Currin v. Rex Healthcare, Inc. ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute
    controlling legal authority. Citation is disfavored, but may be permitted in accordance
    with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
    NO. COA13-515
    NORTH CAROLINA COURT OF APPEALS
    Filed:    18 February 2014
    DONNA K. CURRIN,
    Plaintiff
    Harnett County
    v.
    No. 12 CVS 840
    REX HEALTHCARE, INC. and REX
    HOSPITAL, INC.,
    Defendants
    Appeal by plaintiff from order entered 18 January 2013 by
    Judge Shannon R. Joseph in Harnett County Superior Court.                     Heard
    in the Court of Appeals 26 September 2013.
    Bain, Buzzard & McRae, LLP, by Edgar R. Bain and L. Stacy
    Weaver III, for Plaintiff.
    Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch and
    F. Marshall Wall, for Defendants.
    ERVIN, Judge.
    Plaintiff Donna K. Currin appeals from an order granting
    summary judgment in favor of Defendants Rex Healthcare, Inc.,
    and Rex Hospital, Inc., with respect to a personal injury claim
    that she had asserted against Defendants.                 On appeal, Plaintiff
    argues that the trial court erroneously entered summary judgment
    in favor of Defendants on the grounds that the record reflected
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    the existence of genuine issues of material fact concerning the
    extent      to   which    Plaintiff    sustained       personal        injury   as      the
    result of Defendants’ negligence and the extent to which her
    claim    was     barred    on   contributory     negligence        grounds.         After
    careful      consideration       of   Plaintiff’s      challenge        to   the    trial
    court’s order in light of the record and the applicable law, we
    conclude that the trial court’s order should be affirmed.
    I. Factual Background
    A. Substantive Facts
    As    part    of   her    treatment     for    breast      cancer,    Plaintiff
    underwent surgery at Defendant Rex Hospital on 30 November 2009.
    A few days later, Plaintiff began undergoing radiation therapy
    at Defendant Rex Hospital.              On eight separate occasions within
    three days of the date upon which she was injured, including the
    date upon which her injury occurred, Plaintiff went to Defendant
    Rex Hospital for radiation therapy.
    At 9:00 a.m. on 9 December 2009, Plaintiff went to receive
    radiation therapy at Defendant Rex Hospital, having been driven
    there by her daughter, Donna Lynn Currin.                   Plaintiff arrived for
    her second treatment that day at 3:00 p.m.                         At approximately
    3:30    p.m.,     after    completing    the     second     treatment,       Plaintiff
    exited Defendant Rex Hospital.                 As she left the facility and
    headed      across   a    circular    driveway       that   ran   in    front      of   the
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    hospital’s     cancer       center       toward       a    parking         facility     that    was
    specifically        reserved        for       oncology         patients,          Plaintiff     was
    walking alongside and talking with Ms. Currin.                               At the time that
    she left Defendant Rex Hospital, Plaintiff felt “fine” and was
    not experiencing any difficulty walking.                          Plaintiff did not have
    any vision-related difficulties which would have prevented her
    from seeing conditions at her feet.
    Although        Plaintiff         has    no        memory       of    the     events     that
    occurred      after     she      left     Defendant        Rex    Hospital,          Ms.     Currin
    testified that, at the time of Plaintiff’s departure from the
    hospital,     the     sun     was    out      and    the       weather       was    clear.       In
    addition, no leaves or similar objects obscured the surface of
    the area in which Plaintiff was walking.
    As   the     two      women    crossed         the       driveway      about      six    feet
    outside a marked crosswalk, Plaintiff suddenly fell and landed
    on her face.            After Plaintiff fell, Ms. Currin attempted to
    determine what could have caused her mother’s fall and observed
    a   plastic    object       in    plain       sight       on    the    pavement.           Neither
    Plaintiff nor Ms. Currin had noticed the plastic object over
    which Plaintiff fell at the time that they entered Defendant Rex
    Hospital      or   as    they       returned        to    the     parking         lot   prior   to
    Plaintiff’s fall.             Ms. Currin photographed the area in which
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    Plaintiff’s fall occurred on both the day on which her mother
    fell and on the following evening.
    After Ms. Currin called for help, a number of nurses and a
    security    guard    came   to   Plaintiff’s   assistance.        Eventually,
    Plaintiff was taken to the emergency room by stretcher.                  As a
    result of her fall, Plaintiff broke her nose, hurt her knee, cut
    her face, and still had facial scarring and knots on her knees
    three years later.
