Nelson v. Novant Health Triad Region
No. COA02-1192
(Filed 5 August 2003)
1. Premises Liability--slip and fall--duty of care_summary judgment--directed verdict
The trial court did not err in a personal injury slip and fall case by denying defendants'
motions for summary judgment and directed verdict and the jury was properly allowed to reach a
finding of fact as to whether the duty of care had been breached due to defendant's negligence,
because: (1) defendants admitted to owning and exercising control over the hallway where
plaintiff was injured, as well as the carts and trays littering the hallway and the kitchen where
dishes were being washed; and (2) by admitting to ownership, defendant hospital owed a duty to
plaintiff to keep the hallway safe for passage, its contemplated use.
2. Premises Liability--slip and fall--open and obvious dangerous condition_summary
judgment--directed verdict
The trial court did not err in a personal injury slip and fall case by denying defendants'
motions for summary judgment and directed verdict on the ground that defendant had no duty to
alert plaintiff to a dangerous condition that was open and obvious, because the dangerous
condition was not open and obvious as a matter of law when: (1) plaintiff stated she was not
aware of the slippery condition of the floor and, even if she had looked at her feet, the film of
water on the shiny linoleum floor would have been impossible to see; and (2) plaintiff neither
admits to being fully aware of the dangerous condition of the hall nor acknowledges that she
would have seen the water if she had looked.
3. Premises Liability--slip and fall--contributory negligence_summary judgment--
directed verdict
The trial court did not err in a personal injury slip and fall case by denying defendants'
motions for summary judgment and directed verdict even though defendant contends plaintiff has
failed to offer evidence to refute allegations of contributory negligence, because the decision as
to whether looking ahead to navigate the debris in a hall was more or less reasonable than
looking down at the floor is a question of fact to be determined by the jury.
LYNDA NELSON,
Plaintiff,
v
.
Forsyth County
No. 01 CVS 470
NOVANT HEALTH TRIAD REGION,
L.L.C., FORSYTH MEMORIAL
HOSPITAL, INC. d/b/a FORSYTH
MEDICAL CENTER, and SODEXHO
MANAGEMENT, INC.,
Defendants.
Wells, Jenkins, Lucas & Jenkins, P.L.L.C., by Ellis B. Drew,
III, for plaintiff-appellee.
Bennett, Guthrie & Dean, P.L.L.C., by Rodney A. Guthrie, for
defendant-appellants.
ELMORE, Judge.
Defendants appeal the denial of their motions for summary
judgment and directed verdict in this personal injury slip-and-fall
case. The jury returned a verdict for the plaintiff in the amount
of $14,500.00. The evidence heard at trial tended to show that
plaintiff was an employee of a company that copies medical records
and was assigned to the Medical Records Department at Forsyth
Memorial Hospital. It is undisputed that when plaintiff arrived atthe hospital in the mornings, her normal path to the Hospital's
Medical Records Department took her down a basement hallway past
the hospital dishwashing room. Plaintiff testified that it was
normal for carts carrying meal trays to be lined up against the
wall of this hallway opposite the kitchen door. The hall floor was
“shiny and buffed” linoleum that had a “glassy appearance.”
Plaintiff also presented evidence that when she attempted to
traverse this hallway on 29 September 1998, she encountered trays
and tray carts scattered across the hallway. As she attempted to
pass through the hallway, she fell and severely injured her right
knee. While in the emergency room, plaintiff noticed the back of
her dress was wet with water. The jury found that plaintiff was
injured due to the negligence of the defendants and that plaintiff
was not contributorily negligent. Defendant appeals based upon the
trial court's denial of summary judgment and directed verdict.
Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits . . . show that there is no genuine
issue as to 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). On appeal, the standard of review is (1) whether there is
a genuine issue of material fact and (2) whether the movant is
entitled to judgment as a matter of law. See Kessing v. Mortgage
Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). The evidence
presented is viewed in the light most favorable to the non-movant. See Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381
(1975).
The standard of review for a directed verdict is essentially
the same as that for summary judgment. When considering a directed
verdict on review, this Court must establish “whether there is
sufficient evidence to sustain a jury verdict in the non-moving
party's favor, or to present a question for the jury.” Davis v.
Dennis Lilly Co., 330 N.C. 314, 323, 411 S.E.2d 133, 138 (1991)
(citations omitted).
[1] Defendant argues for summary judgment and directed verdict
on two grounds. First, that plaintiff has failed to show or
forecast evidence that the defendant has breached a duty to the
plaintiff. Second, that plaintiff was contributorily negligent,
and has failed to offer evidence to refute that negligence. The
trial court held that in this case there were genuine issues of
material fact such that the case should be presented to the jury.
We agree.
A property owner must “use the care a reasonable man similarly
situated would use to keep his premises in a condition safe” for
the contemplated use of the property. Martishius v. Carolco
Studios, Inc., 355 N.C. 465, 474, 562 S.E.2d 887, 893 (2002).
Defendant argues that no duty existed to warn or protect plaintiff
from the debris in the hallway. Defendant cites Williamson v. Food
Lion, Inc., 131 N.C. App. 365, 507 S.E.2d 313 (1998), aff'd, 350
N.C. 305, 513 S.E.2d 561 (1999), to show that summary judgment and
directed verdict are appropriate unless plaintiff presents evidencethat defendant either created the dangerous circumstance or had
real or actual notice that the dangerous circumstance existed. In
Williamson, a customer at a grocery store slipped on a grape lying
on the floor in the bread aisle. The trial court granted summary
judgment because there was no proof that the defendant knew that
the grape was on the floor or that defendant was responsible for it
being there. This Court affirmed that decision. Id.
