                 IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 216A19

                                 Filed 5 June 2020

MILTON DRAUGHON SR., Plaintiff

            v.

EVENING STAR HOLINESS CHURCH OF DUNN, Defendant/Third-Party
Plaintiff, and DAFFORD FUNERAL HOME, INC., Third-Party Defendant

      Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 828 S.E.2d 176 (N.C. Ct. App. 2019), reversing and remanding

a summary judgment order entered on 4 June 2018 by Judge Beecher R. Gray in

Superior Court, Harnett County. On 25 September 2019, the Supreme Court allowed

defendant’s petition for discretionary review as to additional issues. Heard in the

Supreme Court on 10 March 2020.

      Brent Adams & Associates, by Brenton D. Adams and Mark R. McGrath, for
      plaintiff-appellee.

      Yates McLamb & Weyher, by Sean T. Partrick, for defendant/third-party
      plaintiff-appellant.

      No brief filed by third-party defendant-appellee.


      NEWBY, Justice.

      North Carolina common law establishes a duty of each person to take

reasonable care to not harm others and a corresponding duty of each person to take

reasonable care to not harm oneself. Recognizing this reasoned balance, this Court

has explained that a landowner does not have a duty to warn a visitor about a
                 DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                       Opinion of the Court

condition on the landowner’s property that is open and obvious. This Court likewise

has emphasized that a defendant is not liable for injuries to a plaintiff when the

plaintiff does not take reasonable care to protect himself. Our precedent requires

courts to apply an objective reasonable person standard. In this case plaintiff used a

set of stairs with a top step that was visibly higher than the other steps and made of

noticeably different materials. When plaintiff used the set of stairs a second time, he

failed to take the precautions a reasonable person would have taken to avoid tripping

on the higher step. Because the alleged defect was open and obvious and thus should

have been evident to plaintiff, and because plaintiff did not take reasonable care, the

trial court correctly granted summary judgment in favor of defendant. The decision

of the Court of Appeals is reversed.

      Plaintiff visited defendant’s church property for a funeral, and employees of

the funeral home asked him to help carry the casket. After plaintiff agreed, he was

led through a section of the church building and then outside, down a small set of

stairs. He and three others carried the casket from a hearse into the church building,

taking the same set of stairs he had just descended. Plaintiff walked sideways as he

carried the casket. He watched the doorway instead of where he was stepping. He

tripped near the top of the steps, fell into the church building, and was injured.

      The set of stairs was fully visible as plaintiff approached it with the casket. It

is pictured here:1



      1   Defendant introduced this picture as an exhibit. It was used in plaintiff’s deposition,
                                               -2-
               DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                     Opinion of the Court




The set of stairs includes five steps. Each of the bottom four steps is made of gray

concrete and rises about six and one-half inches, or slightly more. The fifth and final

step is made of both red brick and gray concrete, initially rising about nine and one-

half inches, with a white, wooden platform on top, set a few inches back from the



during which plaintiff indicated that he tripped on the last of the concrete steps of normal
height and not on the elevated top step. He marked the picture of the set of stairs accordingly
when asked to identify where he began to trip. Yet, addressing that causation issue is
unnecessary because the evidence establishes that summary judgment in favor of defendant
was appropriate on the issues of no duty (because the alleged defect was open and obvious)
and contributory negligence.
                                              -3-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Opinion of the Court

edge, that adds just over an inch to that height. The total rise of the top step is thus

about four inches greater than that of the other steps, constituting about a sixty-one

percent increase in rise.

      Plaintiff filed a complaint against defendant to recover for his injuries alleging,

among other things, that defendant failed to keep its premises in a reasonably safe

condition and failed to warn plaintiff of a dangerous and defective condition on the

property. Defendant filed an answer, and the parties conducted discovery, including

plaintiff’s deposition. Defendant then moved for summary judgment, arguing, among

other things, that any dangerous condition on the property was open and obvious and

that plaintiff was contributorily negligent. The trial court evaluated the evidence

presented and decided that, even viewing the facts in the light most favorable to the

plaintiff, there was no issue of material fact and that defendant was entitled to

summary judgment. A divided panel of the Court of Appeals reversed. It held that

genuine issues of material fact existed regarding whether the condition of the top step

was open and obvious, whether the top step caused plaintiff’s fall, and whether

plaintiff was contributorily negligent. Draughon v. Evening Star Holiness Church of

Dunn, 828 S.E.2d 176, 179–81 (N.C. Ct. App. 2019). The dissent claimed defendant

was entitled to judgment as a matter of law because plaintiff was contributorily

negligent. Id. at 182–83 (Dillon, J., dissenting).

      Defendant appealed as of right to this Court based on the dissent, and also

filed a petition for discretionary review for this Court to consider additional issues,


                                           -4-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Opinion of the Court

including whether the condition of the top step was open and obvious. This Court

allowed the petition on 25 September 2019.

