An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-981


Filed: 20 May 2003


v .                             Columbus County
                                No. 01 CVS 1341

    Appeal by plaintiff from order entered 19 April 2002 by Judge E. Lynn Johnson in Columbus County Superior Court. Heard in the Court of Appeals 17 April 2003.

    William L. Davis, III, for plaintiff-appellant.

    Cranfill, Sumner & Hartzog, L.L.P., by John D. Martin and Norwood P. Blanchard, III, for defendant-appellee.

    LEVINSON, Judge.

    Plaintiff (Deloris Jones) appeals from an order granting a motion by defendant (Columbus County Hospital, hereafter “the hospital”) for summary judgment. For the reasons discussed herein, we affirm.
    Plaintiff filed suit against defendant on 31 August 2001, seeking damages for injuries purportedly resulting from a fall sustained while plaintiff was on defendant's premises. Her complaint alleged that on 27 August 1996, plaintiff accompanied her sister to the hospital. As she entered the emergency room, plaintiff's foot “got caught up under one of the [floor] mats” causing her to fall down. Plaintiff claimed that her fall was caused by the hospital's negligence with regards to the floor mat,and that the fall resulted in serious injuries. She sought damages for bodily injury, loss of income, future medical expenses, and permanent injuries, as well as attorney's fees. Defendant's answer raised the defenses of lack of proximate cause and plaintiff's contributory negligence.
    On 21 February 2002, defendant filed a motion for summary judgment, alleging that “the pleadings and discovery conducted in this matter” showed that there was “no issue as to any material fact” and that defendant was entitled to summary judgment as a matter of law. In response, plaintiff submitted two affidavits: her own, which essentially repeated certain allegations in her complaint, and that of her sister, which described the incident. On 13 April 2002 the trial court granted defendant's summary judgment motion. From this order, plaintiff appeals.

Standard of Review
    Summary judgment is governed by N.C.R. Civ. P. 56, which states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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.” “[T]he party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.” Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citation omitted). Moreover:
        Before summary judgment may be entered, it must be clearly established . . . that thereis a lack of any triable issue of fact. In making this determination, the evidence forecast by the party against whom summary judgment is contemplated is to be indulgently regarded, while that of the party to benefit from summary judgment must be carefully scrutinized. Further, any doubt as to the existence of an issue of triable fact must be resolved in favor of the party against whom summary judgment is contemplated.

Creech v. Melnik, 347 N.C. 520, 526, 495 S.E.2d 907, 911 (1998) (citations omitted).
    The movant may meet the burden of proving the lack of any triable issue “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.” Collingwood v. G. E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989) (citing Bernick v. Jurden, 306 N.C. 435, 293 S.E. 2d 405 (1982)). However, “'[o]nce the movant has established its right to summary judgment, the non-movant may not rest upon conclusory allegations but must come forward with affidavits showing that a material factual dispute exists.'” Ellis v. White, __ N.C. App. __, __, 575 S.E.2d 809, 814 (2003) (quoting Pierce Concrete, Inc. v. Cannon Realty & Construction Co., 77 N.C. App. 411, 412, 335 S.E.2d 30, 31 (1985)). Thus, “[b]y making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.” Collingwood v. G. E. Real Estate Equities, 324N.C. 63, 66, 376 S.E.2d 425, 427 (1989) (citing Dickens v. Puryear, 302 N.C. 437, 453, 276 S.E. 2d 325, 335 (1981)).
    On appeal, the standard of review from summary judgment is “whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Further, the evidence presented by the parties must be viewed in the light most favorable to the non-movant.” Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998) (citation omitted).
    Plaintiff herein alleged that her injuries were proximately caused by defendant's negligence. As a general rule, a trial court should be cautious in granting summary judgment in a negligence case. See Culler v. Hamlett, 148 N.C. App. 389, 393, 559 S.E.2d 192, 195 (2002) (“summary judgment is an extreme remedy and rarely granted in negligence actions”). However, “[w]hile summary judgment is rarely appropriate in cases involving negligence and contributory negligence . . . [it] is appropriate in such cases when the moving party carries his initial burden of showing the nonexistence of an element essential to the other party's case and the non-moving party then fails to produce or forecast at hearing any ability to produce at trial evidence of such essential element of his claims.” DiOrio v. Penny, 331 N.C. 726, 729, 417 S.E.2d 457, 459 (1992) (citing Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 414 S.E.2d 339 (1992), and Williams v. Power & Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979)).
Premises Liability
    In the instant case, plaintiff alleges that her injuries proximately resulted from defendant's negligence with regard to the floor mat over which she tripped. “North Carolina premises-liability law . . . bas[es] liability upon the pillar of modern tort theory: negligence[,]” Nelson v. Freeland, 349 N.C. 615, 633, 507 S.E.2d 882, 893 (1998), and “requir[es] a standard of reasonable care toward all lawful visitors.” Id. at 631, 507 S.E.2d at 892. In a negligence action, “to survive a motion for summary judgment, plaintiff must establish a prima facie case of negligence 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), disc. review denied, 342 N.C. 656, 467 S.E.2d 715 (1996). In Roumillat v. Simplistic Enters., 331 N.C. 57, 414 S.E.2d 339, the North Carolina Supreme Court set out the standard for determining liability in “slip and fall” cases such as the present case:
        [T]o prove that the defendant-proprietor is negligent, plaintiff must show that the defendant either (1) negligently created the condition causing the injury, or (2) negligently failed to correct the condition after actual or constructive notice of its existence. When the unsafe condition is attributable to third parties or [to] an independent agency, plaintiff must show that the condition 'existed for such a length of time that defendant knew or by the exercise of reasonable care should have known of itsexistence, in time to have removed the danger or [to have] given proper warning of its presence.'