    As early as 2003, plastic bases into which stanchions could
    be inserted had been placed in particular areas on the roads and
    driveways    around    Defendant    Rex    Hospital   to   keep   cars   from
    parking along the curb when parking spaces were unavailable, a
    problem which had become acute during the construction of a new
    parking deck.       The bases utilized at Defendant Rex Hospital were
    approximately six inches in diameter and one and a half to two
    inches high, black in color, and connected to the asphalt by an
    adhesive.     The surface onto which the bases were affixed was
    generally a “grayish black” color.             The stanchions that were
    inserted into the bases were either fluorescent orange or white.
    After construction of the deck was completed, the stanchions
    were removed from the plastic bases.             When inclement weather
    necessitated the closing of the Women’s Center Deck, poles would
    be inserted into the plastic bases for the purpose of holding
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    signs to redirect traffic.                Although the bases, which had not
    been used for months and which had been placed away from the
    crosswalk, could have been removed with relative ease without
    damaging       the   asphalt    surface,       they    had     been     left    in    place
    because they could not be reattached to the asphalt following
    their     removal       and    because     procuring         new     bases     would     be
    expensive.
    Laura     Reynolds,      who    served    as     Defendant       Rex     Hospital’s
    Protective      Services       Manager,    went      to     the    location     at    which
    Plaintiff had fallen            before Plaintiff had been                taken to the
    emergency      room.      At    the    location       in    question,    Ms.     Reynolds
    encountered Ms. Currin, who was irate about what had occurred.
    Although it was customary for an investigative report to be
    prepared when an injury occurred on the premises, no such report
    was developed in this instance.                Instead, Ms. Reynolds discussed
    the     situation       with    Defendant       Rex        Hospital’s     director       of
    buildings and grounds.               At the conclusion of that discussion,
    the two of them decided to have the plastic bases removed and to
    identify a new system for directing people to the parking deck,
    and     took    steps    to    have    that     decision          implemented    on     the
    following date.         Subsequently, the bases were removed.
    According to        Ms. Reynolds,         the bases          did not     present a
    hazard to anyone walking to the hospital.                          In addition, Randy
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    Mullen,    the     facility       maintenance         manager         in    charge   of    the
    hospital        grounds,    testified          that        safety      inspections        were
    conducted at Defendant Rex Hospital and that he had never heard
    of anyone else falling on one of the bases before the date upon
    which Plaintiff was injured.
    B. Procedural Facts
    On 20 April 2012, Plaintiff filed a complaint in which she
    sought to recover damages from Defendants on the grounds that
    the injuries which she sustained on 9 December 2009 resulted
    from their negligence.              On 25 June 2012, Defendants filed an
    answer     in    which     they    denied           the    material         allegations     of
    Plaintiff’s       complaint       and     asserted             contributory     negligence;
    intervening, superseding, insulating, or concurring negligence;
    and    assumption    of    the    risk    as        affirmative       defenses.       On    21
    December 2012, Defendants filed a motion seeking the entry of
    summary    judgment        in    their    favor           on    the   grounds     that     the
    undisputed facts showed that Plaintiff                           was not injured as a
    proximate result of their negligence or, in the alternative,
    that     Plaintiff’s       claim        was    barred           by    the    doctrines      of
    contributory       negligence      or     assumption             of   the    risk.        After
    holding a hearing concerning the merits of Defendants’ summary
    judgment motion, the trial court entered an order granting that
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    motion on 18 January 2013.        Plaintiff noted an appeal to this
    Court from the trial court’s order.
    II. Legal Analysis
    A. Standard of Review
    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.”               N.C. Gen. Stat. §
    1A-1,   Rule   56(c).      “In   ruling   on   [a    motion      for   summary
    judgment,] the court must consider the evidence in the light
    most favorable to the nonmovant, and the slightest doubt as to
    the facts entitles him to a trial.”             Williams v. 100 Block
    Assocs., 
    132 N.C. App. 655
    , 657, 
    513 S.E.2d 582
    , 583 (1999)
    (quotation marks omitted) (quoting Snipes v. Jackson, 
    69 N.C. App. 64
    , 72, 
    316 S.E.2d 657
    , 661, disc. review denied, 
    312 N.C. 85
    , 
    321 S.E.2d 899
     (1984)).      As the Supreme Court has stated:
    While [N.C. Gen. Stat. § 1A-1,] Rule 56,
    like its federal counterpart, is available
    in all types of litigation to both plaintiff
    and defendant, we start with the general
    proposition that issues of negligence . . .
    are ordinarily not susceptible [to] summary
    adjudication either for or against the
    claimant, but should be resolved by trial in
    the ordinary manner.       It is only in
    exceptional negligence cases that summary
    judgment is appropriate. This is so because
    the rule of the prudent man (or other
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    applicable  standard   of   care)  must   be
    applied, and ordinarily the jury should
    apply it under appropriate instructions from
    the court.
