Appeal by plaintiffs from an order entered 18 February 2005 by
Judge Michael Helms in Avery County Superior Court. Heard in the
Court of Appeals 7 December 2005.
Long, Parker, Warren & Jones, P.A., by Steve Warren, for
plaintiff-appellants.
Smith Moore LLP, by Richard A. Coughlin and James R. Faucher,
for defendant-appellant Lowe's Food Stores, Inc.
Cogburn, Goosmann, Brazil & Rose, P.A., by W.O. Brazil, III
and Frank J. Contrivo, Jr., for defendant-appellant ETC
Linville, LLC.
BRYANT, Judge.
Jeanette Harding and her husband James Clark Harding
(plaintiffs) appeal from an order entered 18 February 2005
granting Lowe's Food Stores, Inc.'s (collectively “defendants”
along with ETC Linville, LLC) motion for summary judgment. For the
reasons below we affirm the trial court's order.
Factual Background
On 11 February 2001, plaintiff Jeannette Harding went to the
Lowe's Food Store located in the Invershiel Community of BannerElk, North Carolina. It had been raining and was very cold that
day and there was sleet and ice in the parking lot. After parking
her car, plaintiff walked through the parking lot to the front of
the store.
As she approached the store, plaintiff noticed the sidewalk in
front of the store was also covered in snow and ice. Plaintiff
stepped from the parking lot onto the sidewalk and was walking to
the store's entrance when she tripped and fell to the ground,
injuring herself. Plaintiff admits she was not watching where she
was walking, but was instead looking at a display of propane tanks
and firewood stacked against the front wall of the store. It was
only after she fell that plaintiff looked back and saw that one
slab of concrete on the sidewalk was higher than the adjoining
slab. Plaintiff alleged she tripped over the raised edge of the
sidewalk and did not see it because it was concealed by snow and
ice.
Procedural History
Plaintiffs filed suit against defendants on 9 February 2004,
alleging,
inter alia, defendants were negligent and breached their
duty of care to plaintiffs in failing to correct the unsafe
condition created by the raised edge of the sidewalk and failing to
warn pedestrians of the danger posed by the uneven sidewalk.
Defendant Lowe's Food Stores filed a Motion for Summary Judgment on
20 January 2005. Defendant's motion was heard on 7 February 2005
by the Honorable Michael Helms. On 18 February 2005 the trial
court entered an order granting defendant's Motion for SummaryJudgment for both Lowe's Food Stores, Inc. and ETC Linville, LLC.
In the order, the trial court held defendants had no duty to
correct or warn of the sidewalk's raised edge that was
approximately one-half inch high as “such a condition is to be
reasonably expected on walkways and sidewalks.” Furthermore,
plaintiff's own testimony established she was aware of snow and/or
ice in the parking lot and on the walkway, but she “failed to keep
a proper look out [sic] and walk in a manner as to avoid tripping
on the alleged concealed” raised edge, thereby establishing her
contributory negligence as a matter of law. Plaintiffs appeal.
_________________________
Plaintiffs contend the trial court erred in granting
defendant's motion for summary judgment based upon its (I) finding
of no duty owed to plaintiffs and (II) finding that plaintiff
Jeanette Harding was contributorily negligent.
I
Plaintiffs first argue the trial court erred in granting
defendant Lowe's Food Store's motion for summary judgment based
upon a finding that defendants owed no duty to plaintiffs. We
disagree. Under Rule 56(c) of the Rules of Civil Procedure,
summary judgment shall be granted if “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) (2005).
In ruling on a motion for summary judgment, “the court may consider
the pleadings, depositions, admissions, affidavits, answers to
interrogatories, oral testimony and documentary materials.”
Dendyv. Watkins, 288 N.C. 447, 452, 219 S.E.2d 214, 217 (1975). “All
such evidence must be considered in a light most favorable to the
non-moving party.”
Howerton v. Arai Helmet, Ltd., 358 N.C. 440,
470, 597 S.E.2d 674, 693 (2004). “Where there are genuine,
conflicting issues of material fact, the motion for summary
judgment must be denied so that such disputes may be properly
resolved by the jury as the trier of fact.”
Id. at 468, 597 S.E.2d
at 692.
In a negligence action, to survive a motion for summary
judgment, plaintiff must establish a
prima facie case by showing:
“(1) that defendant failed to exercise proper care in the
performance of a duty owed plaintiff; (2) the negligent breach of
that duty was a proximate cause of plaintiff's injury; and (3) a
person of ordinary prudence should have foreseen that plaintiff's
injury was probable under the circumstances.”
Lavelle v. Schultz,
120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995). A grant of
summary judgment in a negligence action “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.”
