Steele v. City of Durham, COA15–246.
| Decision Date | 02 February 2016 |
| Docket Number | No. COA15–246.,COA15–246. |
| Citation | 782 S.E.2d 331,245 N.C.App. 318 |
| Court | North Carolina Court of Appeals |
| Parties | Sherman L. STEELE, Plaintiff v. CITY OF DURHAM, Defendant. |
Office of the City Attorney, by Kimberly M. Rehberg, for the City of Durham.
Perry, Perry & Perry, P.A., Durham, by Robert T. Perry, for plaintiff-appellant.
Sherman L. Steele ("plaintiff") appeals from an order granting summary judgment in favor of the City of Durham ("the City"). This negligence case presents the issue of whether the City or the State owed a legal duty to maintain a reasonably safe sidewalk located within the City limits beside a State Municipal System Highway. We conclude that because there was no contract delegating maintenance of the sidewalk, the City, not the State, had a statutory duty to maintain the sidewalk in a reasonably safe manner. In addition, plaintiff's forecast of evidence presents genuine issues of material fact as to the City's negligence and plaintiff's contributory negligence, precluding summary judgment. Therefore, we reverse and remand.
Around midnight on 7 August 2011, plaintiff was walking in the City along the eastern sidewalk of South Alston Avenue, also known as North Carolina State Highway 55 ("Highway 55"), when he stepped into a hole in the sidewalk and fell. Plaintiff sustained injuries to his shoulder, which required arthroscopic surgery
. According to plaintiff's evidence, the hole was not visible due to overgrown vegetation. On 10 July 2013, plaintiff filed an action against the City,1 alleging negligence in failing to inspect, maintain, and repair the sidewalk. The City filed its answer, defenses, and affirmative defenses. On 2 May 2014, the City filed a motion for summary judgment.
During the summary judgment hearing on 14 July 2014, the City presented evidence that the pertinent stretch of Alston Avenue was a State right-of-way because it runs beside Highway 55, which is part of the State Highway System, as defined by 19A N.C.A.C. 2D.0404(2). Plaintiff presented affidavits from five residents who live near the pertinent area of Alston Avenue; in summary, the residents indicated that City employees had generally maintained the area by trimming back vegetation and placing a cone in the hole in the sidewalk. Plaintiff also presented the deposition of Dwight Murphy, the Operations Manager for the City's Public Works Department. Murphy stated that he was notified of plaintiff's injury and investigated the hole, which he discovered appeared to be caused by a utility vault in the sidewalk. Murphy noted there was a cone in the hole but stated it did not belong to the City. Murphy was not aware of which entity—the City or the NCDOT—was responsible for maintaining the subject sidewalk. Murphy formerly worked for the City of Greensboro, where the State maintained certain sidewalks adjacent to state-owned highways. However, after learning of plaintiff's injury, Murphy stated that he discovered "[i]n Durham, the State does not maintain any sidewalks." Plaintiff also pointed to 19A N.C.A.C. 2D.0404(c)(6), promulgated by the NCDOT, which provides that the State's maintenance duty does not extend to sidewalks.
In summary, it is undisputed that plaintiff fell and sustained injuries on a portion of the sidewalk which runs along Highway 55, also known as Alston Avenue, which is a "State Municipal System Highway," as defined by 19A N.C.A.C. 2D.0404(a)(3). On 13 August 2014, the trial court considered the evidence and both parties' arguments and granted summary judgment in favor of the City. Plaintiff appeals.
Plaintiff contends the trial court erred by granting summary judgment in favor of the City. Specifically, plaintiff contends that the forecast of evidence, viewed in the light most favorable to plaintiff, shows that (1) the City had a legal duty to maintain the sidewalk, (2) genuine issues of material fact exist as to whether the City provided a reasonably safe sidewalk, and (3) plaintiff was not contributorily negligent. We agree.
Turning first to whether the City owed plaintiff a legal duty, "[w]hen there is no dispute as to the facts ... the issue of whether a duty exists is a question of law for the court." Mozingo by Thomas v. Pitt Cty. Mem'l Hosp., Inc., 101 N.C.App. 578, 588, 400 S.E.2d 747, 753 (1991) (citations omitted), aff'd, 331 N.C. 182, 415 S.E.2d 341 (1992). Absent a legal duty, there can be no negligence. Turner v. North Carolina Dept. of Transp., 223 N.C.App. 90, 93, 733 S.E.2d 871, 874 (2012) (citation omitted). This duty may arise by statute or operation of law. Pinnix v. Toomey, 242 N.C. 358, 362, 87 S.E.2d 893, 897 (1955) (citation omitted). Plaintiff contends the City owed him a statutory duty to keep the sidewalk reasonably safe. We agree.
