Opinion
No. 07-706.
Filed April 15, 2008.
Nash County No. 05CVS2063.
Appeal by plaintiff from order entered 14 February 2007 by Judge William C. Griffin, Jr. in Nash County Superior Court. Heard in the Court of Appeals 12 December 2007.
Narron Holdford, P.A., by Ben L. Eagles, for plaintiff-appellant. Poyner Spruill, LLP, by Timothy W. Wilson, for defendant-appellee.
Elsie Rabil ("plaintiff") appeals the trial court's grant of summary judgment to Food Lion, LLC ("defendant") on her negligence claim. We affirm.
On 15 July 2005, plaintiff was shopping at defendant's store located at 802 Harbour Drive in Rocky Mount, North Carolina. Plaintiff was in the meat department perusing the frozen food section when she caught her toe in a metal case guard protruding from the end of the frozen food case ("metal case guard"). Metal case guards are placed at the corners of frozen food cases to protect the cases from damage from customers' shopping carts. When plaintiff picked up hamburger meat from inside the frozen foodcase, she turned and tripped over the metal case guard, fell to the floor and dislocated her right shoulder.
On 8 September 2005, plaintiff filed a complaint against defendant alleging defendant's negligence caused her injuries. The complaint was originally filed in Wilson County Superior Court. Defendant answered the complaint and alleged plaintiff was contributorily negligent and moved to dismiss the action for improper venue or in the alternative for a change of venue to Nash County Superior Court. The parties agreed to a change of venue to Nash County Superior Court. On 16 January 2007, defendant moved for summary judgment and filed two supporting affidavits by Gwendolyn Stephanie Wilson ("Wilson") and Thomas W. Stallings ("Stallings"). Plaintiff submitted an affidavit in opposition to the motion for summary judgment.
On 14 February 2007, the Honorable William C. Griffin, Jr. granted defendant's motion for summary judgment and dismissed plaintiff's action with prejudice. Plaintiff appeals.
I. Standard of Review
Appellate courts review summary judgment motions to determine "whether, on the basis of materials supplied to the trial court, there was a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Evidence presented by the parties is viewed in the light most favorable to the non-movant." Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (citing Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)). Where the moving party proves that an essential element of the non-moving party's claim is nonexistent, then the moving party establishes there is no genuine issue of material fact. Padgett v. J.C. Penney Co., Inc., 112 N.C. App. 842, 844, 437 S.E.2d 401, 403 (1993) (citing Mozingo v. Pitt County Memorial Hospital, 331 N.C. 182, 415 S.E.2d 341 (1992)). "By making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial." Collingwood v. General Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).
While issues of negligence and contributory negligence are rarely appropriate for summary judgment, the trial court will grant summary judgment in such matters where the evidence is uncontroverted that a party failed to use ordinary care and that want of ordinary care was at least one of the proximate causes of the injury.
Allsup v. McVille, Inc., 139 N.C. App. 415, 416, 533 S.E.2d 823, 824 (2000) (quoting Diorio v. Penny, 103 N.C. App. 407, 408, 405 S.E.2d 789, 790 (1991) (internal citations omitted), aff'd, 331 N.C. 726, 417 S.E.2d 457 (1992)).
II. Negligence
Plaintiff argues she forecast sufficient evidence to survive a summary judgment motion because she presented evidence that the metal case guard is a hazard created by the defendant and the hazard caused her injuries. We disagree.
In North Carolina, a landowner is required to exercise reasonable care to provide for the safety of all lawful visitors on his property. Lorinovich v. KMart Corp., 134 N.C. App. 158, 161, 516 S.E.2d 643, 646 (1999). Whether the care is reasonable is judged against the conduct of a reasonably prudent person under the circumstances. Id. There is no duty to protect a lawful visitor from dangers which are either known to him or so obvious and apparent that they may reasonably be expected to be discovered. Id., 134 N.C. App. at 162, 516 S.E.2d at 646; Jacobs v. Hill's Food Stores, Inc., 88 N.C. App. 730, 733, 364 S.E.2d 692, 693-94 (1988). "When a plaintiff does not discover and avoid an obvious defect, that plaintiff will usually be considered to have been contributorialy [sic] negligent as a matter of law." Price v. Jack Eckerd Corp., 100 N.C. App. 732, 736, 398 S.E.2d 49, 52 (1990). "However, where there is some fact, condition or circumstance which would or might divert the attention of an ordinarily prudent person from discovering or seeing an existing dangerous condition, the general rule does not apply." Id. (internal quotations omitted).
In Jacobs v. Hill's Food Stores, Inc., summary judgment was affirmed for the defendant where the plaintiff, who was walking in the store's parking lot, failed to notice a concrete curb, tripped over the curb and fell. Jacobs, 88 N.C. App. at 731, 364 S.E.2d at 693. The concrete curb was ten feet long and one foot high. Plaintiff testified she never saw or noticed the curb. Id. Because the curb was an open and obvious condition, defendant had no duty to warn plaintiff of the curb. Id., 88 N.C. App. at 733, 364 S.E.2d at 694.
In the instant case, the affidavits, deposition testimony, and color photographs of the metal case guards support summary judgment for defendant. The metal case guards are two feet tall and appear to be three to four inches wide. Plaintiff presented no evidence that the lighting was poor or that objects on the floor obstructed the view of the metal case guards. Plaintiff testified she failed to notice the metal case guards. Stallings and Wilson, two long-time employees of defendant, both submitted affidavits attesting that plaintiff is the only person to have tripped over the metal case guards since their employment with defendant.
Plaintiff argues that because she was picking up meat from inside the freezer case when she fell, the jury should decide whether her attention was diverted from observing the metal case guard. Plaintiff cites Nourse v. Food Lion, Inc., 127 N.C. App. 235, 488 S.E.2d 608 (1997) (plaintiff slipped on grapes and water left on the store floor), Price, 100 N.C. App. at 736-37, 398 S.E.2d at 52 (customer tripped over a box in the aisle while responding to directions from cashier) and Walker v. County of Randolph, 251 N.C. 805, 112 S.E.2d 551 (1960) (plaintiff fell down the stairs while looking for a notice of sale of property on a bulletin board).
We find those cases distinguishable. Here, the two-foot tall metal case guards are clearly visible. More importantly, plaintiff does not allege any distraction or anything which would have prevented her from seeing the metal case guards. Plaintiff submitted no evidence that anything distracted her or blocked her view. She testified that she "walked to the end of [the meat counter] where [the hamburger] was displayed" and then turned after she picked up the meat and fell over the two-foot high metal case guard.
III. Conclusion
Because we conclude the evidence is uncontroverted that the metal case guards were an open and obvious condition and plaintiff's failure to notice the case guards was the proximate cause of her injuries, we affirm summary judgment for the defendant.
Affirmed.
Judges HUNTER and STROUD concur.
Report per Rule 30(e).