An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-766


Filed: 17 May 2005



v .                         Polk County
                            No. 02 CVS 145
POLK COUNTY, a Body Politic and
Corporate, and JOHN DOE and


    Appeal by plaintiff from order entered 25 February 2004 by Judge Ronald K. Payne in Polk County Superior Court. Heard in the Court of Appeals 12 January 2005.

    Goldsmith, Goldsmith & Dews, P.A., by C. Frank Goldsmith, Jr., for plaintiff-appellant.

    Teague, Campbell, Dennis & Gorham, L.L.P., by Donald F. Lively and Kathryn Deiter-Maradei, for defendant-appelle.

    ELMORE, Judge.

    Defendant Polk County operates a household waste disposal facility (Polk County Landfill) for its residents who pay a fee for this service. This landfill site contains several large metal bins, described as “stations,” where residents deposit the trash. Upon arrival, each resident is directed to pull their vehicle up to one of these stations.
    On 24 June 1999 plaintiff brought her garbage to the landfill for disposal. A county employee directed her to the first station, and plaintiff then proceeded to back up her pick-up truck adjacentto the opening to this bin. She climbed up onto her tailgate, grabbed a bag of trash, and turned around to throw it into the empty bin. There was a short concrete retaining wall at the edge of the bin but no railing to prevent a person from falling into the opening. Plaintiff lost her balance and fell approximately nine feet into the open bin.
    Plaintiff filed her complaint in Polk County Superior Court on 20 June 2002. Defendants filed a timely answer and subsequently moved for summary judgment. In her deposition, plaintiff testified that she knew there was a drop-off and that she had safely deposited her trash at the Polk County Landfill five or six times prior to this incident. She stated that the distance between her truck and the bin varied over these previous occasions:
        Q. Okay. Well, why didn't you stop the truck a few steps before the edge of the drop-off and do exactly what you're talking about; which is, take it out of your truck and walk it over to the edge and drop it in?

        A. It's the way I've always done it, just backed in. Sometimes I back in further, sometimes I don't back in as far. Now I don't back in as far.

    Plaintiff's expert, Lynwood R. Burkholder, submitted a report in which he concluded that the absence of a railing separating the open metal bin from the platform where residents unload their trash contributed to plaintiff's injury. In addition, he concluded that the probability of injury from a fall into the open bin would have been significantly reduced if there were parking rails in place toprevent a vehicle from backing up too close to the edge of the opening.
    After reviewing the parties' materials, the trial court found that there was no genuine issue of material fact and that defendants were entitled to judgment as a matter of law. Accordingly, the trial court granted defendants' motion for summary judgment and dismissed plaintiff's action against all defendants with prejudice. From this order entered 25 February 2004, plaintiff appeals.
    A landowner has a duty to exercise reasonable care in the maintenance of his property in order to protect lawful visitors against injury. Lorinovich v. K Mart Corp., 134 N.C. App. 158, 161, 516 S.E.2d 643, 646, cert. denied, 351 N.C. 107, 541 S.E.2d 148 (1999). However, “[a]n owner or occupier of land ordinarily has no duty to warn of an obvious condition of which its invitee has equal or superior knowledge.” Southern Railway Co. v. ADM Milling Co., 58 N.C. App. 667, 673, 294 S.E.2d 750, 755, disc. review denied, 307 N.C. 270, 299 S.E.2d 215 (1982). Thus, a landowner is not liable for injuries caused by a danger on the land which is known or obvious to invitees, “unless the [landowner] should anticipate the harm despite such knowledge or obviousness.” Id. at 675, 294 S.E.2d at 756 (quotation omitted). Plaintiff argues that she proffered sufficient evidence to create a genuine issue of material fact as to whether defendant owed a duty to protect lawful visitors against falling into the open bins at the landfill. Plaintiff does not dispute that she was aware ofthe drop-off into the metal bin, but instead contends that defendant should have anticipated that visitors would fall into the openings despite their obvious nature.
    Plaintiff relies upon Lorinovich v. K Mart, wherein the plaintiff store patron was injured when she reached for a can of salsa stacked on a shelf among other cans six feet up from the floor. The trial court granted summary judgment to defendant on the plaintiff's negligence claim, and this Court reversed. Defendant argued that the salsa display presented an obvious danger such that no duty existed, but this Court reviewed the evidence and concluded that it raised an issue of fact as to whether defendant had a duty to protect its patrons against this particular store display. Lorinovich, 134 N.C. App. at 162-63, 516 S.E.2d at 646. In particular, the evidence showed seven prior incidents of merchandise falling on customers in this store and that it was store policy not to stack items higher than eye level unless secured. Id. at 160, 516 S.E.2d at 645. In noting the significance of defendant's knowledge of prior incidents of injury to patrons, the Court cited to Williams v. Walnut Creek Amphitheater Partnership, 121 N.C. App. 649, 468 S.E.2d 501, disc. review denied, 343 N.C. 312, 471 S.E.2d 82 (1996).
    In Walnut Creek, the plaintiff fell down a slick hill at defendant's concert arena after being pushed when attempting to exit the arena. At the hearing on defendant's motion for summary judgment, defendant's director of operations testified that he assumes that some pushing inevitably occurs in and around the hillarea during large concert events. Id. at 651-52, 468 S.E.2d at 503. Also, the record contained several incident reports documenting previous falls by patrons on this hill resulting in injuries. Id. The Court concluded that, although there was evidence that the hill was an obvious danger, summary judgment was improper given that the evidence raised a question of fact as to whether defendant should have anticipated patrons being injured on the hill. Id. at 652, 468 S.E.2d at 503-04.
    Notably, in both Walnut Creek and Lorinovich, the plaintiff's evidence established that the defendant landowner had knowledge of prior injuries such that it could anticipate injury to an invitee on the land. Thus, where the landowner has superior knowledge of a condition on the property, whether that landowner has breached a duty of reasonable care to lawful visitors is a question of fact. See Lorinovich, 134 N.C. App. at 162-63, 516 S.E.2d at 646-47 (defendant had knowledge of prior incidents of injury creating the expectation that a store patron could be injured by the merchandise display). In contrast, without more, where the visitor and the landowner have equal knowledge of the likelihood of injury from an obvious condition on the land, no duty arises. See Southern Railway, 58 N.C. App. at 673, 299 S.E.2d at 755.
    Here, plaintiff forecasts no evidence that defendant had greater knowledge of the danger presented by the open bins such that defendant should have anticipated that a resident disposing of trash at defendant's landfill could be injured by this obvious danger. The record contains no injury reports or other evidencethat any employees of defendant knew of prior injuries from people falling into the bins.   (See footnote 1)  Plaintiff has failed to forecast evidence showing that defendant owed a duty to warn or protect visitors from encountering an open bin where visitors to the land had full knowledge of the obvious danger presented by this structure. The trial court's grant of summary judgment was proper, and we affirm.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1
     Plaintiff testified that someone who helped her out of the bin told her not to be embarrassed because people fall in them all the time, but plaintiff did not know if this person worked at the landfill or not.

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