NO. COA13-870
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
HAZEL B. SIMS,
Plaintiff-Appellant,
v. Catawba County
No. 10 CVS 3569
GRAYSTONE OPHTHALMOLOGY
ASSOCIATES, P.A.; GRAYSTONE
SURGERY, LLC; GRAYSTONE EYE
SURGERY OF HICKORY, LP d/b/a
GRAYSTONE EYE SURGERY CENTER;
GRAYSTONE OPHTHALMOLOGY SUGERY
CENTER, PLLC; JAMES W. HARRIS;
RANDALL J. WILLIAMS.; ANN K.
JOSLYN; T. REGINALD WILLIAMS; JOHN
G. TYE; RALPH E. OURSLER; and
RICHARD I. CHANG,
Defendant-Appellees.
Appeal by plaintiff from order entered 15 January 2013 by
Judge Timothy S. Kincaid in Catawba County Superior Court.
Heard in the Court of Appeals 6 January 2014.
Grant Richman, PLLC, by Robert M. Grant, Jr., for
plaintiff-appellant.
Baucom, Claytor, Benton, Morgan & Wood, P.A., by James F.
Wood, III, for defendant-appellee.
McCULLOUGH, Judge.
Hazel B. Sims (“plaintiff”) appeals from the trial court’s
order granting summary judgment in favor of Graystone
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Ophthalmology Associates, P.A. (“defendant”). For the following
reasons, we reverse.
I. Background
The underlying facts of this case were agreed to in
stipulations by the parties. These stipulations can be
summarized as follows: Plaintiff was a patient of Dr. James W.
Harris of defendant and was present on the premises of defendant
for a vision examination on 5 November 2007. While on
defendant’s premises, plaintiff was seated on a rolling chair
for her vision examination. After taking a seat, but prior to
the examination, plaintiff fell from the rolling chair and
fractured her right proximal humerus at the right shoulder and
her right hip at the right intertrochanteric femur. Plaintiff
incurred considerable costs for treatment and rehabilitation.
On 5 November 2010, plaintiff initiated this action by
filing a complaint against defendant and others associated with
defendant. In the complaint, plaintiff alleged the named
defendants “were jointly and severally negligent . . . by
placing [her] in the rolling stool or chair from which she fell
. . . when they knew or should or [sic] known that such stools
or chairs, without arms or handles, were dangerous to elderly
patients such as [her]” and “[t]hat as the direct and proximate
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result of the negligence . . . , [she] has been damaged in
excess of Ten Thousand Dollars ($10,000.00).”
The named defendants answered plaintiff’s complaint on 26
May 2011 asserting various affirmative defenses, including
contributory negligence. The named defendants later filed a
motion for summary judgment on 4 December 2012.
Prior to a hearing on the motion for summary judgment, the
parties stipulated that defendant was the proper party to be
sued and all other named defendants were dismissed from the
action. The motion for summary judgment then came on to be
heard in Catawba County Superior Court on 14 January 2013, the
Honorable Timothy S. Kincaid, Judge presiding.
Upon consideration of the pleadings, depositions,
stipulations, and arguments of counsel, by order filed 15
January 2013, the trial court granted summary judgment in favor
of defendant and taxed the costs of the action against
plaintiff. Plaintiff filed notice of appeal on 14 February
2013.
II. Discussion
The sole issue raised on appeal is whether the trial court
erred in granting summary judgment in favor of defendant.
Standard of Review
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“The standard of review for an order of summary judgment is
firmly established in this state. We review a trial court's
order granting or denying summary judgment de novo.” Variety
Wholesalers, Inc. v. Salem Logistics Traffic Services, LLC, 365
N.C. 520, 523, 723 S.E.2d 744, 747 (2012).
[S]uch judgment is appropriate only when the
record shows 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.” Forbis v. Neal, 361 N.C. 519, 523–24,
649 S.E.2d 382, 385 (2007) (citations and
quotation omitted). “When considering a
motion for summary judgment, the trial judge
must view the presented evidence in a light
most favorable to the nonmoving party.”
Dalton v. Camp, 353 N.C. 647, 651, 548
S.E.2d 704, 707 (2001) (citation omitted).
In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576
(2008).