      We reverse the decision of the Court of Appeals and uphold the trial court’s

grant of summary judgment. Courts should hesitate to find negligence as a matter of

law. But when, as here, uncontroverted facts viewed from an objective standpoint

establish that the plaintiff encountered an open and obvious risk, it is appropriate for

courts to find as a matter of law that the defendant had no duty to warn the plaintiff

or that the plaintiff’s claim is barred by contributory negligence.

      In a classic negligence action like the one in this case, a plaintiff must present

sufficient evidence of four elements to survive a motion to dismiss: (1) that the

defendant owed a duty of care toward the plaintiff, (2) that the defendant breached

that duty, (3) that the defendant’s breach proximately caused harm to the plaintiff,

and (4) that the plaintiff has thereby suffered damages. See, e.g., Hairston v.

Alexander Tank and Equip. Co., 310 N.C. 227, 232, 311 S.E.2d 559, 564 (1984).

      The summary judgment standard requires the trial court to construe evidence

in the light most favorable to the nonmoving party. Nonetheless, our case law has

made it clear that when the condition that allegedly caused the injury, viewed

objectively, is open and obvious, judgment as a matter of law is appropriate. See, e.g.,

Deaton v. Bd. of Trs. of Elon Coll., 226 N.C. 433, 439–40, 38 S.E.2d 561, 565–66 (1946)

(upholding the trial court’s dismissal of the plaintiff’s action because, whether or not

the plaintiff put on evidence of the defendant’s negligence, the condition that caused


                                           -5-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Opinion of the Court

the plaintiff’s injury was open and obvious).

      In North Carolina, a landowner has a duty to warn visitors of any hidden

danger on its property of which the landowner should be aware. See, e.g., id. at 438,

38 S.E.2d at 564–65 (“The rule applies only to latent dangers which the [visitors]

could not reasonably have discovered and of which the [defendant] knew or should

have known.”). A landowner does not, however, have a duty to warn anyone of a

condition that is open and obvious. Garner v. Atl. Greyhound Corp., 250 N.C. 151,

161, 108 S.E.2d 461, 468 (1959) (“Where a condition of premises is obvious . . .

generally there is no duty on the part of the owner of the premises to warn of that

condition.” (alteration in original) (quoting Benton v. United Bank Bldg. Co., 223 N.C.

809, 813, 28 S.E.2d 491, 493 (1944))); see also Branks v. Kern, 320 N.C. 621, 624, 359

S.E.2d 780, 782 (1987) (explaining that the duty to warn applies to “hidden dangers

known to or discoverable by the defendants” (emphasis added)), abrogated on other

grounds by Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998). A condition is open

and obvious if it would be detected by “any ordinarily intelligent person using his eyes

in an ordinary manner.” Coleman v. Colonial Stores, Inc., 259 N.C. 241, 242, 130

S.E.2d 338, 340 (1963). If the condition is open and obvious, a visitor is legally deemed

to have equal or superior knowledge to the owner, and thus a warning is unnecessary.

See Branks, 320 N.C. at 624, 359 S.E.2d at 782 (“[T]here is no duty to warn . . . of a

hazard obvious to any ordinarily intelligent person using his eyes in an ordinary

manner, or one of which the plaintiff had equal or superior knowledge.”).



                                           -6-
               DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Opinion of the Court

      North Carolina common law also recognizes the defense of contributory

negligence; thus, a plaintiff cannot recover for injuries resulting from a defendant’s

negligence if the plaintiff’s own negligence contributed to his injury. See, e.g., Smith

v. Fiber Controls Corp., 300 N.C. 669, 677, 268 S.E.2d 504, 509 (1980). This rule is

closely related to the principle that a defendant has no duty to warn of an open and

obvious condition because a plaintiff is negligent if he fails to reasonably adjust his

behavior in light of an obvious risk. See, e.g., id. at 673, 268 S.E.2d at 507 (“Plaintiff

may be contributorily negligent if his conduct ignores unreasonable risks or dangers

which would have been apparent to a prudent person exercising ordinary care for his

own safety.”). Contributory negligence also implicates proximate cause if a visitor’s

own lack of ordinary care is a cause of the accident. With contributory negligence, a

plaintiff’s actual behavior is compared to that of a reasonable person under similar

circumstances. See, e.g., Holland v. Malpass, 266 N.C. 750, 752–53, 147 S.E.2d 234,

236–37 (1966) (explaining that the invitee of a business must use reasonable care to

avoid harm).