    Page v. Sloan, 
    281 N.C. 697
    , 706, 
    190 S.E.2d 189
    , 194 (1972)
    (omission in original) (citations and quotation marks omitted).
    Thus, a trial court should only grant summary judgment in the
    event that the material facts, taken in the light must favorable
    to the non-moving party, show no basis for any decision other
    than the entry of judgment in favor of the moving party, with a
    decision by a trial court to enter summary judgment in favor of
    a particular party subject to de novo review on appeal.            In re
    Will of Jones, 
    362 N.C. 569
    , 573, 
    669 S.E.2d 572
    , 576 (2008)
    (quoting Forbis v. Neal, 
    361 N.C. 519
    , 524, 
    649 S.E.2d 382
    , 385
    (2007)).
    B. Substantive Legal Analysis
    A   person   or    entity   owning   or   controlling   the   use   of
    property is subject to “the duty to exercise reasonable care in
    the maintenance of their premises for the protection of lawful
    visitors.”   Nelson v. Freeland, 
    349 N.C. 615
    , 632, 
    507 S.E.2d 882
    , 892 (1998).      “In order to prove a defendant’s negligence, a
    ‘plaintiff must show that the defendant either (1) negligently
    created the condition causing the injury, or (2) negligently
    failed to correct the condition after actual or constructive
    notice of its existence.’”       Fox v. PGML, LLC, __ N.C. App. __,
    -9-
    __, 
    744 S.E.2d 483
    , 485 (2013) (quoting Roumillat v. Simplistic
    Enterprises,     Inc.,     
    331 N.C. 57
    ,    64,    
    414 S.E.2d 339
    ,   342-43
    (1992)).       “A landowner is under no duty to protect a visitor
    against dangers either known or so obvious and apparent that
    they reasonably may be expected to be discovered . . . [and]
    need not warn of any ‘apparent hazards or circumstances of which
    the invitee has equal or superior knowledge.’”                            Von Viczay v.
    Thoms,   
    140 N.C. App. 737
    ,    739,       
    538 S.E.2d 629
    ,   631    (2000)
    (citations     omitted)     (quoting         Jenkins       v.    Lake    Montonia      Club,
    Inc., 
    125 N.C. App. 102
    , 105, 
    479 S.E.2d 259
    , 262 (1997)                                  ),
    aff’d, 
    353 N.C. 445
    , 
    545 S.E.2d 210
     (2001).                             However, “[i]f a
    reasonable person would anticipate an unreasonable risk of harm
    to   a   visitor    on     his    property,         notwithstanding            the    lawful
    visitor’s knowledge of the danger or the obvious nature of the
    danger, the landowner has a duty to take precautions to protect
    the lawful visitor.”            Martishius v. Carolco Studios, Inc., 
    142 N.C. App. 216
    , 223, 
    542 S.E.2d 303
    , 308 (2001), aff’d, 
    355 N.C. 465
    , 
    562 S.E.2d 887
     (2002).
    In seeking to persuade us that the trial court erred by
    granting   summary       judgment       in    favor       of    Defendants,      Plaintiff
    argues   that    she     was     injured       as    the       result    of    Defendants’
    negligence on the grounds that the base over which she tripped
    was not an apparent hazard and posed a foreseeable risk of harm
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    to pedestrians in the area in which Plaintiff was walking at the
    time   that    she    fell   and   that   Defendants   were   negligent   in
    creating such an obstacle and in failing to remove it.              In the
    alternative, Plaintiff contends that, at an absolute minimum,
    there was a genuine issue of material fact concerning whether
    the base was apparent, a determination which, if accepted, would
    preclude a decision to grant summary judgment in Defendants’
    favor.   We do not find Plaintiff’s arguments persuasive.
    In seeking to persuade us that the base over which she fell
    was not apparent, Plaintiff relies upon a number of different
    factors.      More particularly, Plaintiff argues that the base was
    too small to be visible and was located on “a surface of the
    same color.”         In addition, Plaintiff points out that the base
    was not at eye level and emphasizes the fact that a reasonable
    person would expect the surface of a driveway to be smooth.               As
    the result of all of these factors, Plaintiff contends that the
    base over which she fell was not apparent and that Defendants
    should, for that reason, be deemed to have acted negligently by
    installing the base and by failing to remove it prior to the
    date upon which she was injured.
