Opinion
No. COA10-561
Filed 5 April 2011
Appeal by plaintiff from order entered 3 February 2010 by Judge Edwin G. Wilson, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 27 October 2010.
Jay Gervasi, P.A., by Jay A. Gervasi, Jr., for plaintiff-appellant. Gregory A. Wendling, for defendant-appellees.
Guilford County No. 09 CVS 7216.
Oradgneal Taylor, II ("plaintiff"), appeals the trial court's order granting Mark Frederick Sandbank's ("Mr. Sandbank") and Mary Ellen Van Hout Sandbank's ("Mrs. Sandbank") (collectively, "defendants") motion for summary judgment. We reverse.
Mr. Sandbank is also known as Mark Fredric Sandbank.
I. BACKGROUND
On 7 July 2003, plaintiff was employed as an exterminator for Terminix. He visited defendants' home sometime between 10:00 a.m. and noon that day to provide pest control treatment services. As plaintiff walked around the perimeter of the home observing areas that needed treatment, he observed an area in the left rear corner of the home that needed treatment for ant infestation. In order to apply a gel-type ant bait to the exterior wall of the home, plaintiff stood approximately one arm's-length from the wall of the home. Plaintiff stood in the same location for between twenty seconds and three minutes when suddenly and without warning, "the ground gave way" and a sheet of plywood broke. As a result, plaintiff fell three to four feet onto a recessed stairwell that led to a below-grade doorway and sustained injuries to his ankle.
On 30 June 2006, plaintiff filed a complaint in Guilford County Superior Court alleging negligence on the part of defendants. Defendants answered, denied negligence, and moved for summary judgment. The court denied defendants' motion on 29 November 2007.
On 23 May 2008, plaintiff filed a voluntary dismissal without prejudice, and refiled a substantially identical complaint on 15 May 2009. Defendants answered and filed a motion for summary judgment on 29 December 2009. Following a hearing, the trial court determined there were no genuine issues of material fact regarding plaintiff's claims and granted defendants' motion for summary judgment on 3 February 2010. Plaintiff appeals.
II. SUMMARY JUDGMENT
Plaintiff argues that the trial court erred in granting defendants' motion for summary judgment. We agree.
A. Standard of Review
Summary judgment "shall be rendered forthwith 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." N.C. Gen. Stat. `1A-1, Rule 56(c) (2008).
"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. When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party. If the movant demonstrates the absence of a genuine issue of material fact, the burden shifts to the nonmovant to present specific facts which establish the presence of a genuine factual dispute for trial."
Metcalf v. Black Dog Realty, LLC, ___ N.C. App. ___, ___, 684 S.E.2d 709, 717 (2009) (quoting In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)).
B. Premises Liability
Plaintiff contends that the trial court erred in granting summary judgment because there is a genuine issue of material fact that defendants breached their duty of care to plaintiff by failing to exercise due care regarding the condition of their premises. "Plaintiff['s] claim for premises liability was based upon allegations of negligence. . . . It is well established that . . . the essential elements of negligence are duty, breach of duty, proximate cause, and damages." Cameron v. Merisel Props., 187 N.C. App. 40, 44, 652 S.E.2d 660, 664 (2007) (internal quotations, citations, and brackets omitted).
Our Supreme Court has held that landowners owe a duty to exercise reasonable care in the maintenance of their premises to all lawful visitors. Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998), reh'g denied, 350 N.C. 108, 533 S.E.2d 467 (1999). The Court in Nelson also eliminated the distinction between licensees and business invitees for the purposes of premises liability and instead imposed a duty on landowners to exercise reasonable care to all lawful visitors. Landowners have a duty to maintain their premises in a reasonably safe condition for their intended use. Pulley v. Rex Hospital, 326 N.C. 701, 392 S.E.2d 380 (1990).
Keller v. Willow Springs Long Term Care Facil., Inc., 144 N.C. App. 433, 436, 548 S.E.2d 761, 763 (2001). "Whether a landowner's care is reasonable is judged against the conduct of a reasonably prudent person under the circumstances." John Walter Kelly v. Regency Ctrs. Corp., ___ N.C. App. ___, ___, 691 S.E.2d 92, 95 (2010).
In the instant case, there is no dispute that plaintiff was injured on defendants' premises or that the proximate cause of his injury was a result of falling three to four feet onto a recessed stairwell. There is also no dispute that plaintiff was a lawful visitor because as an exterminator for Terminix, he was hired to perform pest-control services on defendants' property, and that the day of the incident was the first time plaintiff had ever been to defendants' home. Since this was plaintiff's first visit, he was unfamiliar with defendants' residence. The issue in the instant case is whether defendants were negligent in failing to exercise reasonable care in the maintenance of their premises.
