Stoltz v. Burton

• Decision Date: 19 June 1984
• Docket Number: No. 8321SC491,8321SC491
• Citation: 69 N.C.App. 231,316 S.E.2d 646
• Parties: Glenna Shatley STOLTZ v. Elvin O. BURTON.
• Court: North Carolina Court of Appeals

Page 646

316 S.E.2d 646

69 N.C.App. 231

Glenna Shatley STOLTZ v. Elvin O. BURTON.

No. 8321SC491.

Court of Appeals of North Carolina.

June 19, 1984.

E. Vernon F. Glenn and David P. Shouvlin, Winston-Salem, for plaintiff-appellant.

Bell, Davis & Pitt, P.A. by William Kearns Davis, Winston-Salem, for defendant-appellee.

BECTON, Judge.

I

We have been asked to decide whether the trial court erred in allowing the defendant's summary judgment motion in this negligent maintenance of property action. For the reasons that follow, we affirm.

II

Plaintiff, Glenna Shatley Stoltz, seeks to recover damages for injuries she sustained when she fell while leaving the defendant's, Elvin O. Burton's, premises, Oakwood Stratford Shopping Center. Stoltz entered the shopping center only a few feet from the point where she sustained injuries upon leaving. Stoltz alleges (1) that the gradually sloping sidewalk and parking lot resulted in the dangerously and latently defective step where she was injured; (2) that Burton was negligent in constructing and maintaining this step; and (3) that Burton was negligent in failing to warn her of the hidden dangers presented by the step when he knew, or should have known, of the dangers.

Burton first denies any negligence, and secondly contends that Stoltz was contributorily negligent in failing to see, through the exercise of ordinary care, the obvious and unconcealed concrete sidewalk step leading to the black asphalt parking lot. Further, Burton argues that the variation in color and dimension should have put any reasonable person on notice of the step down. Visibility was clear that day; nothing obstructed Stoltz's view.

After considering testimony, affidavits, exhibits (photographs of the step construction and the slope of the parking lot), and depositions, the trial court granted Burton's motion for summary judgment. Stoltz appeals.

III

On motions for summary judgment, the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, must show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. N.C.Gen.Stat. § 1A-1, Rule 56(c) (1983); Stanley v. Walker, 55 N.C.App. 377, 285 S.E.2d 297 (1982). The moving party has the burden of establishing the absence of any triable issue of fact. Brenner v. Little Red Schoolhouse, Ltd., 302 N.C. 207, 274 S.E.2d 206 (1981). While summary judgment is generally not appropriate in negligence cases, it is appropriate in cases in which it appears that the plaintiff cannot recover even if the facts as alleged by the plaintiff are true. Frendlich v. Vaughan's Foods of Henderson, Inc., 64 N.C.App. 332, 307 S.E.2d 412 (1983); Cox v. Haworth, 54 N.C.App. 328, 283 S.E.2d 392 (1981).

A prima facie case of negligence requires proof that: the defendant had a duty of care; the defendant breached that duty; the breach was the actual and proximate cause of plaintiff's injury; and damages resulted from the injury. Frendlich. Negligence is not presumed from the mere fact of injury.

An invitee is a person who visits premises at the owner's express or implied invitation for their mutual benefit. Mazzacco v. Purcell, 303 N.C. 493, 279 S.E.2d 583 (1981). A shopping center owner has a duty to exercise ordinary care to maintain the premises in a safe condition and to warn the invitee of hidden dangers or unsafe conditions, discoverable by the owner through reasonable inspection and supervision. Green v. Wellons, Inc., 52 N.C.App. 529, 279 S.E.2d 37 (1981); see also Norwood v. Sherwin-Williams Co., 303 N.C. 462, 279 S.E.2d 559 (1981); Husketh v. Convenient Systems, Inc., 295 N.C. 459, 245 S.E.2d 507 (1978). But a shopping center owner is not an insurer, and is not required to warn invitees of obvious conditions. See Hunt v. Montgomery Ward and Co., Inc., 49 N.C.App. 642, 272 S.E.2d 357 (1980). In the instant case, Burton owed Stoltz a store owner's duty of care. Stoltz was an invitee; she was present at the shopping center to purchase items from one of Burton's retail merchants.

Stoltz attempts to invoke the North Carolina State Building Code (1978) (Code) to establish Burton's negligence. We are not persuaded.

Stoltz relies specifically on Section 1115.3, the provision governing stairway construction, which requires that treads and risers not exceed seven and three-quarters inches. Since Stoltz stepped down at an area which exceeded seven and three-quarters inches, she alleges that Burton violated the Code by his failure to construct steps in conformity with the Code and, by so doing, was negligent per se. We disagree.

It is well established in North Carolina that a violation of a safety statute is negligence per se. Ratliff v. Duke Power Co., 268 N.C. 605, 151 S.E.2d 641 (1966). However, the Code specifically addresses stairway construction and means of egress, not "steps" as construed by Stoltz. "A 'means of egress' is a continuous and unobstructed path of travel from any point in a building or structure to a public way ...." N.C.S.B.C. § 1102. The Code defines the exit discharge portion of the "means of egress" to include "stairs, ramps, bridges, balconies, escalators, moving walks and other components of an exit discharge...." N.C.S.B.C. § 1112.1 (d). It requires that all stairs not exceed seven and three-quarters inches. It makes no reference to drop-offs from sidewalks to parking lots.

Burton's sidewalk is a part of the shopping center's foundation. This sidewalk encircles the building and provides a level base for the building on hilly terrain--the land slopes naturally downward. As a result, there is a gradual increase in the height of the sidewalk from one end of the building to the other. Building a level sidewalk was the only sure method of providing an even foundation for the shopping center, under the circumstances. It would be unjust and extremely burdensome to require such contracting owners to grade the entire tract of land, including the hilly parking lot, in an attempt to ensure a perfectly even drop-off from the sidewalk to the parking lot at all points. The varying height of the drop-off is a natural result of the particular tract, and Burton used proper care in constructing the sidewalk. Therefore, Burton...