An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-837


Filed: 21 March 2006


         v.                        Forsyth County
                                No. 03 CVS 5927

    Appeal by plaintiff from judgment entered 28 February 2005 by Judge Anderson D. Cromer in Forsyth County Superior Court. Heard in the Court of Appeals 27 February 2006.

    Carol L. Teeter for plaintiff-appellant.

    Van Winkle, Buck, Wall, Starness & Davis, P.A., by Stephen J. Grabenstein, for defendant-appellees.

    BRYANT, Judge.

    Plaintiff Kenneth M. Isley appeals from a superior court order granting summary judgment in favor of defendants McDonald's Corporation and C&P Salebra Partnership. We affirm.
    Plaintiff brought this negligence action after he was injured in a fall at a McDonald's in Winston-Salem, North Carolina. Plaintiff alleged defendants negligently maintained their tile walkway area and failed to warn lawful users of the walkway of unsafe conditions, and that he suffered various personal injuries as a result. Defendants filed a motion to dismiss and answered, denying the material allegations and alleging the affirmative defense of contributory negligence. After discovery, defendantsmoved for summary judgment.
    Evidence before the trial court at the summary judgment hearing showed that at approximately 6:30 a.m. on 26 November 1999, plaintiff drove to the McDonald's restaurant located at 110 Hanes Mall Circle. When plaintiff left his house it was drizzling, which tapered off into a fine mist once plaintiff arrived at the McDonald's. Plaintiff parked his vehicle in the parking lot approximately twenty to thirty feet from the restaurant's entrance. The parking lot surface was damp. Plaintiff noticed the walkway leading up to the entrance was made of red tile and that the tile was wet. Plaintiff knew when tile is wet, it could be slippery. Plaintiff walked several feet on the walkway and, as he reached the door to the restaurant, plaintiff's “foot slipped out from under [him].”
    Regarding the cause of his fall, plaintiff testified at his deposition taken on 28 September 2004:
        Q. What caused you to fall?
        A. You tell me. I don't know. My foot slipped.

        Q. And you don't know why your foot slipped?
        A. No.
        Q. Did you see anything which caused you to fall?

        A. No.
    Plaintiff's single assignment of error is that the trial court erred in granting summary judgment because there were genuine issues of material fact which should have been decided by a jury.After careful consideration of the evidence, we affirm.
    Summary judgment is appropriate only “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. Gen. Stat. § 1A-1, Rule 56(c) (2005). The party moving for summary judgment bears the burden of establishing that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849 (1988). “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). If the moving party satisfies its burden, then the burden shifts to the non-moving party to “produce a forecast of evidence demonstrating that the [non-movant] will be able to make out at least a prima facie case at trial.” Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). A trial court should consider the evidence in the light most favorable to the non-moving party when deciding whether to grant a summary judgment motion. Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001).
    Summary judgment is appropriate in a negligence claim where the plaintiff's forecast of evidence is insufficient to support an essential element of negligence. See Patterson v. Pierce, 115 N.C.App. 142, 143, 443 S.E.2d 770, 771, disc. review denied, 337 N.C. 803, 449 S.E.2d 749 (1994). To establish a prima facie case for negligence, the plaintiff must show the following essential elements: (1) the defendant owed the plaintiff a duty of care; (2) the defendant's conduct breached that duty; (3) the breach was the actual and proximate cause of the plaintiff's injury; and (4) plaintiff suffered damages as a result of the injury. Lamm v. Bissette Realty, 327 N.C. 412, 416, 395 S.E.2d 112, 115 (1990).
    The facts here are undisputed. Plaintiff fell on the wet tiled walkway outside the McDonald's restaurant. Plaintiff, however, testified he did not know what caused his fall and produced no evidence tending to link defendants' alleged negligence to his fall and the resulting damages. Therefore, plaintiff failed to establish a prima facie case of negligence. Accordingly, the trial court properly entered summary judgment in defendants' favor.
     Chief Judge MARTIN and Judge GEER concur.
     Report per Rule 30(e).

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