Nelson v. Novant Health Triad Region

• Decision Date: 05 August 2003
• Docket Number: No. COA 02-1192.,COA 02-1192.
• Citation: 159 NC App. 440,583 S.E.2d 415
• Court: North Carolina Court of Appeals
• Parties: Lynda NELSON, Plaintiff, v. NOVANT HEALTH TRIAD REGION, L.L.C., Forsyth Memorial Hospital, Inc. d/b/a Forsyth Medical Center, and Sodexho Management, Inc., Defendants.

583 S.E.2d 415

159 NC App. 440

Lynda NELSON, Plaintiff, v. NOVANT HEALTH TRIAD REGION, L.L.C., Forsyth Memorial Hospital, Inc. d/b/a Forsyth Medical Center, and Sodexho Management, Inc., Defendants.

No. COA 02-1192.

Court of Appeals of North Carolina.

August 5, 2003.

Wells, Jenkins, Lucas & Jenkins, P.L.L.C., by Ellis B. Drew, III, Winston-Salem, for plaintiff appellee.

Bennett, Guthrie & Dean, P.L.L.C., by Rodney A. Guthrie, Winston-Salem, for defendant appellant. ELMORE, Judge.

Defendants appeal the denial of their motions for summary judgment and directed verdict in this personal injury slip-and-fall case. The jury returned a verdict for the plaintiff in the amount of $14,500.00. The evidence heard at trial tended to show that plaintiff was an employee of a company that copies medical records and was assigned to the Medical Records Department at Forsyth Memorial Hospital. It is undisputed that when plaintiff arrived at the hospital in the mornings, her normal path to the Hospital's Medical Records Department took her down a basement hallway past the hospital dishwashing room. Plaintiff testified that it was normal for carts carrying meal trays to be lined up against the wall of this hallway opposite the kitchen door. The hall floor was "shiny and buffed" linoleum that had a "glassy appearance."

Plaintiff also presented evidence that when she attempted to traverse this hallway on 29 September 1998, she encountered trays and tray carts scattered across the hallway. As she attempted to pass through the hallway, she fell and severely injured her right knee. While in the emergency room, plaintiff noticed the back of her dress was wet with water. The jury found that plaintiff was injured due to the negligence of the defendants and that plaintiff was not contributorily negligent. Defendant appeals based upon the trial court's denial of summary judgment and directed verdict.

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2001). On appeal, the standard of review is (1) whether there is a genuine issue of material fact and (2) whether the movant is entitled to judgment as a matter of law. See Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971)

. The evidence presented is viewed in the light most favorable to the non-movant. See Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975).

The standard of review for a directed verdict is essentially the same as that for summary judgment. When considering a directed verdict on review, this Court must establish "whether there is sufficient evidence to sustain a jury verdict in the non-moving party's favor, or to present a question for the jury." Davis v. Dennis Lilly Co., 330 N.C. 314, 323, 411 S.E.2d 133, 138 (1991) (citations omitted).

Defendant argues for summary judgment and directed verdict on two grounds. First, that plaintiff has failed to show or forecast evidence that the defendant has breached a duty to the plaintiff. Second, that plaintiff was contributorily negligent, and has failed to offer evidence to refute that negligence. The trial court held that in this case there were genuine issues of material fact such that the case should be presented to the jury. We agree.

A property owner must "use the care a reasonable man similarly situated would use to keep his premises in a condition safe" for the contemplated use of the property. Martishius v. Carolco Studios, Inc., 355 N.C. 465, 474, 562 S.E.2d 887, 893 (2002). Defendant argues that no duty existed to warn or protect plaintiff from the debris in the hallway. Defendant cites Williamson v. Food Lion, Inc., 131 N.C.App. 365, 507 S.E.2d 313 (1998), aff'd, 350 N.C. 305, 513 S.E.2d 561 (1999), to show that summary judgment and directed verdict are appropriate unless plaintiff presents evidence that defendant either created the dangerous circumstance or had real or actual notice that the dangerous circumstance existed. In Williamson, a customer at a grocery store slipped on a grape lying on the floor in the bread aisle. The trial court granted summary judgment because there was no proof that the defendant knew that the grape was on the floor or that defendant was responsible for it being there. This Court affirmed that decision. Id.

This reliance upon Williamson is misplaced. Williamson can be distinguished from the case at bar because defendants admitted to owning and exercising control over the hallway where plaintiff was injured, as well as the carts and trays littering the hallway and the kitchen where dishes were being washed. By admitting to ownership, Forsyth Hospital owed a duty to plaintiff to keep the hallway safe for passage, its contemplated use. Therefore, it was appropriate to deny motions for summary judgment or directed verdict on this basis. The jury was properly allowed to reach a finding of fact as to whether the duty of care had been breached due to defendant's negligence.

The defendant also argues summary judgment and directed verdict should have been granted because the plaintiff failed to show any evidence that defendant had a duty to alert plaintiff to a dangerous condition that was open and obvious. In Newsom v. Byrnes, 114 N.C.App. 787, 443 S.E.2d 365 (1994), the court granted summary judgment because the gray clay upon which plaintiff slipped would have been obvious to any person under the circumstances, yet the plaintiff did not avoid it. See Newsom, 114 N.C.App. at 788,

443 S.E.2d at 366 (granting summary judgment for the defendant when the plaintiff slipped on "gray clay" and injured her leg because any ordinary person under the circumstances would have known the clay was dangerous). Newsom can be distinguished from the case at bar because a film of water on a shiny linoleum floor is much less obvious and more difficult to see than gray clay.

Summary judgment is only appropriate based on an "open and obvious" condition when the plaintiff has a more intimate knowledge of the dangerous condition than the property owner, or the plaintiff would have noticed the dangerous condition if she had exercised proper care. See Von Viczay v. Thoms, 140 N.C.App. 737, 739, 538 S.E.2d 629, 631 (2000),

aff'd,

353 N.C. 445, 545 S.E.2d 210-11 (2001) (holding defendant not liable when plaintiff slipped on ice because plaintiff had equal or superior knowledge of the dangerous condition); Swinson v. Lejeune Motor Co., 147 N.C.App. 610, 618, 557 S.E.2d 112, 118 (2001) (McCullough, J., dissenting) (asserting that plaintiff was contributorily negligent when nothing prevented her from seeing a hole in the parking lot), rev'd,

356 N.C. 286, 569 S.E.2d 646 (2002)(adopting the dissent); Bolick v. Bon Worth, Inc., 150 N.C.App. 428, 430, 562 S.E.2d 602, 604,

disc. review denied, 356 N.C. 297, 570 S.E.2d 498-99 (2002) (holding defendant not liable when plaintiff admitted she was able...