      Applying these principles, this Court has, on multiple occasions, upheld

judgment as a matter of law for the defendant in cases with facts similar to the facts

of this case. In Coleman, a customer was exiting a grocery store when he tripped on

a metal screen jutting out at a right angle from the exit door. 259 N.C. at 242, 130

S.E.2d at 339. The metal screen was in the shape of a right triangle with a base width

of about thirty-four inches, a top width of about eight inches, and a height of four and

one-half to five feet. Id. This Court held that, even though “[t]here was nothing there

                                           -7-
               DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Opinion of the Court

to call [the customer’s] attention to the metal screen,” id., the condition would have

been obvious to the ordinary person and so judgment in favor of the defendant was

appropriate, id. at 242–43, 130 S.E.2d at 340.

       In Garner, the plaintiff entered the defendant’s store at an area where the

sidewalk and the floor of the store entryway sat at nearly the same level. 250 N.C. at

153, 108 S.E.2d at 463. After spending about thirty minutes in the store, the plaintiff

exited at an area where there was a significant drop-off from the floor of the store to

the sidewalk—about six inches. Id. She fell and was injured. Id. This Court first noted

that “[g]enerally, in the absence of some unusual condition, the employment of a step

by the owner of a building because of a difference between levels is not a violation of

any duty to invitees.” Id. at 157, 108 S.E.2d at 466 (quoting Reese v. Piedmont, Inc.,

240 N.C. 391, 395, 82 S.E.2d 365, 368 (1954)). The plaintiff nonetheless contended

that the sidewalk and entryway created a “camouflaging effect,” hiding the drop-off.

Id. at 159, 108 S.E.2d at 467. But this Court went on to hold that the defendant had

no duty to warn of the drop-off because it was obvious. Id. at 161, 108 S.E.2d at 468.

So, a condition may be open and obvious even if the particular plaintiff found it

difficult to notice.

       Summary judgment is further supported when the plaintiff has had the

opportunity to become familiar with the condition that contributes to his injury. In

Dunnevent v. Southern Railroad Co., 167 N.C. 232, 233–34, 83 S.E. 347, 347–48

(1914), the plaintiff fell off of the defendant’s railroad platform at night. This Court


                                           -8-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                  Opinion of the Court

held that because the plaintiff had become familiar with the platform previously

during the day, but chose to walk without his lantern in an area he should have

known had no railing, his recovery was barred. Id. Likewise, in Holland, this Court

barred recovery to the plaintiff, an automobile mechanic, who tripped on a common

piece of garage equipment that sat on the floor in an area through which the plaintiff

had already walked multiple times shortly before the accident. 266 N.C. at 751, 147

S.E.2d at 235–36.

      In this case the Court of Appeals majority relied on Lamm v. Bissette Realty,

Inc., 327 N.C. 412, 395 S.E.2d 112 (1990), but that case is easily distinguishable. In

Lamm, the plaintiff walked down a three-step set of brick stairs outside the

defendants’ office building and slipped after stepping down from the final step. Id. at

413–14, 395 S.E.2d at 113. The bottom step had a rise of between seven and one-half

and eight and one-half inches, compared to the six and one-half inch rise of the

preceding steps. Id. at 414, 395 S.E.2d at 114. The plaintiff claimed to have slipped

on an asphalt ramp gradually sloping downward away from the bottom step. Id. at

414–15, 395 S.E.2d at 114. The Court noted that, though there was an unresolved

factual issue about whether the plaintiff’s fall was caused by the slant of the asphalt

ramp or by the increased rise of the final step, id. at 417–18, 395 S.E.2d at 115–16,

the depth of the final step could not be said as a matter of law to be open and obvious

to someone descending the steps, id. at 416–17, 395 S.E.2d at 115.

      Though Lamm affirms that summary judgment in negligence actions is fairly


                                          -9-
                   DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Opinion of the Court

rare, the facts in this case make such a judgment markedly more appropriate.

Whereas in Lamm the difference in rise between the final step and the other steps

was one or two inches, here the difference is about four inches. In addition, all of the

steps in Lamm were made of brick, but the heightened step at issue in this case is

made of visibly different materials than the others. Whether summary judgment is

appropriate in a given case is driven by the facts of that case. In Lamm, the condition

of the final step was not sufficiently obvious to warrant summary judgment, but in

this case it is.

       The task in this case is to determine, based on our precedent, whether the top

step outside of defendant’s church building was an open and obvious condition such

that a reasonably prudent person would have recognized it and taken appropriate

care to avoid injury while using it. The distinct height and appearance of the step,

the clear visibility of the set of stairs, and plaintiff’s previous experience walking

down the set of stairs show that a reasonable person in plaintiff’s position would have

been aware of the step’s condition and taken greater care.

       The top step is obviously different in height than the other steps. First, the

visible part of that step is made mostly of red brick, making its appearance starkly

different than that of the other gray concrete steps. The wood on top of that step,

which was painted white, only accentuates its distinctiveness. Second, that step rises

about nine and one-half inches to the top of the brick, and about ten and one-half

inches including the wooden portion on top, compared to the about six and one-half


                                          -10-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Opinion of the Court

inch rise of the other steps. All in all, the top step is thus about four inches, or about

sixty-one percent, higher than the others. This great difference would be readily

apparent to a reasonable person.

