An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

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                    NO. COA03-933


Filed: 18 May 2004



v .                         Sampson County
                            No. 02 CVS 101


    Appeal by plaintiff from order entered 5 May 2003 by Judge Russell J. Lanier, Jr. in Superior Court, Sampson County. Heard in the Court of Appeals 20 April 2004.

    Ward and Smith, P.A., by Ryal W. Tayloe and Cindi M. Quay, for plaintiff appellant.

    Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Jeffrey H. Blackwell and Shelley W. Coleman, for defendant appellee.

    WYNN, Judge.

    By this appeal, Plaintiff Doris Jackson contends the trial court erred in granting summary judgment to Defendant City of Clinton, in that genuine issues of material fact exist regarding whether Defendant was negligent in failing to properly maintain its sidewalk. For the reasons hereafter stated, we affirm the order of the trial court.
    The pertinent factual and procedural history of the instant appeal is as follows: Plaintiff filed her complaint 22 February 2002 against Defendant in Sampson County Superior Court seekingdamages for injuries she sustained in a fall after tripping over a gap in a sidewalk maintained by Defendant. Defendant thereafter moved for summary judgment pursuant to North Carolina Rule of Civil Procedure 56, which motion came before the trial court on 5 May 2003. The evidence at the hearing, taken in the light most favorable to Plaintiff, tended to show the following:
    On the afternoon of 1 May 2001, Plaintiff fell after stepping into a hole in a sidewalk located in downtown Clinton. The hole was approximately six inches wide and one inch deep. The hole in the sidewalk was “behind and below the level of the curbing, making it difficult to see” from Plaintiff's position. Plaintiff did not observe the hole before she stepped into it. There were no markers indicating the defect. Plaintiff sustained serious injuries to her shoulder as a result of her fall.
    Wyman Wood, a supervisor in the Street Department of the City of Clinton, testified he was familiar with the area where Plaintiff fell. Wood was unaware of any previous incidents involving the area where Plaintiff fell. After viewing the gap in the sidewalk, Wood felt that it constituted a dangerous condition. The gap was repaired after Plaintiff's accident.
    Wayne Hollowell, director of the City of Clinton Public Works and Utilities, testified he was aware of one previous incident where a person fell because of a defect in a sidewalk in downtown Clinton. Hollowell denied that the particular gap in the sidewalk where Plaintiff fell was a “dangerous condition,” describing it as “[a] moderate obstacle to pedestrian traffic.” Hollowell testifiedthat, “[a]esthetically we needed to put the asphalt in there, and yes, it did need to be there, but compared to the general conditions of downtown at that time[,] it was not that inconsistent.” When asked to describe the general condition of downtown Clinton at that time, Hollowell replied that “[t]he sidewalks were in good shape, but there were a lot of cracks. It was aging. . . . We had had a couple of petition sidewalk replacements where the owners say I'd like to have new sidewalk.” Although Hollowell had walked through the area where Plaintiff fell “a hundred times in the couple of months before the incident,” he was unaware of the particular gap prior to Plaintiff's accident.
    Finally, Plaintiff submitted the affidavit testimony of Vince Diorio, the owner of a store located near the spot where Plaintiff fell. According to Diorio, “the hole had been in the sidewalk for at least” two years before Plaintiff's accident. Diorio stated he had tripped on the same hole “once or twice” but had never fallen. Diorio never complained to Defendant regarding the hole.
    Upon reviewing the evidence and arguments by counsel, the trial court granted summary judgment to Defendant. Plaintiff appealed.
    The issue on appeal is whether Plaintiff presented sufficient evidence raising genuine issues of material fact in support of her claim of negligence such that summary judgment was improper. Summary judgment is properly granted where the pleadings, depositions, answers to interrogatories, and admissions on file,together with the affidavits, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003); Campbell v. City of High Point, 144 N.C. App. 493, 495, 551 S.E.2d 443, 445, affirmed per curiam, 354 N.C. 566, 557 S.E.2d 529 (2001). In a negligence action, summary judgment may be granted where there are no genuine issues of material fact and the plaintiff fails to show one of the elements of negligence. Willis v. City of New Bern, 137 N.C. App. 762, 764, 529 S.E.2d 691, 692 (2000).
    Under North Carolina law, a city is obligated to keep its public streets and sidewalks “in proper repair.” N.C. Gen. Stat. § 160A-296(a)(1) (2003). “While the city is not an insurer of the safety of one who uses its streets and sidewalks, it is under a duty to use due care to keep its streets and sidewalks in a reasonably safe condition for the ordinary use thereof.” Mosseller v. Asheville, 267 N.C. 104, 107, 147 S.E.2d 558, 561 (1966). A city is not responsible, however, for injuries caused by “[t]rivial defects, which are not naturally dangerous.” Id. at 109, 147 S.E.2d at 562.
    To prove a claim of negligent maintenance of its sidewalk against Defendant, Plaintiff must introduce evidence sufficient to show
        “(1) She fell and sustained injuries; (2) the proximate cause of the fall was a defect in or condition upon the sidewalk; (3) the defect was of such a nature and extent that a reasonable person, knowing of its existence, should have foreseen that if it continued someperson using the sidewalk in a proper manner would be likely to be injured by reason of such condition; (4) the city had actual or constructive notice of the existence of the condition for a sufficient time prior to the plaintiff's fall to remedy the defect or guard against injury therefrom.”

