Novack v. Kosciuszko

Citation837 S.E.2d 484 (Table)
Decision Date04 February 2020
Docket NumberNo. COA19-383,COA19-383
Parties Louann NOVACK, Plaintiff, v. Edward KOSCIUSZKO, Defendant.
CourtCourt of Appeal of North Carolina (US)

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

ZACHARY, Judge.

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.

Background

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.

Discussion

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 lighting at the time of the accident, and whether any other reasonably foreseeable conditions existed which might have distracted the attention of one walking on the sidewalk").

It is difficult to establish that a step is not "open and obvious" for purposes of maintaining a negligence action. See Reese v. Piedmont, Inc. , 240 N.C. 391, 397, 82 S.E.2d 365, 369 (1954) ("The step was obvious. [The plaintiff] had eyes to see. Her safe passage from the entrance of the rest room to the toilet is an indubitable fact."); Frendlich v. Vaughan’s Foods , 64 N.C. App. 332, 337, 307 S.E.2d 412, 415 (1983) (holding that summary judgment was proper because "the mere presence of a double step is insufficient to constitute negligence, absent some special circumstance, such as poor construction of the step, poor lighting, or a diversion of attention created by defendant"); cf. Mulford v. Hotel Co. , 213 N.C. 603, 606, 197 S.E.169, 171 (1938) (holding that a prima facie case had been established where the step was in a dimly lit room, and the plaintiff had just come from a well-illuminated room so that her eyes had not adjusted to the darkness). Ordinarily, in the absence of some unusual condition, the mere existence of a step on an owner’s land does not breach the duty owed to a guest. See Benton v. Building Co. , 223 N.C. 809, 813, 28 S.E.2d 491, 493 (1944). This is because "[d]ifferent floor levels in private and public buildings, connected by steps, are so common that the possibility of their presence is anticipated by prudent persons." Harrison v. Williams , 260 N.C. 392, 395, 132 S.E.2d 869, 871 (1963) (emphasis added).

Guests are expected to adhere to a basic level of caution, because "[a] reasonable person should be observant to avoid injury from a known and obvious danger." Farrelly v. Hamilton Square , 119 N.C. App. 541, 546, 459 S.E.2d 23, 27 (1995) (affirming summary judgment in favor of a hotel owner after the plaintiff stepped on a tack accidentally left behind by a vacuum cleaner); cf. Kelly v. Regency Ctrs. Corp. , 203 N.C. App. 339, 342, 691 S.E.2d 92, 95 (2010) ("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, [the] plaintiff failed to keep a proper lookout for her own safety." (brackets and internal quotation marks omitted)). Therefore, where a plaintiff has slipped and incurred an injury on another’s premises, "the pivotal issue ... is not [the] defendant’s knowledge of the condition, but is [the] plaintiff’s knowledge." 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 (2001) (affirming summary judgment in favor of a homeowner where a party guest slipped on snow and ice after walking across the outdoor walkway in darkness while wearing high-heeled shoes); see also Barber v. Presbyterian Hosp. , 147 N.C. App. 86, 92, 555 S.E.2d 303, 308 (2001) ("[T]he use of steps is negligent only when by the steps’ character, location or surrounding conditions, a reasonably prudent person would not be likely to see the step or expect it.").

The facts of the instant case are analogous to those of Garner v. Greyhound Corp. , 250 N.C. 151, 108 S.E.2d 461 (1959), in which a plaintiff fell and injured herself after exiting a store owned by the defendant. The Garner Court characterized her fall as being from "an ordinary concrete sidewalk." Id. at 153, 108 S.E.2d at 463. The plaintiff in Garner claimed that she was "looking down where [she] was going and the entrance looked just like it went into the sidewalk all in one, the slope that goes down. [She] was not aware that there was a drop-off at the end of the slope, not that much." Id. In holding that the trial court should have entered a judgment of nonsuit, our Supreme Court reasoned that

the weather was clear, the entryway [leading out of the store] was not crowded, only a few persons were passing on the sidewalk, and the plaintiff was
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