Pulley v. Rex Hosp., 387A89

Citation392 S.E.2d 380, 326 N.C. 701
Case DateJune 13, 1990
CourtUnited States State Supreme Court of North Carolina

Kirk, Gay, Kirk, Gwynn & Howell by Philip G. Kirk and Katherine M. McCraw, Wendell, for plaintiff-appellant.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Ronald C. Dilthey and Susan K. Burkhart, Raleigh, for defendant-appellee.

MITCHELL, Justice.

The question we address is whether the Superior Court erred in entering summary judgment for the defendant Rex Hospital in this case. We conclude that the Superior Court did err. Accordingly, we reverse the decision of the Court of Appeals, which affirmed the Superior Court's judgment, and remand this case for further proceedings.

Upon the defendant's motion for summary judgment, the Superior Court considered the parties' various pleadings, affidavits and depositions. The forecast of evidence favoring the plaintiff tended to show that on the evening of Sunday, 15 July 1984, the plaintiff Janie Pulley went to visit her mother who was a patient at the defendant Rex Hospital in Raleigh. At approximately 10:00 p.m., Pulley was walking along a sidewalk on the hospital grounds towards the hospital entrance used by "Emergency [and] Outpatient" patients; the main hospital entrance had already closed for the evening. Although Pulley had left the hospital building via this sidewalk before, she had never entered the hospital by walking along this sidewalk. The sidewalk was poorly lit, with dim, uneven illumination coming from several nearby lights, signs and windows. As she walked along the sidewalk a short distance from the hospital entrance, Pulley moved to her right to allow other pedestrian traffic to pass, then ducked to walk under several low-hanging tree branches which extended over the sidewalk. Pulley walked under the branches, then stumbled on an uneven portion of the sidewalk and fell face-forward, suffering injuries. The irregularity in the sidewalk was at an expansion joint, where two sections of the sidewalk join. Along the joint, the edge of one sidewalk section was as much as three inches higher than the abutting section.

The forecast of evidence favoring the defendant Rex Hospital tended to show that Pulley had traveled over the sidewalk several times prior to her accident. The walkway was well lit, and the tree branches did not overhang the walk, or Pulley was past the branches when she fell. The edge of the sidewalk section which Pulley tripped over was no more than one-quarter inch higher than the abutting section. The hospital frequently inspects its facilities and grounds for safety hazards, and would have discovered and corrected any hazard on the sidewalk. Some of the evidence favoring the defendant hospital came from depositions of the defendant's witnesses and some came from a deposition of the plaintiff herself.

Upon the forecast of evidence, the Superior Court entered summary judgment for the defendant Rex Hospital. The Court of Appeals affirmed, Judge Phillips dissenting. Pulley v. Rex Hospital, 95 N.C.App. 89, 381 S.E.2d 892 (1989). We reverse.


This Court has repeatedly discussed motions for summary judgment under N.C.G.S. § 1A-1, Rule 56. For example:

By making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial or be able to surmount an affirmative defense. Dickens v. Puryear, 302 N.C. 437, 453, 276 S.E.2d 325, 335 (1981). "The party moving for summary judgment must establish the lack of any triable issue by showing that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." Watts v. Cumberland County Hosp. System, 317 N.C. 321, 322-23, 345 S.E.2d 201, 202 (1986); [see ] Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). "[A]ll inferences of fact from the proofs offered at the hearing must be drawn against the movant and in favor of the party opposing the motion." Dickens v. Puryear, 302 N.C. at 453, 276 S.E.2d at 335, quoting Page v. Sloan, 281 N.C. 697, 706, 190 S.E.2d 189, 194 (1972). Upon a motion for summary judgment by a defendant, a plaintiff "need not present all the evidence available in his favor but only that necessary to rebut the defendant's showing that an essential element of his claim is non-existent or that he cannot surmount an affirmative defense." Dickens v. Puryear, 302 N.C. at 453, 276 S.E.2d at 335.

Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 300-01, 354 S.E.2d 495, 497 (1987). With specific regard to negligence cases, we have said that:

While our Rule 56, like its federal counterpart, is available in all types of litigation to both plaintiff and defendant, "we start with the general proposition that issues of negligence ... are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner." It is only in exceptional negligence cases that summary judgment is appropriate. This is so because the rule of the prudent man (or other applicable standard of care) must be applied, and ordinarily the jury should apply it under appropriate instructions from the court.

