Opinion
No. COA98-120
Filed 6 July 1999
1. Negligence — injury on ski slope — knowledge of hazard
Summary judgment should not have been granted for a defendants in a negligence action arising from an injury suffered when another skier jumped into plaintiff from a makeshift snowramp. Although defendant argued that plaintiff failed to present any evidence that defendant either knew or reasonably could have known that skiers were jumping off a makeshift snowramp, plaintiff presented evidence that defendant did not have an adequate number of ski patrols, from which arises a material issue of fact as to whether defendant would have known about the makeshift ramp with an adequate number of patrols.
2. Negligence — injury on ski slope — foreseeability
Summary judgment should not have been granted for defendant in an action arising from an injury suffered when another skier jumped into plaintiff from a makeshift snowramp where defendant argued that plaintiff's accident was not reasonably foreseeable, but plaintiff presented evidence of a sign on defendant's property forbidding jumping, there was evidence that defendant was understaffed on this night, raising the issue of whether defendant would have noticed the jumping with adequate employees patrolling the slope, and there was testimony that the jumping was in plain view of the lift operator, who did nothing.
3. Negligence — contributory negligence — injury on ski slope
Summary judgment should not have been granted for defendant on contributory negligence in an action arising from an injury suffered when another skier jumped into plaintiff from a makeshift snowramp. Whether plaintiff should have recognized the danger of jumping skiers and chosen an alternate path is a question of fact.
Judge LEWIS dissenting.
Appeal by plaintiff from judgment entered 2 September 1997 by Judge Dennis Winner in Avery County Superior Court. Heard in the Court of Appeals 5 October 1998.
At approximately 9:50 p.m. on 16 December 1993, plaintiff was snow-skiing on the only open slope on defendant's premises when he was struck by another skier who jumped into him from a makeshift ramp. One hundred and eighty people had purchased tickets to ski on the slope during the course of the evening and three or four ski patrols were on duty at the time.
Plaintiff stated in a deposition that the makeshift ramp was not on the slope itself, that "another skier wouldn't have hit it or run over it," and that one would have to get off of the slope to get on to the ramp. Plaintiff did not recall ever seeing anyone jump from that ramp at any other point that evening, and had made no prior complaints to management about other skiers. Plaintiff also stated that he was told by defendant's employees that defendant was understaffed on the night of the injury. Defendant's affidavits indicated that there were no reports of jumping made to the ski patrol or to the administrative office. Defendant, while denying that skiers were constructing such ramps at the time in question, admitted in an interrogatory that defendant did not allow skiers to construct these makeshift ramps. Plaintiff asserts that in providing a ski patrol, defendant assumed a duty to protect him, and that defendant was negligent in failing to carry out this duty.
In his complaint of 25 October 1996, plaintiff cites four specific acts or omissions that he claims constitute defendant's negligence: (1) the failure to "enforce its rules and regulations governing jumping on the ski slopes"; (2) the failure to be properly staffed at the time of the collision, thereby leaving defendant unable to enforce its rules governing safety; (3) the failure "to warn its business patrons of the potentially hazardous condition created on its ski slopes by skiers constructing makeshift ramps from which to jump"; and (4) the failure "to provide a reasonably safe condition on its ski slope for its business patrons" at the time of the collision. After a period of discovery, defendant moved for summary judgment on 2 July 1997 and the motion was granted on 2 August 1997. Plaintiff appeals.
Campbell Taylor, by Jason E. Taylor, for plaintiff-appellant.
Robert E. Riddle, P.A., by Robert E. Riddle, for defendant-appellee.
First we consider whether the trial court erred by granting defendant's summary judgment motion. Plaintiff argues that there were genuine issues of material fact as to whether defendant was negligent. We agree.
Summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. G.S. § 1A-1, Rule 56 (1990); Davis v. Town of Southern Pines, 116 N.C. App. 663, 665, 449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995). A summary judgment movant bears the burden of showing that "(1) an essential element of plaintiff's claim is nonexistent; (2) plaintiff cannot produce evidence to support an essential element of its claim; or (3) plaintiff cannot surmount an affirmative defense raised in bar of its claim." Lyles v. City of Charlotte, 120 N.C. App. 96, 99, 461 S.E.2d 347, 350 (1995), rev'd on other grounds, 344 N.C. 676, 477 S.E.2d 150 (1996). A court ruling upon a motion for summary judgment must view all the evidence in the light most favorable to the non-movant, accepting all its asserted facts as true, and drawing all reasonable inferences in its favor. Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 583, 448 S.E.2d 280, 281 (1994) (citations omitted).
