Opinion
No. COA14–590.
02-03-2015
Carol OLATOYE, Plaintiff, v. BURLINGTON COAT FACTORY WAREHOUSE CORPORATION, Burlington Coat Factory of North Carolina, LLC and Burlington Coat Factory Direct Corporation, Defendants.
Kurt L. Dixon for plaintiff-appellant. Hedrick Gardner Kincheloe & Garofalo, LLP, by James R. Baker and Josh D. Neighbors, for defendants-appellees.
Kurt L. Dixon for plaintiff-appellant.
Hedrick Gardner Kincheloe & Garofalo, LLP, by James R. Baker and Josh D. Neighbors, for defendants-appellees.
STEELMAN, Judge.
Where genuine issues of material fact existed as to defendants' negligence concerning the presence of a brown substance on the floor of defendants' store and as to whether plaintiff was contributorily negligent, the trial court erred in entering summary judgment in favor of defendants. Where no genuine issues of material fact existed with regard to the coat hanger on the floor, the trial court's summary judgment order is affirmed.
I. Factual and Procedural Background
On 24 December 2010, the Burlington Coat Factory store on Roxboro Road in Durham opened at approximately 7:00 a.m., at which time employee Sheila Laughinghouse (Laughinghouse) discovered a brownish, sticky substance on a tile walkway in the store. At approximately 9:30 a.m., Carol Olatoye (plaintiff), entered the store with her friend Brittany Brown (Brown). As they shopped, Brown directed plaintiff's attention towards the men's department. Plaintiff then stepped on a plastic hanger that was in the walkway, and lost her balance. As she tried to regain her balance, she stepped in the brownish sticky substance that Laughinghouse had observed earlier, and fell to the floor.
On 5 November 2012, plaintiff brought an action against Burlington Coat Factory Warehouse Corporation, Burlington Coat Factory of North Carolina, LLC, and Burlington Coat Factory Direct Corporation (collectively, defendants), owners of the Burlington Coat Factory store on Roxboro Road in Durham. Plaintiff alleged that defendants had notice of, or in the exercise of reasonable care should have known of, the hanger and the brownish sticky substance on the tile walkway; that defendants had a duty to remove these unsafe conditions; that defendants' failure to remove these unsafe conditions was the proximate cause of plaintiff's fall; and that plaintiff suffered injury as a result of defendants' negligence. Plaintiff sought compensatory damages in excess of $10,000. On 26 February 2013, defendants filed an answer that raised the affirmative defense of contributory negligence.
On 21 January 2014, defendants filed a motion for summary judgment. On 17 February 2014, the trial court granted summary judgment in favor of defendants, and dismissed plaintiff's complaint.
Plaintiff appeals.
II. Summary Judgment
In her sole argument on appeal, plaintiff contends that the trial court erred in entering summary judgment in favor of defendants. We agree in part.
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) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) ).
B. Analysis
Plaintiff contends that there were genuine issues of material fact as to (1) whether the brownish sticky substance on the floor was a cause of plaintiff's injury, and (2) whether defendants had actual notice of the brownish sticky substance. Defendants contend that (1) plaintiff has forecast no evidence that defendants created or were aware of the hanger on the floor or had constructive notice of the hanger, and (2) plaintiff was distracted before her fall, failed to observe the brownish sticky substance as an obvious condition, and was therefore contributorily negligent.
The issues in this case are (1) whether defendants had actual or constructive notice of a hazard or hazards, (2) whether the hazard or hazards proximately caused plaintiff's injury, and (3) whether plaintiff was contributorily negligent.
“Negligence is ... rarely an issue appropriate for disposition by summary judgment. Where diverse inferences can be drawn the question of negligence is for the trier of fact.” Ballenger v. Crowell, 38 N.C.App. 50, 54, 247 S.E.2d 287, 291 (1978) (citing Olan Mills, Inc. v. Terminal, Inc., 273 N.C. 519, 160 S.E.2d 735 (1968) ); see also Page v. Sloan, 281 N.C. 697, 706, 190 S.E.2d 189, 194 (1972) (holding that “issues of negligence ... are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner”); Nicholson v. Am. Safety Util. Corp., 346 N.C. 767, 774, 488 S.E.2d 240, 244 (1997) (holding that “[i]ssues of contributory negligence, like those of ordinary negligence, are ordinarily questions for the jury and are rarely appropriate for summary judgment”).
With regard to defendants' notice of the brown sticky substance, Laughinghouse's deposition demonstrates that, as a store employee, she was aware of the substance prior to the opening of the store. This evidence shows that, as a matter of law, defendants had notice of the brownish sticky substance. We hold that summary judgment was appropriately granted with regard to the issue of whether defendants had notice of the brownish sticky substance.
With regard to proximate cause, certain facts are undisputed. It is not disputed that defendants knew of the brownish sticky substance, that the substance had been in place since the store's opening, that defendants did nothing to remedy the hazard posed by the substance, and that the substance was a contributing factor to plaintiff's fall and subsequent injury. These undisputed facts create a genuine issue of material fact as to the cause of plaintiff's fall, and we hold that that summary judgment was inappropriate as to the issue of causation.
With regard to contributory negligence, defendants contend that plaintiff's failure to pay attention to the obvious hazard of the brownish sticky substance caused her fall.
When 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. 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.”
