Rash v. Waterway Landing Homeowners Ass'n, Inc.
| Decision Date | 06 June 2017 |
| Docket Number | No. COA16-1158,COA16-1158 |
| Parties | Vanessa RASH, Plaintiff, v. WATERWAY LANDING HOMEOWNERS ASSOCIATION, INC., Defendant. |
| Court | North Carolina Court of Appeals |
The Regan Law Firm, PLLC, by Conor P. Regan, for plaintiff-appellant.
Marshall, Williams & Gorham, L.L.P., Wilmington, by William Robert Cherry, Jr., for defendant-appellee.
Vanessa Rash (plaintiff) filed a negligence action against Waterway Landing Homeowners Association, Inc. (defendant) after she slipped and fell on a molded walkway in her condominium complex. The trial court granted summary judgment for defendant, concluding that plaintiff's admission that she was not looking down at the walkway established her contributory negligence as a matter of law. Because the evidence, viewed in the light most favorable to plaintiff, presents a genuine issue of material fact as to whether plaintiff exercised ordinary care to protect herself from injury, we reverse.
Prior to her fall, plaintiff had been a tenant of the Waterway Landing Condominiums for about six years. Plaintiff alleged that she always accessed her unit by a stairway located on the side of the building. That changed in August 2012, when plaintiff began using the elevator while she recovered from a rotator cuff surgery.
Plaintiff could reach the parking lot from the elevator via one of two wooden walkways located on either side of the building. Each walkway contains a ninety-degree turn around a white column. As plaintiff's exhibits demonstrate, tenants would exit the building, proceed down the walkway to the white column, make the turn around the column, and continue a few more feet on the walkway before reaching the parking lot.
During 2012 and 2013, defendant contracted with Community Association Management Specialists (CAMS) to maintain its common areas, including the wooden walkways. Darlene Greene was one of two CAMS employees assigned to the condominiums. In November 2012, Greene notified defendant that the walkways were hazardous due to a mold growth which caused them to become slick when wet. She submitted an estimate to power wash the walkways but never received a response from defendant.
On 3 January 2013, plaintiff arrived at Waterway Landing after visiting her mother in South Carolina. Tired from the drive, plaintiff left her suitcase in the car and went directly to her unit. An overnight rainfall moistened the mold growth on the walkway and caused it to become slick.
The next morning, plaintiff took the elevator to the ground floor to retrieve her suitcase.
She testified in her deposition that she left her unit unaware that it had rained overnight. When she reached the ground floor, plaintiff exited the building and proceeded down the walkway. She made the ninety-degree turn around the white column and, as she approached the parking lot only a few feet away, plaintiff slipped on the slimy walkway and fell—breaking her femur.
On 9 February 2015, plaintiff filed a negligence action against defendant. Defendant raised contributory negligence as an affirmative defense and moved for summary judgment. At the hearing on defendant's motion, the trial court concluded that the evidence was sufficient to establish defendant's negligence, but plaintiff was contributorily negligent because she failed to look down at the walkway:
Looking at the counterclaim that the plaintiff, Vanessa Rash, was contributorily negligent, the law doesn't place a responsibility on a person who has two feet to walk and look where you're going. It's a matter of common sense. Here on this occasion, Ms. Rash has indicated [in] her deposition, "I didn't pay any attention" and ... "I did not look down." That is showing, in the Court's view, a person is not exercising reasonable care and a person who is not complying with that common sense duty to keep a proper lookout; that is, when you walk, you must not only look but you must see what you ought to see. And if it's raining on the sidewalk or wet on the sidewalk, or whatever the condition of the sidewalk is, look before you go there and see what you ought to see and here, this is a person who was not being careful. I think, as a matter of law, it does show that she was contributorily negligent.
The trial court granted summary judgment in favor of defendant. Plaintiff timely appeals.
Plaintiff argues that the trial court erred in granting summary judgment for defendant because the evidence raises genuine issues of material fact as to plaintiff's contributory negligence—specifically, whether plaintiff exercised ordinary care to protect herself from injury.
