NO. COA03-201
Appeal by plaintiff from a judgment entered 29 October 2002 by
Judge Russell G. Walker, Jr. in Randolph County Superior Court.
Heard in the Court Of Appeals 1 December 2003.
Crumley & Associates, P.C., by James M. Roane, III, for
plaintiff-appellant.
Guthrie, Davis, Henderson & Staton, P.L.L.C., by John S.
Staton and Kimberly R. Matthews, for defendant-appellee.
MARTIN, Judge.
Plaintiff brought this action seeking damages for personal
injuries which she allegedly sustained when she fell on the
sidewalk at defendant's store in Asheboro, North Carolina. She
alleged in her complaint that her injuries were proximately caused
by defendant's negligent failure to keep its premises in a
reasonably safe condition and failure to warn her of a dangerous
condition of which it had, or should have had, knowledge.
Defendant filed an answer in which it denied the materialallegations of the complaint and asserted defendant's own
contributory negligence as an affirmative defense.
Briefly summarized, plaintiff's evidence at trial tended to
show that on 15 November 1998 in the early afternoon, she and her
sister went to defendant's store to shop. Plaintiff walked to the
area on the sidewalk where the shopping carts were lined up. As
she was pulling a shopping cart from the line of carts, she stepped
backward about three steps and stepped into a hole, or broken
place, in the sidewalk. Plaintiff fell and fractured her right
wrist. Plaintiff testified that she did not look before she
stepped backward. She acknowledged that had she looked at the area
of the sidewalk where she fell, there was nothing that would have
prevented her from seeing the hole.
At the close of the plaintiff's evidence, defendant's motion
for a directed verdict was allowed. Plaintiff appeals.
______________________
Plaintiff assigns error to the trial court's order granting
defendant's motion for a directed verdict and dismissing
plaintiff's action. We find no error.
Defendant's motion for directed verdict pursuant to N.C. Gen.
Stat. § 1A-1, Rule 50(a) challenged the sufficiency of the
plaintiff's evidence to support a verdict in her favor.
Northern
Nat'l Life Ins. v. Miller Machine Co., 311 N.C. 62, 316 S.E.2d 256(1984). In ruling on the motion, the trial court was required, as
is this Court in reviewing that ruling, to take the plaintiff's
evidence as true and to consider it in the light most favorable to
her.
Id. To survive the motion, plaintiff was required to offer
evidence which, when so considered, was sufficient to show, “beyond
mere speculation and conjecture, every essential element of
negligence.”
Oliver v. Royall, 36 N.C. App. 239, 242, 243 S.E.2d
436, 439 (1978). A motion for directed verdict is properly allowed
only where the plaintiff's evidence is insufficient, as a matter of
law, to justify a verdict in the plaintiff's favor.
Stanfield v.
Tilghman, 342 N.C. 389, 394, 464 S.E.2d 294, 297 (1995).
In North Carolina, a landowner owes a duty to those lawfully
upon his premises to use ordinary care to keep his premises in a
reasonably safe condition and to warn of hidden dangers or unsafe
conditions of which the owner is, or should be, aware.
See Nelson
v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998). The
duty includes a duty “to take reasonable precautions to ascertain
the condition of the property
and to either make it reasonably safe
or give warnings as may be reasonably necessary to inform the
[visitor] of any foreseeable danger.”
Lorinovich v. K Mart Corp.,
134 N.C. App. 158, 161-2, 516 S.E.2d 643, 645,
cert. denied, 351
N.C. 107, 541 S.E.2d 148 (1999). However, the landowner has no
duty to warn a visitor against hazards or dangers of which thevisitor has equal or superior knowledge or which are so obvious
that they may be reasonably expected to be discovered.
Von Viczay
v. Thoms, 140 N.C. App. 737, 739, 538 S.E.2d 629, 631 (2000),
aff'd
per curiam, 353 N.C. 445, 545 S.E.2d 210 (2001).
In this case, plaintiff's own evidence revealed the hole, or
broken place, in the sidewalk was an obvious condition.
Photographs of the hole showed a dark area in its center, and
brighter areas surrounding the center. Both were distinguishable
from the rest of the sidewalk. Plaintiff acknowledged that the
hole was not concealed, and there was nothing to prevent her from
seeing the hole. Moreover, she presented no evidence to show that
defendant knew or should have known, in the exercise of reasonable
care, of the hole.
See Hull v. Winn-Dixie Greenville, Inc., 9 N.C.
App. 234, 236-37, 175 S.E.2d 607, 609 (1970) (directed verdict
proper where no evidence offered to show defendant knew or should
have known of the unsafe condition or that it was created by
defendant's negligence).
Plaintiff also testified that, after taking hold of the
shopping cart, she took three steps backward without looking behind
her. Her testimony disclosed as a matter of law that her fall, and
resulting injuries, were occasioned, at least in part, by her own
failure to exercise ordinary care for her own safety.
See Swinson
v. LeJeune Motor Co., 356 N.C. 286, 286, 569 S.E.2d 646, 647(2002)(adopting dissent in
Swinson v. LeJeune Motor Co., Inc., 147
N.C. App. 610, 615, 557 S.E.2d 112, 117 (2001));
Blake v. Great
Atlantic & Pacific Tea Co., 237 N.C. 730, 732, 75 S.E.2d 921, 922
(1953).
Affirmed.
Chief Judge EAGLES and Judge LEVINSON concur.
Report per Rule 30(e).
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