      At the time of the fall, plaintiff had just walked down the set of stairs,

experiencing the difference in the height of the steps firsthand. A reasonable person

in plaintiff’s position would have become aware of the approximately four-inch

difference. Moreover, the top step sits a few feet above the ground; thus, it is at a

height plainly visible to someone walking towards the steps and then using them.

Common experience dictates that a reasonable person would recognize the starkly

different condition of the top step and thus understand that he would have to step up

higher when he arrived at it. Viewed objectively, the condition was open and obvious,

visible to a reasonable person in plaintiff’s situation. Thus, defendant had no duty to

warn plaintiff of the condition of the top step.

      Relatedly, plaintiff did not take the care that an ordinary person would have

taken while carrying the casket up the set of stairs and so was contributorily

negligent. As noted, plaintiff had walked down the steps just before his accident, and

the set of stairs was fully visible as he and the other individuals carried the casket

toward the church building. A reasonable person would have looked and noticed the

condition of the top step either before arriving at the stairs or while on the stairs

before stepping on the top step. But plaintiff, by his own admission, kept his eyes on

the doorway and was not looking at the steps on which he was walking. Common


                                          -11-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Opinion of the Court

experience again dictates that a reasonable person would have been aware of the

condition and taken greater care. Because plaintiff turned sideways as he walked up

the steps, even greater care was required to reasonably ensure a safe ascension. Thus,

plaintiff’s own negligence contributed to his injury.

      We therefore reject plaintiff’s contention that based on the evidence issues of

fact exist as to whether the condition of the top step was open and obvious and as to

whether plaintiff was contributorily negligent. Plaintiff’s argument rests largely on

his own subjective assertion that the condition of the top step was not open and

obvious. He references the opinion of an expert witness he submitted to essentially

argue that because the steps leading up to the top step are all of the same height,

which is less than the top step, someone walking up the steps could reasonably expect

this uniformity in height to continue.

      Plaintiff’s position, however, gives improper weight to his subjective

perspective about the top step instead of recognizing the objective evidence of the true

visual appearance of the stairs. The top step stands out both because it is made of

strikingly different materials of a different color than the other steps and because it

is about four inches higher than the others. Further, because the set of stairs only

includes five steps, a reasonable person could easily see the distinctive top step and

church entrance before beginning to walk up the steps.

      For similar reasons, this Court’s opinion in Garner undermines plaintiff’s

concealment argument. In that case, this Court held the defendant had no duty to


                                          -12-
               DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                    Opinion of the Court

warn of a drop-off from the store entryway to the sidewalk even though the plaintiff

claimed that the structure of the sidewalk and the entryway concealed the drop-off.

250 N.C. at 159, 161, 108 S.E.2d at 467–68. If the drop-off in Garner was open and

obvious as a matter of law, regardless of any concealing effect the plaintiff claimed

was inherent in its design, so too is the top step here. It is obviously different in height

and structure than the other steps. No lulling effect that plaintiff claims is present

within the stairs’ design changes that. Overall, instead of assessing the condition of

the set of stairs from the perspective of an objectively reasonable person as our case

law mandates, plaintiff’s position wrongly treats as determinative plaintiff’s

subjective opinion about the visual appearance of the alleged defect.

       Because the condition of the top step would be open and obvious to a reasonable

person, defendant had no duty to warn plaintiff. Similarly, because plaintiff, after his

previous descent of the steps, did not heed the risk obviously presented by the distinct

appearance of the top step, and because he carried the casket while walking sideways

without looking at the steps, his own negligence contributed to his fall. The Court of

Appeals’ decision vacating the trial court’s grant of summary judgment is reversed.

       REVERSED.




                                           -13-
      Justice EARLS dissenting.

      The plaintiff in this case thought he was merely going to attend a funeral, but

when asked to help carry the casket up the stairs into the church, his generosity of

spirit went badly awry. Falling on the top step, he was injured. As with most cases

alleging negligence, questions concerning what caused the fall, whether he should

have been warned or should have seen the alleged hazard himself, and whether a

reasonable person would have avoided the fall are all questions for a jury of his peers

to decide after hearing all the evidence in court.