To recover damages under a claim for negligence, plaintiff must establish "(1) a legal duty, (2) a breach thereof, and (3) injury proximately caused by such breach." Waltz v. Wake County Bd. of Education, 104 N.C. App. 302, 304, 409 S.E.2d 106, 107 (1991) (quoting Matthieu v. Piedmont Natural Gas Co., 269 N.C. 212, 217, 152 S.E.2d 336, 341 (1967)), disc. review denied, 330 N.C. 618, 412 S.E.2d 96 (1992). "[A]s a general proposition, issues of negligence are ordinarily not susceptible to summary adjudication either for or against the claimant." Phelps v. Duke Power Co., 76 N.C. App. 222, 229, 332 S.E.2d 715, 719 (1985), disc. review denied, 314 N.C. 668, 336 S.E.2d 401 (1985). The better practice is for the trial court to submit the case to the jury and enter a judgment notwithstanding the verdict if the evidence is insufficient to support the verdict. Id.
Here, both parties acknowledge that plaintiff was an invitee at the time of his injury, so the duty defendant owed was one of reasonable care under the circumstances. Nelson v. Freeland, 349 N.C. 615, 618, 507 S.E.2d 882, 884 (1998), reh'g denied, 350 N.C. 108, ___ S.E.2d ___ (1999). Next, plaintiff was required to introduce evidence that defendant breached its duty. Here there was contradictory evidence presented by the parties. "Breach of duty," as an element of a negligence claim, occurs when a person fails to conform to the standard required. Davis v. N.C. Dept. of Human Resources, 121 N.C. App. 105, 112, 465 S.E.2d 2, 6 (1995), disc. review denied, 343 N.C. 750, 473 S.E.2d 612 (1996). General Statute Section 99C-2(c) requires the defendant to "provide adequate ski patrols." In addition, when an unsafe condition is created by a third party, such as a makeshift ramp, plaintiff must show that it has existed for such a length of time that defendant knew or, by exercising reasonable care, should have known of its existence in time to have removed the danger or have given a warning of its presence. Stafford v. Food World, 31 N.C. App. 213, 216, 228 S.E.2d 756, 757 (1976), disc. review denied, 291 N.C. 324, 230 S.E.2d 677 (1976).
Here, the defendant argues that plaintiff failed to present any evidence that established defendant either knew or reasonably could have known that skiers were jumping off a makeshift snow ramp. We disagree.
Plaintiff presented evidence through his own deposition testimony as well as through Eric Rauch's affidavit that defendant did not have an adequate number of ski patrols on the night of plaintiff's injury. From that evidence arises a material issue of fact as to whether defendant would have known about the makeshift ramp if defendant had an adequate number of ski patrols. Defendant presented affidavits from employees at the summary judgment hearing that denied that defendant was short staffed on the night in question. Because there is contradictory evidence presented by the parties, there is a genuine issue of material fact as to whether there was adequate ski patrols when plaintiff was hurt.
Next, plaintiff must present evidence that defendant's negligence was the proximate cause of plaintiff's injuries. Defendant argues that plaintiff's accident was not reasonably foreseeable. We disagree.
Plaintiff presented evidence that there was a sign on defendant's property forbidding jumping. The presence of the sign indicates that skiers' jumping was apparently foreseeable. In addition, plaintiff introduced evidence that defendant was understaffed on the night in question which raises the issue of whether the defendant would have noticed the skiers jumping if defendant had adequate employees patrolling the slope. This is a genuine issue of material fact that should have gone to the jury. Finally, plaintiff testified during his deposition that the jumping that was occurring on the night he was injured, was in plain view of the lift operator but that the operator did nothing to stop the skiers from jumping. Accordingly, we hold that there were issues of material fact and that the trial court erred in granting defendant's summary judgment motion.
Finally we consider whether the trial court erred in granting defendant's summary judgment motion on the issue of plaintiff's contributory negligence. Plaintiff argues that he was not contributorily negligent as a matter of law and contends that the issue should have gone to the jury. We agree.
A "nonsuit on the ground of contributory negligence will be granted only when the plaintiff's own evidence establishes the facts necessary to show contributory negligence so clearly that no other conclusion may be reasonably drawn therefrom." Keener v. Beal, 246 N.C. 247, 252, 98 S.E.2d 19, 22 (1957). Issues of contributory negligence, like those of ordinary negligence, are ordinarily questions for the jury and are rarely appropriate for summary judgment. Lamm v. Bissette Realty, 327 N.C. 412, 418, 395 S.E.2d 112, 116 (1990). Only where the evidence establishes plaintiff's own negligence so clearly that no other reasonable conclusion may be reached is summary judgment to be granted. Norwood v. Sherwin-Williams Co., 303 N.C. 462, 468-69, 279 S.E.2d 559, 563 (1981).
Here an issue of fact exists as to whether the plaintiff's conduct was reasonable under the circumstances. Whether plaintiff should have recognized the danger of jumping skiers colliding into his person and chosen an alternative path is a question of fact for the jury. Accordingly, the trial court erred in granting defendant's summary judgment motion on the issue of plaintiff's contributory negligence.
Reversed and remanded for trial.
Judge HUNTER concurs.
Judge LEWIS dissents.