred
on 27 March 1997. While shopping in the toy department at
defendant's store in Salisbury, North Carolina, plaintiff slipped
on an empty Barbie doll box and fell to the floor. She thereafter
instituted a negligence action against defendant, claiming pain and
suffering, permanent partial disability of her physical faculties,
emotional distress and loss of enjoyment of life. On 9 November
1998, the trial court granted defendant's motion for summary
judgment. Plaintiff appeals.
Plaintiff first argues that the trial court erred in granting
summary judgment in favor of the defendant. Specifically,
plaintiff contends that the defendant's evidence failed todemonstrate contributory negligence as a matter of law.
The standard for summary judgment is aptly stated in Diorio v.
Penny, 103 N.C. App. 407, 405 S.E.2d 789 (1991), aff'd, 331 N.C.
726, 417 S.E.2d 457 (1992). "While issues of negligence and
contributory negligence are rarely appropriate for summary
judgment, the trial court will grant summary judgment in such
matters where the evidence is uncontroverted that a party failed to
use ordinary care and that want of ordinary care was at least one
of the proximate causes of the injury." Id. More specifically,
the doctrine of contributory negligence will preclude a defendant's
liability if the visitor actually knew of the unsafe condition or
if a hazard should have been obvious to a reasonable person.
Pulley v. Rex Hosp., 326 N.C. 701, 705, 392 S.E.2d 380, 383 (1990).
The evidence in this case tends to show that the floor of the
aisle contained several empty boxes, but was well lit such that
plaintiff actually saw the empty boxes, perceived them as a hazard,
and attempted to step around them. During this time, however,
plaintiff was engaged in a conversation with another customer.
Plaintiff testified as follows:
A. I was walking down the aisle in the Barbie
doll section . . . And there was a lady on the
other end, and we was talking about Barbie
dolls for [E]aster baskets. And when I walked
towards her, I hit one of the boxes that was
in the floor and fell. And it slid right out
from under me . . .
Q. Were there more than one -- was there more
than one box on the floor?
A. Yes. There was quite a few boxes all over
the aisle . . .
Q. And could you see all these boxes?
A. Yes.
Q. As you were walking toward the lady, withwhom you were talking, where were you looking?
A. I was trying to miss the boxes and then,
when I was looking up at her talking -- and I
guess I didn't miss one of them.
Q. Well, when you slipped, were you looking
at the floor or were you looking down at this
other lady?
A. It all happened so fast, I was looking in
the air. I was looking at her when I -- I was
talking right to her.
Q. So, when you slipped, you were facing her
and talking to her?
A. Yeah.
(Hall Dep. at 17-19).
Plaintiff's testimony demonstrates that the hazard here was
obvious, making the defense of contributory negligence relevant.
Plaintiff argues, however, that this evidence establishes that the
defendant enticed her eyes away from the obvious hazardous
condition in the aisle. Plaintiff is correct in her legal
assertion that the defense of contributory negligence cannot be
asserted where the defendant diverted the plaintiff's attention,
preventing the visitor from discovering the obvious hazard. Walker
v. Randolph County, 251 N.C. 805, 810, 112 S.E.2d 551, 554 (1960).
But plaintiff has presented no forecast of evidence in this case to
indicate that defendant did anything which could or did divert
plaintiff's attention from the hazard. The forecast of evidence
does establish that plaintiff, in choosing to converse with another
customer while walking down the aisle, was inattentive because she
chose to be. We conclude that the doctrine of contributory
negligence bars plaintiff's recovery from the defendant by any
measure of reasonableness. The trial court properly granted
summary judgment in favor of the defendant. Because we conclude that the trial court's grant of summary
judgment was proper, it is unnecessary to address plaintiff's
remaining argument.
Affirmed.
Judges WYNN and MARTIN concur.
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