Frendlich v. Vaughan's Foods of Henderson, Inc., 829SC800

• Decision Date: 04 October 1983
• Docket Number: No. 829SC800,829SC800
• Citation: 307 S.E.2d 412,64 N.C.App. 332
• Parties: Patricia Mary FRENDLICH v. VAUGHAN'S FOODS OF HENDERSON, INC.
• Court: North Carolina Court of Appeals

Page 412

307 S.E.2d 412

64 N.C.App. 332

Patricia Mary FRENDLICH v. VAUGHAN'S FOODS OF HENDERSON, INC.

No. 829SC800.

Court of Appeals of North Carolina.

Oct. 4, 1983.

Stainback, Ellis & Satterwhite by Kermit W. Ellis, Jr., Henderson, for plaintiff-appellant.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by D. James Jones, Jr., Raleigh, and Hight, Faulkner, Hight & Fleming by Lee A. Faulkner, Henderson for defendant-appellee.

JOHNSON, Judge.

The question presented for review is whether summary judgment for defendant was proper. For the reasons that follow, we hold that it was.

On a motion for summary judgment, the question before the Court is whether the pleadings, discovery documents and affidavits, viewed in the light most favorable to the non-movant, support a finding that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. G.S. 1A-1, Rule 56(c); Stanley v. Walker, 55 N.C.App. 377, 285 S.E.2d 297 (1982); Patterson v. Reid, 10 N.C.App. 22, 178 S.E.2d 1 (1970).

The moving party must show the lack of a genuine issue of material fact and that it is entitled to judgment as a matter of law, either by demonstrating the non-existence of an essential element of each claim or by presenting a defense to plaintiff's claims as a matter of law. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979); Tolbert v. Tea Co., 22 N.C.App. 491, 206 S.E.2d 816 (1974). If the material before the court at the summary judgment hearing would require a directed verdict for defendant at trial, defendant is entitled to summary judgment. Whitaker v. Blackburn, 47 N.C.App. 144, 266 S.E.2d 763 (1980). While summary judgment is generally not appropriate in negligence cases, it may be appropriate when it appears that there can be no recovery for plaintiff even if the facts as alleged by plaintiff are taken as true. Id.; Cox v. Haworth and Cox v. Haworth, 54 N.C.App. 328, 283 S.E.2d 392 (1981).

A prima facie case of negligence liability is alleged when a plaintiff shows that: defendant owed her a duty of care; defendant breached that duty; the breach was the actual and proximate cause of plaintiff's injury; and damages resulted from the injury. Southerland v. Kapp, 59 N.C.App. 94, 295 S.E.2d 602 (1982). Taking all the facts alleged by plaintiff as true, we conclude that defendant has shown that it has not breached any duty owed to plaintiff.

The duty a storekeeper owes to his business invitees is well stated in Garner v. Greyhound Corp., 250 N.C. 151, 108 S.E.2d 461 (1959). A storekeeper has a duty to exercise ordinary care to maintain the approaches and entrances to his store in a reasonably safe condition and to warn his customers of any hidden dangers or unsafe conditions of which it knew or in the exercise of reasonable supervision should have known. A storekeeper is not an insurer of the safety of his customers, and is liable only for injuries resulting from negligence on his part. He is under no duty to warn his customers of a condition which is obvious.

We also find Garner, supra, to be particularly instructive because of its striking factual similarity to the case at bar. In front of defendant's gift shop was a sidewalk which sloped downward to the south. At the south end of the entryway, there was a six inch perpendicular drop-off to the sidewalk; in the middle a three inch drop-off; and at the north end the entryway and sidewalk were approximately flush. There was a downward slope from the doors toward the sidewalk. Upon exiting defendant's store, plaintiff fell when she failed to see the six inch drop-off. Plaintiff alleged that defendant was negligent in that defendant, knew, or in the exercise of due care should have known, of the dangerous condition and failed to correct that condition. Plaintiff alleged that the entry way was dangerous and defective in that it sloped; it fell off vertically at the sidewalk at varying distances up to six inches; it had the appearance of going straight into the sidewalk, thus creating an optical illusion and camouflaged effect, and constituted a latent defect; no handrails or supports were provided; and no warnings were posted. The court rejected each of these allegations in holding that a motion for judgment of involuntary nonsuit should have been allowed. As the court stated:

"The mere fact that a step up or down, or a flight of steps up or down, is maintained at the entrance or exit of a building is no evidence of negligence, if the step is in good repair and in plain view.... If the step is properly constructed, but poorly lighted, and by reason of this fact one entering the store...