The sole issue on appeal is whether the trial court erred in
granting Defendant The Elizabethan Gardens's
(See footnote 1)
motion for summary
judgment because there were genuine issues of material fact whichshould have been decided by a jury. After careful consideration of
the evidence, we affirm the trial court's grant of summary
judgment.
Summary judgment is appropriate 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 a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2005). Specifically, in a slip and fall case, a premises owner is
entitled to summary judgment if he can prove that “an essential
element of the opposing party's claim is nonexistent, or . . . that
the opposing party cannot produce evidence to support an essential
element of his claim.”
Roumillat v. Simplistic Enterprises, Inc.,
331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992). If the moving party
meets its burden for summary judgment, then the non-moving party
must “produce a forecast of evidence demonstrating that the
plaintiff will be able to make out at least a
prima facie case at
trial.”
Id. (citing
Collingwood v. G.E. Real Estate Equities, 324
N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). To meet that burden, the
non-moving party may not rest upon the allegations or denials of
her pleadings but “must set forth specific facts showing that there
is a genuine issue for trial.” N.C. Gen. Stat. § 1A-1, Rule 56(e)
(2005). When considering a summary judgment motion, “all
inferences of fact must be drawn against the movant and in favor of
the nonmovant.”
Roumillat, 331 N.C. at 63, 414 S.E.2d at 342. To prove that The Elizabethan Gardens was negligent, Ms.
Etheridge must show that it either “(1) negligently created the
condition causing the injury or (2) negligently failed to correct
the condition after actual or constructive notice of its
existence.”
Nourse v. Food Lion, Inc., 127 N.C. App. 235, 238, 488
S.E.2d 608, 611 (1997) (internal quotation marks omitted),
aff'd,
347 N.C. 666, 496 S.E.2d 379 (1998). On appeal, we must determine
whether there is sufficient evidence from the pleadings, affidavits
and depositions to create a genuine issue of material fact on Ms.
Etheridge's allegations of negligence.
Ms. Etheridge argues that she presented sufficient evidence to
show that The Elizabethan Gardens negligently caused, or failed to
correct, the dangerous condition, namely the alleged water in the
bathroom stall, upon which she fell. Ms. Etheridge alleges that
The Elizabethan Gardens caused or contributed to her accident by
turning off the de-humidifier in the bathroom “to save money.”
However, Carleton Woods, manager of The Elizabethan Gardens, Inc.,
stated in his affidavit that a de-humidifier had never been used in
the women's restroom in which Ms. Etheridge allegedly slipped.
Woods further stated that while there had been a small de-
humidifier used in a storage room for another purpose, whether it
was on the day of the accident involving Ms. Etheridge would have
had no effect on the humidity levels in the women's restroom.
Moreover, Woods said that turning off the de-humidifier in the
storage room would not have saved any significant money.
Ms.Etheridge argues these statements create a genuine issue of
material fact that must be decided by a jury.
Ms. Etheridge's argument, however, is not based upon facts in
evidence but rather upon mere speculation. At deposition, Ms.
Etheridge testified that although she did not see any moisture on
the floor, she believes that there must have been moisture on the
floor in order for her to slip.
She further testified that the
moisture on the floor would have come from the sweating of the
commode, but admitted that she did not remember if the commode was
sweating on the morning of the accident.
As it relates to the de-
humidifier, Ms. Etheridge testified that she did not know what the
de-humidifier looked like, or where it was located.
In fact, Ms.
Etheridge admitted that she had never seen this de-humidifier in
the restroom or anywhere else.
To survive a motion for summary judgment, a plaintiff must
show that her theory is more than mere speculation.
Williamson v.
Food Lion, Inc., 131 N.C. App. 365, 369, 507 S.E.2d 313, 316
(1998),
aff'd, 350 N.C. 305, 513 S.E.2d 561 (1999). While the
threshold to overcome summary judgment is not great, “[c]ases are
not to be submitted to a jury on speculations, guesses, or
conjectures.”
Roumillat, 331 N.C. at 69, 414 S.E.2d at 345.
