                                    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
                                                -2-
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
                                          -3-
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
                               -4-
    “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
                                        -5-
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
                                                -6-
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
                                                -7-
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
                                    -8-
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
                                     -9-
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
                                           -10-
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
                                 -11-
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.
