Appeal by plaintiffs from judgment entered 25 October 2002 by
Judge Claude S. Sitton in Caldwell County Superior Court. Heard in
the Court of Appeals 16 March 2004.
C. Gary Triggs, P.A., by C. Gary Triggs, for plaintiff-
appellants.
Roberts & Stevens, P.A., by Jacqueline D. Grant and Robert E.
Allen, for defendant-appellee.
HUNTER, Judge.
Steve and Regina Abernethy (“plaintiffs”) appeal a judgment
concluding that injuries sustained by Regina Abernethy (“Regina”)
after falling on the deck of a dental office owned by Wayne Hollar,
D.D.S. (“defendant”) were not due to defendant's negligence. For
the reasons stated herein, we affirm.
On 26 February 1999, Regina went to defendant's office located
in Lenoir, North Carolina, for an early morning dental appointment.
Plaintiff entered the office by walking across a deck used to
access the front entrance of the office. Upon exiting the officeafter her appointment, Regina fell on the deck and severely
fractured her right ankle.
On 5 March 2001, plaintiffs filed a complaint alleging that an
icy condition on the office deck that was unknown to Regina caused
her fall and subsequent injuries. Plaintiffs further alleged that
defendant had a duty to provide Regina with a safe method of
ingress and egress into the office, but was negligent in doing so
by:
a. failing to post signs or warn the
Plaintiff Regina Abernethy of an icy or
slippery condition on the deck which was
the primary entrance into the building;
b. failing to take necessary precautions to
correct an icy condition which was known,
or, by reasonable diligence, should have
been known, to the Defendant[;]
c. failing to properly construct or provide
surfaces that would enable patients or
other persons walking across such areas
to observe icy conditions if they
existed;
d. allowing [the] deck, which is gray in
color and thus conceals ice or other
clear obstruction from view, to be placed
adjacent to his office which he knew, or,
by reasonable diligence, should have
know, would present potentially hazardous
situations for patients attempting to
enter or exist [sic] the office during
icy weather; and
e. failing to properly clear the deck on the
date in question to ensure the safety of
the Plaintiff Regina Abernethy.
Finally, plaintiffs alleged the accident directly and proximately
resulted in a loss of consortium and marital income. In his
answer, defendant denied liability, but alleged Regina'scontributory negligence as a bar to plaintiffs' recovery if
defendant was found to be negligent.
The matter was called for trial on 21 October 2002, during
which the following evidence was offered. Plaintiffs' evidence
tended to show that as Regina entered the office that morning she
observed a wet-looking substance on the deck. Regina did not slip
or slide on that substance as she entered, nor did she report any
hazardous condition on the deck to defendant's staff.
Approximately thirty minutes later, Regina exited the office and
slid on the same wet-looking substance she had observed when
entering the office. An EMS worker (called to assist Regina after
the fall) testified that the deck was wet, slippery, and slick.
“It was damp and overcast and foggy outside[,]” but there were no
signs of precipitation or a noticeable temperature change during
the time Regina entered and exited the office. Regina had been
watching where she walked and her view was unobstructed. After
falling, Regina's pants and underwear were stuck to the deck due to
ice. Thereafter, when defendant learned that Regina had fallen, he
told the office manager, Missy Straud (“Straud”), to “'get some
salt and spread it around here before anybody else falls.'”
Defendant's evidence tended to show that the temperature that
morning was above freezing with no precipitation whatsoever in the
preceding twenty-four hours. Prior to Regina's fall, other
patients had entered the office using the same deck and entrance
and had not reported any hazardous conditions on the deck.
Defendant and Straud were surprised to learn that Regina had fallenbecause, after “scuffing” their feet on the deck, they did not
detect any ice or slippery substance. Nevertheless, defendant
asked Straud to put some salt on the deck so as not to embarrass
Regina if she fell for no apparent reason. Defendant testified
that he had purchased the deck because the material, Brock Dock,
“was advertised as a non-slip surface.” Finally, defendant had not
inspected the deck that morning because there was “no indication
any other place outside that any kind of unusual condition was
there.”
After all the evidence was presented, the jury concluded that
plaintiffs were not injured by defendant's negligence. A judgment
was entered consist with the verdict on 25 October 2002.
Plaintiffs appealed.
I.
By their first assignment of error, plaintiffs argue the trial
court erred in limiting Regina's opinion testimony regarding the
defendant's ability to warn her of the alleged hazardous deck
conditions. Specifically, plaintiffs take issue with the trial
court sustaining defendant's objection to the following question
posed to Regina on re-direct examination: “Based upon your
knowledge of this fall, if the doctor or anyone on his staff had
walked out and looked where his patients were coming in and out of,
could they have warned you about what was there?” We conclude the
trial court did not err in sustaining defendant's objection.
“As a general rule, redirect examination is intended 'to
clarify testimony which had been cast into doubt uponcross-examination, to clarify new matter brought out on
cross-examination, or to refute testimony elicited on
cross-examination. . . .'”
State v. Davis, 68 N.C. App. 238, 242,
314 S.E.2d 828, 831 (1984) (citation omitted). Here, the question
posed by plaintiffs' counsel would have neither clarified nor
refuted Regina's earlier testimony, instead bringing forth new
questions regarding defendant's ability to warn Regina of the deck
conditions. It was well within the trial court's discretion not to
allow testimony on re-direct examination involving matters beyond
the scope of the witness' testimony on direct or cross-examination.