Because there is no evidence that The Elizabethan Gardens
negligently created the hazardous condition that resulted in Ms.
Etheridge's fall, there is no genuine issue of material fact to
submit to a jury and summary judgment is appropriate. Ms. Etheridge also contends she presented sufficient evidence
to create a material issue of fact on the issue of whether The
Elizabethan Gardens failed to remedy the dangerous condition after
notice of its existence. Ms. Etheridge states in her brief that
she notified The Elizabethan Gardens “of the hazardous condition
which it then corrected by using a de-humidifier, and then turned
off the de-humidifier on the day that she fell.” However, Ms.
Etheridge fails to cite to any portion of the record to support
this assertion in her brief, nor can we find such evidence in the
record on appeal.
To the contrary, the record reveals that Woods
stated in his affidavit that no one from The Elizabethan Gardens,
Inc. had received any notice of, or had any knowledge of, any
alleged hazardous condition in the women's restroom prior to the
morning of the alleged accident.
He further states that he had
never noticed, and had never received a complaint about, the floor
of the women's restroom being slippery prior to the alleged
accident.
Because Ms. Etheridge offered no evidence that The
Elizabethan Gardens had actual knowledge of the presence of water
on the floor of the women's restroom, the present issue before this
Court is whether The Elizabethan Gardens had constructive knowledge
of the dangerous condition.
A plaintiff can establish constructive knowledge of a
dangerous condition in two ways: (1) by presenting direct evidence
of the dangerous condition's duration; or (2) by presenting
circumstantial evidence from which a jury could infer that the
dangerous condition existed for a sufficient length of time thatthe defendant should have known of its existence.
Thompson v. Wal-
Mart Stores, Inc., 138 N.C. App. 651, 654, 547 S.E.2d 48, 50
(2000). Where there is a “reasonable inference that a [dangerous]
condition had existed for such a period of time as to impute
constructive knowledge to the defendant,” it is a question for a
jury to decide.
Carter v. Food Lion, Inc. 127 N.C. App. 271, 275,
488 S.E.2d 617, 620,
disc. review denied, 347 N.C. 396, 494 S.E.2d
408 (1997). Notwithstanding, any inferences a jury makes must be
based upon facts established by the evidence, and not based solely
upon other inferences.
See Thompson, 138 N.C. App. at 654, 547
S.E.2d at 50.
In this case, there is no evidence in the record as to how
long the alleged hazardous condition had existed prior to Ms.
Etheridge's fall. Although Ms. Etheridge testified that she
believes that there was moisture on the floor which caused her to
slip, she also testified that she does not know how much moisture
was on the floor
, or how long the alleged moisture had been on the
floor.
Ms. Etheridge's evidence, without more, is sufficient only
to permit speculation that the condition had existed long enough to
impute constructive knowledge of its existence to The Elizabethan
Gardens.
See France v. Winn-Dixie Supermarket, 70 N.C. App. 492,
493, 320 S.E.2d 25 (1984),
disc. review denied, 313 N.C. 329, 327
S.E.2d 889 (1985) (holding that mere speculation about how long a
dangerous condition existed was not enough to create a material
issue of fact for a jury). As Ms. Etheridge has failed to present
any evidence of actual notice of the alleged hazardous conditionand any evidence as to how long the alleged condition had existed
prior to her alleged fall to establish constructive notice, we
conclude the trial court properly granted The Elizabethan Gardens's
motion for summary judgment.
Because we have concluded the trial court appropriately
granted The Elizabethan Gardens's motion for summary judgment on
Ms. Etheridge's negligence claim, we need not address Ms.
Etheridge's remaining assignments of error concerning contributory
negligence.
See Goynias v. Spa Health Clubs, Inc., 148 N.C. App.
554, 558, 558 S.E.2d 880, 883,
aff'd, 356 N.C. 290, 569 S.E.2d 648
(2002).
The judgment of the trial court is
Affirmed.
Judge STEPHENS concurs.
Judge GEER concurs in separate opinion.
Report per Rule 30(e).
NO. COA05-1374
NORTH CAROLINA COURT OF APPEALS
Filed: 18 July 2006
ANN K. ETHERIDGE,
Plaintiff,
v
.
