DiOrio v. Penny

• Decision Date: 25 June 1992
• Docket Number: No. 372A91,372A91
• Citation: 417 S.E.2d 457,331 N.C. 726
• Parties: Katharine N. DiORIO v. William E. PENNY and Betty S. Penny.
• Court: North Carolina Supreme Court

Page 457

417 S.E.2d 457

331 N.C. 726

Katharine N. DiORIO v. William E. PENNY and Betty S. Penny.

No. 372A91.

Supreme Court of North Carolina.

June 25, 1992.

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.

LAKE, Justice.

On 13 July 1985 the plaintiff and her husband, the DiOrios, leased from the defendants a two-story house that was 75 to 125 years old. In past years the defendants had lived in this house for approximately six months and then leased the house to other tenants prior to its rental by plaintiff and her husband. When plaintiff signed the lease the house contained a staircase which was covered by carpeting which extended unsupported beyond each step before continuing down the riser to the next step. The risers or height of the steps on this staircase varied from 4 inches at the bottom to 9 1/2 inches at the top. The average staircase riser is 8 1/2 inches. This staircase had no railing, was narrow, and had lighting at the top and bottom.

The plaintiff and her husband, before leasing the house, viewed the interior of the house and walked up and down the staircase. Upon moving into the house, the DiOrios used one of the upstairs rooms as their bedroom. The DiOrios had been living in the house for six months prior to 20 January 1986 when plaintiff, while descending the staircase barefoot at night, slipped and fell. She sustained a compound fracture of the arm and a severed artery. When the accident occurred, the light at the bottom of the staircase was on.

In discovery documents plaintiff admits she was aware that the staircase was narrow and difficult, but asserts she was unaware of the varying depths of the risers and of the fact that the carpeting had been laid in a way that caused it to extend approximately two inches beyond each step before continuing down the riser to the next step. Plaintiff's husband had experience in the building industry. He noticed that the risers varied in height, but does not recall ever warning his wife. Prior to 20 January 1986 the plaintiff had slipped on the staircase on more than one occasion, but she had always caught herself on the wall and had never fallen. Also, plaintiff's daughter had fallen down the staircase previously. During the six months they lived in the house prior to the accident, neither the plaintiff nor her husband had ever mentioned the condition of the staircase to the defendants or notified them of any danger, or undertaken any action to correct the condition.

The plaintiff instituted this action seeking damages against defendants for the personal injuries sustained when she fell down the staircase. The defendants by answer denied any negligence on their part and alleged contributory negligence as a defense. The trial court, upon review of the pleadings and discovery documents, including plaintiff's answers to interrogatories and her deposition, granted defendants' motion for summary judgment. The Court of Appeals affirmed the trial court and plaintiff appeals by virtue of a dissenting opinion in the Court of Appeals.

The sole issue in this case is whether the Court of Appeals' majority was correct in affirming the trial court's granting of defendants' motion for summary judgment. We conclude the Court of Appeals was correct.

The majority opinion of the Court of Appeals held that summary judgment for defendants was proper on the grounds that plaintiff was contributorily negligent as a matter of law in knowingly exposing herself to a risk of which she had long-term prior notice and which she could have avoided by notifying the landlord or taking reasonable corrective measures. DiOrio v. Penny, 103 N.C.App. 407, 405 S.E.2d 789 (1991). The Court of Appeals declined to address the issue of whether plaintiff had made out a case of negligence on defendants' part sufficient to take the case to the jury since it held plaintiff contributorily negligent as a matter of law.

The dissenting opinion, id. at 410, 405 S.E.2d at 791, argued that (1) a tenant's contributory negligence for not repairing a particular defect is a jury question, (2) plaintiff's failure to notify defendants of the condition of the staircase does not render her contributorily negligent as a matter of law, and (3) the defendants do not deserve summary judgment on the basis plaintiff failed to show defendants' negligence because the defendant, as the moving party, bears the burden on a summary judgment motion to show that an essential element of the non-moving party's claim does not exist.

On motion for summary judgment, the question before the trial 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, 267 S.E.2d 584 (1980). The trial court will grant summary judgment in cases 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 injury. Bogle v. Power Co., 27 N.C.App. 318, 219 S.E.2d 308 (1975), cert. denied, 289 N.C. 296, 222 S.E.2d 695 (1976). This was the basis of the Court of Appeals' decision.

The uncontroverted projection of the evidence in this case, from the discovery materials presented on the motion hearing, clearly indicates that the plaintiff had used the stairs at least twice a day for nearly six months, and that by her own admission she was aware they presented a danger in that she had to catch herself on the wall while descending on more than one occasion. We thus do not disagree as to the Court of Appeals' conclusion regarding ...