Roumillat v. Simplistic Enterprises, Inc.

GREENE, Judge. Plaintiff, Jo Ann Roumillat, filed this negligence action against defendant, Simplistic Enterprises, Inc., d/b/a Bojangles Famous Chicken N’ Biscuits, on 18 August 1989. Plaintiff appeals from an order for summary judgment in favor of defendant, filed on 23 July 1990. Included in the evidence before the trial court at the summary judgment hearing was plaintiff’s complaint which alleges in pertinent part: That on or about the 21st day of December, 1987, at or about 8:15 o’clock p.m., the Plaintiff, her husband and son were leaving the Defendant’s restaurant on the South side; Plaintiff then preceded [sic] to cross with her family the drive thru lane and stepping [sic] up on the small traffic island; then Plaintiff stepped off the small traffic island into an open parking space taking two or three steps when her left foot slipped and she fell on her right knee severely injuring it; the parking lot upon which Plaintiff was walking was made of asphalt and has a sloping grade such that customers and patrons after stepping down off the small traffic island (adjacent to the drive thru lane) walk on a downward slope to their automobiles; that Plaintiff’s left foot slipped on a slick, greasy substance and other debris which remained on the open parking space which she was crossing when she fell; there were no warning signs or barriers preventing pedestrians or patrons from entering onto the parking area; and that the Defendants, acting by and through their agents or employees knew, or should have known of the dangerous condition existing on their said parking lot hereinabove referred. [Emphasis added.] Also before the trial court at the summary judgment hearing was plaintiff’s deposition. Regarding the parking lot, plaintiff stated in her deposition that “[i]t slopes.” She further stated that it “wasn’t a very clean area.” Regarding the grease in the parking lot, plaintiff described it as “[a]utomobile grease.” She described the shape of the grease spot as being circular, and its size as being two and a half or three feet. When asked to describe its texture, plaintiff stated, “Thick, mucky like. It wasn’t an oil like you put in a car of that substance.” When asked whether she had seen any grease [442] in the parking lot on that night before it happened, plaintiff stated, “No. It’s black. The parking lot is black.” The sole issue on appeal is whether the trial court erred in granting summary judgment for defendant. Defendant argues, as the sole basis for supporting the summary judgment, that there is no evidence in the record to establish that defendant knew or should have known of the presence of the “slick, greasy substance” in the parking lot. Although we agree with the defendant that there is no such evidence in the record, contrary to defendant’s argument this lack of evidence does not entitle defendant to summary judgment. At trial the burden will be on plaintiff to show defendant knew or should have known of the “slick, greasy substance” in defendant’s parking lot. See Warren v. Rosso and Mastracco, Inc., 78 N.C. App. 163, 166, 336 S.E.2d 699, 702 (1985) (plaintiff who slipped and fell on human excrement on floor of defendant’s business must, in order to show negligence, prove at trial that defendant knew or should have known of its existence). Upon defendant’s motion for summary judgment, however, defendant is entitled to judgment on this basis only if it meets its burden of showing that it did not know, and should not have known, of the presence of the “slick, greasy substance” in its parking lot. See Cheek v. Poole, 98 N.C. App. 158, 162, 390 S.E.2d 455, 458, disc. rev. denied, 327 N.C. 137, 394 S.E.2d 169 (1990) (burden on movant to show entitlement to summary judgment). The nonmovant, here plaintiff, has no burden to present evidence in opposition to the movant’s, here defendant’s, motion for summary judgment until the movant produces evidence sufficient to establish its right to judgment as a matter of law. Id. Defendant failed in its burden because the record reveals no evidence that defendant did not know, and should not have known, of the “slick, greasy substance” in its parking lot. Therefore, summary judgment for defendant on this basis was error. Furthermore, given the width, thickness, and texture of the grease, the “other debris” trapped within the grease, the slope of the parking lot, the color of the grease and parking lot, and the fact that plaintiff stepped in the grease while negotiating the parking lot to get to her car, defendant was not entitled to summary judgment on the basis that defendant had no legal duty to warn plaintiff of the grease or to remove the grease from the parking [443] lot. Although one may expect the presence of some automobile oil in a parking lot, and although an owner or occupier of land generally has no duty to warn of an obvious condition of which the invitee has equal knowledge, “this is certainly not a fixed rule, and all of the circumstances must he taken into account.” Southern Railway v. ADM Milling Co., 58 N.C. App. 667, 673, 294 S.E.2d 750, 755, disc. rev. denied, 307 N.C. 270, 299 S.E.2d 215 (1982) (quoting W. Prosser, Handbook of the Law of Torts, § 61, pp. 394-95 (4th ed. 1971)). In any case where the occupier, as a reasonable man, should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning or the obvious nature of the condition, something more in the way of precautions may be required. ... It is true also where the condition is one such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, and, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. In all such cases the jury may be permitted to find that obviousness, warning or even knowledge is not enough. Id. Under the conditions and circumstances in this case, the question of whether the grease, in the first instance, constituted an obvious condition of which plaintiff and defendant are charged with having equal knowledge must be left to the jury, as well as the second question of whether the obviousness, if any there be, was sufficient to absolve the defendant of all liability. Reversed and remanded. Judge Phillips concurs. Judge PARKER dissents with dissenting opinion.