Rabil v. Food Lion, LLC, No. COA07-706 (N.C. App. 4/15/2008)

• Decision Date: 15 April 2008
• Docket Number: No. COA07-706,COA07-706
• Parties: ELSIE RABIL, Plaintiff v. FOOD LION, LLC, Defendant.
• Court: North Carolina Court of Appeals

Page 1

Unpublished Opinion

ELSIE RABIL, Plaintiff
v.
FOOD LION, LLC, Defendant. No. COA07-706 Court of Appeals of North Carolina. Filed April 15, 2008 This case not for publication

Nash County No. 05 CVS 2063.

Appeal by plaintiff from order entered 14 February 2007 by Judge William C. Griffin, Jr. in Nash County Superior Court. Heard in the Court of Appeals 12 December 2007.

Narron & Holdford, P.A., by Ben L. Eagles, for plaintiff-appellant.

Poyner & Spruill, LLP, by Timothy W. Wilson, for defendant-appellee.

CALABRIA, Judge.

Elsie Rabil ("plaintiff") appeals the trial court's grant of summary judgment to Food Lion, LLC ("defendant") on her negligence claim. We affirm.

On 15 July 2005, plaintiff was shopping at defendant's store located at 802 Harbour Drive in Rocky Mount, North Carolina. Plaintiff was in the meat department perusing the frozen food section when she caught her toe in a metal case guard protruding from the end of the frozen food case ("metal case guard"). Metal case guards are placed at the corners of frozen food cases to protect the cases from damage from customers' shopping carts. When plaintiff picked up hamburger meat from inside the frozen food case, she turned and tripped over the metal case guard, fell to the floor and dislocated her right shoulder.

On 8 September 2005, plaintiff filed a complaint against defendant alleging defendant's negligence caused her injuries. The complaint was originally filed in Wilson County Superior Court. Defendant answered the complaint and alleged plaintiff was contributorily negligent and moved to dismiss the action for improper venue or in the alternative for a change of venue to Nash County Superior Court. The parties agreed to a change of venue to Nash County Superior Court. On 16 January 2007, defendant moved for summary judgment and filed two supporting affidavits by Gwendolyn Stephanie Wilson ("Wilson") and Thomas W. Stallings ("Stallings"). Plaintiff submitted an affidavit in opposition to the motion for summary judgment.

On 14 February 2007, the Honorable William C. Griffin, Jr. granted defendant's motion for summary judgment and dismissed plaintiff's action with prejudice. Plaintiff appeals.

I. Standard of Review

Appellate courts review summary judgment motions to determine "whether, on the basis of materials supplied to the trial court, there was a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Evidence presented by the parties is viewed in the light most favorable to the non-movant." Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (citing Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)). Where the moving party proves that an essential element of the non-moving party's claim is nonexistent, then the moving party establishes there is no genuine issue of material fact. Padgett v. J.C. Penney Co., Inc., 112 N.C. App. 842, 844, 437 S.E.2d 401, 403 (1993) (citing Mozingo v. Pitt County Memorial Hospital, 331 N.C. 182, 415 S.E.2d 341 (1992)). "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." Collingwood v. General Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).

While issues of negligence and contributory negligence are rarely appropriate for summary...