JOYCE CAMERON,
Plaintiff,
v
.
GREGORY CANADY,
Defendant.
Musselwhite, Musselwhite, Musselwhite & Branch, by W. Edward
Musselwhite, Jr., for plaintiff-appellee.
Anderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Steven
C. Lawrence, for defendant-appellant.
LEVINSON, Judge.
Plaintiff's complaint alleged she sustained physical injury
when she “slipped and fell” on defendant's garage stairs, which she
alleges were negligently maintained in dangerous condition.
Defendant asserted plaintiff was contributorily negligent in
failing to keep a reasonable lookout and in failing to use proper
care in exiting defendant's garage.
The case was tried, and a jury returned a verdict finding (1)
plaintiff was injured by the negligence of defendant and (2)
plaintiff, by her own negligence, contributed to her injuries.
Therefore, the plaintiff was barred from recovering damages against
defendant. See Love v. Singleton, 145 N.C. App. 488, 550 S.E.2d
549 (2001). Subsequently, plaintiff filed motions for judgment
notwithstanding the verdict and for a new trial. The trial court
granted plaintiff's motions concluding in pertinent part:
1. That there was no evidence before the
Court that the Plaintiff failed to keep a
proper lookout or was otherwise
contributorily negligent in her fall.
. . . .
3. That the fact that the Plaintiff fell, in
and of itself, is not adequate for
submission of the issue of contributory
negligence to the jury and contributory
negligence cannot be presumed from the
mere fact that the Plaintiff fell.
4. That this Court erred in failing to
direct a verdict in favor of the
Plaintiff on the issue of contributory
negligence at the conclusion of the
evidence and in submitting the issue of
contributory negligence to the jury over
Plaintiff's objection.
5. That such error was prejudicial and
Plaintiff is entitled to a new trial.
Defendant contends the trial court erred in granting
plaintiff's motion for judgment notwithstanding the verdict and a
new trial. Specifically, he argues there was sufficient evidence
to present the issue of plaintiff's contributory negligence to the
jury.
A motion for a new trial under Rule 59(a) is left to the sound
discretion of the trial court. N.C.G.S. § 1A-1, Rule 59(a) (2001);
Hamlin v. Austin, 49 N.C. App. 196, 270 S.E.2d 558 (1980).
However, where the trial court commits an error of law, we review
that decision de novo. Eason v. Barber, 89 N.C. App. 294, 365
S.E.2d 672 (1988) (citing Jacobs v. Locklear, 310 N.C. 735, 736-37,314 S.E.2d 544, 545 (1984)). Because defendant assigned as error
the trial court's determination that as a matter of law there was
insufficient evidence upon which to submit the issue of
contributory negligence to the jury, we review that determination
de novo. Id.
Contributory negligence acts as a complete bar to a
plaintiff's recovery and is:
the breach of the duty of the plaintiff to
exercise due care for his own safety in
respect of the occurrence about which he
complains, and if his failure to exercise due
care for his own safety is one of the
proximate contributing causes of his injury,
it will bar recovery.
Champs Convenience Stores v. United Chemical Co., 329 N.C. 446,
455, 406 S.E.2d 856, 861 (1991) (quoting Holderfield v. Rummage
Brothers Trucking Co., 232 N.C. 623, 625, 61 S.E.2d 904, 906
(1950)). The issue of contributory negligence is generally one for
the jury, not to be decided as a matter of law. Id. at 456, 406
S.E.2d at 862.
Here, contributory negligence was submitted to the jury, and
it found for defendant on that issue. Defendant presented evidence
that plaintiff (1) had both hands occupied by her rolodex and her
bank bag; (2) admitted to her doctor that she had suffered from
“inner ear problems for years”; and (3) did not trip on defendant's
steps but only fell after she reached the garage and her leg gave
way. Viewing the evidence in the light most favorable to defendant
and giving him the benefit of every reasonable inference, we find
there were sufficient issues concerning contributory negligencethat it was properly left to the jury. See West v. Slick, 313 N.C.
33, 326 S.E.2d 601 (1985); Cook v. Wake County Hospital System, 125
N.C. App. 618, 482 S.E.2d 546 (1997). Therefore, as a matter of
law, the trial court erred in granting plaintiff's motions for
judgment notwithstanding the verdict and for a new trial. Jacobs,
310 N.C. at 736-37, 314 S.E.2d at 545. The trial court's grant of
judgment notwithstanding the verdict and for a new trial are
reversed, and we remand for entry of judgment on the jury verdict.
Reversed and Remanded.
Judge TIMMONS-GOODSON dissents.
Judge TYSON concurs.
TIMMONS-GOODSON, Judge, dissenting.
Because I conclude that the trial court properly determined
that there was no evidence that plaintiff “failed to keep a proper
lookout or was otherwise contributorily negligent in her fall,” I
respectfully dissent.
The majority opinion cites the following facts in support of
its conclusion that there was evidence from which a reasonable jury
could find that plaintiff contributed to her own injury: (1)
plaintiff was holding a Rolodex-brand desktop rotary file in one
hand and a “bank bag” in her other hand when she fell; (2)
plaintiff had informed her physician that she “suffered from inner
ear problems for years;” and (3) plaintiff did not fall on
defendant's steps. The majority fails to explain how these facts,
standing alone, support a finding of contributory negligence, noris such an explanation obvious. There was no evidence, for
example, that the fact that plaintiff was holding a bag and a
rotary file caused her to become imbalanced. There was no evidence
concerning the size or weight of these items, nor was there any
evidence that plaintiff's attention was diverted by these items.
Further, there was no evidence that plaintiff could have prevented
or stopped her fall by, for instance, holding onto a handrail, had
her hands not been occupied. In fact, the evidence showed that
defendant's steps had no handrail.
Plaintiff's statement to her physician one year after her
accident that she “had inner ear problems for years” likewise
provides no basis for a finding of contributory negligence.
Plaintiff specifically denied that these “inner ear problems” had
ever affected her balance, and defendant presented no evidence to
the contrary. Nor was there any evidence that plaintiff was
suffering from an inner ear problem the day of the incident.
Finally, the majority contends that, because defendant
testified that plaintiff did not fall on the steps, but only after
having reached the floor of the garage when her “knee gave way,” a
reasonable jury could find that plaintiff was contributorily
negligent. This statement is illogical, however, given the fact
that the jury found defendant negligent. The only evidence of
defendant's negligence presented at trial, and the only possible
basis for the jury's finding of negligence on defendant's part, was
the evidence tending to show that defendant's brick steps violated
applicable building code requirements and otherwise constituted ahidden and dangerous condition. Thus, if the jury believed
defendant's testimony that plaintiff did not fall on the steps, but
only after having reached the floor of the garage, there would have
been no basis upon which to find defendant negligent. Defendant's
testimony regarding the location of plaintiff's fall did not
demonstrate that plaintiff failed to keep a proper lookout; rather,
it was evidence of a factual dispute properly and necessarily
resolved by the jury in plaintiff's favor.
Because there was no evidence that plaintiff failed to act as
a reasonably prudent person regarding her own safety, I conclude
that the trial court properly determined that it erred in
submitting the issue of contributory negligence to the jury. See
Jacobs v. Locklear, 310 N.C. 735, 736-37, 314 S.E.2d 545, 545
(1985) (holding that where there is no evidence of contributory
negligence, the trial court errs in submitting the issue to the
jury). I would therefore affirm the judgment of the trial court.
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