Id. In Falatovitch v. Clinton, 259 N.C. 58, 129 S.E.2d 598 (1963), plaintiff fell in an opening of the sidewalk. Id. The defect had been there for at least three years.
Id. In Falatovitch v. Clinton, 259 N.C. 58, 129 S.E.2d 598 (1963), plaintiff fell in an opening of the sidewalk. Id. The defect had been there for at least three years.
III. 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.
We do not agree. Slight depressions, unevenness and irregularities in outdoor walkways, sidewalks and streets are so common that their presence is to be anticipated by prudent persons. We are unable to distinguish this case from those in a long line of decisions by this Court. For examples, see: Falatovitch v. Clinton, 259 N.C. 58, 129 S.E.2d 598; Bagwell v. Brevard, 256 N.C. 465, 124 S.E.2d 129; Little v. Oil Co., 249 N.C. 773, 107 S.E.2d 729; Welling v. Charlotte, 241 N.C. 312, 85 S.E.2d 379. The demurrer was properly sustained. Assuming that the factual allegations of the complaint are true, as we must in considering demurrer, we conclude that plaintiff has no cause of action against defendant.
In Bagwell v. Brevard, 256 N.C. 465, 124 S.E.2d 129 (1962), our Supreme Court held that where the alleged defect consisted of "a difference in elevation of approximately one inch between two adjacent concrete sections of the sidewalk," the defendant-town's "failure to correct this slight irregularity did not constitute a breach of its said legal duty." Id. at 466, 124 S.E.2d at 130; see also Falatovitch v. Clinton, 259 N.C. 58, 60, 129 S.E.2d 598, 599 (1963) (concluding that an opening of the sidewalk where the plaintiff fell which was ten inches long and several inches wide was a "minor defect" and not actionable); Watkins v. Raleigh, 214 N.C. 644, 647, 200 S.E. 424, 426 (1939) (concluding that a hole in the sidewalk which was two and one-half feet wide and two or more inches in depth was trivial); Houston v. Monroe, 213 N.C. 788, 790, 197 S.E. 571, 572 (1938) (applying "trivial defect" analysis where the hole in the sidewalk was eleven inches wide and one and one-quarter to two and one-half inches deep); Willis, 137 N.C. App. at 765, 529 S.E.2d at 692-93 (holding that, where the difference in elevation between the two adjacent sections of the concrete sidewalk at the spot where the plaintiff fell was about one and one-quarter inches, and where the plaintiff offered insufficient evidence that the defendant had actual or constructive notice of the defect, summary judgment was proper); Joyce v. City of High Point, 30 N.C. App. 346, 349, 22
Both plaintiffs and defendant cite to several factually similar slip and fall cases. Evans v. Batten, 262 N.C. 601, 138 S.E.2d 213 (1964) (per curiam) (indenture in walkway); Spell v. Contractors, 261 N.C. 589, 135 S.E.2d 544 (1964) (dirt-filled ditch); Falatovitch v. Clinton, 259 N.C. 58, 129 S.E.2d 598 (1963) (per curiam) (hole in sidewalk filled with dirt and trash); Smith v. Hickory, 252 N.C. 316, 113 S.E.2d 557 (1960) (hole in sidewalk); Fanelty v. Jewelers, 230 N.C. 694, 55 S.E.2d 493 (1949) (terrazzo entryway); cf. Lamm v. Bissette Realty, 327 N.C. 412, 395 S.E.2d 112 (1990) (uneven risers and no handrails); Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979) (concrete step-up from parking lot); Rone v. Byrd Food Stores, 109 N.C. App. 666, 428 S.E.2d 284 (1993) (wet floor); Barnes v. Wilson Hardware Co., 77 N.C. App. 773, 336 S.E.2d 457 (1985) (lack of handrail); Green v. Wellons, Inc., 52 N.C. App. 529, 279 S.E.2d 37 (1981) (cracks on sidewalk). In light of these cases and under the principles stated above, summary judgment in favor of defendant was appropriate.
We further conclude that there is no breach of duty to an invitee when, as here, a defect in a sidewalk is minor, the defect is one which could have been seen had the plaintiff been paying attention, and no special circumstances existed to make the condition unreasonably hazardous. Accord Falatovich v. City of Clinton, 259 N.C. 58, 60, 129 S.E.2d 598, 599 (1963) (no breach of duty in failing to correct "minor defect" in sidewalk consisting of hole ten inches by three inches, filled to sidewalk level with dirt, sand, and trash); Bagwell v. Town of Brevard, 256 N.C. 465, 466, 124 S.E.2d 129, 130 (1962) (no breach of duty in failing to correct "slight irregularity" consisting of one-inch difference in elevation between two sidewalk sections); Little, 249 N.C. at 777, 107 S.E.2d at 731 (no duty to warn invitee of concrete slab protruding one and three-fourths inches above sunken asphalt); cf. Jacobs, 88 N.C. App. at 733, 364 S.E.2d at 694 (no breach of duty since concrete block in walkway was obvious condition); Stoltz, 69 N.C. App. at 235, 316 S.E.2d at 648 (shopping center owner did not breach duty to invitee by maintaining sidewalk which gradually increased in height due to slope of land); Frendlich, 64 N.C. App. at 335, 307 S.E.2d at 413 (storekeeper breached no duty to invitee by maintaining second step down at street curb).
Defendant's failure to correct this slight irregularity did not constitute a breach of its . . . duty." Also see: Smith v. Hickory, 252 N.C. 316, 113 S.E.2d 557 (1960); Falatovitch v. Clinton, 259 N.C. 58, 129 S.E.2d 598 (1963); 5 Strong, N.C. Index 2d, Municipal Corporations, 14. But cf: Radford v. Asheville, 219 N.C. 185, 13 S.E.2d 256 (1941). Furthermore, it appears from plaintiff's own evidence — which is not disputed — and particularly the affidavit of Mrs. Brown, that plaintiff was guilty of contributory negligence as a matter of law.