Defendants generally owed plaintiff a duty to warn him of a dangerous condition on their premises unless it was an open and obvious danger on their property which a person of ordinary intelligence, using his eyes in an ordinary manner, would have seen. Benton v. Building Co., 223 N.C. 809, 813, 28 S.E.2d 491, 493 (1944).
If the condition was open and obvious, or plaintiff had equal or superior knowledge of the dangerous condition, defendants had no duty to warn him. See Newsom v. Byrnes, 114 N.C. App. 787, 788, 443 S.E.2d 365, 367 (1994)("[I]t is . . . the law in this State that there is no duty to warn a[] [lawful visitor] of a hazard obvious to any ordinarily intelligent person using [her] eyes in an ordinary manner, or one of which the plaintiff had equal or superior knowledge.'" (quoting Branks v. Kern, 320 N.C. 621, 624, 359 S.E.2d 780, 782 (1987))). Since the undisputed evidence is that defendants had superior knowledge of their property, we examine only if the evidence established that the plywood was an open and obvious danger as a matter of law. See Nelson v. Novant Health Triad Region, 159 N.C. App. 440, 444, 583 S.E.2d 415, 418 (2003)("Summary judgment is only appropriate based on an open and obvious' condition when the plaintiff has a more intimate knowledge of the dangerous condition than the property owner, or the plaintiff would have noticed the dangerous condition if she had exercised proper care.").
Mr. Sandbank stated in his answers to interrogatories that some time prior to 7 July 2003, he purchased plywood. He placed two pieces of four-foot-by-eight-foot weather-treated plywood, measuring 3/4 inch in width, over the recessed stairwell to cover the below-grade doorway from rain. Mr. Sandbank described in great detail the procedure he used to place the plywood over the stairwell and doorway.
Mr. Sandbank was unsure of the exact age of the pieces of plywood, how much weight the pieces of plywood could hold, or how long they could "resist the elements" before they deteriorated. Mr. Sandbank admitted that he periodically mowed his lawn, including the area next to the plywood.
Plaintiff testified in his deposition that on 7 July 2003, he walked around the exterior of defendants' home and visually inspected the perimeter. Plaintiff further testified that before he applied the gel bait, he looked at the ground where he walked before walking on it, but did not notice there was a doorway present at the location of the recessed stairwell and a sidewalk that ran parallel to the rear wall of the home. Plaintiff also testified that it was only after he fell that he realized he was previously standing on plywood because right before he fell, he thought he was standing on the "normal part of the ground."
During plaintiff's deposition, he viewed Exhibit 1, a photograph of the rear side of the home that was taken 7 October 2003. Exhibit 1 shows the home, the piece of plywood, the door, and the sidewalk. Plaintiff stated that the plywood was completely covered with "leaves, grass, and everything" and disputed that the sidewalk and piece of plywood were clearly visible. Plaintiff's testimony and Exhibit 1 present genuine issues of material fact as to whether the condition that plaintiff characterized as a dangerous condition was visible, open and obvious or whether the condition was dangerous because it was not visible, open or obvious; whether plaintiff should have seen the condition; and whether defendants should have warned plaintiff since it was his first visit to their property.
We conclude that defendants failed to meet their burden of demonstrating the absence of material issues of fact on the question of whether defendants failed to use reasonable care in the maintenance of their premises since they had knowledge whether the condition was open and obvious, whether defendants owed plaintiff a duty to notify him of the dangerous condition since it was not open and obvious, and defendants were more familiar with the dangerous condition than plaintiff. Therefore, summary judgment on this basis would be inappropriate. See Novant Health, 159 N.C. App. at 444, 583 S.E.2d at 418 (holding summary judgment inappropriate where plaintiff stated she was "not aware of the slippery condition of the floor and, even if she had looked at her feet, the film of water on the shiny linoleum floor would have been impossible to see" and that "[t]herefore, the dangerous condition was not open and obvious as a matter of law").
C. Contributory Negligence
However, defendants argue that the trial court properly granted summary judgment because even if the condition was not open and obvious, plaintiff was contributorily negligent in that he voluntarily and knowingly encountered the condition even though he should have been aware of it and should have taken reasonable care for his own safety. Since the trial court's order granting defendants' motion for summary judgment did not state whether the motion was granted based on the issue of duty or contributory negligence, we address the issue of contributory negligence.
"The standard by which contributory negligence is judged is that of a reasonable person." Novant Health, 159 N.C. App. at 445, 583 S.E.2d at 418.
