An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-384


Filed: 18 May 2004


v .                         Halifax County
                            No. 01 CvS 1428
d/b/a HANDY MART NO. 14,

    Appeal by plaintiff from order entered 8 November 2002 by Judge Dwight L. Cranford in Halifax County Superior Court. Heard in the Court of Appeals 19 April 2004.

    Perry Anthony & Sosna, by Cedric R. Perry, for plaintiff- appellant.

    Cogburn, Goosmann, Brazil & Rose, P.A., by Andrew J. Santaniello and Frank J. Contrivo, Jr., for defendant- appellee.

    MARTIN, Chief Judge.

    Plaintiff brought this action, alleging negligence, after she was injured in a fall at defendant's store. Defendant answered, denying negligence and asserting plaintiff's own negligence as an affirmative defense. After discovery, defendant moved for summary judgment.
    Evidence before the trial court at the summary judgment hearing showed that plaintiff visited defendant's Handy Mart No. 14 convenience store in Scotland Neck at approximately 8:30 A.M. on 4 December 2000. Plaintiff testified during her deposition that on Sunday, 3 December 2000, the day before her fall, it had snowedalmost all day. Plaintiff had not seen any sleet or freezing rain falling in addition to the snow. On the following morning, plaintiff stopped at the store to fill her car with gasoline on her way to work. Plaintiff noticed that the snow had not been cleared from the store's parking lot and the area around the gasoline pumps. No warning signs had been placed outside the store and no slip retardant substances had been applied to the area around the gas pumps. Plaintiff got out of her car, pumped gasoline into her car's tank, and replaced the gas nozzle on the pump. As she walked behind her car towards the store building to pay for the gasoline, plaintiff slipped, fell and broke her leg.     
    Regarding the cause of her fall, plaintiff testified at her deposition taken on 5 April 2002:
        Q.    What did you slip on?

        A.    Well, the people that helped me got [sic] up, they said it was ice because they say I cracked the ice when I fell.

        Q.    Did you look at it when you were . . .

        A.    I was hurting too bad to look at anything.

        . . . .

        Q.    I know you just told me you didn't look at whatever exactly it was that you fell on. But when you're down there on the ground, was there still snow and ice all around you?

        A.    Yes.

        . . . .

        Q.    Do you have any reason to doubt that it wasn't ice that you slipped on?
        A.    No.

        Q.    So you think it was ice?

        A.    Yes, sir.

        Q.    Was it an oil slick or tire iron or something like that, that was laying down there?

        A.    No, sir, because I heard them saying that I cracked the ice.

        . . . .

        Q.    Were you surprised that there was ice in that parking lot?

        A.    Yes.

        Q.    And why is that?

        A.    Because it had just snowed. I didn't know it was sleet or whatever, to have ice down up under it.

        Q.    The ice was underneath the snow?

        A.    So they say, I don't know. I don't.

However, in an affidavit filed on 16 October 2002, plaintiff stated that the defendant's premises were covered with “snow and ice under the snow.”
    Plaintiff appeals from an order granting defendant's motion for summary judgment. For the reasons which follow, we affirm.     Summary judgment is appropriate “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.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). A trial court should consider the evidence in the lightmost favorable to the non-moving party when deciding whether to grant a summary judgment motion. See Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003). The burden of proof shifts between the moving and non-moving parties on a summary judgment motion as follows:
        On a motion for summary judgment, the moving party has the burden of establishing that no triable issue of fact exists and that he is entitled to judgment as a matter of law. Once the moving party meets this burden, the burden is then on the opposing party to show that a genuine issue of material fact exists. If the opponent fails to forecast such evidence, then the trial court's entry of summary judgment is proper.

White v. Hunsinger, 88 N.C. App. 382, 383, 363 S.E.2d 203, 204 (1988)(citations omitted); see also Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849 (1988).
    Summary judgment is usually not appropriate in negligence actions. See Barnes v. Wilson Hardware Co., 77 N.C. App. 773, 336 S.E.2d 457 (1985). However, “summary judgment should be entered where the forecast of evidence before the trial court demonstrates that a plaintiff cannot support an essential element of his claim” or if plaintiff cannot overcome an affirmative defense established by defendant. Patterson v. Pierce, 115 N.C. App. 142, 143, 443 S.E.2d 770, 771 (citing Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 414 S.E.2d 339 (1992)), disc. rev. denied, 337 N.C. 803, 449 S.E.2d 749 (1994); see also Rorrer v. Cooke, 313 N.C. 338, 329 S.E.2d 355 (1985); Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, disc. rev. denied, 357 N.C. 169, 581 S.E.2d 447 (2003). A trial court may grant summary judgment “when it appears thatthere can be no recovery for plaintiff even if the facts as alleged by plaintiff are taken as true.” Jacobs v. Hill's Food Stores, Inc., 88 N.C. App. 730, 732, 364 S.E.2d 692, 693 (1988)(citations omitted).
    In the present case, plaintiff argues that the layer of ice that caused her to fall was a hidden condition about which defendant had a duty to warn her. Plaintiff claims that defendant's failure to warn her or to take precautionary measures to prevent its customers from falling was negligence.
    As a customer of the store, plaintiff was an invitee. See Williamson v. Food Lion, Inc., 131 N.C. App. 365, 507 S.E.2d 313 (1998), aff'd per curiam, 350 N.C. 305, 513 S.E.2d 561 (1999). Our Supreme Court has held that licensees and invitees are owed the duty of reasonable care. See Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998), 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.” Bolick v. Bon Worth, Inc., 150 N.C. App. 428, 430, 562 S.E.2d 602, 604, disc. rev. denied, 356 N.C. 297, 570 S.E.2d 498 (2002). No liability is created if lawful visitors are exposed to open and obviously dangerous conditions:
        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.'