The party moving for summary judgment has
the burden of establishing the lack of any
triable issue. The movant may meet this
burden by proving that an essential element
of the opposing party's claim is non-
existent, or by showing through discovery
that the opposing party cannot produce
evidence to support an essential element of
his claim or cannot surmount an affirmative
defense which would bar the claim.
Collingwood v. General Elec. Real Estate Equities, Inc., 324
N.C. 63, 66, 376 S.E.2d 425, 427 (1989) (citations omitted).
“If the movant demonstrates the absence of a genuine issue of
material fact, the burden shifts to the nonmovant to present
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specific facts which establish the presence of a genuine factual
dispute for trial.” In re Will of Jones, 362 N.C. at 573, 669
S.E.2d at 576.
“The trial court may not resolve issues of fact in deciding
a motion for summary judgment and must deny the motion if there
is a genuine issue as to any material fact.” Daily Exp., Inc.
v. Beatty, 202 N.C. App. 441, 444, 688 S.E.2d 791, 795 (2010)
(citing Singleton v. Stewart, 280 N.C. 460, 464, 186 S.E.2d 400,
403 (1972)). “If there is any question as to the weight of
evidence, summary judgment should be denied.” Marcus Bros.
Textiles, Inc. v. Price Waterhouse, LLP, 350 N.C. 214, 220, 513
S.E.2d 320, 325 (1999).
Negligence
Plaintiff contends the trial court erred in granting
defendant’s motion for summary judgment in the present case
because there are genuine issues of material fact concerning
whether defendant was negligent in causing plaintiff’s injuries
and whether plaintiff was negligent in contributing to her
injuries.
As our appellate courts have long recognized, “[n]egligence
claims and allegations of contributory negligence should rarely
be disposed of by summary judgment.” DeHaven v. Hoskins, 95
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N.C. App. 397, 402, 382 S.E.2d 856, 859, disc. review denied,
325 N.C. 705, 388 S.E.2d 452 (1989). This is because
“‘ordinarily it is the duty of the jury to apply the standard of
care of a reasonably prudent person.’” Finley Forest
Condominium Ass'n v. Perry, 163 N.C. App. 735, 739, 594 S.E.2d
227, 230 (2004) (quoting Abner Corp. v. City Roofing &
Sheetmetal Co., 73 N.C. App. 470, 472, 326 S.E.2d 632, 633
(1985)). Yet, “‘summary judgment for defendant is proper where
the evidence fails to establish negligence on the part of
defendant, establishes contributory negligence on the part of
plaintiff, or establishes that the alleged negligent conduct was
not the proximate cause of the injury.’” Hahne v. Hanzel, 161
N.C. App. 494, 497-98, 588 S.E.2d 915, 917 (2003) (emphasis
omitted) (quoting Williams v. Carolina Power & Light Co., 36
N.C. App. 146, 147, 243 S.E.2d 143, 144 (1978), rev'd on factual
grounds, 296 N.C. 400, 250 S.E.2d 255 (1979)), disc. review
denied, 358 N.C. 543, 599 S.E.2d 46 (2004).
“It is well established that in order to prevail in a
negligence action, plaintiff[] must offer evidence of the
essential elements of negligence: duty, breach of duty,
proximate cause, and damages.” Camalier v. Jeffries, 340 N.C.
699, 706, 460 S.E.2d 133, 136 (1995). Even if evidence of
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negligence is presented, plaintiff cannot prevail if the
evidence reveals plaintiff was contributorily negligent. See
Cobo v. Raba, 347 N.C. 541, 545, 495 S.E.2d 362, 365 (1998) (“In
this state, a plaintiff's right to recover in a personal injury
action is barred upon a finding of contributory negligence.”).
In this case, it is uncontested that defendant owed
plaintiff a duty of reasonable care and plaintiff suffered
damages as a result of her fall from the rolling chair. But in
response to plaintiff’s arguments that there are issues of fact
concerning negligence and contributory negligence, defendant
maintains, as it did below, that summary judgment is appropriate
because there is no evidence of actionable negligence, there is
no evidence of proximate cause, and, in the alternative,
plaintiff was contributorily negligent as a matter of law.