Any discussion of contributory negligence in a premises liability case must begin with Martishius v. Carolco Studios, Inc., 355 N.C. 465, 467, 562 S.E.2d 887, 890 (2002), in which . . . the Supreme Court observed: "The existence of contributory negligence is ordinarily a question for the jury; such an issue is rarely appropriate for summary judgment, and only where the evidence establishes a plaintiff's negligence so clearly that no other reasonable conclusion may be reached." Id. at 479, 562 S.E.2d at 896. The Court "acknowledge[d] the general rule that a person has a legal duty to avoid open and obvious dangers, including contact with [a hazard] he or she knows to be dangerous," but emphasized that this rule "`does not mean . . . that a person is guilty of contributory negligence as a matter of law if he contacts a known [hazard] regardless of the circumstances and regardless of any precautions he may have taken to avoid the mishap[.]'" Id. at 479-80, 562 S.E.2d at 896 (emphasis added) (internal citations omitted) (quoting Williams v. Carolina Power Light Co., 296 N.C. 400, 404, 250 S.E.2d 255, 258 (1979)).
Tyburski v. Stewart, ___ N.C. App. ___, ___, 694 S.E.2d 422, 424-25 (2010). "`[W]here 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." Price v. Jack Eckerd Corporation, 100 N.C. App. 732, 736, 398 S.E.2d 49, 52 (1990) (internal quotations and citations omitted). "The question is not whether a reasonably prudent person would have seen the [hazard] 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 [ground where the hazard existed]." Norwood v. Sherwin-Williams Co., 303 N.C. 462, 468, 279 S.E.2d 559, 563 (1981), overruled in part by Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998). "Consequently, the question before us is whether, considering all of the circumstances and any precautions taken by plaintiff, a reasonable person would have acted as plaintiff did." Tyburski, ___ N.C. App. at ___, 694 S.E.2d at 425. See also Nourse v. Food Lion, Inc., 127 N.C. App. 235, 242, 488 S.E.2d 608, 613 (1997) (reversing grant of summary judgment to the defendant based on contributory negligence because "even assuming the plaintiff would have seen the grapes and water on the floor had she looked, a jury question is presented as to whether a reasonably prudent person would have looked down at the floor as she was shopping in the grocery store"); Kremer v. Food Lion, Inc., 102 N.C. App. 291, 295, 401 S.E.2d 837, 839 (1991) (holding that the trial court properly denied directed verdict based on contributory negligence when the plaintiff tripped over dog food bags on store's floor because "in such cases the issue of contributory negligence is not whether the reasonably prudent person would have seen the object had he looked, but whether a person using ordinary care for his or her own safety under similar circumstances would have looked down at the floor" rather than looking ahead where the plaintiff was going).
In the instant case, while plaintiff had a duty to avoid open and obvious dangers, plaintiff's deposition testimony and defendants' answers to interrogatories are substantial evidence that there is a genuine issue of material fact as to whether the plywood was an open and obvious danger. Further, the leaves, dirt, and lawn debris covering and surrounding the plywood, combined with plaintiff's attentiveness to applying ant bait to an insect-infested area on the exterior of the home, could have diverted the attention of a reasonable person using ordinary care from looking at the location of the hazard or discovering or seeing the hazard.
Moreover, as plaintiff explained in his deposition, he walked around the home and observed the perimeter of the home before he applied the ant bait. Plaintiff testified that he did not see the plywood either during his visual inspection or while applying the ant bait. Considering all of the circumstances and the precautions taken by plaintiff, a reasonable person using ordinary care for his safety under similar circumstances may not have looked in the location of the hazard. "[T]hese circumstances, when considered together, are such that more than one reasonable inference may be drawn therefrom." Dennis v. Albemarle, 242 N.C. 263, 268-69, 87 S.E.2d 561, 566 (1955). Therefore, there is a genuine issue of material fact as to whether plaintiff was contributorily negligent. "We believe . . . that the better view is to allow the jury to decide whether a person of ordinary prudence would have forgotten or would have been inattentive to the unsafe condition because of the surrounding circumstances." Baker v. Duhan, 75 N.C. App. 191, 193, 330 S.E.2d 53, 54-55 (1985).
III. CONCLUSION
Based on the evidence, we hold that there are genuine issues of material fact regarding whether defendants breached a duty of care to plaintiff and if they did, whether plaintiff was contributorily negligent. Therefore, the trial court improperly granted defendants' motion for summary judgment. The trial court's order granting defendants' motion for summary judgment must be reversed.
Reversed.
Judges HUNTER, Robert C., and GEER concur.
Report per Rule 30(e).