Von Viczay v. Thoms, 140 N.C. App. 737, 739, 538 S.E.2d 629, 631 (2000)(citations omitted), aff'd per curiam, 353 N.C. 445, 545 S.E.2d 210 (2001); see also Goynias v. Spa Health Clubs, Inc., 148 N.C. App. 554, 558 S.E.2d 880, aff'd per curiam, 356 N.C. 290, 569 S.E.2d 648 (2002); Bolick, 150 N.C. App. at 430, 562 S.E.2d at 604.
    Defendant argues that it had no responsibility to warn plaintiff of the danger presented by the snow because it was an open and obvious condition. Plaintiff's deposition testimony and affidavit confirm that she had equal knowledge that snow was present in the parking lot. Therefore, defendant cannot be negligent unless plaintiff shows that a hidden and dangerous condition caused her injury, that defendant knew of that hidden danger, and failed to warn plaintiff.
    Plaintiff contends that a genuine issue of fact concerning the existence of ice hidden beneath the snow was created by her affidavit in opposition to summary judgment. Rule 56(e) requires that: “Supporting and opposing 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.” N.C. Gen. Stat. § 1A-1, Rule 56(e)(2003). “[A]ffidavits or other material offered which set forth facts which would not be admissible in evidence should not be considered when passing on the motion for summary judgment.” Borden, Inc. v. Brower, 17 N.C. App. 249, 253, 193 S.E.2d 751, 753; rev'd on other grounds by 284 N.C. 54, 199S.E.2d 414 (1973); see Strickland, 156 N.C. App. at 295-96, 577 S.E.2d at 128; Williamson v. Bullington, 139 N.C. App. 571, 534 S.E.2d 254 (2000), aff'd by an equally divided court, 353 N.C. 363, 544 S.E.2d 221 (2001); Patterson v. Reid, 10 N.C. App. 22, 29, 178 S.E.2d 1, 6 (1970).
    In her affidavit, plaintiff stated that defendant's premises were covered with snow and there was ice underneath the snow. However, in her deposition testimony, plaintiff repeatedly stated that she did not see any ice when she fell, that witnesses had told her there was ice, but that she did not look and did not know of her own knowledge whether there was ice under the snow. The basis for plaintiff's affidavit and her deposition testimony concerning the presence of ice was, therefore, clearly hearsay. Therefore, the affidavit could not have been properly considered by the trial court in ruling upon the summary judgment motion.
    There is also another reason that plaintiff's contradictory affidavit is insufficient to create a genuine issue of material fact to defeat summary judgment. This Court has previously frowned upon the submission of an affidavit which directly contradicts deposition testimony:
        The question thus presented for our review is whether a party opposing a motion for summary judgment by filing an affidavit contradicting his prior sworn testimony has 'set forth specific facts showing that there is a genuine issue for trial' as required by G.S. § 1A-1, Rule 56(e). We think a party should not be allowed to create an issue of fact in this manner and thus hold that contradictory testimony contained in an affidavit of the nonmovant may not be used by him to defeat a summary judgment motion where the only issueof fact raised by the affidavit is the credibility of the affiant.

Mortgage Co. v. Real Estate, Inc., 39 N.C. App. 1, 9, 249 S.E.2d 727, 732 (1978), aff'd per curiam, 297 N.C. 696, 256 S.E.2d 688 (1979). Plaintiff's affidavit statement that she had personal knowledge that ice was hidden underneath the snow in defendant's parking lot conflicts with her extensive deposition testimony in which she denies having any knowledge of the ice except through the hearsay statements of the people who witnessed her accident.
    In addition to failing to prove the presence of ice, neither plaintiff's deposition nor affidavit indicate any basis to support a finding that defendant had equal or greater knowledge about the purported layer of ice than plaintiff. Thus, plaintiff not only failed to produce evidence to show that a hidden, dangerous condition existed that created a duty for defendant to warn her or take precautionary steps to ensure her safety, but also failed to produce evidence that defendant failed to remedy a dangerous condition of which it had equal or superior knowledge.
    Judges HUNTER and THORNBURG concur.
    Report per Rule 30(e).

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