Warren v Home Depot, (04-1265) 08/16/2005

Appeal by plaintiff from order entered 7 July 2004 by Judge Dennis J. Winner in Catawba County Superior Court. Heard in the Court of Appeals 11 May 2005.

Lovekin, Young & Orndoff, P.C., by Jason A. Orndoff, for plaintiff-appellant.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Allen C. Smith and Andrew S. Culicerto, for defendant-appellee.

    CALABRIA, Judge.

    David Lee Warren (“plaintiff”) appeals the entry of summary judgment in favor of Home Depot U.S.A., Inc. (“defendant”). We affirm.
    On 28 November 2001, plaintiff patronized one of defendant's stores in Hickory, North Carolina. Plaintiff retrieved a lumber cart (a cart with two lower sections on either side of a raised middle section) and proceeded to the aisle in which tile was located.
    As plaintiff entered the aisle, tile displays were on his left and carpeting displays were on his right. On the left side of the aisle, near the merchandise bins, two additional lumber carts thatdisplayed carpeting were positioned parallel to the aisle. Between the shelves on which the tile was located and the two display carts was a space of approximately twenty inches. This space formed a smaller, secondary aisle. Approximately two-thirds of the way down the aisle was a sales associate. No other customers were in the aisle.
    Plaintiff parked his cart on the left side of the aisle at one end of the two display carts. He then proceeded toward the secondary aisle. The sales associate asked if she could be of assistance, but plaintiff declined her assistance. Although plaintiff observed that the aisle was “tight,” he entered the secondary aisle and retrieved a box of tile located at approximately the height of his head. As plaintiff turned to exit the secondary aisle after removing the tile, the sales associate cautioned him to “be careful” due to the weight of the box, however, plaintiff fell. Plaintiff was “pretty sure” he had tripped over the wheel of one of the display carts.
    As a result of the fall, plaintiff sustained an abrasion above his eye requiring three stitches, a broken left arm requiring surgery, and damaged eyeglasses. Defendant paid about $1,320.00 of the approximately $21,000.00 in medical bills incurred as a result of the accident.
    On 19 December 2003, plaintiff filed a complaint against defendant alleging negligence. Defendant answered the complaint and pled contributory negligence. Defendant subsequently moved for summary judgment. The matter was heard on 7 July 2004, and theparties presented to the trial court affidavits from plaintiff and Dr. John Cockrell as well as plaintiff's deposition. After reviewing the evidence, the trial court granted defendant's motion for summary judgment, from which plaintiff appeals. From the submission of the affidavits at the hearing for summary judgment, defendant cross-appeals.
    Summary judgment is appropriate where “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. Gen. Stat. § 1A-1, Rule 56(c) (2003). “The moving party has the burden of establishing the absence of any genuine issue of material fact, and the evidence presented should be viewed in the light most favorable to the nonmoving party.” Parish v. Hill, 350 N.C. 231, 236, 513 S.E.2d 547, 550 (1999). While the granting of a summary judgment motion is seldom appropriate in negligence actions, “it is proper if there are no genuine issues of material fact, and the plaintiff fails to demonstrate one of the essential elements of the claim.” Id. It would likewise be “appropriate when the movant establishes a complete defense[.]” Estrada v. Jaques, 70 N.C. App. 627, 643, 321 S.E.2d 240, 251 (1984).
    “A claim for relief premised on negligence contains four essential elements: (i) a duty on the part of one party to conform to a certain standard of conduct, (ii) a breach of that duty, and (iii) an injury, which (iv) was proximately caused by the breach.”Barnes v. Wilson Hardware Co., 77 N.C. App. 773, 775, 336 S.E.2d 457, 459 (1985). The standard of conduct a proprietor “owes to persons entering upon his or her land is to 'exercise reasonable care in the maintenance of their premises for the protection of lawful visitors [engaged in foreseeable uses].'” Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473-74, 562 S.E.2d 887, 893 (2002) (quoting Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998)). The existence of defendant's duty and plaintiff's injury are not in dispute; therefore, we turn to the question of whether defendant breached its duty by failing to exercise reasonable care in the maintenance of its premises.
    Plaintiff asserts defendant breached the duty owed to him by creating a secondary aisle where a customer would not observe or appreciate the danger presented. Specifically, plaintiff asserts that he was otherwise distracted by: (1) pushing a cart, (2) keeping a lookout for other customers, (3) ensuring he did not hit products, (4) observing product displays designed to attract customer's attention, and (5) responding to inquiries from an employee of defendant. These facts, however, fail to indicate a breach of duty by defendant. The use of carts or other mobile devices for additional displays is ubiquitous in retail establishments. Moreover, plaintiff noticed the positioning of the lumber carts, could have rolled the carts to provide more room, evaluated the secondary aisle as “tight,” and proceeded, nonetheless, to retrieve what he needed despite offers of assistance from defendant's sales associate. Regarding plaintiff'sassertion that he was distracted by flashy product displays and maneuvering his cart, plaintiff had a duty to maneuver his cart reasonably and with due care in light of ordinary commercial practices. While there conceivably might be a case where an attractive display unreasonably diverts the attention of a consumer, such is not the case where, as here, the object presenting the danger was admittedly perceived by the plaintiff. Finally, we reject outright any argument that defendant breached the standard of care owed to plaintiff by having an employee offer assistance or ask a customer to use caution. We hold, accordingly, that the trial court properly granted summary judgment in that there was no genuine issue of material fact concerning defendant's liability.
    Having held that the trial court properly granted summary judgment, we need not address the remaining issues raised on appeal.
    Affirmed.
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

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