    A careful examination of the undisputed evidence presented
    for the trial court’s consideration at the time of the summary
    judgment hearing establishes that the base over which Plaintiff
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    fell was six inches in diameter and approximately two inches
    tall.     At the time that Plaintiff fell, the weather was clear,
    the sun was out, and no leaves or similar objects covered the
    base or otherwise interfered with Plaintiff’s ability to see it.
    The photographs contained in the record, including those taken
    by Ms. Currin on the following evening, show that the base was
    not identical in color to the driveway surface and was easily
    visible    at   night.        Despite       arguing    that        Defendants      were
    negligent because the base was not at eye level, Plaintiff has
    cited no authority tending to suggest that the fact that an
    object over which a plaintiff trips was not at eye level has any
    specific    bearing    on    the    issue     of   whether     that       object    was
    apparent for purposes of North Carolina negligence law, and we
    have found no such authority in the course of our own research.
    Instead, “our prior cases merely establish that the facts must
    be viewed in their totality to determine if there are factors
    which make the existence of a defect in a sidewalk, in light of
    the surrounding conditions, a breach of the defendant’s duty and
    less than ‘obvious’ to the plaintiff.”                Pulley v. Rex Hosp., 
    326 N.C. 701
    , 706, 
    392 S.E.2d 380
    , 384 (1990).                   As a result, after
    considering     all   of    the    evidence   contained       in    the    record    in
    light of the totality of the circumstances, we conclude that
    there is no genuine issue of material fact concerning the extent
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    to which the base over which Plaintiff tripped constituted an
    apparent hazard and that the base in question was, in fact,
    apparent.
    In an attempt to avoid the obvious legal implications of
    this determination, Plaintiff contends that, even if the base
    over which she fell constituted an apparent hazard, the trial
    court erred by granting summary judgment in favor of Defendants
    on the grounds that the record demonstrates the existence of a
    genuine issue of material fact concerning whether she should
    have been expected to see the base over which she fell.1                           More
    specifically,        Plaintiff     argues,     in    reliance      upon   the   Supreme
    Court’s decision in Pulley, that “facts must be viewed in their
    totality    to   determine       if    there       are   factors    which   make   the
    existence of a defect in a sidewalk, in light of the surrounding
    conditions,      a   breach   of      the    defendant’s     duty    and    less   than
    ‘obvious’ to the plaintiff” and that such factors “include the
    1
    The decisions upon which Plaintiff relies inconsistently
    address the extent to which a plaintiff could have reasonably
    failed to observe an otherwise apparent hazard as having to do
    with the issue of the defendant’s negligence or the plaintiff’s
    contributory negligence. As a result of the fact that there are
    decisions that adopt both approaches, the fact that the
    decisions addressing this issue discuss cases sounding in both
    negligence and contributory negligence interchangeably, and the
    fact that we need not resolve that analytical issue in order to
    decide this case, we will not attempt to determine which
    approach is preferable and will, for simplicity’s sake, address
    the decisions upon which Plaintiff relies as relevant to the
    issue   of  Defendants’  negligence   rather  than   Plaintiff’s
    contributory negligence.
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    nature of the defect in the sidewalk, the lighting at the time
    of the accident, and whether any other reasonably foreseeable
    conditions existed which might have distracted the attention of
    one walking on the sidewalk.”                  
    Id.
     (second emphasis added).
    Although there are, as Plaintiff notes, a number of decisions
    that establish that a plaintiff’s failure to detect and avoid an
    obvious defect in a defendant’s property may be overlooked under
    certain circumstances, we do not believe that those decisions
    justify a decision to reverse the trial court’s order in this
    instance.
    In Norwood v. Sherwin-Williams Co., 
    303 N.C. 462
    , 468, 
    279 S.E.2d 559
    , 563 (1981), reversed in part, Nelson, 349 N.C. at
    616,   507   S.E.2d   at   883,    the       Supreme   Court   stated    that,   in
    considering    whether     or     not    a     plaintiff   was   contributorily
    negligent for tripping over a generally visible hazard, “[t]he
    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 floor.”                     Based upon
    that premise, the Supreme Court found the existence of a prima
    facie case of negligence on the part of the defendant in a case
    in which one of the defendant’s employees put a platform near an
    aisle that “protruded into the aisle” and then “placed a display
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    upon the platform and items along the aisle which were designed
    and intended to draw the customer’s attention upward and away
    from the floor.”              303 N.C. at 468, 
    279 S.E.2d at 563
    .                                Based
    upon these facts, the                Supreme Court found that a reasonable
    juror    could       find     that       the    plaintiff       was    not    contributorily
    negligent      in     failing       to    see    the    protrusion       that         led   to     the
    plaintiff’s fall based upon the relatively dim lighting in the
    store and the distractions to which the plaintiff was subject as
    a result of the display.                 Id. at 469-70, 
    279 S.E.2d at 563-64
    .
