Gunter v. U.S.

• Decision Date: 26 May 1998
• Docket Number: No. 1:97CV106.,1:97CV106.
• Citation: 10 F.Supp.2d 534
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Arnette J. GUNTER, Plaintiff, v. UNITED STATES of America, Defendant.

Page 534

10 F.Supp.2d 534

Arnette J. GUNTER, Plaintiff, v. UNITED STATES of America, Defendant.

No. 1:97CV106.

United States District Court, M.D. North Carolina.

May 26, 1998.

William W. Staton, Staton Perkinson Doster Post Silverman Adcock & Boone, P.A., Sanford, NC, for plaintiff.

Lynne P. Klauer, Office of U.S. Attorney, Greensboro, NC, for defendant.

ORDER

ELIASON, United States Magistrate Judge.

This matter comes before the Court on defendant's motion for summary judgment. (Docket No. 12) Plaintiff, Arnette J. Gunter, brought this negligence action against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671-80, alleging that he suffered injury when he slipped and fell on a wet floor in the lobby of the Sanford, North Carolina, Post Office. He blames his fall on defendant's negligence in maintaining the premises. The government argues that it exercised reasonable care at the Post Office and had no duty to warn plaintiff during a rainy day of a wet or slippery floor because such a condition would be obvious to a reasonable person entering the building under the same or similar circumstances.

Facts

On June 19, 1995, at about 10:00 a.m. or shortly thereafter, plaintiff, an eighty-three-year-old man entered the United States Post Office at 1200 South Horner Boulevard in Sanford, North Carolina, to pick up his mail. He had been in the habit of checking his post office box daily at about the same time for over ten years. It was "misting rain" when he went in, but plaintiff cannot remember for how long it had been doing so before he arrived at the post office. (Plaintiff's Dep. at 22) He had been to the Post Office before when it was raining. (Id. at 26) He knew people shook the water off their umbrella's on the lobby floor. (Id. at 27)

On the day in question, plaintiff entered the Post Office and stepped onto a floor mat that was about four feet by ten feet in size and wiped his feet. (Id. at 32) While on the mat, he saw Toddy Johnson, a friend of his. (Id. at 34) He threw up his hand to greet Mr. Johnson and was looking at Mr. Johnson when he stepped off the mat onto the concrete floor. His feet went out from under him and he fell on his buttocks and head, suffering injury to his back, head, and shoulders. (Id. at 26, 34-36)

Plaintiff did not notice water on the floor until after he fell and found that he was lying in about one-eighth inch accumulation of water. (Id. at 20, 35) There were no warning signs or yellow cones in the area, nor were there any postal employees. Very soon thereafter, Mr. Johnson and a policeman helped him to his feet. Plaintiff checked his mail box, returned to his car, and drove home. The Postmaster reports that the area in question is not unsafe, nor is he aware of any other slip and fall cases. (Odom Aff.)

Discussion

The standard for summary judgment requires that once the moving party has satisfied its initial responsibility of showing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law, the burden shifts to the non-moving party to rebut this showing. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 2552, 91 L.Ed.2d 265 (1986). For the plaintiff to survive the motion, as the party bearing the burden of proof at trial on the issue of negligence, he must demonstrate sufficient evidence to establish the existence of all elements essential to the case. Celotex, 477 at 322, 106 S.Ct. at 2552.

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Celotex, 477 at 322, 106 S.Ct. at 2552. This burden is "particularly strong when the non-moving party bears the burden of proof." Pachaly v. City of Lynchburg, 897 F.2d 723, 725 (4th Cir.1990). A mere scintilla of evidence offered by the non-moving party with the burden of proof is not sufficient to overcome a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The FTCA incorporates "the law of the place where the act or omission complained of occurred," which in this case would be the law of North Carolina. 28 U.S.C. § 2674. See, e.g., Corrigan v. United States, 815 F.2d 954, 955 (4th Cir.), cert. denied, 484 U.S. 926, 108 S.Ct. 290, 98 L.Ed.2d 250 (1987). Because plaintiff has the burden of proof on this issue, he must demonstrate that he has more than a scintilla of evidence that: (1) defendant owed plaintiff a duty of care, (2) defendant's conduct breached that duty, (3) the breach was the actual and proximate cause of plaintiff's injury, and (4) damages resulted from the injury. Lamm v. Bissette Realty, Inc., 327 N.C. 412, 416, 395 S.E.2d 112, 115 (1990).

