Diorio v. Penny

• Decision Date: 16 July 1991
• Docket Number: No. 9029SC1158,9029SC1158
• Citation: 405 S.E.2d 789,103 N.C.App. 407
• Parties: Katharine N. DIORIO, Plaintiff, v. William E. PENNY and Betty S. Penny, Defendants.
• Court: North Carolina Court of Appeals

Page 789

405 S.E.2d 789

103 N.C.App. 407

Katharine N. DIORIO, Plaintiff, v. William E. PENNY and Betty S. Penny, Defendants.

No. 9029SC1158.

Court of Appeals of North Carolina.

July 16, 1991.

Morris, Bell & Morris by William C. Morris, Jr., Asheville, for plaintiff-appellant.

Roberts, Stevens & Cogburn, P.A. by Frank P. Graham, Asheville, for defendants-appellees.

LEWIS, Judge.

On 13 July 1985 Katharine N. Diorio and her husband leased a two-story house, owned by the defendants, in Henderson County. The house contained a staircase which did not have a handrail and consisted of twelve to fifteen steps varying from four to nine inches in height. At the time plaintiff signed the lease the staircase was covered by carpeting which extended unsupported approximately two inches beyond each step before continuing down the riser to the next step. Before leasing the house plaintiff and her husband viewed the interior of the house and walked up and down the staircase. Upon moving into the house plaintiff and her husband used one of the upstairs rooms as their bedroom. Prior to 20 January 1986, the plaintiff had slipped on the stairs on more than one occasion. She was never injured because she would always catch herself on the wall. Furthermore, prior to 20 January 1986, the plaintiff's daughter had slipped and fallen down the stairs but was not injured. Neither the plaintiff nor any member of her family complained to the defendants about the condition of the stairs at any time.

On 20 January 1986 in the evening the plaintiff walked down the stairs, slipped on the overhanging carpet on one of the steps, tumbled down the remaining stairs and broke her right arm. On 30 April 1987 she filed suit against the defendants. Having voluntarily dismissed that claim on 30 April 1990, she subsequently filed another complaint alleging that the defendants had negligently constructed and maintained the stairs. The defendants filed an answer to the complaint on 29 May 1990 denying negligence and alleging contributory negligence as a defense. Defendants' motion for summary judgment was granted on 31 August 1990. Plaintiff appeals.

"On motion for summary judgment, the question before the Court is whether the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law." Gregory v. Perdue, Inc., 47 N.C.App. 655, 656, 267 S.E.2d 584, 586 (1980). While issues of negligence and contributory negligence are rarely appropriate for summary judgment, Ballenger v. Crowell, 38 N.C.App. 50, 54, 247 S.E.2d 287, 291 (1978), the trial court will grant summary judgment in such matters where the evidence is uncontroverted that a party failed to use ordinary care and that want of ordinary care was at least one of the proximate causes of the injury. Bogle v. Duke Power Co., 27 N.C.App. 318, 321-22, 219 S.E.2d 308, 311 (1975), cert. denied, 289 N.C. 296, 222 S.E.2d 695 (1976).

The uncontroverted evidence in this case indicates that the plaintiff, who had used the stairs at least twice a day for nearly six months, by her own admission was aware that the stairs posed a danger to the extent that she more than once had to "catch herself" on the wall while descending. The plaintiff also admits that she had not notified the landlord of the danger and had not taken any other step to correct the condition of the stairs. This Court has previously stated that, "[t]he law imposes upon a person the duty to exercise ordinary care to protect himself from injury and to avoid a known danger; and that where there is such knowledge and there is an opportunity to avoid such a known danger, failure to take such opportunity is contributory negligence." Lenz v. Ridgewood Associates, 55 N.C.App. 115, 122, 284 S.E.2d 702, 706-07 (1981), disc. rev. denied, 305 N.C. 300, 290 S.E.2d 702 (1982). Where the plaintiff knew the danger of the stairs and in the course of six months failed to undertake any action whatsoever to correct it or to notify the landlord of the condition, the plaintiff, in our judgment, has violated the standard of ordinary care and is contributorially negligent as a matter of law. We distinguish this case from the holding in Lenz v. Ridgewood Associates, Id., where this Court vacated a directed verdict for the defendant. There we held that it was for the jury to decide whether a reasonable person would have stayed at home instead of exposing himself to a known danger, i.e., an icy walkway outside his home. Though Mrs. Diorio had no alternative route to the first floor of the house and while one could not reasonably expect her to remain on entirely the second floor, by her own admission she, unlike the plaintiff in Lenz, was not confronted with the danger for the first time on the date of her injury. She had experienced six months of close exposure to a known condition and failed to notify the landlord or take reasonable corrective measures. A plaintiff who knowingly exposes herself to a risk of which she has had long-term prior notice, has a reasonable choice or option to seek to avoid that danger and fails to exercise that option, is contributorially negligent as a matter of law. See Brooks v. Francis, 57 N.C.App. 556, 291 S.E.2d 889 (1982).

