Kelly v. REGENCY CENTERS CORP.

• Decision Date: 06 April 2010
• Docket Number: No. COA09-715.,COA09-715.
• Citation: 691 S.E.2d 92
• Court: North Carolina Court of Appeals
• Parties: John Walter KELLY, Administrator of the Estate of Ethel Faye Ingram, Plaintiff, v. REGENCY CENTERS CORPORATION, By and Through Its Registered Agent Corporation Service Company, Defendant.

691 S.E.2d 92

John Walter KELLY, Administrator of the Estate of Ethel Faye Ingram, Plaintiff, v. REGENCY CENTERS CORPORATION, By and Through Its Registered Agent Corporation Service Company, Defendant.

No. COA09-715.

Court of Appeals of North Carolina.

April 6, 2010.

Christopher & Page, PA, by Glenn R. Page and Charles H. Christopher, Raleigh, for plaintiff-appellant.

Cranfill, Sumner, and Hartzog, LLP, by Katie Hartzog and Dan M. Hartzog, Raleigh, for defendant-appellee.

HUNTER, JR., ROBERT N., Judge.

John Walter Kelly, as Administrator of the Estate of Ethel Faye Ingram ("plaintiff"), appeals an order granting summary judgment to Regency Centers Corporation ("defendant") based on its defense of contributory negligence arising from Ethel Faye Ingram's ("Ms. Ingram") trip and fall in the parking lot of Cameron Village in Raleigh, North Carolina. After review of the record, we affirm.

I. FACTS

At the time of her injury on 26 March 2006, Ms. Ingram was 52 years old and since 1993 had lived with John Walter Kelly, her companion and the administrator of her estate. On that date, Ms. Ingram made a luncheon appointment with her stepmother, Agnes Watkins, and an acquaintance to dine at the K & W Cafeteria at Cameron Village. At the time of her injuries, Ms. Ingram qualified for handicapped parking status; however, when plaintiff arrived at Cameron Village, she parked in one of the non-handicapped parking spaces closest to the K & W Cafeteria entrance. After exiting the car, plaintiff alleges that Ms. Ingram fell somewhere between the car and the cafeteria while stepping over the curb to walk on the sidewalk. Ms. Ingram landed on her left side, fracturing her left hip and lacerating her left elbow.

Wake County EMS was called to the scene and their medical records indicate that "Ms. Ingram states she was stepping up to the curb and fell to the ground landing on her L hip and L arm." Ms. Ingram was taken to the Rex Healthcare Emergency Room, where Dr. Kenton R. Cook recorded the following entry:

She has had chronic lower extremity weakness for the past month and a half to two months, presumably from neuropathy but she has not really been told why. She was walking to meet her stepmother at the K & W cafeteria today when she went to step up on a curb, lost her balance and fell, landing on her left hip.

Two other nurses at Rex Healthcare made similar entries in their medical records that Ms. Ingram "could not lift her leg" and "lost her balance." Plaintiff testified that he had no other evidence to support his contention that Ms. Ingram tripped on the curb.

Prior to the accident, Ms. Ingram qualified for handicapped parking status based in part on medical problems she suffered, two of which are relevant to this case: end-stage renal disease and diabetic neuropathy which cause complete, permanent numbness in her feet. Prior to the accident, Ms. Ingram had ambulatory therapy using a walker and was assisted by her companion around the house. According to an affidavit of Debra Poole, a close friend of Ms. Ingram, Ms. Ingram was able to walk unassisted despite her medical challenges on 11 March 2006, two weeks before the accident. At the precise time of her injury, she was able to walk unassisted.

Ms. Ingram died on 11 December 2006 from cardiac arrhythmia secondary to GI hemorrhage with acute bronchopneumonia. Her direct testimony was not preserved by deposition or otherwise. After her death, Ms. Ingram's administrator filed a complaint for damages alleging: (1) Regency failed in its duty to properly operate and maintain the sidewalk outside the K & W Cafeteria; (2) failure to eliminate hazards posed by a raised sidewalk; (3) failure to inspect the premises properly and effectively; and (4) failure to keep the sidewalk in compliance with the North Carolina Accessibility Code of the N.C. State Building Code ("ACA") and the Americans with Disabilities Act ("ADA"). In its answer, Regency alleged contributory negligence, along with other defenses, as a bar to any recovery. Both parties filed cross motions for partial summary judgment on the issue of contributory negligence. The trial court granted Regency's motion for summary judgment and dismissed the complaint. Plaintiff appeals from the trial court's order.

II. JURISDICTION and STANDARD OF REVIEW

This Court has jurisdiction to hear appeals from final judgments pursuant to N.C. Gen. Stat. § 7A-27(b) (2009). The standard of review of an order granting summary judgment is de novo. Nationwide Mut. Fire Ins. Co. v. Mnatsakanov, 191 N.C.App. 802, 804, 664 S.E.2d 13, 15 (2008). Summary judgment is proper "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 any party is entitled to judgment as a matter of law." N.C. R. Civ. P. 56(c). "It is not the purpose of the rule to resolve disputed material issues of fact but rather to determine if such issues exist." N.C. R. Civ. P. 56 cmt. (2000). The burden of showing a lack of triable issues of fact falls upon the moving party. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). This burden can be met by proving: (1) that an essential element of the non-moving party's claim is nonexistent, (2) that discovery indicates the non-moving party cannot produce evidence to support an essential element of his claim, or (3) that an affirmative defense would bar the claim. Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Once this burden has been met, the non-moving party must produce a forecast of evidence demonstrating that it will be able to make out at least a prima facie case at trial. Id. In determining whether that burden has been met, the court "must view all the evidence in the light most favorable to the non-movant, accepting all its asserted facts as true, and drawing all reasonable inferences in its favor." Lilley v. Blue Ridge Electric Membership Corp., 133 N.C.App. 256, 258, 515 S.E.2d 483, 485 (1999). The Court must exercise caution in granting a motion for summary judgment. Bank v. Gillespie, 291 N.C. 303, 310, 230 S.E.2d 375, 379 (1976).

III. ANALYSIS

In his brief, plaintiff contends the following: (1) that Regency was per se negligent when it failed, according to the requirements of the ACA and the ADA, to create an accessible route from the parking lot to the entrance of the K & W Cafeteria for handicapped persons to use; (2) that Ms. Ingram parked in a space, both closest to the restaurant and 200 feet from the entrance thereto of the restaurant; (3) that the law required defendant to create an accessible route; and (4) defendant had agreed to create an accessible route in 2004, but did not fulfill its agreement until after Ms. Ingram's injury.

Moreover, plaintiff maintains that Ms. Ingram, at the time of her fall, was not required to use any type of assistive device to ambulate, and thus was reasonable in physically attempting to enter the facility. Without examining whether Ms. Ingram required assistance in detail, we assume for purposes of our analysis that her contention is an accurate forecast of the evidence that plaintiff would present at trial.

We begin our analysis by noting that summary judgment is "rarely appropriate" in the context of negligence; "the trial court will grant summary judgment ... 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 the injury." Diorio v. Penny, 103 N.C.App. 407, 408, 405 S.E.2d 789, 790 (1991), aff'd, 331 N.C. 726, 417 S.E.2d 457 (1992). "In a case dealing with a plaintiff's injury from slipping and falling 'the basic issue with respect to contributory negligence is whether the evidence shows that, as a matter of law, plaintiff failed to keep a proper lookout for her own safety.'" Duval v. OM Hospitality, LLC, 186 N.C.App. 390, 395, 651 S.E.2d 261, 265 (2007) (citation omitted).

North Carolina landowners, such as Regency...