Appeal by plaintiff from order entered 27 February 2001 by
Judge Loto G. Caviness in Lincoln County Superior Court. Heard in
the Court of Appeals 25 April 2002.
Charles R. Hassell, Jr., for plaintiff-appellant.
Stiles, Byrum & Horne, L.L.P., by Lane Matthews, for
defendant-appellee.
MARTIN, Judge.
Plaintiff brought this action for personal injuries sustained
when she fell at defendant's store in Lincolnton, North Carolina.
Defendant denied negligence and asserted plaintiff's contributory
negligence as an affirmative defense. Defendant moved for summary
judgment.
The evidentiary materials before the trial court tended to
show that plaintiff was a customer at defendant's store on 25 June
1996. Plaintiff asked to use the restroom, and was directed by an
employee to an area in the back of the store. Although plaintiff
testified at her deposition that she could not recall whether thehallway outside the bathroom was lit, she stated that she did not
have any trouble seeing because the bathroom light was on and the
bathroom door was open; light was also coming from the door leading
to the main area of the store. She also stated she could see the
floor, and saw several wooden steps leading up to the bathroom.
Plaintiff testified that she had no trouble getting into the
bathroom; however, as she attempted to exit the bathroom, she fell
down the steps, striking the wall and suffering injuries to her
head and shoulder. Plaintiff claimed that when she opened the
door, there was “no landing there, no nothing. It was step downs
(sic), but when the door flew open I just went sailing.” Plaintiff
stated that she had not forgotten about the steps outside the
bathroom, and that she did not trip going out of the bathroom.
Materials before the court also included photographs of the hallway
and a report from plaintiff's expert, Norman A. Cope, who concluded
that the step-down from the bathroom created a hazardous condition.
The trial court granted defendant's motion for summary
judgment on grounds that there were no issues of material fact as
to (1) the breach of any duty owed plaintiff by defendant, and (2)
plaintiff's contributory negligence as a matter of law. Plaintiff
appeals.
_______________
Plaintiff assigns error to the trial court's grant of summary
judgment dismissing her complaint. We affirm.
Summary judgment is appropriate when all the evidentiary
materials before the court “show that there is no genuine issue asto any material fact and that any party is entitled to a judgment
as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001).
The burden is on the party moving for summary judgment to show the
absence of any genuine issue of fact and his entitlement to
judgment as a matter of law.
First Federal Savings & Loan Ass'n v.
Branch Banking & Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972).
The movant may meet this burden by proving
that an essential element of the opposing
party's claim is nonexistent, or by showing
through discovery that the opposing party
cannot produce evidence to support an
essential element of his claim or cannot
surmount an affirmative defense which would
bar the claim.
Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414
S.E.2d 339, 342 (1992) (citation omitted). In ruling on the
motion, the court is not authorized to resolve issues of fact, only
to determine whether there exists any genuine issues of fact
material to the outcome of the case.
Caldwell v. Deese, 288 N.C.
375, 218 S.E.2d 379 (1975).
In a negligence action, to survive a motion for summary
judgment, plaintiff must establish a
prima facie case by showing:
“(1) that defendant failed to exercise proper care in the
performance of a duty owed plaintiff; (2) the negligent breach of
that duty was a proximate cause of plaintiff's injury; and (3) a
person of ordinary prudence should have foreseen that plaintiff's
injury was probable under the circumstances.”
Lavelle v. Schultz,
120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995) (citation
omitted),
disc. review denied, 342 N.C. 656, 467 S.E.2d 715 (1996).
Owners and occupiers of land have a duty to exercise
reasonable care in the maintenance of their premises for the
protection of lawful visitors.
Barber v. Presbyterian Hosp., 147
N.C. App. 86, 89, 555 S.E.2d 303, 306 (2001) (citing
Nelson v.
Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892,
reh'g denied, 350
N.C. 108, 533 S.E.2d 467 (1999)). “Reasonable care” requires that
the landowner not unnecessarily expose a lawful visitor to danger
and give warning of hidden hazards of which the landowner has
express or implied knowledge.
Id. (citing
Norwood v. Sherwin-
Williams Co., 303 N.C. 462, 467, 279 S.E.2d 559, 562 (1981)).
There is no duty to protect or warn, however, “against dangers
either known or so obvious and apparent that they reasonably may be
expected to be discovered.”
Von Viczay v. Thoms, 140 N.C. App.
737, 739, 538 S.E.2d 629, 631 (2000),
affirmed, 353 N.C. 445, 545
S.E.2d 210 (2001) (citing
Lorinovich v. K Mart Corp., 134 N.C. App.
158, 162, 516 S.E.2d 643, 646 (1999)). Moreover, a landowner is
not required to warn of hazards of which the lawful visitor has
“equal or superior knowledge.”
Id. (citation omitted).
In
Von Viczay, the plaintiff arrived at the home of the
defendant for a party on a wintry evening with ice and snow on the
ground. The defendant had shoveled and salted all her walkways
prior to the party. Nevertheless, the plaintiff observed some snow
and ice along the walkway as she entered the house. When the
plaintiff left the party, she fell walking along the same walkway
from which she had entered the defendant's home. This Court held
that the defendant had no duty to warn the plaintiff or to protecther from the hazard when the facts indicated the plaintiff had
equal knowledge of the hazardous condition.
Id.
In the present case, plaintiff admitted that she was able to
see the floor and the steps leading to the bathroom. She stated
that she did not have any trouble seeing because the bathroom light
was on and the bathroom door was open. She testified that she had
no trouble getting into the bathroom using the steps. Important to
the disposition of this case, plaintiff had full knowledge of the
condition of the doorway to the bathroom by virtue of having safely
negotiated her way inside the bathroom moments before she fell. On
this record, even if the steps leading up to and out of the
bathroom created a hazardous condition, plaintiff had knowledge of
the alleged hazardous condition.
See Von Viczay, 140 N.C. App. at
739, 538 S.E.2d at 631.
Because we determine that defendant had no duty to warn of an
open and obvious danger of which plaintiff had at least equal
knowledge prior to the injury, we do not reach plaintiff's
remaining argument regarding whether she was contributorily
negligent as a matter of law.
Affirmed.
Judges TYSON and THOMAS concur.
*** Converted from WordPerfect ***