The City acknowledges its statutory authorization to maintain sidewalks within its corporate boundaries under N.C. Gen.Stat. § 160A–296, which imposes upon municipalities "[t]he duty to keep the public streets, sidewalks, alleys, and bridges [within its corporate limits] in proper repair" and "[t]he duty to keep the public streets, sidewalks, alleys, and bridges [within its corporate limits] ... free from unnecessary obstructions[.]" N.C. Gen.Stat. § 160A–296 (a)(1)–(2) (2015) (emphasis added). The statute vests municipalities with authority and control of all public passages, except certain streets and bridges, located within its municipal boundaries:
(a) A city shall have general authority and control over all public streets, sidewalks, alleys, bridges, and other ways of public passage within its corporate limits except to the extent that authority and control over certain streets and bridges is vested in the Board of Transportation [NCDOT].
N.C. Gen.Stat. § 160A–296(a) (2015) (emphasis added). Furthermore, we take judicial notice, pursuant to N.C. Gen.Stat. § 150B–21.22 (2015), of the following relevant provision of the North Carolina Administrative Code relating to the maintenance of the state highway system within a municipality: "The maintenance of sidewalks is a municipal responsibility." 19A N.C.A.C. 2D.0404(c)(6).
The City asserts that while it has a general duty regarding sidewalks, this particular sidewalk does not fall within the purview of the statute, but rather within an exception provided for in N.C. Gen.Stat. § 160A–297, because Highway 55 is a "state-maintained road." The City argues:
Appellant would have the Court completely ignore the fact that the sidewalk in question is in the right-of-way of [Highway 55], which is a state-maintained road. While it is true that [N.C. Gen.Stat. § ] 160A–296 creates a statutory duty to maintain "streets, sidewalks, alleys and bridges," that duty is limited to municipal "streets, sidewalks, alleys and bridges" and does not extend to those that made [sic] a part of the State Highway System.
In other words, the City contends that under N.C. Gen.Stat. § 160A–297, it is responsible only for sidewalks within its municipal borders that do not run along "state-maintained roads." It is true that N.C. Gen.Stat. § 160A–297 limits a city's responsibility to maintain certain streets and bridges:
(a) A city shall not be responsible for maintaining streets or bridges under the authority and control of the [NCDOT], and shall not be liable for injuries to persons or property resulting from any failure to do so.
N.C. Gen.Stat. § 160A–297 (2015). But the statute does not limit a city's responsibility to maintain sidewalks.
The City's arguments overlook the fact that the applicable statutes and regulations governing maintenance of roadways define all of the different components of the roadway itself separately—such as pavements, storm drainage or storm sewers, open drainage, shoulders, and sidewalks. See 19A N.C.A.C. 2D.0404(a) (defining roadways and components). The cases cited by the City address streets or bridges—not sidewalks—and thus are inapplicable to the instant case. Although the terms "street" or "highway" are often used generally in these statutes and regulations to refer to roadways used by motor vehicles, the statutes and regulations also set forth distinctly whether the State or municipality is responsible to maintain the various components of the roadways. This distinction depends upon whether the roadway is within the "State Highway System as described in [N.C. Gen.Stat. § ] 136–44.1," a "State Municipal Street System or Highway," a "Non–State System Municipal Street or Highway," or a "Rural Highway or Street." See 19A N.C.A.C. 2D.0404(a)(2)–(5). The area in question is a "sidewalk," as defined by 19A N.C.A.C. 2D.0404(a)(13), which runs parallel to Highway 55, a "State Municipal ... Highway," as defined by 19A N.C.A.C. 2D.0404(a)(3) ; according to 19A N.C.A.C. 2D.0404(c)(6), "[t]he maintenance of sidewalks is a municipal responsibility."
In its attempt to demonstrate that NCDOT is solely responsible to maintain this particular sidewalk, the City offered the plans and municipal agreement between the State Highway Commission and the City, entered in 1970, for the widening and improvement of "Alston Avenue from Price Street north to the Expressway." But this agreement addresses only the construction and financing of the project; it does not allocate responsibility for maintenance of the road or sidewalk after construction. In addition, the City offered the affidavit of H. Wesley Parham, P.E., who has "worked for the City of Durham since 1986" and was "employed as Assistant Transportation Director for the [NCDOT]." Parham's affidavit states that the plans for the 1970 project included the area where plaintiff fell and that he is not aware of any "re-engineering or construction improvements" at the location since the 1970 project was completed. Parham also stated that he is unaware of any "agreement that applies to the City of Durham which would require the City to assume street and/or sidewalk maintenance and improvement responsibility" for the relevant area of...
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