This reliance upon Williamson is misplaced. Williamson can be
distinguished from the case at bar because defendants admitted to
owning and exercising control over the hallway where plaintiff was
injured, as well as the carts and trays littering the hallway and
the kitchen where dishes were being washed. By admitting to
ownership, Forsyth Hospital owed a duty to plaintiff to keep the
hallway safe for passage, its contemplated use. Therefore, it was
appropriate to deny motions for summary judgment or directed
verdict on this basis. The jury was properly allowed to reach a
finding of fact as to whether the duty of care had been breached
due to defendant's negligence.
[2] The defendant also argues summary judgment and directed
verdict should have been granted because the plaintiff failed to
show any evidence that defendant had a duty to alert plaintiff to
a dangerous condition that was open and obvious. In Newsom v.
Byrnes, 114 N.C. App. 787, 443 S.E.2d 365 (1994), the court granted
summary judgment because the gray clay upon which plaintiff slipped
would have been obvious to any person under the circumstances, yet
the plaintiff did not avoid it. See Newsom, 114 N.C. App. at 788,443 S.E.2d at 366 (granting summary judgment for the defendant when
the plaintiff slipped on “gray clay” and injured her leg because
any ordinary person under the circumstances would have known the
clay was dangerous). Newsom can be distinguished from the case at
bar because a film of water on a shiny linoleum floor is much less
obvious and more difficult to see than gray clay.
Summary judgment is only appropriate based on an “open and
obvious” condition when the plaintiff has a more intimate knowledge
of the dangerous condition than the property owner, or the
plaintiff would have noticed the dangerous condition if she had
exercised proper care. See Von Viczay v. Thoms, 140 N.C. App. 737,
739, 538 S.E.2d 629, 631 (2000), aff'd, 353 N.C. 445, 545 S.E.2d
210-11 (2001) (holding defendant not liable when plaintiff slipped
on ice because plaintiff had equal or superior knowledge of the
dangerous condition); Swinson v. Lejeune Motor Co., 147 N.C. App
610, 618, 557 S.E.2d 112, 118 (2001) (McCullough, J., dissenting)
(asserting that plaintiff was contributorily negligent when nothing
prevented her from seeing a hole in the parking lot), rev'd, 356
N.C. 286, 569 S.E.2d 646 (2002)(adopting the dissent); Bolick v.
Bon Worth, Inc., 150 N.C. App. 428, 430, 562 S.E.2d 602, 604, disc.
review denied, 356 N.C. 297, 570 S.E.2d 498-99 (2002) (holding
defendant not liable when plaintiff admitted she was able to see
the floor and had at least equal knowledge of the floor's
treacherous conditions). In the case sub judice, plaintiff states
she was not aware of the slippery condition of the floor and, even
if she had looked at her feet, the film of water on the shinylinoleum floor would have been impossible to see. Plaintiff
neither admits to being fully aware of the dangerous condition of
the hall nor acknowledges that she would have seen the water if she
had looked. Therefore, the dangerous condition was not open and
obvious as a matter of law. Summary judgment and directed verdict
are inappropriate.
[3] Alternatively, defendant contends that summary judgment
and directed verdict should have been granted because plaintiff has
failed to offer evidence to refute allegations of contributory
negligence. Defendant compares this case to Hall v. Kmart Corp.,
136 N.C. App. 839, 525 S.E.2d 837 (2000), where a plaintiff was
held to be contributorily negligent when she slipped on an empty
box while carrying on a conversation with another customer.
Similarly, in Swinson, a customer tripped in a hole in an
automobile dealership parking lot. The Court held that she was
contributorily negligent as a matter of law because she was looking
for her car at the time and there was nothing to prevent her from
seeing the hole. Swinson v. Lejeune Motor Co., 147 N.C. App. 610,
618, 557 S.E.2d 112, 118 (2001), (McCullough, J., dissenting),
rev'd, 356 N.C. 286, 569 S.E.2d 646 (2002)(adopting the dissent).
In the case sub judice, the defendant argues that the plaintiff was
similarly inattentive when walking down the hospital hall because
at the moment she slipped plaintiff was looking ahead “to navigate
the hall” instead of at her feet.
The standard by which contributory negligence is judged is
that of a reasonable person. Our Supreme Court has stated, “[t]hequestion is not whether a reasonably prudent person would have seen
the [defect,] . . . but whether a person using ordinary care for
his or her own safety under similar circumstances would have looked
down at the floor.” Norwood v. Sherwin-Williams Co., 303 N.C. 462,
468, 279 S.E.2d 559, 563 (1981) (reinstating verdict for plaintiff
where jury had made factual determinations regarding reasonableness
of plaintiff's actions). In Dowless v. Kroger, 148 N.C. App. 168,
557 S.E.2d 607 (2001), a plaintiff whose attention was focused on
pushing her shopping cart was not found contributorily negligent as
a matter of law when she fell in a hole in the parking lot. In the
case at bar, plaintiff argues that it was reasonable for her to
look ahead down the hall to avoid the trays, carts, and other
debris instead of directly at her feet because she was concerned
for and acting to protect her own safety.
The decision as to whether looking ahead to navigate the
debris in the hall was more or less reasonable than looking down at
the floor is a question of fact to be determined by the jury. See
Jenkins v. Theaters, Inc., 41 N.C. App. 262, 254 S.E.2d 776, disc.
review denied, 297 N.C. 698, 259 S.E.2d 295 (1979) (holding that
the standard of care is a question of law, but whether defendant
failed to exercise that degree of care is a question for the jury).
Summary judgment and directed verdict were therefore properly
denied.
We agree with the trial court that there were sufficient
issues of material fact to present the question to the jury and to
sustain a jury verdict in plaintiff's favor. No error.
Judges WYNN and MCCULLOUGH concur.
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