An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1418


Filed: 18 January 2005


v .                         From Watauga County
                            No. 02 CVS 0746
CORPORATION, A Corporation,
MECO ELECTRIC, INC., A Corporation
INC., A Corporation,

    Appeal by Plaintiff from judgment entered 4 August 2003 by Judge Dennis J. Winner in Watauga County Superior Court. Heard in the Court of Appeals 16 June 2004.

    Lewis & Daggett, P.A., by Michael J. Lewis, Michael P. Williams and Rushanna McNair-Wright for plaintiff-appellant.

    Pinto, Coates, Kyre & Brown, PLLC, by Richard L. Pinto and Deborah J. Bowers, for defendant-appellee.

    STEELMAN, Judge.

    Plaintiff appeals the ruling of the trial court granting defendant's motion for summary judgment which dismissed plaintiff's action. For the reasons discussed herein, we affirm.
    Defendants, Greene Construction, Inc. and Watauga Ready-Mix Corporation are the same legal entity, Watauga Ready-Mix Corporation having changed its corporate name to Greene Construction, Inc. following the events giving rise to plaintiff's complaint. They are hereinafter referred to as “defendant.” Defendant was the general contractor on a construction project for Watauga Medical Center (Watauga), where an existing building was being converted into a kidney dialysis center. Plaintiff was an employee of Watauga. Part of the construction project was the addition of a concrete pad which was to serve as a loading dock. After the project commenced, Watauga decided to add a mechanical lift to the loading dock. On 11 February 2000, plaintiff and two truck drivers went to the loading dock to determine exactly where the mechanical lift should be located.
    The concrete pad of the loading dock was sixteen inches above the asphalt parking area on the east side and twenty inches above the asphalt parking area on the west side. There were three cinder blocks on the asphalt next to the concrete pad on the west side. The cinder blocks were stacked in a triangular formation, with two blocks on the bottom and one on the top, parallel to the concrete pad. When plaintiff approached the loading dock, he saw the three cinder blocks on the west side of the concrete pad.
    The three men stepped onto the concrete pad from the east side. After examining the pad and discussing the placement of the mechanical lift, the three men stepped off of the concrete pad on the west side, using the cinder blocks as steps. The two truck drivers preceded the plaintiff and descended without incident. When plaintiff attempted to descend in the same manner, he fell, resulting in personal injury. Plaintiff testified that the cinder blocks shifted, resulting in his fall. Plaintiff filed thisaction, asserting that his injuries were proximately caused by the negligence of defendant.
    In his only assignment of error, plaintiff contends that the trial court erred in granting defendant's motion for summary judgment. We disagree.
    Summary judgment is proper when “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 judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2004). On appeal from summary judgment, the record is reviewed in the light most favorable to the non-movant. See Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). Summary judgment is rarely appropriate in a negligence action. DiOrio v. Penny, 331 N.C.726, 729, 417 S.E.2d 457, 459 (1992).
        The party moving for summary judgment bears the burden of establishing that there is no triable issue of material fact. This burden may be met “by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.” Once the moving party satisfies these tests, the burden shifts to the nonmoving party to “produce a forecast of evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial.”

DeWitt v. Eveready Battery Co., 355 N.C. 672, 681-682, 565 S.E.2d 140, 146 (2002)(internal citations omitted).    Plaintiff's brief presents two issues for our consideration. First, was summary judgment properly granted as to the negligence of defendant; and second, was summary judgment properly entered on the issue of plaintiff's contributory negligence.
    Plaintiff asserts that defendant was negligent in failing to warn him, or protect him from the danger posed by the three stacked cinder blocks.
        There is no duty to protect or warn, however, “against dangers either known or so obvious and apparent that they reasonably may be expected to be discovered.” Moreover, a landowner is not required to warn of hazards of which the lawful visitor has “equal or superior knowledge.”

Bolick v. Bon Worth, Inc., 150 N.C. App. 428, 430, 562 S.E.2d 602, 604 (2002)(internal citations omitted).
    In Bolick, plaintiff was a customer in defendant's store, and was directed to the back of the store in order to use the bathroom. Plaintiff went up several steps to enter the bathroom, but fell upon exiting the bathroom. She averred that the reason she fell was that there was no landing at the top of the steps in front of the bathroom. This Court affirmed the trial court's granting of summary judgment in favor of the defendant, holding that “even if the steps leading up to and out of the bathroom created a hazardous condition, plaintiff had knowledge of the alleged hazardous condition.” Id. at 431, 562 S.E.2d 602, 604.
    We hold that even assuming the three cinder blocks constituted a hazardous condition, plaintiff had knowledge of it. The cinder blocks were an open and obvious danger of which plaintiff had equalknowledge prior to his injury, and defendant had no duty to warn plaintiff of the condition.
    Because we hold no duty, we do not reach plaintiff's argument on contributory negligence.
    Judges TYSON and BRYANT concurs.
    Report per Rule 30(e).

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