Neither party disputes the fact that plaintiff was on the postal service premises for business purposes, and thereby was an invitee. Consequently, in North Carolina, defendant owed plaintiff the duty of

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 v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342 (1992) (quoting Raper v. McCrory-McLellan Corp., 259 N.C. 199, 203, 130 S.E.2d 281, 283 (1963)).

Plaintiff does not allege that defendant created the condition. Therefore, plaintiff must show that defendant negligently failed either to correct the condition, or to warn of the hazard, after actual or constructive notice of its existence. For purposes of this motion, because the hazard is attributable to an independent agency (rain and the tracking of water by customers), the plaintiff must show that the hazardous condition

existed for such a length of time that defendant knew or by the exercise of reasonable care should have known of its existence, in time to have removed the danger or [to have] given proper warning of its presence.

Roumillat, 331 N.C. at 64, 414 S.E.2d at 343 (quoting Powell v. Deifells, Inc., 251 N.C. 596, 600, 112 S.E.2d 56, 58 (1960)).

North Carolina courts hold that a proprietor is not an insurer of the safety of its customers, and consequently have established an important caveat to the above-cited general duty to warn. "Reasonable persons are assumed, absent diversions or distraction, to be vigilant in the avoidance of a known and obvious danger." Id., 331 N.C. at 66, 414 S.E.2d at 344. "A proprietor has no duty to warn an invitee of an obvious danger or a condition of which the invitee has equal or superior knowledge." Id., 331 N.C. at 66-67, 414 S.E.2d at 344. For example, the court in Roumillat found that a grease or oil spot in a parking lot near the entrance to a restaurant was a common danger readily observable by business invitees. Therefore, the proprietor did not have a duty to warn.

A review of North Carolina case law reveals that this common and obvious danger caveat is not a final rule in and of itself, but rather is an expression of a broader principle which may be summarized as follows. In the case of a business invitee, the law imposes the responsibility to warn, correct or avoid dangerous conditions on the person who has the superior knowledge, either actual or implied, of the condition's existence.¹ Because the proprietor is not an insurer of safety, the customer must show that the proprietor had superior knowledge of the danger in order to recover for a slip and fall. If both had the same degree of knowledge, actual or implied, there will be no recovery. Therefore, nothing else appearing, the business invitee will be expected to be aware of conditions that are so common, obvious, and to-be-expected everyday occurrences that public policy dictates that the cost to the property owner to discover and warn against such dangers would be unreasonable and, therefore, the customer must be made to shoulder costs of an accident arising from his or her own carelessness. In that situation, both the proprietor and the customer have the same degree of knowledge about possible dangers. On the other hand, the caveat does not prevent recovery when the customer can show that the owner had superior knowledge about the seemingly common and obvious dangerous condition existing on the property. However, to escape the caveat and summary judgment, the customer must present specific evidence demonstrating the owner's superior or special knowledge, actual or implied, about the condition.

These principles and distinctions are most apparent in Dawson v. Carolina Power & Light Co., 265 N.C. 691, 144 S.E.2d 831 (1965). There, the court employed the common and obvious danger caveat to the general duty to warn of rainwater tracked in on the business premises. Quoting Sears, Roebuck & Co. v. Johnson, 91 F.2d 332, 339 (10th Cir.1937), it found that it would be unreasonable as a matter of public policy to require a proprietor to station a mopper at all store entrances on rainy days. Consequently, to surmount the effect of the common and obvious danger caveat, the court stated that a plaintiff will have to show that the proprietor knew the condition was specifically dangerous (actual knowledge) and/or tacitly recognized the fact (implied knowledge), such as through showing that it was common practice for storekeepers to exercise precautions.

The Dawson court was very careful to distinguish its earlier decision in Powell v. Deifells, Inc., 251 N.C. 596, 112 S.E.2d 56. There, the plaintiff introduced specific testimony that the store manager and clerks admitted that the floor was slippery when wet and that the store normally put mats in front of doorways on rainy days and dry...