Novack v. Kosciuszko, COA19-383

Citation837 S.E.2d 484
Case DateFebruary 04, 2020
CourtCourt of Appeal of North Carolina (US)

837 S.E.2d 484 (Table)

Louann NOVACK, Plaintiff,
Edward KOSCIUSZKO, Defendant.

No. COA19-383

Court of Appeals of North Carolina.

Filed: February 4, 2020

Hunter & Everage, Charlotte, by Kaitlyn B. Copeland, for plaintiff-appellant.

Hedrick Gardner Kincheloe & Garofalo LLP, Charlotte, by M. Duane Jones, Gerald A. Stein, and Peter J. Bigham, Jr., for defendant-appellee


Plaintiff Louann Novack commenced a negligence action against Defendant Edward Kosciuszko after injuring herself at Defendant’s home. The superior court granted summary judgment in favor of Defendant. Plaintiff argues on appeal that material issues of fact exist as to whether Defendant was negligent in maintaining his premises. Upon careful review, we affirm.


At around 2:00 p.m. on 30 May 2016, Plaintiff attended a party hosted by Defendant. After arriving, Plaintiff made her way to a covered patio area in Defendant’s backyard, sat down, and conversed with another guest for 10 to 20 minutes. Next to where Plaintiff was sitting was a six and one-half inch step down to a lower level of the patio. When Plaintiff rose from her seat and began walking, she almost instantly fell from the higher level of the patio. Plaintiff landed badly on her wrist, which required surgery to repair.

Plaintiff subsequently filed a negligence action against Defendant. In her complaint, Plaintiff asserted that Defendant’s outdoor patio area had an "unmarked concrete step that connected the two levels of the patio," and because it was the same color as the patio, it was "impossible to distinguish that a step was in fact present." Plaintiff also alleged that Defendant had warned other party guests of the potentially hazardous step, and that Defendant had previously considered either repainting the step a different color, or erecting a railing next to it.

Defendant filed a motion for summary judgment, which came on for hearing before the Honorable Lisa C. Bell on 4 October 2018. Judge Bell entered an order granting Defendant’s motion for summary judgment. Plaintiff timely appealed.


Plaintiff argues on appeal that the trial court erred in granting summary judgment "because there are multiple issues of material fact that are in dispute." In support of this argument, Plaintiff asserts that (1) "[t]he step leading off Defendant’s grill area, causing Plaintiff’s injury, was not open or obvious given the step’s character, location or surrounding conditions"; (2) "Defendant had knowledge of the dangerous condition and failed to correct said condition"; and (3) Plaintiff was not contributorily negligent as a matter of law.

"If the trial court grants summary judgment, the decision should be affirmed on appeal if there is any ground to support the decision." Proffitt v. Gosnell , 257 N.C. App. 148, 151, 809 S.E.2d 200, 204 (2017). "Appeals arising from summary judgment orders are decided using a de novo standard of review." Midrex Techs., Inc. v. N.C. Dep’t of Revenue , 369 N.C. 250, 257, 794 S.E.2d 785, 791 (2016). "Under the de novo standard of review, the Court considers the matter anew and freely substitutes its own judgment for that of the lower court." Id. (quotation marks and brackets omitted).

Summary judgment is properly entered "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 a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2017). "[T]he evidence presented to the trial court must be admissible at trial ... and must be viewed in a light most favorable to the non-moving party." Patmore v. Town of Chapel Hill , 233 N.C. App. 133, 136, 757 S.E.2d 302, 304, disc. review denied , 367 N.C. 519, 758 S.E.2d 874 (2014). Where a defendant has moved for summary judgment of a negligence claim, the

plaintiff must establish a prima facie case ... by showing: (1) that defendant failed to exercise proper care in the performance of a duty owed plaintiff; (2) the negligent breach of that duty was a proximate cause of plaintiff’s injury; and (3) a person of ordinary prudence should have foreseen that plaintiff’s injury was probable under the circumstances.

Lavelle v. Schultz , 120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995), disc. review denied , 342 N.C. 656, 467 S.E.2d 715 (1996).

Landowners in particular have a nondelegable duty "to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors." Nelson v. Freeland , 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998) (eliminating the distinction between licensees and invitees), reh’g denied , 350 N.C. 108, 533 S.E.2d 467 (1999). However, "there is no duty to warn a lawful visitor of a hazard obvious to any ordinarily intelligent person using her eyes in an ordinary manner[.]" Dowless v. Kroger Co. , 148 N.C. App. 168, 171, 557 S.E.2d 607, 609 (2001) (brackets and internal quotation marks omitted); accord Burnham v. S&L Sawmill, Inc. , 229 N.C. App. 334, 340, 749 S.E.2d 75, 80, disc. review denied , 367 N.C. 281, 752 S.E.2d 474 (2013).

The duty to warn a lawful visitor depends upon the obviousness of the hazard or condition. When determining whether a condition is obvious vel non , "the facts must be viewed in their totality to determine if there are factors which make the existence of a defect ... a breach of the defendant’s duty and less than ‘obvious’ to the plaintiff." Pulley v. Rex Hosp. , 326 N.C. 701, 706, 392 S.E.2d 380, 384 (1990) (assessing the obviousness of an alleged sidewalk defect, and noting that "[s]uch factors may include the nature of the defect in the sidewalk, the...

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