Parish v.
Hill, 350 N.C. 231, 236, 513 S.E.2d 547, 550 (1999).
“On appeal, this Court has the task of determining whether, on
the basis of the materials presented to the trial court, there is
a genuine issue as to any material fact and whether the moving
party is entitled to judgment as a matter of law.”
Eckard v.
Smith, 166 N.C. App. 312, 318, 603 S.E.2d 134, 138 (2004),
aff'd,
__ N.C. __, 619 S.E.2d 503 (2005). We review an order allowingsummary judgment
de novo.
Summey v. Barker, 357 N.C. 492, 496, 586
S.E.2d 247, 249 (2003).
Plaintiffs argue defendants breached their duty owed to
plaintiffs by failing to correct or warn of the raised edge of the
sidewalk. Our Supreme Court has held that “[s]light depressions,
unevenness and irregularities in outdoor walkways, sidewalks and
streets are so common that their presence is to be anticipated by
prudent persons.”
Evans v. Batten, 262 N.C. 601, 602, 138 S.E.2d
213, 214 (1964) (restaurant had no duty to warn pedestrians
concerning an indenture in a walkway that was obscured by melting
snow and ice). However,
Evans and similar cases do not “establish
a rule that a plaintiff can never state a valid case for recovery
based upon tripping on a sidewalk.”
Pulley v. Rex Hosp., 326 N.C.
701, 706, 392 S.E.2d 380, 384 (1990). Instead, the cases should be
read as requiring the trial court to view the facts of each case
in their totality to determine if there are
factors which make the existence of a defect
in a sidewalk, in light of the surrounding
conditions, a breach of the defendant's duty
and less than “obvious” to the plaintiff. Such
factors may include the nature of the defect
in the sidewalk, the lighting at the time of
the accident, and whether any other reasonably
foreseeable conditions existed which might
have distracted the attention of one walking
on the sidewalk.
Id.
In the instant case, the facts establish there was a one-half
inch raised edge between two slabs in the sidewalk leading into the
Lowe's Food store. Plaintiff had stepped out of the parking lot
and up onto the sidewalk, so her attention was no longer divertedby potential automobile traffic. While the defect was obscured by
ice and snow, which plaintiff saw, this condition should have put
plaintiff at a heightened level of care in traversing the sidewalk.
Instead plaintiff stepped into the ice and snow while looking at a
display of propane tanks and firewood stacked against the front
wall of the store. In light of the totality of the circumstances,
the one-half inch raised edge and defendant's failure to warn of
its existence does not amount to negligence on the part of
defendants. This assignment of error is overruled.
II
Plaintiffs also argue the trial court erred in granting
defendant Lowe's Food Store's motion for summary judgment based
upon its finding that plaintiff Jeanette Harding was contributorily
negligent.
Our appellate courts have held that the law
imposes upon a person the duty to exercise
ordinary care to protect himself from injury
and to avoid a known danger; and that where
there is such knowledge and there is an
opportunity to avoid such a known danger,
failure to take such opportunity is
contributory negligence.
Lenz v. Ridgewood Assocs., 55 N.C. App. 115, 122, 284 S.E.2d 702,
706-07 (1981). “[C]ontributory negligence consists of conduct
which fails to conform to an
objective standard of behavior -- the
care an ordinarily prudent person would exercise under the same or
similar circumstances to avoid injury.”
Smith v. Fiber Controls
Corp., 300 N.C. 669, 673, 268 S.E.2d 504, 507 (1980) (citations and
quotations omitted). “[C]ontributory negligence
per se may arise
where a plaintiff knowingly exposes himself to a known danger whenhe had a
reasonable choice or option to avoid that danger, . . . or
when a plaintiff heedlessly or carelessly exposes himself to a
danger or risk of which he knew or should have known.”
Lenz, 55
N.C. App. at 122-23, 284 S.E.2d at 707 (citations omitted).
Plaintiff's own deposition testimony shows she knew the
parking lot and sidewalk of the Lowe's Food Store had patches of
ice, sleet and snow. Plaintiff knew she must use caution in
traversing the parking lot and sidewalk because of these hazardous
conditions. However, despite this knowledge, plaintiff admitted
she was not watching where she was walking once she stepped onto
the sidewalk and was instead looking at a display of propane tanks
and firewood stacked against the front wall of the store. By not
taking proper care in watching where she was walking, plaintiff
tripped over a small raised edge between two concrete slabs in the
sidewalk. Plaintiff's actions are sufficient to establish that she
was contributorily negligent as a matter of law. This assignment
of error is overruled.
Affirmed.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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