Considering the evidence in the light most favorable to
plaintiff, we disagree with defendant and hold the issues of
negligence and contributory negligence should have been
presented to a jury. Thus, the trial court erred in granting
summary judgment in favor of defendant.
In this case, the issue is not solely whether the chair was
a dangerous condition, but, as plaintiff alleged in her
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complaint, whether defendant was negligent in placing plaintiff
on the rolling chair from which she fell.
Viewing the evidence contained in the depositions and
stipulations in the light most favorable to the plaintiff, the
evidence tends to show the following: Plaintiff was 86 years old
at the time of her fall. Plaintiff had been a patient of
defendant’s for over ten years, having two to three appointments
per year. A typical appointment begins with a technician
conducting a vision examination. Plaintiff recalled that the
technician usually instructs her to take a seat on an armless
rolling chair and move up to the table where the examination
machine was located. This was common procedure and nothing
different happened on the day plaintiff fell.
During plaintiff’s deposition, plaintiff could not recall
exactly what caused her to fall. But plaintiff did recall she
never made it to the table. Plaintiff testified “I was trying
to get my balance and I was trying to get up to the table, but I
know I wasn’t at the table ’cause I couldn’t touch anything. It
seemed like a long time, like I was fighting to get my balance.”
Although plaintiff could not remember at her deposition how
she fell, stipulations agreed to by the parties provide
statements made by plaintiff during an interview just days after
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the incident. These statements indicate that after plaintiff
was seated in the rolling chair, she leaned to place her purse
on another chair in the examination room. Then, as plaintiff
shifted her weight back down on the rolling chair, the chair
started to roll. Plaintiff attempted to catch herself but there
was nothing to grab onto and the chair slipped out from under
her, causing plaintiff to fall.
Plaintiff testified no one had ever assisted her with the
chair prior to her fall. Although plaintiff was aware the chair
was on rollers, plaintiff testified she was unaware of how
dangerous it could be. At appointments subsequent to her fall,
defendant has assisted plaintiff with the chair.
The evidence tends to show that the staff of defendant was
aware of the dangers of the rolling chair. Specifically, the
CEO of defendant testified that defendant was aware of one
incident prior to plaintiff’s fall in which a patient fell when
a rolling chair slid out from underneath the patient while she
was being seated. Furthermore, at the deposition of the
technician performing plaintiff’s vision examination on the day
of the incident, the technician stated that it was her usual
practice to hold the chair and place her foot on the bottom of
the chair while a patient is being seated in order to keep the
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chair from rolling. Yet, when questioned about the specifics of
how plaintiff was seated on the day of plaintiff’s fall, the
technician indicated she had no specific recollection. The
technician did not witness the fall as she was facing away from
plaintiff at the time of the fall.
We hold this evidence sufficient to carry the issue of
negligence to a jury for determination of whether defendant
exercised the degree of care that a reasonable and prudent
person would exercise under the circumstances. Although
defendant’s use of the rolling chair may not itself be
negligent, instructing an elderly patient with a purse to sit on
the rolling chair and move up to the examination table without
offering assistance may be found to be negligent. Additionally,
the evidence supports plaintiff’s argument that the nature of
the rolling stool, i.e. the rollers and lack of arms, was the
proximate cause of plaintiff’s fall.
Defendant further argues that if it was negligent, summary
judgment is appropriate because the danger was open and obvious.
See Kelly v. Regency Centers Corp., 203 N.C. App. 339, 343, 691
S.E.2d 92, 95 (2010) (“There is no duty to protect a lawful
visitor from dangers which are either known to him or so obvious
and apparent that they may reasonably be expected to be
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discovered.”). While plaintiff was aware the chair was on
rollers, in this case, plaintiff was instructed to sit on the
rolling chair and move up to the table. Although plaintiff’s
actions may be found by the jury to constitute contributory
negligence, we hold the evidence does not establish contributory
negligence as a matter of law.
III. Conclusion
Taking the evidence in the light most favorable to
plaintiff, we hold material issues of fact exist as to whether
defendant was negligent and whether plaintiff was contributorily
negligent. Thus, we hold the trial court erred in entering
summary judgment in favor of defendant.
Reversed.
Chief Judge MARTIN and Judge ERVIN concur.