      However, the majority concludes that the evidence is uncontested and

establishes as a matter of law both that the allegedly defective condition of the steps

at defendant’s church was open and obvious and that plaintiff was contributorily

negligent. On that basis, the majority reverses the decision of the Court of Appeals

reversing the trial court’s entry of summary judgment in favor of defendant. In my

view, this is not the exceptional negligence case in which summary judgment is

appropriate. See Ragland v. Moore, 299 N.C. 360, 363, 261 S.E.2d 666, 668 (1980)

(“[I]t is only in exceptional negligence cases that summary judgment is appropriate,

since the standard of reasonable care should ordinarily be applied by the jury under

appropriate instructions from the court.” (citing Page v. Sloan, 281 N.C. 697, 706, 190

S.E.2d 189, 194 (1972))). Rather, viewing the evidence in the light most favorable to

the nonmoving party, as we are bound to do, I conclude that the evidence is sufficient

to raise questions for the jury as to whether the allegedly defective condition of the
               DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                    Earls, J., dissenting



steps was open and obvious and whether plaintiff was contributorily negligent. It is

for the jury, not this Court, to decide what a reasonable person in plaintiff’s position

would have seen, and it is for the jury, not this Court, to decide whether a reasonable

person would have taken precautions to avoid the alleged hazard. Accordingly, I

would affirm the decision of the Court of Appeals. Therefore, I respectfully dissent.

                                      Background

      On 20 February 2015, plaintiff arrived at defendant’s church in Dunn, North

Carolina, for a funeral service and entered the church through an entrance facing

Sampson Avenue. Before the service began, the minister, who would be conducting

the service, asked plaintiff if he would be willing to help carry the casket into the

church, and plaintiff declined. Shortly afterwards, plaintiff was again asked to help

carry the casket by an employee of third-party defendant, Dafford Funeral Home, Inc.

(Dafford). Plaintiff reconsidered and agreed to help.

      Plaintiff followed the Dafford employee out of the church through a doorway

facing U.S. Route 421. It was daytime, and the weather was sunny. The doorway

opened onto a set of steps, which plaintiff descended before walking to the nearby

hearse where the casket was located. Plaintiff and three other men carried the casket

back to that same entrance and began lifting the casket up the steps, with plaintiff

positioned on the front left side of the casket. Before reaching the doorway, plaintiff

tripped at the top of the steps and fell into the church, suffering injuries to both of his



                                            -2-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Earls, J., dissenting



knees. Plaintiff testified in his deposition that he “tripped on the top step and fell

into the church.”

      As viewed from the ground level outside the church, the stairway at issue has

five steps—that is, five risers and five treads, with the fifth riser and tread (the top

step) constituting the threshold and the floor of the church. See Merriam-Webster’s

Collegiate Dictionary 1223 (11th ed. 2003) (defining “step” as “a rest for the foot in

ascending or descending,” including “one of a series of structures consisting of a riser

and a tread”); see also, e.g., Bohannon v. Leonard-Fitzpatrick-Mueller Stores Co., 197

N.C. 755, 755, 150 S.E. 356, 356 (1929) (“The steps of said stairway are constructed

of wood. Each step has a tread of nine inches, and a rise of eight inches.”). The first

four steps are concrete, and the risers have a relatively uniform height of six and one-

half to seven inches. The riser of the top step, however, is brick and concrete with a

height of nine and one-half inches. The fifth riser also has “an additional one and

one[-]eighth inches of wood on the top position a few inches back from the edge.”

      On 22 August 2017, plaintiff filed suit against defendant alleging that

defendant was negligent in failing to keep its premises in a reasonably safe condition

and failing to warn plaintiff of the dangerous and defective condition of the steps

leading into the church. Plaintiff alleged that he “was walking up the steps of the

church building, when his left foot caught onto the lip of the top step leading into the

church,” causing him to fall. In response, defendant filed an answer in which it

alleged that plaintiff was contributorily negligent, and defendant also filed a third-

                                           -3-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                  Earls, J., dissenting



party complaint against Dafford for contribution and indemnification. Plaintiff filed

an amended complaint on 5 March 2018. Plaintiff testified in a deposition on 15

February 2018.

      On 19 April 2018, defendant filed a motion for summary judgment arguing,

inter alia, that if the steps constituted a dangerous condition, it was an open and

obvious condition of which plaintiff had equal or superior knowledge. Plaintiff filed

a response in opposition to defendant’s motion, as well as an affidavit in which he

averred the following:

                   5.     That the defect in the stairs leading up to the
             church sanctuary and described in the Complaint, which is
             incorporated herein by reference, is not open and obvious
             and cannot be perceived by the naked eye at a reasonable
             distance while climbing those stairs.

                   6.    That the defective condition of the stairs could
             not be perceived while walking down the stairs or while
             walking up the stairs.

                   7.     As I stated in my deposition on Page 76, I
             tripped on the top step and fell into the church.

                     8.    I did not say, as incorrectly alleged in the
             Defendant’s motion for summary judgment, that I could
             not say what caused my slip and fall. On the contrary, I
             testified on Page 76 of my deposition that I fell because I
             tripped on the top stairs of entrance to the sanctuary of the
             church and fell into the church.

                   ....

                  15.    The only difficulty I had with respect to
             moving the casket into the church was the top stair, which
             was unusually high, and I did not anticipate that I would

                                          -4-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Earls, J., dissenting



             need to lift my foot higher than I was required to lift my
             feet in order to climb the other stairs.