Nourse v. Food Lion, Inc., 127 N.C.App. 235, 241, 488 S.E.2d 608, 613 (1997)aff'd per curiam,347 N.C. 666, 496 S.E.2d 379 (1998) (quoting Price v. Jack Eckerd Corp., 100 N.C.App. 732, 736, 398 S.E.2d 49, 52 (1990) ). In the instant case, the record contains both plaintiff's affidavit and her deposition testimony. In her affidavit, dated 28 January 2014, plaintiff stated:
As Brittany and I were passing the shoe department on our right and the men's clothes department on our left, Brittany asked me if I wanted to buy some pants from the men's department and pointed to a specific area in the men's department. I looked to my left in the men's department and after taking a few more steps, my left foot landed on a plastic hanger that was on the tile walkway. My left foot slid backward on the hanger as I attempted to push off with that foot to take another step. As I was trying to regain my balance, I slid my right foot forward and hit a brown, sticky substance on the tile floor that prevented me from moving my right foot forward which caused me to fall to the tile floor.
In her deposition, however, dated 14 January 2014, plaintiff stated:
Q: ... Did anything prevent or distract you from looking at the floor as you walked down the aisle?
A: No. I was just walking like I normally do when I'm shopping and looking, looking around.
...
Q: So is it fair to say then on December 24th, 2010, when you were in the Burlington Coat Factory, you were not paying attention to the floor?
A: I was not paying attention to the floor. I was looking around.
...
Q: ... [A]s you were walking down the hall, you weren't looking at what was immediately in front of you on the floor, is that right?
A: No. I was looking in the men's department and in the shoe department. I was not looking at the floor.
...
Q: ... [O]nce you were actually walking down that tile aisle, did you take any opportunity to look and still make sure that the floor was clear a couple steps ahead of you?
A: No. I was looking around.
...
Q: ... And did anything prevent you from occasionally looking at the floor as you walked down the aisle?
A: No. Nothing prevented me from looking. No. Just browsing around the store. Just looking.
We have previously held that “a party opposing a motion for summary judgment cannot create a genuine issue of material fact by filing an affidavit contradicting his prior sworn testimony.” Johnson v. Crossroads Ford, Inc.,––– N.C.App. ––––, ––––, 749 S.E.2d 102, 106, disc. review denied,––– N.C. ––––, 752 S.E.2d 471 (2013) (citations omitted). In the instant case, plaintiff's sworn deposition testimony stated that nothing distracted her, or prevented her from looking where she was going. Plaintiff's affidavit, which was filed two weeks later, stated that she was distracted by her friend. On appeal, plaintiff contends that this affidavit created a genuine issue of material fact. We hold that the affidavit, which contradicts plaintiff's sworn deposition testimony that she was not distracted, cannot be used to create a genuine issue of material fact.
Even accepting, however, that plaintiff could not create a genuine issue of material fact with respect to whether she was distracted, a genuine issue of material fact still exists. Our Supreme Court held in Norwood v. Sherwin Williams:
The basic issue with respect to contributory negligence is whether the evidence shows that, as a matter of law, plaintiff failed to keep a proper lookout for her own safety. The question is not whether a reasonably prudent person would have seen the platform had he or she looked but whether a person using ordinary care for his or her own safety under similar circumstances would have looked down at the floor.
Norwood v. Sherwin–Williams Co., 303 N.C. 462, 468, 279 S.E.2d 559, 563 (1981) (emphasis added) abrogated on other grounds by Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998). Although no genuine issue of material fact exists as to whether plaintiff was distracted, there is still a genuine issue of material fact as to whether plaintiff's failure to look at the floor constituted negligence. As stated previously, where diverse inferences can be drawn, the question is properly for the trier of fact, not for summary judgment. Ballenger, 38 N.C.App. at 54, 247 S.E.2d at 291. Because it could not be determined from the facts presented on summary judgment whether plaintiff's failure to look where she was going was negligent as a matter of law, we hold that the issue of contributory negligence was inappropriate for summary judgment in the instant case.
III. Coat Hanger
We note that the materials before the trial court on summary judgment do not raise a genuine issue of material fact concerning defendants' knowledge of the coat hanger. On summary judgment, plaintiff had the burden of showing the elements of negligence with respect to the coat hanger; namely, that (1) defendants knew or should have known of the presence of the hanger, (2) that defendants failed to act to rectify that hazard, (3) that their failure to act caused plaintiff's injury, and (4) that this failure resulted in damages. Plaintiff forecast no evidence as to how long the hanger had been present on the floor, or whether defendants had any knowledge or duty with respect to the hanger. In the absence of such evidence, forecast or provided at the summary judgment stage, the trial court's summary judgment must be affirmed.
IV. Conclusion
With respect to the brownish sticky substance, genuine issues of material fact remain as to its role in the causation of plaintiff's injuries, and whether plaintiff was contributorily negligent. We vacate summary judgment with respect to those issues, and remand to the trial court for trial before a jury. With respect to the coat hanger, specifically its role in causation and whether defendant had knowledge of the hazard it posed, we hold that no issue of genuine material fact exists, and affirm the trial court's summary judgment order.
VACATED AND REMANDED IN PART, AFFIRMED IN PART.
Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).
Opinion
Appeal by plaintiff from order entered 17 February 2014 by Judge W. Osmond Smith, III in Durham County Superior Court. Heard in the Court of Appeals 22 October 2014.