Farrelly v. Hamilton Square

• Decision Date: 18 July 1995
• Docket Number: No. 9325SC1165,9325SC1165
• Citation: 459 S.E.2d 23,119 N.C.App. 541
• Parties: Charles B. FARRELLY, Plaintiff, v. HAMILTON SQUARE, a North Carolina General Partnership, Defendant.
• Court: North Carolina Court of Appeals

Page 23

459 S.E.2d 23

119 N.C.App. 541

Charles B. FARRELLY, Plaintiff, v. HAMILTON SQUARE, a North Carolina General Partnership, Defendant.

No. 9325SC1165.

Court of Appeals of North Carolina.

July 18, 1995.

Eisele & Ashburn, P.A. by Douglas G. Eisele, Statesville, for plaintiff appellant.

Sigmon, Clark, Mackie & Hutton, P.A. by Jeffrey T. Mackie and J. Scott Hanvey, Hickory, for defendant appellee.

COZORT, Judge.

Plaintiff appeals from order granting summary judgment to defendant on plaintiff's claim for negligence. We affirm.

Defendant owned Hamilton Square and leased part of its building to various furniture manufacturers and dealers for the purpose of displaying their products at the High Point Furniture Market. Defendant kept and maintained common areas including the hallways in the building. The tenants kept and maintained their respective showrooms, and defendant had no responsibility for the leased areas. Eddie Forward managed defendant's building and supervised two to four employees who cleaned up trash generated by the Market. Also, a cleaning service performed general maintenance work including cleaning the bathrooms and hallways.

On 13 April 1988, plaintiff was in High Point to attend the High Point Furniture Market at Hamilton Square. Plaintiff was employed as a representative of various furniture and accessory manufacturers including Virginia Clocks and Churchill Clocks, who are tenants at Hamilton Square. Plaintiff stayed with Keith and Beth Hawkes near the towns of Archdale and Thomasville the night before the Market. He left the Hawkes' residence early on the morning of 13 April 1988, drove to High Point, and parked in the parking lot at Hamilton Square between 8:00 a.m. and 8:30 a.m. He went to the Virginia Clocks showroom on the lobby level of Hamilton Square and remained until 11:30 a.m. Plaintiff then walked out of the Virginia Clocks showroom onto a brick cobblestone floor leading to a carpeted area that went to an elevator, which he took to the third floor.

On the third floor, plaintiff went to the showroom of Churchill Clocks where he remained until approximately 3:00 p.m. or 4:00 p.m. He may have gone to the men's room on the same floor during this period. While in the showroom at Churchill Clocks, plaintiff observed a man vacuuming the hallway outside the showroom. Also, he saw the operator stop the vacuum to remove tacks from the vacuum cleaner on two occasions. One of the tacks was similar to one later found in plaintiff's shoe.

Plaintiff left Hamilton Square at approximately 5:00 p.m. and drove directly to the home of John Daly. After dinner, he removed his sweater and shoes. Upon removal of his right shoe, plaintiff discovered a tack penetrating through the bottom of his shoe and found blood in the bottom of his shoe. Plaintiff described the tack as one used for decorative purposes in upholstered furniture. Plaintiff was unable to feel the tack penetrating through his shoe into his right foot because of the neuropathy he had experienced for three years prior to this incident. The neuropathy, a result of complications of diabetes, causes plaintiff not to have feeling in his right foot. Plaintiff reported this incident to defendant approximately four to six months later. He told an employee of Hamilton Square that he did not know if the injury occurred in Hamilton Square since he was in several buildings during the day.

Plaintiff does not know where he stepped on the tack. He did not notice anything unusual about his right foot on the night of 12 April or the morning of 13 April when he dressed before going to Hamilton Square. He did not see any tacks on the floor prior to seeing the person vacuuming the tacks, does not know how long the tacks had been on the floor, and cannot describe with any certainty the tack found in his shoe. His evidence showed that Mr. Forward noticed tacks and sharp objects on the Hamilton Square floor prior to the 1988 Market.

On 2 July 1992, plaintiff commenced this civil action seeking to recover medical expenses, loss of income, and compensation for pain and suffering allegedly resulting from defendant's negligence in allowing a hazardous condition to exist in the common area without giving to the plaintiff notice or warning of the existence of the condition. On 4 September 1992, defendant answered, denying any negligence and alleging that plaintiff was contributorily negligent. After discovery, defendant filed a motion for summary judgment. Judge Marlene Hyatt heard defendant's motion on 9 August 1993 and granted summary judgment for defendant on 12 August 1993.

Plaintiff contends on appeal the trial court erred in granting defendant's motion for summary judgment. Plaintiff contends the evidence of record and the reasonable conclusions arising therefrom create a jury issue on the question of defendant's negligence and do not show that plaintiff was contributorily negligent as a matter of law. We affirm.

Summary judgment is properly granted where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.C.Gen.Stat. § 1A-1, Rule 56(c) (1990). The party moving for summary judgment has the burden of showing there is no triable issue of material fact. Pembee Manufacturing Corp. v. Cape Fear Construction Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). " '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....' " Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992) (quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). Once the movant meets his burden, the burden then shifts to the non-moving party to show that a genuine issue exists by forecasting sufficient evidence of all essential elements of the claim. Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992). The court must look at the evidence in the light most favorable to the non-moving party and with the benefit of all reasonable inferences. Isbey v. Cooper Companies, Inc., 103 N.C.App. 774, 775, 407 S.E.2d 254, 256 (1991), disc. review denied, 330 N.C. 613, 412 S.E.2d 87 (1992).

In a premises liability case involving injury to an invitee, the owner of the premises has a duty to exercise " 'ordinary care to keep in a reasonably safe condition those portions of its premises which it may expect will be used by its customers during business hours, and to give warning of hidden perils or unsafe conditions insofar as they can be ascertained by reasonable inspection and supervision.' " Roumillat, 331 N.C. at 64, 414 S.E.2d at 342 (quoting Raper v. McCrory-McLellan Corp., 259 N.C. 199, 203, 130 S.E.2d 281, 283 (1963)). To prove negligence, plaintiff must show that defendant either negligently created the condition which caused the injury or negligently failed to correct the condition after actual or constructive notice of the condition. Roumillat, 331 N.C....