We review a trial court's order of summary judgment de novo . In re Will of Jones , 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008). Summary judgment is appropriate only "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) (2015). In determining whether such judgment is proper, the evidence and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party. Barger v. McCoy Hillard & Parks , 346 N.C. 650, 662, 488 S.E.2d 215, 221 (1997). To survive a motion for summary judgment, the nonmoving party must offer "substantial evidence that creates a genuine issue of material fact." United Cmty. Bank v. Wolfe , 799 S.E.2d 269 (2017) (citing Dobson v. Harris , 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) ). "Substantial evidence" is that which "a reasonable mind might accept as adequate to support a conclusion." Thompson v. Wake Cnty. Bd. of Educ. , 292 N.C. 406, 414, 233 S.E.2d 538, 544 (1977) (citations omitted) (internal quotation marks omitted).
The defendant has the burden of proving contributory negligence. Martishius v. Carolco Studios, Inc. , 355 N.C. 465, 479, 562 S.E.2d 887, 896 (2002) (citing Nicholson v. Am. Safety Util. Corp. , 346 N.C. 767, 774, 488 S.E.2d 240, 244 (1997) ). Whether contributory negligence exists "is ordinarily a question for the jury." Id. The issue may be decided on summary judgment "only where the evidence establishes a plaintiff's negligence so clearly that no other reasonable conclusion may be reached." Id. (citing Nicholson , 346 N.C. at 774, 488 S.E.2d at 244 ).
Contributory negligence arises from a breach of the plaintiff's duty to exercise ordinary care for his own safety. Clark v. Roberts , 263 N.C. 336, 343, 139 S.E.2d 593, 597 (1965) ; Holderfield v. Rummage Bros. Trucking Co. , 232 N.C. 623, 625, 61 S.E.2d 904, 906 (1950). "Ordinary care" means that degree of care which "a reasonable and prudent person would exercise" under the same or similar circumstances. Martishius , 355 N.C. at 473, 562 S.E.2d at 892 (citing Hart v. Ivey , 332 N.C. 299, 420 S.E.2d 174 (1992) ); see also Alford v. Washington , 244 N.C. 132, 140, 92 S.E.2d 788, 794 (1956) . If the plaintiff's "failure to exercise due care for his own safety is one of the proximate contributing causes of his injury," his contributory negligence "will bar recovery." Holderfield , 232 N.C. at 625, 61 S.E.2d at 906.
A plaintiff may be found negligent when he "ignores unreasonable risks or dangers which would have been apparent to a prudent person exercising ordinary care for his own safety." Smith v. Fiber Controls Corp. , 300 N.C. 669, 673, 268 S.E.2d 504, 507 (1980) (citations omitted); see also Chaffin v. Brame , 233 N.C. 377, 380, 64 S.E.2d 276, 279 (1951) . As our Supreme Court has explained in more concise terms, "a person has a legal duty to avoid open and obvious dangers." Martishius , 355 N.C. at 479, 562 S.E.2d at 896 (citing Gibbs v. Carolina Power & Light Co. , 268 N.C. 186, 150 S.E.2d 207 (1966) ). Accordingly, "a plaintiff may not recover in a negligence action where the hazard in question should have been obvious to a person using reasonable care under the circumstances." Dowless v. Kroger Co. , 148 N.C.App. 168, 171, 557 S.E.2d 607, 609 (2001).
Still, a person may be excused from failing to recognize "an existing dangerous condition" that "he ordinarily would or should have seen" if there is "some fact, condition, or circumstance which would or might divert the attention of an ordinarily prudent person from" discovering the same. Walker v. Cnty. of Randolph , 251 N.C. 805, 810, 112 S.E.2d 551, 554 (1960). When contributory negligence is alleged in a slip-and-fall case, "[t]he question is not whether a reasonably prudent person would have seen the [hazard] had he or she looked but whether a person using ordinary care for his or her own safety under similar circumstances would have looked down at the floor." Norwood v. Sherwin-Williams Co. , 303 N.C. 462, 468, 279 S.E.2d 559, 563 (1981), abrogated on other grounds by Nelson v. Freeland , 349 N.C. 615, 507 S.E.2d 882 (1998).
In Pulley v. Rex Hospital , 326 N.C. 701, 392 S.E.2d 380 (1990), abrogated on other grounds by Nelson , 349 N.C. 615, 507 S.E.2d 882, for example, the plaintiff was injured after tripping on an uneven sidewalk outside of a hospital. Id. at 703, 392 S.E.2d at 382. The plaintiff's forecast of evidence tended to show that the sidewalk was poorly lit, she had to duck to avoid overhanging tree branches, and she had to divert her path on the sidewalk to accommodate other pedestrians. Id. The trial court awarded summary judgment for the defendant. Id. The Court of Appeals affirmed,...
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