Bolick v. Bon Worth, Inc.

• Decision Date: 21 May 2002
• Docket Number: No. COA01-968.,COA01-968.
• Citation: 562 S.E.2d 602,150 NC App. 428
• Court: North Carolina Court of Appeals
• Parties: Virginia BOLICK, Plaintiff, v. BON WORTH, INC., Defendant.

562 S.E.2d 602

150 NC App. 428

Virginia BOLICK, Plaintiff, v. BON WORTH, INC., Defendant.

No. COA01-968.

Court of Appeals of North Carolina.

May 21, 2002.

Charles R. Hassell, Jr., Raleigh, for plaintiff-appellant.

Stiles, Byrum & Horne, L.L.P., by Lane Matthews, Charlotte, for defendant-appellee.

MARTIN, Judge.

Plaintiff brought this action for personal injuries sustained when she fell at defendant's store in Lincolnton, North Carolina. Defendant denied negligence and asserted plaintiff's contributory negligence as an affirmative defense. Defendant moved for summary judgment.

The evidentiary materials before the trial court tended to show that plaintiff was a customer at defendant's store on 25 June 1996. Plaintiff asked to use the restroom, and was directed by an employee to an area in the back of the store. Although plaintiff testified at her deposition that she could not recall whether the hallway outside the bathroom was lit, she stated that she did not have any trouble seeing because the bathroom light was on and the bathroom door was open; light was also coming from the door leading to the main area of the store. She also stated she could see the floor, and saw several wooden steps leading up to the bathroom. Plaintiff testified that she had no trouble getting into the bathroom; however, as she attempted to exit the bathroom, she fell down the steps, striking the wall and suffering injuries to her head and shoulder. Plaintiff claimed that when she opened the door, there was "no landing there, no nothing. It was step downs (sic), but when the door flew open I just went sailing." Plaintiff stated that she had not forgotten about the steps outside the bathroom, and that she did not trip going out of the bathroom. Materials before the court also included photographs of the hallway and a report from plaintiff's expert, Norman A. Cope, who concluded that the step-down from the bathroom created a hazardous condition.

The trial court granted defendant's motion for summary judgment on grounds that there were no issues of material fact as to (1) the breach of any duty owed plaintiff by defendant, and (2) plaintiff's contributory negligence as a matter of law. Plaintiff appeals.

-------------------------

Plaintiff assigns error to the trial court's grant of summary judgment dismissing her complaint. We affirm.

Summary judgment is appropriate when all the evidentiary materials before the court "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) (2001). The burden is on the party moving for summary judgment to show the absence of any genuine issue of fact and his entitlement to judgment as a matter of law. First Federal Savings & Loan Ass'n v. Branch Banking & Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972).

The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.

Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992) (citation omitted). In ruling on the motion, the court is not authorized to resolve issues of fact, only to determine whether there exists any genuine issues of fact material to the outcome of the case. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975).

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) (citation omitted), disc. review denied, 342 N.C. 656, 467 S.E.2d 715 (1996). Owners and occupiers of land have a duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors. Barber v. Presbyterian Hosp., 147 N.C.App. 86, 89, 555 S.E.2d 303, 306 (2001) (citing Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892,reh'g denied,350 N.C. 108, 533 S.E.2d 467 (1999)). "Reasonable care" requires that the landowner not unnecessarily expose a lawful visitor to danger and give warning of hidden hazards of which the landowner has express or implied knowledge. Id. (citing Norwood v. Sherwin-Williams Co., 303 N.C. 462, 467, 279 S.E.2d 559, 562 (1981)). There is no duty to protect or warn, however, "against dangers either known or so obvious and apparent that they reasonably may be expected to be discovered." Von Viczay v. Thoms, 140 N.C.App. 737,...