Opinion
No. COA02-573
Filed 1 April 2003
Premises Liability — contributory negligence — fall on stairs — j.n.o.v.
Contributory negligence is generally for the jury and the trial court erred by granting plaintiff's motions for a new trial and judgment notwithstanding the verdict after the jury found plaintiff contributorily negligent in her fall on defendant's garage stairs. There was evidence that plaintiff had both hands occupied by a rolodex and bank bag, had suffered from inner ear problems for years, and did not trip on the steps but fell when her leg gave way after she reached the garage.
Judge Timmons-Goodson dissenting.
Appeal by defendant from judgment entered 7 December 2001 by Judge James F. Ammons, Jr. in Robeson County Superior Court. Heard in the Court of Appeals 29 January 2003.
Musselwhite, Musselwhite, Musselwhite Branch, by W. Edward Musselwhite, Jr., for plaintiff-appellee. Anderson, Johnson, Lawrence, Butler Bock, L.L.P., by Steven C. Lawrence, for defendant-appellant.
Plaintiff's complaint alleged she sustained physical injury when she "slipped and fell" on defendant's garage stairs, which she alleges were negligently maintained in dangerous condition. Defendant asserted plaintiff was contributorily negligent in failing to keep a reasonable lookout and in failing to use proper care in exiting defendant's garage.
The case was tried, and a jury returned a verdict finding (1) plaintiff was injured by the negligence of defendant and (2) plaintiff, by her own negligence, contributed to her injuries. Therefore, the plaintiff was barred from recovering damages against defendant. See Love v. Singleton, 145 N.C. App. 488, 550 S.E.2d 549 (2001). Subsequently, plaintiff filed motions for judgment notwithstanding the verdict and for a new trial. The trial court granted plaintiff's motions concluding in pertinent part:
1. That there was no evidence before the Court that the Plaintiff failed to keep a proper lookout or was otherwise contributorily negligent in her fall.
. . . .
3. That the fact that the Plaintiff fell, in and of itself, is not adequate for submission of the issue of contributory negligence to the jury and contributory negligence cannot be presumed from the mere fact that the Plaintiff fell.
4. That this Court erred in failing to direct a verdict in favor of the Plaintiff on the issue of contributory negligence at the conclusion of the evidence and in submitting the issue of contributory negligence to the jury over Plaintiff's objection.
5. That such error was prejudicial and Plaintiff is entitled to a new trial.
Defendant contends the trial court erred in granting plaintiff's motion for judgment notwithstanding the verdict and a new trial. Specifically, he argues there was sufficient evidence to present the issue of plaintiff's contributory negligence to the jury.
A motion for a new trial under Rule 59(a) is left to the sound discretion of the trial court. N.C.G.S. § 1A-1, Rule 59(a) (2001); Hamlin v. Austin, 49 N.C. App. 196, 270 S.E.2d 558 (1980). However, where the trial court commits an error of law, we review that decision de novo. Eason v. Barber, 89 N.C. App. 294, 365 S.E.2d 672 (1988) (citing Jacobs v. Locklear, 310 N.C. 735, 736-37, 314 S.E.2d 544, 545 (1984)). Because defendant assigned as error the trial court's determination that as a matter of law there was insufficient evidence upon which to submit the issue of contributory negligence to the jury, we review that determination de novo. Id.
Contributory negligence acts as a complete bar to a plaintiff's recovery and is:
the breach of the duty of the plaintiff to exercise due care for his own safety in respect of the occurrence about which he complains, and if his failure to exercise due care for his own safety is one of the proximate contributing causes of his injury, it will bar recovery.
Champs Convenience Stores v. United Chemical Co., 329 N.C. 446, 455, 406 S.E.2d 856, 861 (1991) (quoting Holderfield v. Rummage Brothers Trucking Co., 232 N.C. 623, 625, 61 S.E.2d 904, 906 (1950)). The issue of contributory negligence is generally one for the jury, not to be decided as a matter of law. Id. at 456, 406 S.E.2d at 862.
Here, contributory negligence was submitted to the jury, and it found for defendant on that issue. Defendant presented evidence that plaintiff (1) had both hands occupied by her rolodex and her bank bag; (2) admitted to her doctor that she had suffered from "inner ear problems for years"; and (3) did not trip on defendant's steps but only fell after she reached the garage and her leg gave way. Viewing the evidence in the light most favorable to defendant and giving him the benefit of every reasonable inference, we find there were sufficient issues concerning contributory negligence that it was properly left to the jury. See West v. Slick, 313 N.C. 33, 326 S.E.2d 601 (1985); Cook v. Wake County Hospital System, 125 N.C. App. 618, 482 S.E.2d 546 (1997). Therefore, as a matter of law, the trial court erred in granting plaintiff's motions for judgment notwithstanding the verdict and for a new trial. Jacobs, 310 N.C. at 736-37, 314 S.E.2d at 545. The trial court's grant of judgment notwithstanding the verdict and for a new trial are reversed, and we remand for entry of judgment on the jury verdict.
Reversed and Remanded.
Judge TIMMONS-GOODSON dissents.
Judge TYSON concurs.