Desmond v. City of Charlotte
Decision Date | 03 April 2001 |
Docket Number | No. COA00-260.,COA00-260. |
Citation | 544 S.E.2d 269,142 NC App. 590 |
Parties | Virginia D. DESMOND, Plaintiff, v. CITY OF CHARLOTTE, a Municipal Corporation, Defendant. |
Court | North Carolina Court of Appeals |
Law Offices of Chandler deBrun Fink & Hayes, by Walter L. Hart, IV, Charlotte, for plaintiff-appellee.
Crews & Klein, P.C., by James N. Freeman, Jr. and Andrew W. Lax, Charlotte, for defendant-appellant.
Defendant appeals the trial court's grant of judgment notwithstanding the verdict and a new trial to plaintiff, and also the trial court's denial of defendant's own motion for a directed verdict. Because we hold that the plaintiff failed to present sufficient evidence upon which a jury could find that the city of Charlotte was negligent, we reverse.
The evidence tended to show that on the evening of 15 April 1997, plaintiff met two friends for dinner at a restaurant in uptown Charlotte. After leaving the restaurant at approximately 7:45 p.m., the women "were walking along talking" on the way to the parking deck where plaintiff's car was located. The women walked three abreast with the plaintiff positioned on the side nearest the curb. As they approached the parking garage, plaintiff's toe went into a depression in the sidewalk causing her to fall.
After the fall, the women examined the sidewalk and were able to see a difference in elevation between the two sidewalk slabs where plaintiff fell. At trial, plaintiff's expert testified that the difference in elevation was 1.6 inches.
At the close of plaintiff's evidence, plaintiff and defendant both made motions for a directed verdict pursuant to N.C.R. Civ. P. 50(a), which were denied. Defendant offered no further evidence. The jury found that the city was negligent in maintaining the sidewalks, but also found that the plaintiff was contributorily negligent.
Thereafter, plaintiff filed a motion for judgment notwithstanding the verdict pursuant to N.C.R. Civ. P. 50(b) and a motion for a new trial pursuant to N.C.R. Civ. P. 59 which were granted upon re-hearing. The trial court found that defendant had "failed to produce more than a scintilla of evidence that the plaintiff was contributorily negligent." The court granted a new trial on damages alone.
Defendant then moved for judgment notwithstanding the verdict and for a new trial on the issue of its negligence. The motions were denied, and it is from this order that defendants appeal.
Although the litigants have not raised the issue in their briefs, we note initially that this appeal is interlocutory. The issue of damages has not yet been tried. Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377 (1950). However, we find the procedural history of this case similar to that of Bowden v. Latta, 337 N.C. 794, 448 S.E.2d 503 (1994), in which the Supreme Court found the defendants had a right to immediate appeal under G.S. § 1-277(a) and 7A-27(d). In Bowden, the jury found one co-defendant negligent and the plaintiff contributorily negligent. The trial court granted plaintiff's judgment notwithstanding the verdict on the issue of contributory negligence and granted a new trial on the issue of damages. The Supreme Court reversed the Court of Appeals' determination that the appeal was premature, holding:
Regardless of whether an appellate court undertakes a substantive appeal now or after the parties have gone through a trial on damages, the issue of whether the trial judge was correct in overturning the jury verdict on contributory negligence remains central and will, in any event, need to be addressed. Deciding the matter now would streamline the process by delineating, as well as limiting, the remaining issues that could be litigated and appealed.
Id. at 797, 448 S.E.2d at 505. Accordingly, we now address defendant's appeal.
Id. at 138, 191 S.E.2d at 432 (citation omitted). "Notice of a dangerous condition in a street or sidewalk will be imputed to the town or city, if its officers should have discovered it in the exercise of due care." Smith v. Hickory, 252 N.C. 316, 318, 113 S.E.2d 557 (1960).
Here plaintiff's experts testified that the depression existed for a number of years and had been at least one-half of an inch for 1-2 years before the accident. This depression was contrary to the building code. However, we hold that this testimony is not sufficient to raise an inference of negligence. In Joyce v. City of High Point, 30 N.C.App. 346, 226 S.E.2d 856 (1976), the trial court properly entered summary judgment for the city when the irregularity in the sidewalk was 1-2 inches and the plaintiff did not see the irregularity before the fall. Id. at 350, 226 S.E.2d at 858. Our Supreme Court in Bagwell v. Brevard, 256 N.C. 465, 124 S.E.2d 129 (1962), held that plaintiff did not allege actionable negligence on the part of the town when the change in the sidewalk was approximately one inch. Id. at 466, 124 S.E.2d at 130. In Watkins v. Raleigh, 214 N.C. 644, 200 S.E. 424 (1939), our Supreme Court held that a hole in the sidewalk which was 2½ feet wide and 2 or more inches in depth was trivial. Id. In Falatovitch v. Clinton, 259 N.C. 58, 129 S.E.2d 598 (1963), plaintiff fell in an opening of the sidewalk. Id. The defect had been there for at least three years. Id. at 59, 129 S.E.2d at 599. The defect was ten inches long, and several inches wide. Id. Our Supreme Court held that Id. at 60, 129 S.E.2d at 599.
113 S.E.2d at 559 (citations omitted).
In a similar case Gower v. Raleigh, 270 N.C. 149, 153 S.E.2d 857 (1967), our Supreme Court held that the plaintiff's evidence, taken as true, was not sufficient to permit a finding that the city had actual or constructive knowledge of the defect. Id. at 151, 153 S.E.2d at 859. The Court held that according to plaintiff's testimony, a reasonable inspection of its sidewalk and crosswalk would not have led to an inspector noticing the defect. Id. Mrs. Gower testified that she looked down before stepping off the curb and did not observe the defects. Id. She testified it was a clear day. Id. The Court held that the defect would not be more visible to a city inspector than to her. Id. The Court further held that if the plaintiff did Id. at 151-52, 153 S.E.2d at 859.
Although expert testimony regarding defects and their correlation with building codes typically gives rise to an inference of negligence sufficient to allow a jury to determine the issue, on this record it does not. The law with regard to municipalities and maintenance of sidewalks is such that minor defects are not actionable.
Because we hold that the defendant's motion for directed verdict should have been granted at the close of plaintiff's evidence, we do not address the remaining issues....
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