Roumillat, 331 N.C. at 64, 414 S.E.2d at 342-343 (emphasis added) (citing Hinson v. Cato's, Inc., 271 N.C. 738, 739, 157 S.E.2d 537, 538 (1967), and quoting Powell v. Deifells, Inc., 251 N.C. 596, 600, 112 S.E.2d 56, 58 (1960)). “Furthermore, a 'proprietor has no duty to warn an invitee of an obvious danger or of a condition of which the invitee has equal or superior knowledge. Reasonable persons are assumed, absent a diversion or distraction, to be vigilant in the avoidance of injury in the face of a known or obvious danger.'” Goynias v. Spa Health Clubs, Inc., 148 N.C. App. 554, 557, 558 S.E.2d 880, 882 (2002) (quoting Roumillat, 331 N.C. at 66, 414 S.E.2d at 344).
    Thus, in the case sub judice, in order to survive a summary judgment motion, plaintiff was required to produce evidence sufficient to establish a prima facie case that (1) defendant was negligent in that it either negligently situated the floor mat in a hazardous manner, or negligently failed to correct the hazard posed by the floor mat upon actual or constructive notice of the danger; (2) it was reasonably foreseeable that defendant's negligence with regards to the floor mat would result in injury; and (3) defendant's negligence proximately caused plaintiff's injuries.
    Applying these principles to the facts at hand, we conclude that the trial court properly granted summary judgment fordefendant. Plaintiff testified in her deposition that she fell because the floor mat was lying on the threshold of the emergency room entrance. However, she admitted in her deposition that she had no idea how the floor mat came to be lying where it was, how long it had been there, or whether or not defendant's employees knew the floor mat was lying in the doorway. Further, none of the witnesses whom plaintiff deposed offered testimony about where the floor mat was when plaintiff tripped, how long it had been in that location, how it came to be situated in the doorway area, whether defendant or its employees were aware of the floor mat's location, or whether other incidents had occurred involving the floor mat. Thus, discovery revealed an absence of any evidence of defendant's negligence. Therefore, to survive defendant's summary judgment motion, plaintiff was required to produce some evidence that defendant either negligently placed the floor mat in the doorway, or had actual or constructive notice of the hazard posed by the floor mat and failed to correct the situation. However, in response to defendant's motion for summary judgment, plaintiff offered only her own affidavit and that of her sister, neither of which contain any evidence of defendant's negligence.
    We also note that “the pivotal issue in this case is not defendant's knowledge of the condition, but is plaintiff's knowledge.” 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 (2001) (citing Lorinovich v. K Mart Corp., 134 N.C. App. 158, 162, 516S.E.2d 643, 646, disc. review denied, 351 N.C. 107, 541 S.E.2d 148 (1999)). Moreover:
        A landowner is under no duty to protect a visitor against dangers either known or so obvious and apparent that they reasonably may be expected to be discovered. Similarly, a landowner need not warn of any 'apparent hazards or circumstances of which the invitee has equal or superior knowledge.' Rather, '[a] reasonable person should be observant to avoid injury from a known and obvious danger.'

