Price v. City of Winston-Salem

• Decision Date: 19 December 2000
• Docket Number: No. COA99-1266.,COA99-1266.
• Citation: 141 NC App. 55,539 S.E.2d 304
• Parties: Sonja Evette PRICE, Plaintiff, v. CITY OF WINSTON-SALEM, Defendant.
• Court: North Carolina Court of Appeals

539 S.E.2d 304

141 NC App. 55

Sonja Evette PRICE, Plaintiff, v. CITY OF WINSTON-SALEM, Defendant.

No. COA99-1266.

Court of Appeals of North Carolina.

December 19, 2000.

Kennedy, Kennedy, Kennedy & Kennedy, LLP, by Harold L. Kennedy, III and Harvey

L. Kennedy, Winston-Salem, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice, PLLC, by Gusti W. Frankel and Alison R. Bost, Winston-Salem, for defendant-appellee.

FULLER, Judge.

Plaintiff Sonja Evette Price ("plaintiff") appeals the entry of summary judgment in favor of defendant City of Winston-Salem ("defendant"). Evidence presented on the motion tended to show that on 11 August 1995 plaintiff was walking among a group of pedestrians on Church Street in Winston-Salem when her right heel lodged in a space in the sidewalk. Plaintiff lost her balance and fell on a wooden stake protruding from the ground at the edge of the sidewalk. Plaintiff sustained injuries which included a fractured foot. As a result, on 11 August 1998 plaintiff initiated this suit alleging defendant's negligence in failing to warn of and remedy a dangerous condition. On 7 May 1999 defendant moved for summary judgment, and the motion was heard on 24 May 1999.

Plaintiff offered evidence that she fell on the sidewalk located on the west side of the 100 block of North Church Street near the corner of North Church and Second Streets and in front of City Hall. Plaintiff submitted the affidavit of Frank Evans, a Senior Coordinator for defendant, who stated that the portion of sidewalk on which plaintiff fell was an "expansion joint" where a piece of felt is placed in the sidewalk to prevent buckling. The length of the expansion joint was approximately 5½ feet long, 1½ inches wide, and zero to ½ inch deep. Plaintiff submitted her own affidavit wherein she testified the black felt material normally used to fill such an expansion joint had eroded, leaving a surface the same color as the surrounding sidewalk. Plaintiff testified the expansion joint "was not an obvious defect" and the gap was "not easy to see because its surface was the same color as the sidewalk." Plaintiff testified the wooden stake was also "camouflaged" because it blended with surrounding "numerous landscaping wood chips."

Defendant proffered evidence that although it had engaged in construction surveying work involving the placing of stakes on Church Street at the relevant time, any such staking work was performed in the 100 block of South Church Street and not the 100 block of North Church Street in front of City Hall and near the intersection of Second Street. Defendant offered the affidavit of City Engineer Jack Anderson Leonard who testified that all survey staking work for the City is performed by City surveyors in the Engineering Division, and that diligent review of all Engineering Division records revealed that in 1995 no City Engineering Division employee, nor anyone contracted by the Engineering Division, performed survey staking on the west side of North Church Street in front of City Hall. Rather, Engineering Division records showed that in 1995 defendant engaged in engineering and construction work around the old City employee parking lot, bounded by First Street, South Chestnut Street, Belews and Main Street. The stakes were removed from the site before the sidewalks were reopened to pedestrians.

In addition, defendant offered evidence that a private construction company engaged in construction work on North Church Street in 1995. Mr. Leonard testified in his affidavit that a private company employed to construct the Wachovia Bank parking deck removed and replaced portions of sidewalk on the west side of North Church Street adjoining City Hall while constructing an underground tunnel. Defendant submitted therewith a copy of an Easement Agreement signed 2 May 1994 wherein defendant granted Wachovia Bank a temporary easement over portions of the sidewalk in the 100 block of North Church Street for purposes of constructing the tunnel.

In response, plaintiff submitted deposition testimony of City surveyor John Spainhour to the effect that he performed staking work on Second Street and on Church Street south of City Hall between First Street and Salem Avenue. Mr. Spainhour testified he spent five hours on Second Street doing construction staking work the week plaintiff fell, and six hours on Church Street staking around the city parking lot south of City Hall. Plaintiff also offered the deposition testimony of Steve Fleming, a claims adjuster for defendant, who testified he believed defendant had performed construction staking work on Church Street. Further deposition testimony offered by plaintiff tended to establish defendant conducted construction staking work in the "100 block of Church Street," and that subsequent to plaintiff's accident barricades were placed in the 100 block of North Church Street where plaintiff fell.