Since we have determined that plaintiff is contributorially negligent as a matter of law, we decline to address the issue of whether the plaintiff has made a prima facie case of negligence sufficient to take the case to the jury.

The judgment of the trial court is therefore

Affirmed.

EAGLES, J., concurs.

GREENE, J., dissents.

GREENE, Judge, dissenting.

The majority concludes that the plaintiff was contributorially negligent as a matter of law because she "failed to undertake any action whatsoever to correct ... [the staircase] or to notify the landlord" of its allegedly defective condition. I disagree.

I

A

For purposes of tort law and the doctrine of contributory negligence, a tenant may be required to correct defective conditions in the leased premises to avoid injury to herself. This duty, however, depends on various factors, including, but not limited to, the extent of the defect and the cost to the tenant to repair it. Although a tenant may be contributorially negligent if she fails to repair a minor defect which subsequently causes her injury, see N.C.G.S. § 42-43(a)(1) (1984) (tenant obligated to keep premises as "safe as the conditions of the premises permit"), the tenant is not expected to make major repairs, such as rebuilding a staircase with risers of varying heights or replacing carpeting on such a staircase. Such repairs are for the landlord. See N.C.G.S. § 42-42(a)(1), (2) (1984) (landlord obligated to comply with building codes and "[m]ake all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition"). Because the circumstances dictate whether the tenant should make repairs required for safety purposes, the issue of whether a tenant injured by the defective condition is contributorially negligent for failing to make those repairs is a question properly reserved for the jury.

B

I further disagree that the plaintiff's failure to notify the defendants of the condition of the staircase renders her contributorially negligent as a matter of law.

A prerequisite for a landlord's tort liability for the failure to repair a defective condition under N.C.G.S. § 42-42(a)(2) is (1) notice, either written or oral, to the landlord of the condition or (2) evidence that the landlord was aware or should have been aware of it. See Surratt v. Newton, 99 N.C.App. 396, 405-06, 393 S.E.2d 554, 559 (1990); Bradley v. Wachovia Bank & Trust Co., 90 N.C.App. 581, 584, 369 S.E.2d 86, 88 (1988). Here, the defendants' evidence shows that the plaintiff never notified the defendants of the condition. The plaintiff's evidence, however, shows that the defendants were aware of the condition of the staircase in that Jennifer Ciechan, the tenant in the house before the plaintiff, had fallen on the carpeted staircase. Ciechan testified at her deposition that although she could not specifically recall the actual conversation with the defendants concerning her fall on the stairs, she felt like the fall had been mentioned to them. Furthermore, the defendants themselves lived in this house in the early 1980's after the staircase had been carpeted and therefore were aware or, at the very least, should have been aware of the condition of the staircase. Accordingly, because the plaintiff has demonstrated that a genuine issue of material fact exists on the question of whether the defendants were aware or should have been aware of the condition of the staircase, summary judgment for the defendants on that ground was improper.

C

Furthermore, the plaintiff was not otherwise contributorially negligent as a matter of law.

"[T]he law imposes upon a person the duty to exercise ordinary care to protect himself from injury and to avoid a known danger; and that where there is such knowledge and there is an opportunity to avoid such a known danger, failure to take such opportunity is contributory negligence." Lenz v. Ridgewood Assocs., 55 N.C.App. 115, 122, 284 S.E.2d 702, 706-07 (1981), disc. rev. denied, 305 N.C. 300, 290 S.E.2d 702 (1982) (emphasis in text). Stated differently, "contributory negligence per se may arise where a plaintiff knowingly exposes himself to a known danger when he had a reasonable choice or option to avoid that danger, ... or when a plaintiff heedlessly or carelessly exposes himself to a danger or risk of which he knew or should have known." Id. at 122-23, 284 S.E.2d at 707 (citation omitted) (emphasis in text). Therefore, a plaintiff is not contributorially negligent as a matter of law when she "undertakes a reasonably necessary journey or mission or engages in a reasonably necessary activity where there are no...