Opinion
No. COA11–1192.
2012-05-1
Mae B. STEPHENSON, Plaintiff, v. TIME WARNER CABLE INC., Carolina Telephone and Telegraph Company LLC and John Doe One through John Doe Ten, Defendants.
Dean A. Shangler for plaintiff. Brown, Crump, Vanore & Tierney, L.L.P., by O. Craig Tierney, Jr., for defendant Time Warner Cable Inc.
Appeal by plaintiff from order entered 22 December 2010 by Judge Carl R. Fox in Orange County Superior Court. Heard in the Court of Appeals 23 February 2012. Dean A. Shangler for plaintiff. Brown, Crump, Vanore & Tierney, L.L.P., by O. Craig Tierney, Jr., for defendant Time Warner Cable Inc.
Cranfill Sumner & Hartzog LLP, by F. Marshall Wall, for defendant Carolina Telephone and Telegraph Company, LLC.
ELMORE, Judge.
Mae B. Stephenson (plaintiff) appeals from an order of summary judgment entered in favor of Time Warner Cable Inc. and Carolina Telephone and Telegraph Company, LLC (together, defendants). After careful review, we affirm.
In July 2008, plaintiff lived in a mobile home with her adult daughter, Linda. Plaintiff testified that Linda is disabled and cannot care for herself because she suffers from migraines, blocked carotid arteries, degenerative disc disease, and depression. On 10 July 2008, plaintiff returned to her home around 4 p.m. and found Linda lying on her bed in the hot trailer; plaintiff testified that the temperature inside the trailer felt like 95 or 100 degrees. Before calling an air conditioning repair person, she decided to check the circuit breaker because resetting the breaker had resolved the air conditioning problem in the past.
The breaker box was attached to a utility pole in her yard near the back corner of her trailer. A tangle of wires lay at the base of the pole, including wires owned and maintained by defendants. Defendants do not dispute that these cable and telephone lines should have been buried. Plaintiff walked through the tangle of wires to the breaker box, pushing them aside with her foot as she went. She testified that she moved carefully so that she would not trip; she also testified that she had walked through them to access the breaker box each Christmas and had even caught her foot in the wires once. After flipping the breaker, plaintiff retraced her steps but this time caught her foot on one of the wires and fell, face-first, to the ground. As a result of this fall, plaintiff broke her neck in two places. After her fall, she looked to see whose wire she had tripped over, but she could not tell. Plaintiff then sued defendants for negligence.
Defendants moved for summary judgment, which the trial court granted. Plaintiff now appeals, arguing that the trial court erred by granting defendants' motion for summary judgment. We disagree.
“The standard of review for summary judgment is de novo.” Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) (citation omitted). “Summary judgment is appropriate if ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.’ “ Id. at 523–24, 649 S.E.2d at 385 (quoting N.C. Gen.Stat. § 1A–1, Rule 56(c)).
In deciding a motion for summary judgment, a trial court must consider the evidence in the light most favorable to the non-moving party. If there is any evidence of a genuine issue of material fact, a motion for summary judgment should be denied. The moving party bears the burden of showing that no triable issue of fact exists. This burden can be met by proving: (1) that an essential element of the non-moving party's claim is nonexistent; (2) that discovery indicates the non-moving party cannot produce evidence to support an essential element of his claim; or (3) that the nonmoving party cannot surmount an affirmative defense which would bar the claim. Once the moving party has met its burden, the nonmoving party must forecast evidence that demonstrates the existence of a prima facie case.
Azar v. Presbyterian Hosp., 191 N.C.App. 367, 370, 663 S.E.2d 450, 452 (2008) (citations omitted).
“[T]he essential elements of negligence [are] duty, breach of duty, proximate cause, and damages.” Cameron v. Merisel Props., Inc., 187 N.C.App. 40, 44, 652 S.E.2d 660, 664 (2007) (quotations and citation omitted; alteration in original). Here, defendants only challenged causation, first arguing that plaintiff was contributorily negligent.
[S]ummary judgment is rarely appropriate in the context of negligence; the trial court will grant summary judgment ... 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. In a case dealing with a plaintiff's injury from slipping and falling[, t] he 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.
North Carolina landowners ... are required to exercise reasonable care to provide for the safety of all lawful visitors on their property.
Kelly v. Regency Ctrs. Corp., 203 N.C.App. 339, 342–43, 691 S .E.2d 92, 95 (2010) (quotations and citations omitted). However, in the case of a utility easement, the owner of the easement bears the duty of keeping it in good repair, not the owner of the servient tenement; the owner of the easement is liable for injuries caused by a failure to properly maintain the easement. Green v. Duke Power Co., 305 N.C. 603, 611, 290 S.E.2d 593, 598 (1982). Therefore, in our analysis, we treat defendants as the “landowners” rather than plaintiff, whom we treat as a lawful visitor.
Whether a landowner's care is reasonable is judged against the conduct of a reasonably prudent person under the circumstances. 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.
* * *
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. 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.
* * *
A landowner need not warn of any apparent hazards or circumstances of which the invitee has equal or superior knowledge. Rather, [a] reasonable person should be observant to avoid injury from a known and obvious danger.
Kelly, 203 N.C.App. at 342–44, 691 S.E.2d at 95–96 (quotations and citations omitted).
Here, plaintiff had equal or superior knowledge of the danger posed by defendants' wires. She knew that they were there, she saw them, and she took particular care when walking through them, pushing the wires aside with her foot as she went. Moreover, plaintiff had prior experience with the wires; she had walked through them multiple times to access the breaker box at Christmastime, and she had even been caught in the wires before. Thus, by her own testimony, she knew of the dangerous condition and yet voluntarily walked through it. Accordingly, she was contributorily negligent and cannot recover as a matter of law.
We conclude that summary judgment was appropriate and affirm the order of the trial court.
Affirmed. Judges STEELMAN and STROUD concur.
Report per Rule 30(e).