An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-770


Filed: 4 May 2004


v .                                     Caldwell County
                                        No. 01 CvS 376< br> WAYNE HOLLAR, D.D.S.,

    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.


    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.

    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:

        Q    Did any of the other patients that morning complain about observing ice or any hazardous conditions that morning?

        BY MR. TRIGGS:


        BY THE COURT:


            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.

    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.

    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.

    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.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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