    This    Court        has   reached        similar      results    on       a    number       of
    occasions.          In Dowless v. Kroger Co., 
    148 N.C. App. 168
    , 172-73,
    
    557 S.E.2d 607
    ,     610    (2001),           we    rejected    the          defendant’s
    contention that a verdict should have been directed in its favor
    given that the plaintiff injured herself by falling over an
    “obvious hazard” and the plaintiff’s admission that, “if she had
    looked down, there is no reason that she would not have seen the
    hazard,”       on     the    grounds       that        the    shopping       cart       that       the
    plaintiff      was      returning         partially          blocked    her       view      of    the
    pothole which caused her fall and that the plaintiff was focused
    on the heavy traffic in the parking lot in which the pothole was
    situated.        Similarly, in Kremer v. Food Lion, Inc., 
    102 N.C. App. 291
    ,     295,       
    401 S.E.2d 837
    ,    839    (1991),       we    noted         that,
    “[a]lthough failure to discover an obvious defect will usually
    -15-
    be considered contributory negligence as a matter of law, this
    general    rule      does   not    apply     when     circumstances       divert   the
    attention of an ordinarily prudent person from discovering an
    existing dangerous condition.”                  As a result, we held that the
    trial   court     properly     denied      the     defendant’s   directed     verdict
    motion because “[e]vidence was offered that items were placed
    above the cooler [to which the plaintiff was walking] designed
    to draw the attention of shoppers.”                   
    Id.
       Finally, in Price v.
    Jack Eckerd Corp., 
    100 N.C. App. 732
    , 736, 
    398 S.E.2d 49
    , 52
    (1990),    we   held    that      “the   evidence     support[ed]     a    reasonable
    inference       or     conclusion        that      [the     plaintiff]      was    not
    [contributorily] negligent in failing to look down at the floor”
    given     the   “possibility        that     the     plaintiff’s    attention      was
    diverted by the cashier’s directions and by the advertisements.”
    In explaining our decision, we stated that:
    When a plaintiff does not discover and avoid
    an obvious defect, that plaintiff will
    usually    be   considered    to   have   been
    [contributorily] negligent as a matter of
    law.    However, where 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.        Additionally, our
    Supreme Court has rejected an unbending
    application of the general rule stating that
    the contributory negligence defense does not
    automatically    bar    from    recovery   the
    plaintiff who trips or falls over an object
    on the premises of another, even when the
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    object was in a position at which the
    plaintiff would have seen it had he or she
    looked.
    
    Id.
     (citations and quotation marks omitted) (quoting Norwood,
    303 N.C. at 468, 
    279 S.E.2d at
    563 and Thomas v. Dixson, 
    88 N.C. App. 337
    , 341, 
    363 S.E.2d 209
    , 212 (1988)).                              As a result, a
    number      of     decisions        of   the     Supreme       Court    and    this       Court
    establish that, in the event that other conditions existing in
    the   vicinity       of   the       object      over     which    the    plaintiff        fell
    distracted his or her attention or interfered with his or her
    vision, the existence of an apparent hazard does not bar the
    plaintiff’s right to recover damages for personal injury.
    The    decisions         in    question     do     not,    however,      suffice      to
    justify a decision to overturn the trial court’s order granting
    summary     judgment      in    Defendants’           favor.      As    we    have    already
    noted,      each     of   the       decisions         upon   which     Plaintiff      relies
    involved the presence of a factor that could have obstructed the
    plaintiff’s ability to see an apparent hazard or operated to
    distract the plaintiff’s attention from an apparent hazard.                                   A
    careful review of the record reveals the absence of any evidence
    tending to show that other conditions in the vicinity of the
    base over which Plaintiff tripped had the potential to obstruct
    her ability to see the base or distract her attention.                                    As a
    result,     the     trial      court     did     not     err    by     refusing      to   deny
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    Defendants’   summary   judgment   motion    on   the   theory   that
    Plaintiff’s failure to see the base over which she fell could be
    explained by other conditions in the area.
    III. Conclusion
    Thus, for the reasons set forth above, we conclude that the
    trial court did not err by granting summary judgment in favor of
    Defendants.   As a result, the trial court’s order should be, and
    hereby is, affirmed.
    AFFIRMED.
    Judges ROBERT N. HUNTER, JR., and DAVIS concur.
    Report per Rule 30(e).