Dowless v. Kroger Co., COA01-158.

Citation148 NC App. 168,557 S.E.2d 607
Decision Date28 December 2001
Docket NumberNo. COA01-158.,COA01-158.
CourtCourt of Appeal of North Carolina (US)
PartiesNancy DOWLESS and Purlie Dowless, Plaintiffs, v. KROGER COMPANY and Ohio Wesleyan University, Defendants.

Cooper, Davis & Cooper, by James M. Cooper, Fayetteville, for plaintiff-appellants.

Young Moore and Henderson, P.A., by Brian O. Beverly, Raleigh, for defendant-appellee Kroger Company.

Cranfill, Sumner & Hartzog, L.L.P., by Leigh Ann Smith and Jaye E. Bingham, Raleigh, for defendant-appellee Ohio Wesleyan University.

HUNTER, Judge.

Nancy Dowless ("Dowless") and her husband Purlie Dowless (together "plaintiffs") appeal from the trial court's grant of summary judgment in favor of defendants Kroger Company ("Kroger") and Ohio Wesleyan University ("Ohio Wesleyan"). We affirm summary judgment as to Kroger, but reverse and remand as to Ohio Wesleyan.

The evidence before the trial court on defendants' motion for summary judgment tended to establish the following facts. Dowless sustained an injury to her shoulder while pushing a shopping cart full of groceries toward her car in a parking lot outside of a Kroger supermarket in Fayetteville, North Carolina. Her injury was sustained when the left front wheel of her shopping cart fell into a hole in the asphalt of the parking lot, causing her shopping cart to tip. Dowless attempted to catch the shopping cart and thereby tore the rotator cuff in her left shoulder.

Plaintiffs filed suit against Ohio Wesleyan and Kroger seeking damages based upon claims of negligence and loss of consortium. Ohio Wesleyan is the owner of both the building that houses the supermarket, and the parking lot outside of the supermarket. Kroger leases the building from Ohio Wesleyan, but not the parking lot. Upon defendants' motion, the trial court granted summary judgment in favor of both defendants. Plaintiffs appeal.

A party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [the] party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A 1, Rule 56(c) (1999). Specifically, a defendant is entitled to summary judgment in a negligence case if it can show either the non-existence of an essential element of the plaintiff's claim or that the plaintiff has no evidence of an essential element of her claim. See Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)

. Kroger contends, and we agree, that summary judgment was properly granted as to Kroger because plaintiffs cannot establish under these circumstances that Kroger owed a legal duty of care to plaintiff once she left the store and entered the parking lot. In a premises liability case, it must be shown that the defendant owed a duty of care to the plaintiff. See Hedrick v. Akers, 244 N.C. 274, 275, 93 S.E.2d 160, 161 (1956). Here, Dowless alleges that her injury occurred in the parking lot as a result of the condition of the parking lot asphalt. It is undisputed that Ohio Wesleyan owns both the parking lot and the building, and that Kroger leases only the building from Ohio Welseyan and not the parking lot. Further, pursuant to the lease contract, Ohio Wesleyan is responsible for maintaining the "Common Area, in good repair" and for maintaining "the structure and exterior of the premises, including ... all paved areas." Plaintiffs' allegations, together with the undisputed facts, reveal the non-existence of an essential element of plaintiffs' claim against Kroger—namely, that Kroger owed a duty of care to Dowless to maintain the parking lot in a safe condition. See id. ("[a] tenant is not responsible for injuries due to a defective sidewalk in front of a building under lease from the owner where the owner exercises control"). Therefore, we affirm summary judgment as to Kroger.

However, as to Ohio Wesleyan, we believe summary judgment was improperly granted. Plaintiffs allege that Ohio Wesleyan owed a duty of reasonable care to Dowless as a lawful visitor on the premises, that Ohio Wesleyan breached this duty of care, and that the breach proximately and foreseeably caused the injury to Dowless. Ohio Wesleyan contends that it did not breach its duty of care to Dowless, and that, in the alternative, Dowless was contributorily negligent.

It is clear that Ohio Wesleyan, as the owner of the parking lot, owed to all lawful visitors "a duty to maintain the premises in a condition reasonably safe for the contemplated use and a duty to warn of hidden dangers known to or discoverable by [Ohio Wesleyan]." Branks v. Kern, 320 N.C. 621, 624, 359 S.E.2d 780, 782 (1987). It is also well-established that there is no duty to warn a lawful visitor of "a hazard obvious to any ordinarily intelligent person using [her] eyes in an ordinary manner, or one of which the plaintiff had equal or superior knowledge." Id. In some cases, as in Branks, this latter principle is stated in terms of negating the existence of a defendant's duty to warn. In other cases, it is stated that if a hazard was known to the plaintiff, or should have...

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    ...392 S.E.2d at 384, abrogated by Nelson , 349 N.C. 615, 507 S.E.2d 882 ; see also, e.g. , Dowless v. Kroger Co. , 148 N.C. App. 168, 171, 557 S.E.2d 607, 609 (2001) ("Whether construed in terms of negating a defendant's duty to warn, or in terms of establishing a plaintiff's contributory neg......
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    ...obvious to any ordinarily intelligent person using her eyes in an ordinary manner[.]" Dowless v. Kroger Co. , 148 N.C. App. 168, 171, 557 S.E.2d 607, 609 (2001) (brackets and internal quotation marks omitted); accord Burnham v. S&L Sawmill, Inc. , 229 N.C. App. 334, 340, 749 S.E.2d 75, 80, ......
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    ...should have been obvious to a person using reasonable care under the circumstances." Dowless v. Kroger Co. , 148 N.C.App. 168, 171, 557 S.E.2d 607, 609 (2001). Still, a person may be excused from failing to recognize "an existing dangerous condition" that "he ordinarily would or should have......
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