Id. (quoting Jenkins v. Lake Montonia Club, 125 N.C. App. 102, 105, 479 S.E.2d 259, 262 (1997), and Farrelly v. Hamilton Square, 119 N.C. App. 541, 546, 459 S.E.2d 23, 27 (1995)). In the instant case, plaintiff's deposition established that her fall occurred in broad daylight, that the floor mat was in plain sight on the floor, and that plaintiff had in fact seen the floor mat before she tripped. Therefore, if the floor mat presented a hazard, it was a “danger[] either known or so obvious and apparent that [it] reasonably may be expected to be discovered.” Id.
    Notwithstanding plaintiff's failure to support her complaint with evidence sufficient to establish a prima facie case, plaintiff makes several arguments that summary judgment was improper. Plaintiff first contends that defendant was required to specify in its summary judgment motion which documents in the pleading and discovery supported its motion. However, “Rule 56 'does not require any grounds be stated in a motion for summary judgment.'” Dickens v. Puryear, 302 N.C. 437, 443, 276 S.E.2d 325, 329 (1981) (quoting Conover v. Newton and Allman v. Newton and In reAnnexation Ordinance, 297 N.C. 506, 513, 256 S.E. 2d 216, 221 (1979)). The trial court did not err by failing to require defendant to identify specific items of discovery upon which it based its summary judgment motion.
    Plaintiff next argues that the trial court “was required to consider as true allegations in the Plaintiff's complaint as well as the affidavit attached to her response to the Defendant's motion for summary judgment.” Plaintiff misstates the law in this regard.
    N.C.R. Civ. P. 56(e) requires that “affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Therefore, “[h]earsay matters included in affidavits should not be considered by a trial court in entertaining a party's motion for summary judgment. Similarly, a trial court may not consider that portion[] of an affidavit which is not based on an affiant's personal knowledge.” Moore v. Coachmen Industries, Inc., 129 N.C. App. 389, 394, 499 S.E.2d 772, 776 (1998) (citing Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 52, 191 S.E.2d 683, 688-89 (1972)). Moreover, “affidavits or other material offered which set forth inadmissible facts should not be considered for summary judgment.” Briley v. Farabow, 348 N.C. 537, 544, 501 S.E.2d 649, 654 (1998) (citing Borden, Inc. v. Brower, 17 N.C. App. 249, 193 S.E.2d 751, rev'd on other grounds, 284 N.C. 54, 199 S.E.2d 414 (1973)). See also Strickland v. Doe, __ N.C. App. __, 577 S.E.2d 124 (2003) (in ruling on motion for summary judgment, trial courtshould disregard portions of affidavits containing hearsay, legal conclusions, or inadmissible evidence).
    Plaintiff contends that her sister's affidavit establishes that “an employee of the Defendant, a nurse on duty at the time, stated that there had been prior incidents” involving the floor mat in the doorway of the hospital's emergency room. However, plaintiff's evidence on this issue consists solely of a hearsay statement repeated by plaintiff's sister in her affidavit. As such, the trial court properly disregarded the statement.
    Plaintiff further contends that the trial court was obliged to accept as true the allegations in her complaint of “lack of inspection, lack of maintenance by the Defendant, and that Defendant had prior knowledge or should have had prior knowledge of the unsafe conditions on the premises[.]” Such allegations were all either inadmissible legal conclusions, or were not based upon plaintiff's personal knowledge. We conclude that the trial court was not required to “accept as true” these conclusory allegations.
    Plaintiff argues next that depositions of hospital employees demonstrated the hospital's negligence by showing that the hospital failed to keep records to “properly establish notice of the occurrence or existence of unsafe conditions or prior incidents of slip and fall on [the] premises of the hospital.” We disagree.
    Plaintiff cites the deposition of Joe Newsome, retired former director of the hospital's housekeeping and laundry staff, in support of her argument. Newsome testified that he scheduled the shifts and hospital areas where staff members worked. If thehospital needed janitorial services in order to, e.g., mop up a spill or straighten out a floor mat, the hospital staff would ask the person assigned to that area of the hospital to fix the problem. Newsome testified that such tasks were part of “the normal day's work” and that the housekeeping staff did not prepare written reports detailing their work. Newsome did not provide any information about safety procedures, inspections, or documentation, beyond his testimony that such analysis and record keeping was not performed by the housekeeping staff.
    Nor did the deposition of Caroline Bowden, also cited by plaintiff, show that defendant was negligent. Bowden was a registration clerk who was working in the emergency room on the day of plaintiff's fall. She did not see the fall, and had no information about its cause. Bowden also testified that when a patient was seen in the emergency room, hospital personnel generally prepared temporary “slips” with the patient's name, date of birth, and the nature of their complaint. A nurse would transfer information from these slips to a “triage sheet” and at the close of the day the slips were shredded and discarded. However, Bowden did not testify that these temporary “slips” were associated with the hospital's safety policies, or that they would include safety information.
    We conclude that the depositions of hospital personnel did not establish what procedures, if any, the hospital employed to document injuries occurring on its premises. Moreover, even assuming arguendo that defendant did not keep records of slip andfall incidents on its premises, this would not establish that such incidents had in fact occurred, much less that there had been prior incidents involving the floor mat.
    Finally, plaintiff argues that summary judgment was improperly granted because defendant “failed to present any evidence that the Defendant has properly maintained and inspected the premises on a regular basis to prove that . . . conditions would be safe for [plaintiff] to enter upon the premises of the Defendant.” However, as discussed above, “[the fact] that defendant was on actual or constructive notice of the [floor mat] . . . and failed to correct it was an essential element of plaintiff's claim.” Roumillat, 331 N.C. at 64-65, 414 S.E.2d at 343 (plaintiff slipped on oily substance in parking lot) (emphasis added). Thus, “defendant was not required to produce evidence showing that it did not know or should not have known of the [floor mat]. Such a requirement lacks support in our law and is indeed erroneous.” Id. at 63, 414 S.E.2d at 342.
    For the reasons discussed above, we conclude that the trial court did not err by granting defendant's summary judgment motion. Accordingly, the trial court's order is
    Judges McGEE and McCULLOUGH concur.
    Report per Rule 30(e).

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