Opinion
No. COA03-201
Filed 6 January 2004 This case not for publication
Appeal by plaintiff from a judgment entered 29 October 2002 by Judge Russell G. Walker, Jr. in Randolph County Superior Court. Heard in the Court Of Appeals 1 December 2003.
Crumley Associates, P.C., by James M. Roane, III, for plaintiff-appellant. Guthrie, Davis, Henderson Staton, P.L.L.C., by John S. Staton and Kimberly R. Matthews, for defendant-appellee.
Randolph County, No. 01 CVS 1441.
Plaintiff brought this action seeking damages for personal injuries which she allegedly sustained when she fell on the sidewalk at defendant's store in Asheboro, North Carolina. She alleged in her complaint that her injuries were proximately caused by defendant's negligent failure to keep its premises in a reasonably safe condition and failure to warn her of a dangerous condition of which it had, or should have had, knowledge. Defendant filed an answer in which it denied the materialallegations of the complaint and asserted defendant's own contributory negligence as an affirmative defense.
Briefly summarized, plaintiff's evidence at trial tended to show that on 15 November 1998 in the early afternoon, she and her sister went to defendant's store to shop. Plaintiff walked to the area on the sidewalk where the shopping carts were lined up. As she was pulling a shopping cart from the line of carts, she stepped backward about three steps and stepped into a hole, or broken place, in the sidewalk. Plaintiff fell and fractured her right wrist. Plaintiff testified that she did not look before she stepped backward. She acknowledged that had she looked at the area of the sidewalk where she fell, there was nothing that would have prevented her from seeing the hole.
At the close of the plaintiff's evidence, defendant's motion for a directed verdict was allowed. Plaintiff appeals.
Plaintiff assigns error to the trial court's order granting defendant's motion for a directed verdict and dismissing plaintiff's action. We find no error.
Defendant's motion for directed verdict pursuant to N.C. Gen. Stat. § 1A-1, Rule 50(a) challenged the sufficiency of the plaintiff's evidence to support a verdict in her favor. Northern Nat'l Life Ins. v. Miller Machine Co., 311 N.C. 62, 316 S.E.2d 256 (1984). In ruling on the motion, the trial court was required, as is this Court in reviewing that ruling, to take the plaintiff's evidence as true and to consider it in the light most favorable to her. Id. To survive the motion, plaintiff was required to offer evidence which, when so considered, was sufficient to show, "beyond mere speculation and conjecture, every essential element of negligence." Oliver v. Royall, 36 N.C. App. 239, 242, 243 S.E.2d 436, 439 (1978). A motion for directed verdict is properly allowed only where the plaintiff's evidence is insufficient, as a matter of law, to justify a verdict in the plaintiff's favor. Stanfield v. Tilghman, 342 N.C. 389, 394, 464 S.E.2d 294, 297 (1995).
In North Carolina, a landowner owes a duty to those lawfully upon his premises to use ordinary care to keep his premises in a reasonably safe condition and to warn of hidden dangers or unsafe conditions of which the owner is, or should be, aware. See Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998). The duty includes a duty "to take reasonable precautions to ascertain the condition of the property and to either make it reasonably safe or give warnings as may be reasonably necessary to inform the [visitor] of any foreseeable danger." Lorinovich v. K Mart Corp., 134 N.C. App. 158, 161-2, 516 S.E.2d 643, 645, cert. denied, 351 N.C. 107, 541 S.E.2d 148 (1999). However, the landowner has no duty to warn a visitor against hazards or dangers of which thevisitor has equal or superior knowledge or which are so obvious that they may be reasonably expected to be discovered. Von Viczay v. Thoms, 140 N.C. App. 737, 739, 538 S.E.2d 629, 631 (2000), aff'd per curiam, 353 N.C. 445, 545 S.E.2d 210 (2001).
In this case, plaintiff's own evidence revealed the hole, or broken place, in the sidewalk was an obvious condition. Photographs of the hole showed a dark area in its center, and brighter areas surrounding the center. Both were distinguishable from the rest of the sidewalk. Plaintiff acknowledged that the hole was not concealed, and there was nothing to prevent her from seeing the hole. Moreover, she presented no evidence to show that defendant knew or should have known, in the exercise of reasonable care, of the hole. See Hull v. Winn-Dixie Greenville, Inc., 9 N.C. App. 234, 236-37, 175 S.E.2d 607, 609 (1970) (directed verdict proper where no evidence offered to show defendant knew or should have known of the unsafe condition or that it was created by defendant's negligence).
Plaintiff also testified that, after taking hold of the shopping cart, she took three steps backward without looking behind her. Her testimony disclosed as a matter of law that her fall, and resulting injuries, were occasioned, at least in part, by her own failure to exercise ordinary care for her own safety. See Swinson v. LeJeune Motor Co., 356 N.C. 286, 286, 569 S.E.2d 646, 647 (2002) (adopting dissent in Swinson v. LeJeune Motor Co., Inc., 147 N.C. App. 610, 615, 557 S.E.2d 112, 117 (2001)); Blake v. Great Atlantic Pacific Tea Co., 237 N.C. 730, 732, 75 S.E.2d 921, 922 (1953).
Affirmed.
Chief Judge EAGLES and Judge LEVINSON concur.
Report per Rule 30(e).