Newsom v. Byrnes

ARNOLD, Chief Judge. Plaintiffs’ only assignment of error is that the trial court erred in granting summary judgment in favor of defendant. Plaintiffs maintain that there was sufficient evidence of defendant’s negligence and sufficient evidence on the lack of plaintiff’s contributory negligence to submit to the jury. We disagree. Plaintiffs were invitees in the case at bar because their purpose for entering defendant’s property was to purchase the camper. Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979). Under North Carolina law, as owner of the premises, defendant owed to plaintiffs as invitees the duty to exercise ordinary care to keep the property in a reasonably safe condition, and to warn them of hidden or concealed dangers of which he had knowledge, express or implied. Norwood v. Sherwin-Williams Co., 303 N.C. 462, 279 S.E.2d 559 (1981) (citing Long v. Methodist Home for Aged, Inc., 281 N.C. 137, 187 S.E.2d 718 (1972); Wrenn v. Hillcrest Convalescent Home, Inc., 270 N.C. 447, 154 S.E.2d 483 (1967)). However, it is also the law in this State that there is “no duty to warn an invitee 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.” Branks v. Kern, 320 N.C. 621, 624, 359 S.E.2d 780, 782 (1987). Defendant’s burden, therefore, is to show that one of the following essential elements of plaintiffs’ claim *789 is nonexistent: (1) the area in which plaintiff was injured was not in a reasonably safe condition for its contemplated use, or (2) defendant knew or should have known of the unsafe condition. Pulley v. Rex Hospital, 326 N.C. 701, 392 S.E.2d 380 (1990). “Further, [plaintiff] may not recover if she knew of the unsafe condition or if it should have been obvious to any ordinary person under the circumstances existing at the time she was injured.” Id. at 705, 392 S.E.2d at 383. Both plaintiffs and defendant cite to several factually similar slip and fall cases. Evans v. Batten, 262 N.C. 601, 138 S.E.2d 213 (1964) (per curiam) (indenture in walkway); Spell v. Contractors, 261 N.C. 589, 135 S.E.2d 544 (1964) (dirt-filled ditch); Falatovitch v. Clinton, 259 N.C. 58, 129 S.E.2d 598 (1963) (per curiam) (hole in sidewalk filled with dirt and trash); Smith v. Hickory, 252 N.C. 316, 113 S.E.2d 557 (1960) (hole in sidewalk); Fanelty v. Jewlers, 230 N.C. 694, 55 S.E.2d 493 (1949) (terrazzo entryway); cf. Lamm v. Bissette Realty, 327 N.C. 412, 395 S.E.2d 112 (1990) (uneven risers and no handrails); Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979) (concrete step-up from parking lot); Rone v. Byrd Food Stores, 109 N.C. App. 666, 428 S.E.2d 284 (1993) (wet floor); Barnes v. Wilson Hardware Co., 77 N.C. App. 773, 336 S.E.2d 457 (1985) (lack of handrail); Green v. Wellons, Inc., 52 N.C. App. 529, 279 S.E.2d 37 (1981) (cracks on sidewalk). In light of these cases and under the principles stated above, summary judgment in favor of defendant was appropriate. Plaintiffs allege that defendant had knowledge that there was little or no gravel present at the point of the incline where Mrs. Newsom fell, and that as a result defendant knew that the incline would be slippery when wet, yet he failed to warn plaintiffs of this danger. Plaintiffs base their allegations on the following facts: defendant knew that there was no gravel on the sloped portion of the drive; that it had rained three hours before plaintiff arrived; that the drive would be slippery without gravel; that the drive was steeper than other drives he had excavated; that the drive was the only path from the street to the camper; that the upper graveled portion of the drive created a false sense of security; that leaves covered the drive; that no irregularities existed to heighten one’s state of awareness; that he failed to warn plaintiffs of the danger presented by the unexpected ending of the layer of gravel. *790 Although plaintiffs’ evidence shows that Mrs. Newsom’s ankle twisted as a result of stepping in gray clay, “the mere existence of a condition which causes an injury is not negligence per se, and the occurrence of the injury does not raise a presumption of negligence.” Spell v. Contractors, 261 N.C. at 592, 135 S.E.2d at 547. A landowner is not an absolute insurer as to the safety of his invitees. Graves v. Order of Elks, 268 N.C. 356, 150 S.E.2d 522 (1966) (per curiam). Defendant’s evidence shows that the area in which Mrs. Newsom fell was in a reasonably safe condition for its contemplated use. The contemplated use of the graveled driveway was for trucks, primarily hauling construction materials, to access the house being built on defendant’s property without getting stuck. Plaintiffs offer no evidence to rebut that the area in which Mrs. Newsom fell was in a reasonably safe condition for this purpose. Furthermore, even if the condition of the driveway had been rendered unsafe under the circumstances, plaintiffs knew of the unsafe condition, or it should have been obvious to any ordinary person under the circumstances at the time of the injury that the wet and muddy incline partially covered with leaves would be slippery and potentially dangerous. Mrs. Newsom and her husband were aware that the driveway was unfinished and had been cut through with a bulldozer. The site was partially covered with leaves, but no obstructions such as rocks or branches existed. Defendant testified in his deposition that the moisture on the ground from the rain was obvious. Also, Mrs. Newsom admitted in her deposition that she did not want to get her tennis shoes muddy, thereby showing that she knew the ground was wet. Certainly, if a slight depression or uneven and irregular walkways, sidewalks and streets have been held to be conditions so obvious as to negate a landowner’s duty to warn, see generally, Evans v. Batten, 262 N.C. 601, 138 S.E.2d 213, an incline covered with wet leaves and mud would be obvious to an ordinary and prudent invitee. Thus, defendant was not bound to warn plaintiff of an obvious danger. See Spell v. Contractors, 261 N.C. 589, 135 S.E.2d 544. Although summary judgment in a negligence action is appropriate only in exceptional cases, the facts warrant summary judgment in the case at bar. Gladstein v. South Square Assoc., 39 N.C. App. 171, 249 S.E.2d 827 (1978), disc. review denied, 296 N.C. 736, 254 S.E.2d 178 (1979). The order of the trial court is Affirmed. Judges WYNN and MARTIN concur.