At the hearing's conclusion the trial court entered an order granting summary judgment in favor of defendant, finding "there is no genuine issue as to any material fact and the defendant is entitled to a judgment as a matter of law." Plaintiff appeals.

Plaintiff assigns error to the trial court's entry of summary judgment in favor of defendant, arguing there existed genuine issues of material fact sufficient to survive defendant's motion. It is well-established that our review of the grant of a motion for summary judgment requires the two-part analysis of whether, "(1) 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 (2) the moving party is entitled to judgment as a matter of law." Gaunt v. Pittaway, ___ N.C.App. ___, ___, 534 S.E.2d 660, 664 (2000) (citations omitted). Summary judgment is rarely appropriate in a negligence action, Cucina v. City of Jacksonville, 138 N.C.App. 99, 102-03, 530 S.E.2d 353, 355, disc. review denied, 352 N.C. 588, ___ S.E.2d ___ (2000) (citation omitted), and should only be granted after the facts are clearly established or admitted, and the issue of negligence has been reduced to a mere question of law. Osborne v. Annie Penn Memorial Hospital, 95 N.C.App. 96, 99-100, 381 S.E.2d 794, 796, disc. review denied, 325 N.C. 547, 385 S.E.2d 500 (1989) (citation omitted).

In order to establish a city's negligence in the maintenance of its sidewalks, a plaintiff must introduce evidence sufficient to support jury findings that the plaintiff, (1) fell and sustained injuries, (2) the proximate cause of the injuries was a defect in the sidewalk, (3) the defect was such that a reasonable person knowing of its existence should have foreseen the likelihood of the injury, and (4) the city had actual or constructive notice of the defect for a sufficient time prior to the plaintiff's fall such that the condition could have been remedied. See Cook v. Burke County, 272 N.C. 94, 97, 157 S.E.2d 611, 613 (1967)

(citation omitted). In a summary judgment proceeding, defendant carries the burden of establishing that no genuine issue as to any of these necessary elements exists and that plaintiff cannot produce evidence sufficient to support an essential element of the claim. See Cucina, 138 N.C.App. at 99,

530 S.E.2d at 355. All evidence must be considered in the light most favorable to the non-movant. Lynn v. Burnette, 138 N.C. 435, 531 S.E.2d 275 (2000).

As a preliminary matter, we are unpersuaded that the stake upon which plaintiff fell is relevant to the outcome of this appeal. Plaintiff repeatedly argues defendant was actively negligent in placing the stake in close proximity to the sidewalk. Defendant argues that the stake likely was placed there by a private contractor. Regardless of who placed the stake, the evidence does not reveal that the stake in any way caused plaintiff's fall, and indeed, there is no forecast of evidence tending to show plaintiff's injuries were any more significant than had the stake not been present. Plaintiff has not argued a theory of enhanced injury based on the placement of the stake, and we will not reach out to address this unbriefed issue.

Moreover, we note that the first three elements of plaintiff's claim are not in dispute. Defendant does not dispute that plaintiff fell and injured herself on the expansion joint. Despite defendant's evidence that the expansion joint was "standard," defendant has also not produced evidence to counter plaintiff's affidavit testimony that the black felt material normally used to fill such a joint had eroded, and therefore the unevenness in the sidewalk created by the expansion joint was hidden. Nor has defendant proffered any evidence in support of its motion tending to show that a reasonable person, knowing the condition of the expansion joint and adjacent stake, would not have foreseen the likelihood of plaintiff's injury.

Rather, the dispositive issue on appeal is whether there is sufficient evidence from which a jury could find that defendant was in such proximity to the expansion joint that defendant was on constructive notice of its alleged defect. Defendant's evidence focuses on testimony from City officials that although defendant was engaged in staking work on Church Street at the relevant time, defendant did not perform work in the 100 block of North Church Street where plaintiff allegedly fell. Therefore, defendant argues plaintiff failed to establish that defendant created a dangerous condition or had actual or constructive notice of any such condition.

However, plaintiff presented deposition testimony tending to show City employees performed staking work on Second Street and in the "100 block of Church Street" during the week plaintiff fell. In Nourse v. Food Lion, Inc., 127 N.C.App. 235, 488 S.E.2d 608 (1997), affirmed, 347 N.C. 666, 496 S.E.2d 379 (1998), this Court held the entry of summary judgment in favor of the defendant-store improper where the plaintiff's...