Opinion
No. COA 12–569.
2012-11-6
Keyon Michelle JAMES Plaintiff, v. EQUITY RESIDENTIAL MANAGEMENT, L.L.C., d/b/a McAlpine Ridge Apartments, ERP Operating Limited Partnership, Equity Residential, BEL–EQR IV Limited Partnership, BEL–EQR, IV, L.L.C., and Bel Ridge Holdings, LLC, Defendants.
Conrad Trosch & Kemmy, P.A., by William C. Trosch for plaintiff-appellant. Cranfill Sumner & Hartzog, LLP, by Patrick H. Flanagan and Kelly Beth Smith for defendant-appellees.
Appeal by plaintiff from judgment entered 27 January 2012 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 October 2012. Conrad Trosch & Kemmy, P.A., by William C. Trosch for plaintiff-appellant. Cranfill Sumner & Hartzog, LLP, by Patrick H. Flanagan and Kelly Beth Smith for defendant-appellees.
STEELMAN, Judge.
Where a hazard was open and obvious, plaintiff was contributorily negligent as a matter of law, and summary judgment was properly granted in favor of defendants.
I. Factual and Procedural History
On 26 April 2008, Keyon Michelle James (plaintiff) slipped and fell on the painted concrete breezeway, which was covered with pooled water, outside of her apartment. The apartment complex was owned by defendants. As a result of the fall, plaintiff fractured her right ankle. On 21 April 2011, plaintiff filed this action against defendants, asserting that her injury was proximately caused by their negligence. On 17 June 2011, defendants filed answer, asserting the affirmative defense of contributory negligence.
On 27 January 2012, the trial court granted summary judgment in favor of defendants, dismissing plaintiff's complaint with prejudice.
Plaintiff appeals.
II. Granting of Summary Judgment
Plaintiff contends that the trial court erred in granting summary judgment in favor of defendants. We disagree.
A. Standard of Review
“Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ “ In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citing Forbis v. Neal, 361 N.C. 519, 523–24, 649 S.E.2d 382, 385 (2007)).
B. Analysis
Plaintiff contends that she established a prima facie case of defendants' negligence, and that defendants failed to establish that plaintiff was contributorily negligent as a matter of law.
Our decision in Kelley v. Regency Ctrs. Corp., 203 N.C.App. 339, 691 S.E.2d 92 (2010) is dispositive of this argument. In that case, plaintiff, the administrator of the estate of a 52–year–old handicapped woman, brought suit against defendant, owner of a shopping center. Id. at 340, 691 S.E.2d at 93–94. The woman parked in a non-handicapped parking space, and fell while climbing over the curb to walk on the sidewalk, injuring her hip. Id at 340, 691 S.E.2d at 94. Plaintiff sued, and defendant alleged contributory negligence. Id. at 341, 691 S.E.2d at 94. The trial court granted summary judgment for defendant. Id.
On appeal, we noted that “[w]hen a plaintiff does not discover and avoid an obvious defect, that plaintiff will usually be considered to have been contributorially negligent as a matter of law.” Id. at 343, 691 S.E.2d at 95 (quoting Price v. Jack Eckerd Corporation, 100 N.C.App. 732, 736, 398 S.E.2d 49, 52 (1990)). We further noted that
It is well settled that a person is contributorily negligent if he or she knows of a dangerous condition and voluntarily goes into a place of danger. Dunnevant v. R.R., 167 N.C. 232, 232, 83 S.E. 347, 348 (1914); Gordon v. Sprott, 231 N.C. 472, 476, 57 S.E.2d 785, 785 (1950); Cook v. Winston–Salem, 241 N.C. 422, 430, 85 S.E.2d 696, 701–02 (1955). In other words, “[w]hen an invitee sees an obstacle not hidden or concealed and proceeds with full knowledge and awareness, there can be no recovery.” Wyrick v. K–Mart Apparel Fashions, 93 N.C.App. 508, 509, 378 S.E.2d 435, 436 (1989).
Id. at 343, 691 S.E.2d at 95–96. We concluded that plaintiff's decedent, who had frequented the shopping center on numerous occasions in the past and was familiar with it, “presented no evidence that the curb or route to the entrance was obstructed or hidden in any way, or that her attention was diverted by a condition on the premises. As a result, we conclude that there is no evidence forecast under which plaintiff could overcome the defense of contributory negligence.” Id. at 344, 691 S.E.2d at 96. We affirmed the grant of summary judgment in favor of defendant. Id.
In the instant case, plaintiff had resided on the property “[f]rom at least prior to September 4, 2007” until the date that she fell, 26 April 2008. She was aware of the risk of pooling water, having discussed it with her father “[p]rior to April 26, 2008[.]” On 26 April 2008, plaintiff was returning to the apartment, “carrying [her] toddler and had an umbrella in the other hand because it was raining outside.” She saw water pooled on the breezeway, and knowingly stepped into it, slipping and falling. No evidence was presented that the area “was obstructed or hidden in any way, or that her attention was diverted by a condition on the premises.” Id. at 334, 691 S.E.2d at 96. Plaintiff forecast no evidence under which she could overcome defendants' defense of contributory negligence.
“In this state, a plaintiff's right to recover in a personal injury action is barred upon a finding of contributory negligence.” Cobo v. Raba, 347 N.C. 541, 545, 495 S.E.2d 362, 365 (1998) (citing Brewer v. Harris, 279 N.C. 288, 298, 182 S.E.2d 345, 350 (1971)). Even assuming arguendo that defendants had notice of the hazard, plaintiff was contributorily negligent as a matter of law, barring her recovery. We therefore affirm the grant of summary judgment in favor of defendants.
AFFIRMED. Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).