Willis, 137 N.C. App. at 764, 529 S.E.2d at 692 (quoting Cook v. Burke County, 272 N.C. 94, 97, 157 S.E.2d 611, 613 (1967)); see also Desmond v. City of Charlotte, 142 N.C. App. 590, 592-93, 544 S.E.2d 269, 271 (2001).
    It is undisputed in the instant case that Plaintiff fell and sustained serious injuries to her shoulder, and that a defect in the sidewalk maintained by Defendant caused her accident. Defendant argues that Plaintiff has failed to forecast evidence to show the remaining two essential elements of her claim, namely (1) that the character of the defect in the sidewalk was such that injury was foreseeable; and (2) that Defendant had actual or constructive notice of the defect.
    Our appellate courts have consistently held that minor defects in sidewalks do not represent a breach of duty and cannot support a claim of negligence. In Bagwell v. Brevard, 256 N.C. 465, 124 S.E.2d 129 (1962), our Supreme Court held that where the alleged defect consisted of “a difference in elevation of approximately one inch between two adjacent concrete sections of the sidewalk,” the defendant-town's “failure to correct this slight irregularity did not constitute a breach of its said legal duty.” Id. at 466, 124 S.E.2d at 130; see also Falatovitch v. Clinton, 259 N.C. 58, 60, 129 S.E.2d 598, 599 (1963) (concluding that an opening of thesidewalk where the plaintiff fell which was ten inches long and several inches wide was a “minor defect” and not actionable); Watkins v. Raleigh, 214 N.C. 644, 647, 200 S.E. 424, 426 (1939) (concluding that a hole in the sidewalk which was two and one-half feet wide and two or more inches in depth was trivial); Houston v. Monroe, 213 N.C. 788, 790, 197 S.E. 571, 572 (1938) (applying “trivial defect” analysis where the hole in the sidewalk was eleven inches wide and one and one-quarter to two and one-half inches deep); Willis, 137 N.C. App. at 765, 529 S.E.2d at 692-93 (holding that, where the difference in elevation between the two adjacent sections of the concrete sidewalk at the spot where the plaintiff fell was about one and one-quarter inches, and where the plaintiff offered insufficient evidence that the defendant had actual or constructive notice of the defect, summary judgment was proper); Joyce v. City of High Point, 30 N.C. App. 346, 349, 226 S.E.2d 856, 858 (1976) (holding that summary judgment was proper where the plaintiff failed to establish that the defendants breached any duty to her where the evidence tended to show that part of the sidewalk was elevated one to two inches).
    Here, the alleged defect in the sidewalk was six inches wide and one inch deep. Defendant's failure to correct the defect did not constitute a breach of its duty to Plaintiff to keep its sidewalk in “reasonably safe condition” or “proper repair.” Given our conclusion, we need not address whether Defendant had actual or constructive notice of the defect, or the issue of Plaintiff's alleged contributory negligence. Because Plaintiff failed toforecast sufficient evidence that Defendant breached a duty to her, the trial court properly granted summary judgment to Defendant.
    The judgment of the trial court is hereby,
    Judges CALABRIA and STEELMAN concur.
    Report per Rule 30(e).

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