                    16.   That the weight of the casket had actually
             nothing to do with my fall. My fall occurred solely because
             I tripped on the top stair of the staircase leading into the
             sanctuary as alleged in the complaint.

Plaintiff also submitted an affidavit from an engineering expert, Dr. Rolin F. Barrett,

P.E., who examined the steps at issue and averred the following:

                    9.    . . . I measured the steps and it was found that
             the risers (vertical component of steps) on the first four
             steps were relatively uniform and measured six and one
             half inches to seven inches high. However the riser of the
             top step leading to the door had nine and one half inches of
             brick and concrete plus an additional one and one eighth
             inches of wood on the top position a few inches back from
             the edge.

                   10.    That based upon my examination of the
             premises in question, which includes the steps leading into
             the sanctuary of the Evening Star Holiness Church of
             Dunn, I have made the following findings and hold the
             opinions set out below.

                     11.   Risers of steps need to be uniform and
             building codes state that risers of steps should be uninform
             [sic]. The date the steps were built was not available to me.
             Several building codes were examined spanning the last
             fifty years and all codes state that risers should be uniform.
             Some of these building codes specify a maximum height for
             the risers and for those that do, the maximum height noted
             was seven and three fourths inches. The stairs that Mr.
             Draughon fell upon did not comply with any of the building
             codes I reviewed.

                    12.     That aside from the issues arising from the
             violation of the building codes I reviewed, and in addition
             thereto, it is my opinion as a professional licensed engineer
             that the stairs in question were defective by virtue of the
                                           -5-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                    Earls, J., dissenting



             fact that the top step was significantly higher than the
             lower steps.

                    13.    From      a    human   factors  engineering
             standpoint, the public who use the stairs become
             accustomed to the height of the first four steps and is
             entitled to assume that the last step would be of a height
             equal to the first four (4) steps.

                   14.   Furthermore, it is my opinion that the
             stairway that Milton Draughon fell upon:
                    a. was defective,
                    b. was not constructed in a workman like manner,
                    c. was in an unsafe condition,
                    d. was unreasonably unsafe,
                    e. had steps that created an unsafe structural
                       defect,
                    f. was not in a fit and habitable condition,
                    g. failed to provide the service for which they were
                       intended.

Following a hearing held on 21 May 2018, the trial court entered an order on 4 June

2018 granting defendant’s motion for summary judgment. Plaintiff appealed.

      At the Court of Appeals, plaintiff argued that the trial court erred in ruling

that there was no genuine issue of material fact and that defendant was entitled to

judgment as a matter of law. The Court of Appeals majority agreed with plaintiff,

concluding first that, taking the evidence in the light most favorable to plaintiff, there

were genuine issues of material fact regarding whether the steps constituted a hidden

defect of which defendant had a duty to warn plaintiff and whether plaintiff, having

descended the steps shortly before falling, had equal or superior knowledge of the

alleged defect. Draughon v. Evening Star Holiness Church of Dunn, 828 S.E.2d 176,


                                            -6-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Earls, J., dissenting



179–80 (N.C. Ct. App. 2019). The majority rejected defendant’s comparisons to prior

decisions of the Court of Appeals, determining that the case is more similar to this

Court’s decision in Lamm v. Bissette Realty, Inc., 327 N.C. 412, 395 S.E.2d 112 (1990).

Further, the majority concluded that while portions of plaintiff’s deposition testimony

tended to indicate that plaintiff tripped on the non-defective fourth step, plaintiff

testified that he “tripped on the top step and fell into the church,” and therefore, the

“testimony concerning the cause of Plaintiff’s fall and the role of the fourth step and

defective top riser in it raises a factual question for the jury to resolve.” Draughon,

828 S.E.2d at 180.

      Additionally, the majority at the Court of Appeals addressed defendant’s

argument that plaintiff was contributorily negligent in failing to use a nearby ramp,

failing to ask for help in carrying the casket or suggesting the use of a trolley, and

climbing the steps sideways while carrying the casket. Id. at 181. The majority

determined that these assertions of fact are disputed by plaintiff’s evidence, which

tended to show that the danger was not the carrying of the casket up the steps, “but

was instead a hazardous difference in height between the top step and the ones below

it.” Id. The majority noted that plaintiff averred that he is strong and “had no

difficulty lifting the casket or carrying the casket.” Id. According to the majority, a

“reasonable and prudent person would not believe taking the adjacent ramp to be

necessary, nor feel the need to seek additional help or use a trolley, and we do not

believe that carrying a casket up the church steps into the sanctuary for a funeral is

                                           -7-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Earls, J., dissenting



an indisputably negligent act.” Id. Thus, the majority concluded that when the

evidence was viewed in the light most favorable to plaintiff, plaintiff was not

contributorily negligent as a matter of law. Id. at 180–81.

