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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-860


Filed: 5 June 2007


v .                         Alamance County
                            No. 05 CVS 172

    Appeal by plaintiff from order entered 16 March 2006 by Judge Steve Balog in Alamance County Superior Court. Heard in the Court of Appeals 20 February 2007.

    Hemric, Lambeth & Champion, P.A., by H. Clay Hemric, Jr., for plaintiff-appellant.

    Bolster Rogers P.C., by Jeffrey S. Bolster and Michele A. Friedlander, for defendant-appellee.

    WYNN, Judge.

    In an action for negligence, a plaintiff must show that “[t]he breach of the duty [is] the cause of the damage,” not merely that the injury occurred in the vicinity of the defendant's alleged negligence.   (See footnote 1)  Here, Plaintiff Jerry Compton admitted that he did not know what caused him to lose his balance and fall down the staircase of the Ramada Inn owned and operated by Defendant Maya Lake, L.L.C. Accordingly, we affirm the trial court's granting of summary judgment to Maya Lake.     On the evening of 19 February 2002, Mr. Compton was injured when he fell while descending the northeast staircase of a Ramada Inn franchise operated by Maya Lake. Mr. Compton had checked into the motel the previous night and been assigned a room on the second floor; he had ascended the northeast staircase twice and descended it once without incident prior to the fall. However, he had noticed some chipping concrete and exposed metal at the edges of the stairs, a condition conceded by the motel owner. The staircase was also equipped with handrails. Mr. Compton admitted he was unable to recall the exact reason for or circumstances surrounding his fall, aside from losing his balance.
Mr. Compton filed a complaint against Maya Lake on 21 January 2005, alleging negligence and gross negligence due to the unsafe condition of the staircase and seeking recovery of damages. Maya Lake answered the complaint on 22 March 2005, asserting the affirmative defense of contributory negligence on the part of Mr. Compton. Following discovery, Maya Lake filed a motion for summary judgment on 2 February 2006, contending that Mr. Compton had failed to produce substantial evidence beyond mere speculation as to what caused him to fall, that the allegedly dangerous condition was open and obvious, and that Mr. Compton was contributorily negligent as a matter of law.
    On 16 March 2006, the trial court granted Maya Lake's motion for summary judgment and issued an order to dismiss Mr. Compton's complaint with prejudice. The trial court did not state any specific grounds in concluding that there were no genuine issues ofmaterial fact based on the pleadings, memoranda, depositions, and photographs submitted by the parties.
    Mr. Compton now appeals that order, arguing that the trial court committed reversible error by granting summary judgment to Maya Lake. He specifically asserts that (I) he forecast a prima facie case of negligence and gross negligence, sufficient to raise questions of fact for a jury; (II) Maya Lake should have anticipated an unreasonable risk of harm due to the allegedly defective condition of the staircase; and, (III) a question of fact remained as to whether Maya Lake could assert contributory negligence due to the lack of reasonable alternatives to the northeast staircase available to motel guests.
    Because we find that Mr. Compton failed to forecast any evidence to support a finding of proximate cause, one of the elements of the prima facie case for both negligence and gross negligence, we conclude the trial court had a valid basis for granting summary judgment to Maya Lake. We therefore focus our discussion on the issue of proximate cause and decline to address the remainder of Mr. Compton's arguments.
    Summary judgment is properly granted when the evidence, viewed in the light most favorable to the non-moving party, shows no genuine issue of material fact. See Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998) (citation omitted); see also N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). A defendant may meet this burden by “(1) proving that an essential element of the plaintiff's case is non-existent, or (2)showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim[.]” James v. Clark, 118 N.C. App. 178, 181, 454 S.E.2d 826, 828 (quotation and citation omitted), disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995). Additionally, “[o]nce the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.” Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000) (internal citation omitted), cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001).
    As long established in North Carolina,
        To establish a prima facie case of actionable negligence, a plaintiff must allege facts showing: (1) defendant owed plaintiff a duty of reasonable care; (2) defendant breached that duty; (3) defendant's breach was an actual and proximate cause of plaintiff's injury; and (4) plaintiff suffered damages as the result of defendant's breach.

Winters v. Lee, 115 N.C. App. 692, 694, 446 S.E.2d 123, 124 (citation omitted), disc. review denied, 338 N.C. 671, 453 S.E.2d 186 (1994); see also Whitt v. Rand, 187 N.C. 805, 808, 123 S.E. 84, 85-86 (1924). Furthermore, “[g]ross negligence requires a finding that the conduct is willful, wanton, or done with reckless indifference.” Sawyer v. Food Lion, Inc., 144 N.C. App. 398, 403, 549 S.E.2d 867, 870 (2001) (internal citation omitted).
    Our case law defines proximate cause as “a cause which in natural and continuous sequence, unbroken by any new andindependent cause, produced the plaintiff's injuries, and without which the injuries would not have occurred[.]” Lynn v. Overlook Dev., 328 N.C. 689, 696, 403 S.E.2d 469, 473 (1991) (quoting Adams v. Mills, 312 N.C. 181, 192, 322 S.E.2d 164, 171 (1984)). Significantly, a plaintiff must show that “[t]he breach of the duty [is] the cause of the damage. The fact that the defendant has been guilty of negligence, followed by an injury, does not make him liable for that injury . . . unless the connection of cause and effect is established[.]” Carter v. Carolina Realty Co., 223 N.C. 188, 192, 25 S.E.2d 553, 555 (1943) (emphasis added) (internal quotation and citation omitted). Thus, a plaintiff must produce evidence of facts that would link the defendant's alleged negligence to his injuries.
    In the instant case, Mr. Compton stated in his deposition that on two of the previous times he had used the northeast staircase, he had noticed some “chipped pieces” off the staircase in question, with concrete missing and steel exposed underneath. He also confirmed that he told the emergency personnel who responded after his fall that he had “lost his balance and f[allen] down three steps.” When asked if he had a “pretty good recollection of the events leading up to and including” the fall, he answered in the affirmative. Nevertheless, he admitted that immediately after the fall, he was not certain what had caused him to lose his balance, and that he did not conclude the deteriorated condition was one possible reason until after he had seen photographs of the staircase taken by the insurance company handling his worker'scompensation claim. Most significantly, when asked directly if he knew what caused him to fall, Mr. Compton responded, “No[.]”
    In light of this testimony, and the fact that Mr. Compton was alone on the steps when he fell , such that no one else could offer evidence beyond mere conjecture as to the cause of his fall, we find that he has forecast evidence only of an allegedly defective condition and an injury within the vicinity of that condition. Such a showing is insufficient to prove causation, one of the elements necessary to make a prima facie case for either negligence or gross negligence. Id.
    Because Mr. Compton failed to forecast evidence that his injuries would not have occurred but for the allegedly defective condition of the Ramada Inn staircase and Maya Lake's alleged negligence, we conclude the trial court acted properly in granting summary judgment to Maya Lake.
Judges STEELMAN and JACKSON concur.
    Report by Rule 30(e).

Footnote: 1
     Carter v. Carolina Realty Co., 223 N.C. 188, 192, 25 S.E.2d 553, 555 (1943) (emphasis added) (internal quotation and citation omitted) .

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