Id. Thus, this assigned error is without merit.
II.
Plaintiffs argue the trial court erred in allowing
inadmissible hearsay testimony from Straud concerning statements by
other patients as to hazardous conditions on the office deck the
morning of Regina's fall. We disagree.
Hearsay is any out of court statement “offered in evidence to
prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1,
Rule 801(c) (2003). Plaintiffs contend the following testimony
constituted inadmissible hearsay:
DIRECT EXAMINATION RESUMED BY MR. ALLEN:
Q Did any of the other patients that
morning complain about observing ice or
any hazardous conditions that morning?
BY MR. TRIGGS:
Objection.
BY THE COURT:
Overruled.
BY THE WITNESS:
No, sir.
The question posed by defendant's counsel did not seek to solicit
the
content of other patients' statements, but whether those
patients had made
any statements concerning the condition of the
deck. Straud's response clearly indicates that she offered no
statements from other patients about the deck's conditions.
Therefore, no hearsay was offered into evidence.
III.
Next, plaintiffs assign error to the trial court allowing
defendant to testify that the deck was “advertised as a non-slip
surface that was specifically designed for wet surfaces.”
Plaintiffs contend that defendant's testimony constituted (1) an
inadmissible lay opinion because defendant was not an expert in
materials used for deck construction, and (2) inadmissible hearsay
because the statement was made by someone other than defendant, but
offered by defendant to prove the truth of the matter asserted. We
disagree.
In the instant case, defendant was not attempting to offer an
expert opinion as to the “non-slip” properties of the deck
materials. The testimony at issue was simply offered to explain
his reasons for selecting Brock Dock as the deck material because
plaintiffs had called that selection into question. Moreover,
defendant's testimony did not constitute inadmissible hearsay
because it was not offered to prove that the deck actually had anon-slip surface, only that he purchased the material because it
was advertised as such. Nevertheless, assuming
arguendo that
defendant's testimony was offered to prove the truth of the matter
asserted, it was not prejudicial to plaintiffs because whether the
deck actually had a non-slip surface would not prevent moisture
from accumulating and freezing as plaintiff alleged. Thus, the
trial court did not err in admitting defendant's testimony as to
the non-slip nature of the deck.
IV.
Plaintiffs also argue the trial court erred by not allowing
their motion to amend the pleadings to conform with the evidence.
We disagree.
“[A]n amendment to the theory of a case is improper unless
there is some evidence supporting the new theory.”
Taylor v.
Gillespie, 66 N.C. App. 302, 306, 311 S.E.2d 362, 365 (1984).
Plaintiffs contend that the testimony of defendant and Straud
demonstrated that defendant had some sort of policy or routine in
place that required Straud to check the deck for any hazardous
conditions every morning when she unlocked the front door of the
office. While Straud did testify that she would “look on the front
deck” when she unlocked the front door for the patients since the
employees all entered the office using the back door, there was no
evidence offered that she was required to do so. In fact, on
cross-examination defendant denied that Straud was required to
check the deck on a daily basis to see if it was safe. Thus, therewas no clear abuse of discretion by the trial court in denying
plaintiffs' motion.
V.
Finally, plaintiffs assign error to the trial court's denial
of their motion under Rule 59 of our Rules of Civil Procedure to
either set aside the jury verdict or grant a new trial.
The trial court's decision to exercise its
discretion to
grant or deny a Rule 59(a)(7)
motion for a new trial for insufficiency of
the evidence must be based on the
greater
weight of the evidence as observed firsthand
only by the trial court. The test for
appellate review of a trial court's granting
of a motion for a new trial due to
insufficiency of the evidence continues to be
simply whether the record affirmatively
demonstrates an abuse of discretion by the
trial court in doing so.
In re Buck, 350 N.C. 621, 629, 516 S.E.2d 858, 863 (1999).
In the present case, Regina was invited on defendant's
premises to seek dental treatment.
An owner or proprietor of a place of
business owes an invitee the duty to exercise
ordinary care to keep the premises in a
reasonably safe condition and to warn the
invitee of hidden dangers or unsafe conditions
of which he has knowledge. In addition, the
owner is “obligated to keep the approaches and
entrances to his [business] in a reasonably
safe condition for the use of customers
entering or leaving the premises.”
Atwater v. Castlebury, 84 N.C. App. 512, 514, 353 S.E.2d 263, 265
(1987) (citations omitted). Nevertheless, “[t]his Court [has] held
that the defendant had no duty to warn the plaintiff or to protect
her from [a] hazard when the facts indicated the plaintiff had
equal knowledge of the hazardous condition.”
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 (2002).
Here, Regina admitted that she had no trouble entering the
office despite seeing a wet substance on the deck. Regina
testified that she did not inform any of defendant's staff about
the wet substance. Upon exiting the office, Regina slipped on the
very same wet substance she saw as she entered the office. By her
very own testimony, Regina provided sufficient evidence that she
had knowledge of a hazardous condition on the deck. Therefore, the
trial court did not abuse its discretion when it denied plaintiffs'
motions to set aside the jury verdict and grant a new trial.
Affirmed.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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