Page v. Sloan, 281 N.C. 697, 706, 190 S.E.2d 189, 194 (1972) (citations omitted).


As in any negligence case, the plaintiff's case here involved allegations that the defendant owed the plaintiff a certain duty, that the duty was breached, and that the breach proximately and foreseeably caused the plaintiff injury. In its answer, the hospital denied negligence and, alternately, alleged as an affirmative defense that the plaintiff was contributorily negligent.

The forecast of evidence tended to show that Pulley was at the hospital to visit her sick mother. Those visiting patients in a hospital are business invitees of the hospital. Goldman v. Kossove, 253 N.C. 370, 372, 117 S.E.2d 35, 37 (1960). Therefore, Pulley was an invitee, and the hospital owed her "a duty to maintain the premises in a condition reasonably safe for the contemplated use and a duty to warn of hidden dangers known to or discoverable by the [hospital]." Branks v. Kern, 320 N.C. 621, 624, 359 S.E.2d 780, 782 (1987) (citations omitted). However, it is also "the law in North Carolina that there is no duty to warn an invitee of a hazard obvious to any ordinarily intelligent person using [her] eyes in an ordinary manner, or one of which the plaintiff had equal or superior knowledge." Id. (citations omitted). To establish that the hospital breached its duty to her, Pulley thus will be required to show that the area in which she was injured was not in a reasonably safe condition for its contemplated use. Pulley will also have to show that the hospital either knew or should have known of the unsafe condition. Further, she may not recover if she knew of the unsafe condition or if it should have been obvious to any ordinary person under the circumstances existing at the time she was injured.


Both the defendant and the Court of Appeals cite to several cases from the large body of North Carolina cases in which plaintiffs who tripped and fell on sidewalks failed to recover either because the existence of a defect in the sidewalk did not amount to negligence by the defendant, or because the plaintiff was contributorily negligent in not seeing or avoiding an obvious hazard, or both. See, e.g., Evans v. Batten, 262 N.C. 601, 138 S.E.2d 213 (1964) (trip and fall over slight fault in wet sidewalk on clear day; plaintiff should have anticipated fault); Falatovitch v. Clinton, 259 N.C. 58, 129 S.E.2d 598 (1963) (per curiam) (plaintiff tripped over minor defect in sidewalk on clear day; no breach of duty by the defendant); Murchinson v. Apartments, 245 N.C. 72, 95 S.E.2d 133 (1956) (per curiam) (plaintiff tripped at night over "step" where street and sidewalk join); Watkins v. Raleigh, 214 N.C. 644, 200 S.E. 424 (1939) (daytime trip and fall over fault in sidewalk, nearby trees cast shadows on sidewalk, but the plaintiff could have seen the fault had she looked; either the defendant breached no duty, or the plaintiff was contributorily negligent); Houston v. Monroe 213 N.C. 788, 197 S.E. 571 (1938) (trip and fall at night over depression in crosswalk; either the defendant breached no duty, or the plaintiff was contributorily negligent). We do not find such cases to be controlling authority in the present case.

While we recognize that "[s]light depressions, unevenness and irregularities in outdoor walkways, sidewalks and streets are so common that their presence is to be anticipated by prudent persons," Evans v. Batten, 262 N.C. at 602, 138 S.E.2d at 214, none of our prior cases--singularly or in their totality--establish a rule that a plaintiff can never state a valid case for recovery based upon tripping on a sidewalk. Viewed in sum, our prior cases merely establish that the facts must be viewed in their totality to determine if there are factors which make the existence of a defect in a sidewalk, in light of the surrounding conditions, a breach of the defendant's duty and less than "obvious" to the plaintiff. Such 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. See Frendlich v. Vaughan's Foods, 64 N.C.App. 332, 337, 307 S.E.2d 412, 415 (1983).


Upon its review of the record, the Court of Appeals concluded that:

Ms. Pulley's own account of the conditions surrounding her fall establish that she could not recover on her claim. First, Ms. Pulley testified at her deposition that the branches overhanging the sidewalk did not prevent her from looking at the sidewalk, and that she "had already passed the tree limb [and was walking upright] before [she] stumbled." She further...

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