Ronald YATES and Carol Jean Yates, Plaintiffs,
v.
Michael W. HALEY, d/b/a McDonald's, Defendant.
No. 9026SC917.
Court of Appeals of North Carolina.
August 6, 1991.*660 Tania L. Leon, P.A., Charlotte, for plaintiffs-appellants.
Hedrick, Eatman, Gardner, & Kincheloe by Scott M. Stevenson, Charlotte, for defendant-appellee.
EAGLES, Judge.
Plaintiffs contend that the trial court erred in granting defendant's motion for summary judgment. Plaintiffs argue that genuine issues of material fact exist as to whether the puddle was a hidden danger about which defendant knew or should have known. We agree.
Under G.S. 1A-1, Rule 56(c) defendant is entitled to summary judgment "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 [defendant] is entitled to a judgment as a matter of law." Defendant, the party moving for summary judgment here, has the burden of establishing the absence of any triable issue of fact. Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200, 271 S.E.2d 54 (1980). When a trial court considers a motion for summary judgment, "the evidence is viewed in the light most favorable to the non-moving party." Hinson v. Hinson, 80 N.C.App. 561, 563, 343 S.E.2d 266, 268 (1986).
Since summary judgment "provides a somewhat drastic remedy, it must be used with due regard to its purposes and a cautious observance of its requirements in order that no person shall be deprived of a trial on a genuine disputed factual issue." Kessing v. National Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). Summary judgment is rarely appropriate in negligence cases because "it ordinarily remains the province of the jury to apply the reasonable person standard." Moore v. Crumpton, 306 N.C. 618, 624, 295 S.E.2d 436, 441 (1982). After careful review of the record, we hold that the evidence, when viewed in the light most favorable to the plaintiffs, raises a genuine issue of material fact. Accordingly, we reverse the entry *661 of summary judgment in favor of defendant and remand for trial.
In order to survive defendant's motion for summary judgment, "plaintiff must allege a prima facie case of negligencedefendants owed plaintiff a duty of care, defendants' conduct breached that duty, the breach was the actual and proximate cause of plaintiff's injury, and damages resulted from the injury." Lamm v. Bissette Realty, Inc., 327 N.C. 412, 416, 395 S.E.2d 112, 115 (1990). Plaintiff was an invitee on defendant's premises because his purpose for entering defendant's restaurant was to purchase food. Morgan v. Great Atlantic and Pacific Tea Co., 266 N.C. 221, 145 S.E.2d 877 (1966). Because plaintiff was an invitee defendant has a duty "to keep `entrances to his business in a reasonably safe condition for the use of customers entering or leaving the premises.' " Lamm v. Bissette Realty, Inc., 327 N.C. at 416, 395 S.E.2d at 115 (quoting Lamm v. Bissette Realty, Inc., 94 N.C. App. 145, 146, 379 S.E.2d 719, 721 (1989)). Additionally, defendant "has a duty to warn invitees of hidden dangers about which [defendant] knew or should have known." Lamm v. Bissette Realty, Inc., 327 N.C. at 416, 395 S.E.2d at 115.
Defendant contends summary judgment was appropriate because "[w]hen plaintiff was asked [at his deposition] whether he could have seen the puddle had he looked at the floor, plaintiff responded `[y]es, it was obvious.' This is evidence that plaintiff's view was unobstructed ..., the condition was in plain view ..., [and] that he failed to focus attention on the condition." Defendant bases much of his argument for summary judgment on the following testimony from plaintiff's deposition:
Q: Did you see the puddle before you fell?
A: No.
Q: When did you first see it?
A: Whenever I got up.
Q: Why didn't you see it before you fell?
A: I was going to the restroom.
Q: Were you looking so that you could see the puddle?
A: I was looking at this door straight ahead (indicating on diagram). Normallyusually someone may be coming out of this dooror whatever, I was looking dead at the door, I was going to the restroom and fell.
Q: Did you look at the ground?
A: No.
Q: If you had looked at the ground could you have seen it?
A: Yes; it was obvious.
While a jury may reasonably find that this is some evidence that plaintiff's view was unobstructed, the same jury may also reasonably find from plaintiff's forecast of the evidence that plaintiff's view was obstructed. On 4 May 1990, plaintiff timely filed an affidavit opposing defendant's motion for summary judgment pursuant to G.S. 1A-1, Rule 56(e). In this affidavit, plaintiff explained his statement regarding the puddle as follows:
I was able to see, only when I was on the floor, that I had slipped in a large puddle of water. This water was not obvious to me as I was walking toward the restroom door, both because of the narrowness of the hallway and because my view was partially obstructed by the booths in the area.
....
When I read the transcript of my testimony, I realized that I had misunderstood a question that was asked of me.... "If you had looked at the ground could you have seen it [the puddle]?" The answer to that question is that the puddle of water was only obvious once I was on the ground. I cannot say how many inches or feet from the surface of the floor I would have had to be to have seen the puddle. I can say that as I approached the restroom, my attention was focused on the path in front of me, including the floor, and the puddle was not obvious.
Additionally, plaintiff attached pictures to his affidavit showing how his view could have been obstructed by the rear booth. From this evidence, a jury could reasonably infer that plaintiff's view was obstructed. *662 "On a motion for summary judgment, all pleadings, affidavits, answers to interrogatories, and other materials offered must be viewed in the light most favorable to the party against whom summary judgment is sought." Durham v. Vine, 40 N.C.App. 564, 566, 253 S.E.2d 316, 318-19 (1979) (emphasis added). When viewed in the light most favorable to plaintiff, the evidence raises a jury question on the issue of defendant's negligence.
Defendant further contends that "[b]ecause of the snow outside, plaintiff should have noticed the puddle in front of the entrance as he approached that area." First, we note that "[t]he issues of proximate cause and contributory negligence are usually questions for the jury." Lamm v. Bissette Realty, Inc., 327 N.C. at 418, 395 S.E.2d at 116. Secondly, when the evidence is viewed in the light most favorable to plaintiff, "defendant is in no position to deny knowledge" of that morning's weather conditions. Powell v. Deifells, Inc., 251 N.C. 596, 600, 112 S.E.2d 56, 59 (1960). The mere existence of these weather conditions is not enough to find the plaintiff contributorily negligent as a matter of law on defendant's motion for summary judgment. Id. Finally, where defendant attempts to allege plaintiff's contributory negligence as a matter of law, our Supreme Court has addressed the issue as follows:
The basic issue with respect to contributory negligence is whether the evidence shows that, as a matter of law, plaintiff failed to keep a proper lookout for her own safety. The question is not whether a reasonably prudent person would have seen the [object] 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.
Norwood v. Sherwin-Williams Co., 303 N.C. 462, 468, 279 S.E.2d 559, 563 (1981). We conclude that defendant has failed to establish that plaintiff was contributorily negligent as a matter of law.
Accordingly, we reverse the trial court's grant of summary judgment for defendant and remand this matter for a jury trial.
Reversed and remanded.
GREENE and LEWIS, JJ., concur.