FRANCES WORSHAM-FAIR,
Plaintiff
v. Rockingham County
No. 02 CVS 801
LOWE'S FOOD STORES, INC.,
Defendant.
Teresa DeLoatch Bryant, for plaintiff-appellant.
Smith Moore, L.L.P., by Richard A. Coughlin and James R.
Faucher, for defendant-appellee.
HUDSON, Judge.
This action arises out of a slip and fall incident at a Lowe's
Food Store in Reidsville, North Carolina. Plaintiff Frances
Worsham-Fair's evidence tended to show that at approximately 4:00
p.m. on 8 September 1999 she entered the store and started towards
the deli. After seeing a sign advertising a sale, plaintiff
returned to get a shopping cart and again started towards the deli.
Upon seeing another sign advertising a sale of apples, plaintiff
went to the produce area, put apples in her cart, and turned her
cart around. Plaintiff stated as she started toward the deli, the
“buggy went one way and [she] fell.” After she fell, plaintiff sawa few grapes smashed on the floor. At her deposition, plaintiff
testified that she saw “liquid” mixed with the smashed grapes,
which she believed came from the grapes. Plaintiff conceded that
she was not certain what caused her to fall, but assumed it was the
grapes. Plaintiff did not know how the grapes came to be on the
floor or how long they had been there. Finally, the affidavit of
another customer, in the store on that day, stated that after
plaintiff fell, she too noticed smashed grapes on the floor. As a
result of her fall, plaintiff sustained serious injuries to her
back and head.
In discovery, defendant identified three employees who had
knowledge of plaintiff's fall. Their depositions reveal that they
each saw at least one grape on the floor near the spot where
plaintiff fell. None of the employees, however, were able to say
how long the grapes had been on the floor or how they got there.
One employee testified that she had inspected the area where
plaintiff fell just one hour earlier, and had seen no grapes on the
floor.
Plaintiff filed this suit on 10 June 2002, alleging that
defendant negligently maintained its premises, and that she
suffered various personal injuries as a result. Defendant
answered, denying plaintiff's substantive allegations, and then
moved for summary judgment. In support, defendant submitted
plaintiff's answers and responses, and plaintiff's deposition
transcript. Following a hearing, the court granted defendant's
motion. Plaintiff appeals, contending that there were genuineissues of material fact, and that defendant was not entitled to
judgment as a matter of law. We disagree.
Summary judgment should be granted “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.R. Civ. P. 56(c). “The showing
required for summary judgment may be accomplished by proving an
essential element of the opposing party's claim does not exist,
cannot be proven at trial, or would be barred by an affirmative
defense.” Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835
(2000).
Although summary judgment is rarely appropriate in negligence
actions, such a motion should be granted where plaintiff's forecast
of evidence fails to support an essential element of that party's
claim. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63,
414 S.E.2d 339, 342 (1992). In Roumillat, the North Carolina
Supreme Court set forth the elements of a prima facie case of
negligence in “slip and fall” cases as follows:
In order to prove that the
defendant-proprietor is negligent, plaintiff
must show that the defendant either (1)
negligently created the condition causing the
injury, or (2) negligently failed to correct
the condition after actual or constructive
notice of its existence. When the unsafe
condition is attributable to third parties or
an independent agency, plaintiff must show
that the condition “existed for such a length
of time that defendant knew or by the exercise
of reasonable care should have known of its
existence, in time to have removed the danger
or [to have] given proper warning of itspresence.”
Id. at 64, 414 S.E.2d at 342-43 (citations omitted). Furthermore,
this Court has held that, “[n]o inference of negligence on the part
of the store owner arises from the mere fact that a customer falls
on the floor of his store since the doctrine of res ipsa loquitur
is inapplicable in such circumstances.” Stafford v. Food World, 31
N.C. App. 213, 215, 228 S.E.2d 756, 757, cert. denied, 291 N.C.
324, 230 S.E.2d 677 (1976).
Recently, this Court upheld summary judgment in favor of the
defendant-proprietor, where the plaintiff-customer slipped and fell
on a grape in a Food Lion grocery store. Williamson v. Food Lion,
Inc., 131 N.C. App. 365, 366, 507 S.E.2d 313, 314 (1998), affirmed,
350 N.C. 305, 513 S.E.2d 561 (1999). There plaintiff testified
that she had “no idea” how long the grape had been on the floor, or
how it got there. Id. at 367, 507 S.E.2d at 315. Plaintiff
presented no evidence, beyond speculation about how the grape came
to be on the floor, how long it had been there, or whether any
store employee knew it was there. Under the Roumillat standard,
plaintiff's failure to forecast evidence in this regard was fatal
to her negligence claim.
The facts here are undisputed. After plaintiff's fall, three
store employees and another store customer observed at least one
smashed grape and liquid on the floor. None however, testified
about how the grapes came to be on the floor or how long they had
been there. Plaintiff testified that she did not know what caused
her fall, and could only assume that it was the grapes. These facts are virtually indistinguishable from those of
Williamson. Because plaintiff's forecast of evidence similarly
failed to establish a prima facie case for negligence, the trial
court did not err in allowing defendant's motion for summary
judgment.
Affirmed.
Judges STEELMAN and THORNBURG concur.
Report per Rule 30(e).
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