Dare County
No. 04 CVS 460
THE ELIZABETH GARDENS, INC.
A subsidiary of The Garden
Club of North Carolina,
Incorporated; and THE GARDEN
CLUB OF NORTH CAROLINA,
INCORPORATED; and ROANOKE
ISLAND HISTORICAL ASSOCIATION,
INCORPORATED,
Defendants.
GEER, Judge, concurring in the result.
I agree with the majority opinion that the trial court
properly granted summary judgment, but I do so on a narrower basis.
While I believe that the evidence is sufficient to give rise to
issues of fact as to the existence of the dehumidifier in the
bathroom, those issues are immaterial since Ms. Etheridge could not
identify what caused her to slip in the bathroom.
The majority opinion holds that Ms. Etheridge's arguments
regarding the dehumidifier are unsupported by the record, relying
upon Carlton Woods' affidavit. Ms. Etheridge, however, testified
in her deposition _ in a portion cited in her brief _ that when she
reported her fall and injury to Mr. Woods, he said: "I'm so sorry.
I cut the dehumidifier off to save money. And we'll be glad to pay
all your medical expenses because we have plenty of insurance." In
another portion of her deposition, she again reported thisconversation: "I did go back up there the following Monday or
Tuesday and showed Carlton Woods my arm. And he said, oh, I'm
sorry. I cut the dehumidifier off to save money. I said, you knew
I was coming in. He said, we'll pay for all of your expenses."
Ms. Etheridge's testimony regarding Mr. Woods' statements is
admissible under Rule 801(d) of the Rules of Evidence as an
admission of a party-opponent. It is sufficient, for summary
judgment purposes, to rebut the statements in Mr. Woods' affidavit.
Roberts v. Madison County Realtors Ass'n, 121 N.C. App. 233, 239,
465 S.E.2d 328, 332 ("That the affiants' knowledge was gathered
from . . . communications of party-opponents is not fatal to the
averments of the affidavits submitted by plaintiff in opposition to
defendants' Motion for Summary Judgment. See N.C.R. Evid.
801(d)(C)[,] (D) . . . ."), rev'd on other grounds, 344 N.C. 394,
474 S.E.2d 783 (1996).
Nevertheless, Ms. Etheridge's evidence has a more fundamental
problem as Ms. Etheridge is unable to identify what caused her to
slip and fall. In her deposition, she repeatedly admitted that she
does not "remember looking at the floor at any time . . . ." She
admitted that before she fell, she "did not notice the floor being
wet." After she fell, she acknowledged that she also did not look
at the floor: "I didn't give a doodley squat about the floor at
that point." Her testimony establishes that she merely assumed
that there was something on the floor that caused her to slip:
Q. So then you cannot tell us exactly
what that floor looked like in the stall
either before or after you fell; correct?
A. Not really.
Q. But I understand this part [sic] you
think there was something on it because you
slipped; is that correct?
A. I know there was something on it or I
would not have slipped.
Ms. Etheridge went on to confirm that she could not say
whether the commode was sweating on the night of her accident, even
though her theory of her fall was that a sweating commode had led
to water on the floor. In other words, she offered no evidence,
apart from her speculation, that there was in fact water on the
floor or even of what caused her to fall at all. Without such
evidence, Ms. Etheridge cannot prevail on her claims. See
Pintacuda v. Zuckeberg, 159 N.C. App. 617, 625-26, 583 S.E.2d 348,
353-54 (2003) (Timmons-Goodson, J., dissenting) (affirming summary
judgment when plaintiff could not say what caused his motorcycle to
skid), adopted per curiam, 358 N.C. 211, 593 S.E.2d 776 (2004);
Byrd v. Arrowood, 118 N.C. App. 418, 421, 455 S.E.2d 672, 674
(1995) (affirming summary judgment when "plaintiff could not say
that the floor was wet when she walked to the bathroom and did not
notice water on the floor after she fell," although "her clothes
were wet after her fall"). I would, therefore, affirm the trial
court's summary judgment on this basis.
Footnote: 1