      Writing separately, one member of the panel dissented, agreeing with the

majority that plaintiff’s evidence was sufficient to reach the jury on the question of

whether defendant’s negligence was a proximate cause of plaintiff’s fall, but

concluding that plaintiff’s deposition testimony established, as a matter of law, that

plaintiff’s contributory negligence was a proximate cause of the fall.       Id. at 182

(Dillon, J., dissenting). The dissenting judge also opined that the alleged defect in

the stairway was open and obvious and, noting that the incident occurred during the

daytime, determined that plaintiff “had walked down these same steps just minutes

prior to the fall, surely noticing the height differential as he stepped from the Church

building to the top step.” Id. at 183.

      On 10 June 2019, defendant filed a notice of appeal as of right based on the

dissenting opinion in the Court of Appeals pursuant to N.C.G.S. § 7A-30(2).

Defendant simultaneously filed a petition for discretionary review as to additional

issues, which this Court allowed on 25 September 2019.

                                  Standard of Review

      We review appeals from summary judgment de novo. In re Will of Jones, 362

N.C. 569, 573, 669 S.E.2d 572, 576 (2008). We review decisions of the Court of

Appeals to determine whether there are errors of law. N.C. R. App. P. 16(a).

                                           -8-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Earls, J., dissenting



                                        Analysis

      Defendant argues that the Court of Appeals majority erred in determining that

defendant was not entitled to summary judgment on the issues of whether defendant

had a duty to warn plaintiff of the allegedly defective condition of the steps and

whether plaintiff’s contributory negligence was a proximate cause of his injuries.

With respect to these issues, I conclude the Court of Appeals majority correctly

determined that at this stage of the litigation genuine issues of material fact exist

and that defendant was not entitled to judgment as a matter of law.

      Summary judgment “shall be rendered forthwith 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.G.S. § 1A-1, Rule 56(c) (2019). “When

considering a motion for summary judgment, the trial [court] must view the

presented evidence in a light most favorable to the nonmoving party.” In re Will of

Jones, 362 N.C. at 573, 669 S.E.2d at 576 (quoting Dalton v. Camp, 353 N.C. 647,

651, 548 S.E.2d 704, 707 (2001)); see also Singleton v. Stewart, 280 N.C. 460, 465, 186

S.E.2d 400, 403 (1972) (“The party moving for summary judgment has the burden of

clearly establishing the lack of any triable issue of fact by the record properly before

the court. His papers are carefully scrutinized; and those of the opposing party are

on the whole indulgently regarded.” (citations omitted)).



                                           -9-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Earls, J., dissenting



      In order to establish a claim of negligence, a plaintiff must show “that there

has been a failure to exercise proper care in the performance of some legal duty which

the defendant owed the plaintiff, under the circumstances in which they were placed,”

and further, that this breach of duty “was the proximate cause of the injury—a cause

that produced the result in continuous sequence and without which it would not have

occurred, and one from which any man of ordinary prudence could have foreseen that

such a result was probable under all the facts as they existed.” Mattingly v. N.C. R.R.

Co., 253 N.C. 746, 750, 117 S.E.2d 844, 847 (1961) (citing Ramsbottom v. Atl. Coast

Line R.R. Co., 138 N.C. 38, 41, 50 S.E. 448, 449 (1905)); see also Hart v. Ivey, 332 N.C.

299, 305, 420 S.E.2d 174, 177–78 (1992) (“Actionable negligence is the failure to

exercise that degree of care which a reasonable and prudent person would exercise

under similar conditions. A defendant is liable for his negligence if the negligence is

the proximate cause of injury to a person to whom the defendant is under a duty to

use reasonable care.” (citations omitted)). If a plaintiff is contributorily negligent,

however, such “contributory negligence is a bar to recovery from a defendant who

commits an act of ordinary negligence.”           Sorrells v. M.Y.B. Hosp. Ventures of

Asheville, 332 N.C. 645, 648, 423 S.E.2d 72, 73–74 (1992) (citing Adams ex rel. Adams

v. State Bd. of Educ., 248 N.C. 506, 511, 103 S.E.2d 854, 857 (1958)); see also Badders

v. Lassiter, 240 N.C. 413, 417, 82 S.E.2d 357, 360 (1954) (“Plaintiff’s negligence need

not be the sole proximate cause of the injury to bar recovery. It is enough if it



                                           -10-
                 DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                          Earls, J., dissenting



contribute[s] to the injury as a proximate cause, or one of them.” (citing Marshall v.

S. Ry. Co., 233 N.C. 38, 42, 62 S.E.2d 489, 492 (1950))).

        Relevant to the applicable duty owed by defendant here as the owner of the

church, owners and occupiers of property have a “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). “This duty includes a duty

to maintain the premises in a condition reasonably safe for the contemplated use and

a duty to warn of hidden dangers known to or discoverable by the defendants.”

Branks v. Kern, 320 N.C. 621, 624, 359 S.E.2d 780, 782 (1987) (citing Hedrick v.

