Opinion
No. COA99-1030
Filed 1 August 2000
Premises Liability — Contributory negligence — customer tripped over wooden structure
The trial court did not err by granting summary judgment in favor of defendant based on plaintiff's contributory negligence as a matter of law in a case where plaintiff tripped over a wooden structure and fell in a restaurant after ordering her food, because: (1) plaintiff conceded that she saw the platform long before she tripped over it; and (2) plaintiff was not distracted by any action by defendant.
Appeal by plaintiff from judgment entered 6 May 1999 by Judge D. Jack Hooks, Jr., in Chatham County Superior Court. Heard in the Court of Appeals 15 May 2000.
Moody, Williams Roper, by C. Todd Roper, for plaintiff-appellant.
Tuggle, Duggins Meschan, P.A., by Leonard A. Colonna, for defendant-appellee.
Plaintiff Michelle Parlet Allsup appeals from summary judgment entered in favor of defendant. We affirm.
On 28 December 1994, plaintiff escorted four Girl Scouts, ages eleven and twelve, to defendant's McDonald's restaurant in Kernersville. As plaintiff joined a line of patrons waiting to place a food order at the restaurant counter, she observed a low, unpainted, wooden structure positioned to her right and partially beneath the counter overhang. This structure was a platform or bridge that allowed young patrons to climb to a level where they could be seen and served by the cashier. Plaintiff asked each of the Scouts what she wanted, then instructed them to wait in the dining area while she placed the combined order. When her turn came, plaintiff ordered four soft drinks and two ice cream cones in cups. She then stepped to her right to wait while the order was filled.
The drinks and ice cream were delivered to plaintiff on a tray. Plaintiff picked up the tray, taking care not to spill the food. As she turned to walk to the dining area where the Scouts were waiting, she tripped over the wooden structure and fell, hitting her hip on the structure and her shoulder on the restaurant floor. Plaintiff suffered injuries as a result of the fall.
Plaintiff filed a complaint on 11 November 1997, alleging defendant's negligence in failing to keep the area in a reasonably safe condition. Defendant's answer denied any negligence and asserted that plaintiff's contributory negligence caused her injuries. Defendant moved for summary judgment on 21 April 1999. On 6 May 1999, the trial court granted the motion, dismissed the complaint with prejudice, and taxed costs against plaintiff.
Defendant is entitled to summary judgment if the record shows "that there is no genuine issue as to any material fact and that [defendant] is entitled to . . . judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (1999). Defendant, as the moving party, bears the burden of establishing the absence of any triable issues of fact. See Smith v. Cochran, 124 N.C. App. 222, 476 S.E.2d 364 (1996). In ruling on a summary judgment motion, the trial court must construe all evidence in the light most favorable to the non-moving party. See Nourse v. Food Lion, Inc., 127 N.C. App. 235, 488 S.E.2d 608 (1997), aff'd per curiam, 347 N.C. 666, 496 S.E.2d 379 (1998).
While issues of negligence and contributory negligence are rarely appropriate for summary judgment, the trial court will grant summary judgment in such matters 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.
Diorio v. Penny, 103 N.C. App. 407, 408, 405 S.E.2d 789, 790 (1991) (internal citations omitted), aff'd, 331 N.C. 726, 417 S.E.2d 457 (1992). The doctrine of contributory negligence will preclude a defendant's liability if the visitor actually knew of the unsafe condition or if a hazard should have been obvious to a reasonable person. See Pulley v. Rex Hospital, 326 N.C. 701, 705, 392 S.E.2d 380, 383 (1990).
We believe that this case is controlled by Stansfield v. Mahowsky, 46 N.C. App. 829, 266 S.E.2d 28 (1980). In Stansfield, the plaintiff arrived at the defendant's restaurant and noticed a sign on a tripod leaning against a door. During the next fifteen or twenty minutes, she saw that the sign had blown down onto the sidewalk. After another ten minutes, the plaintiff left the restaurant, tripped over the sign, and was injured. She stated that she had forgotten about the sign and that she would have seen it if she had looked down. This Court held that the plaintiff was contributorily negligent as a matter of law. See id.
Similarly, in the case at bar, plaintiff conceded that she saw the platform long before she tripped over it, and in fact the record indicates that she stood near it as she waited to place her order, then beside it as she waited for that order to be filled. She was not distracted by the Scouts, whom she had directed to wait elsewhere in the restaurant, nor had the restaurant taken any action designed to attract plaintiff's attention away from the floor. See Norwood v. Sherwin-Williams Co., 303 N.C. 462, 279 S.E.2d 559 (1981). Therefore, although an argument may be made that defendant was negligent in placing the platform so that it was partially hidden by the counter overhang, plaintiff's contributory negligence would necessarily defeat any verdict in her favor. See Stansfield, 46 N.C. App. at 831, 266 S.E.2d at 29-30.
We note that there is some dispute in the record as to the exact size and shape of the platform over which plaintiff tripped and whether photographs of a structure contained in the record depict the actual platform in question. We do not believe that details of the platform are material; whatever its precise nature, the parties agree that it was a moderately-bulky wooden object. Our holding is based upon plaintiff's admission that she saw the structure before she tripped over it and the fact that she was not distracted by any action by defendant. Therefore, disputes over the structure itself do not raise an issue of fact pertinent to summary judgment.
Affirmed.
Judge LEWIS concurs.
Chief Judge EAGLES dissents.