Tigniere, 267 N.C. 62, 147 S.E.2d 550 (1966)), abrogated by Nelson, 349 N.C. 615, 507

S.E.2d 882.1 Yet, “there is no duty to warn . . . of a hazard obvious to any ordinarily

intelligent person using his eyes in an ordinary manner, or one of which the plaintiff

had equal or superior knowledge.” Branks, 320 N.C. at 624, 359 S.E.2d at 782

(citations omitted).        “Reasonable persons are assumed, absent a diversion or

distraction, to be vigilant in the avoidance of injury in the face of a known and obvious




         1 Branks v. Kern, 320 N.C. 621, 359 S.E.2d 780 (1987), as well as several other decisions cited

herein, were abrogated by this Court’s decision in Nelson in the sense that the Court abolished the
former distinctions between “invitees” and “licensees.” Nelson v. Freeland, 349 N.C. 615, 631–33, 507
S.E.2d 882, 892–93 (1998). Yet, as Branks and the other cases cited involved invitees, these cases are
still applicable because the former duty owed by owners and occupiers of land to invitees now applies
to all lawful visitors. See, e.g., Cobb ex rel. Knight v. Town of Blowing Rock, 213 N.C. App. 88, 94, 713
S.E.2d 732, 736–37 (2011) (stating that “Nelson thus abolished the distinction between ‘licensees’ and
‘invitees’ and applied the same standard to all lawful visitors” and that, “[i]n other words, the present
standard for all lawful visitors is the same as it was prior to Nelson for invitees” (citing Lorinovich v.
K Mart Corp., 134 N.C. App. 158, 161, 516 S.E.2d 643, 646 (1999))), rev’d sub nom. Cobb ex rel. Kight
v. Town of Blowing Rock, 365 N.C. 414, 722 S.E.2d 479 (2012).
                                                  -11-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                  Earls, J., dissenting



danger.” Roumillat v. Simplistic Enters., Inc., 331 N.C. 57, 66, 414 S.E.2d 339, 344

(1992) (citing Walker v. Randolph County, 251 N.C. 805, 112 S.E.2d 551 (1960)),

abrogated by Nelson, 349 N.C. 615, 507 S.E.2d 882.

      Notably, “[s]ummary judgment should rarely be granted in negligence cases.”

Moore v. Crumpton, 306 N.C. 618, 624, 295 S.E.2d 436, 440–41 (1982) (citing Moore

v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979)). Rather, “it is only in

exceptional negligence cases that summary judgment is appropriate, since the

standard of reasonable care should ordinarily be applied by the jury under

appropriate instructions from the court.” Ragland, 299 N.C. at 363, 261 S.E.2d at

668 (citing Page, 281 N.C. at 706, 190 S.E.2d at 194).         Similarly, “[i]ssues of

contributory negligence, like those of ordinary negligence, are ordinarily questions

for the jury and are rarely appropriate for summary judgment. Only where the

evidence establishes the plaintiff’s own negligence so clearly that no other reasonable

conclusion may be reached is summary judgment to be granted.” Nicholson v. Am.

Safety Util. Corp., 346 N.C. 767, 774, 488 S.E.2d 240, 244 (1997) (first citing Lamm,

327 N.C. at 418, 395 S.E.2d at 116; then citing Norwood v. Sherwin–Williams Co.,

303 N.C. 462, 468–69, 279 S.E.2d 559, 563 (1981)). Moreover, “[p]roximate cause is

ordinarily a question for the jury. It is to be determined as a fact from the attendant

circumstances. Conflicting inferences of causation arising from the evidence carry

the case to the jury.” Olan Mills, Inc. of Tenn. v. Cannon Aircraft Exec. Terminal,

Inc., 273 N.C. 519, 529, 160 S.E.2d 735, 743 (1968) (citing Pruett v. Inman, 252 N.C.

                                          -12-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                    Earls, J., dissenting



520, 526, 114 S.E.2d 360, 364 (1960)); see also Lamm, 327 N.C. at 418, 395 S.E.2d at

116 (“The issues of proximate cause and contributory negligence are usually

questions for the jury.” (citations omitted)).

      I. Duty to Warn

      Here, defendant first contends that it had no duty to warn plaintiff of the

allegedly hazardous condition of the steps because any hazard created by the height

of the top step was not hidden, but was open and obvious, and because plaintiff had

equal or superior knowledge of the purported hazard. While the majority agrees with

defendant’s contention, I cannot conclude, based on the evidence before the trial

court, that the purportedly hazardous condition of the steps constitutes an open and

obvious condition as a matter of law.

      Plaintiff stated in his affidavit that the hazardous condition created by the top

step “is not open and obvious and cannot be perceived by the naked eye at a

reasonable distance while climbing [the] stairs,” that the condition “could not be

perceived while walking down the stairs or while walking up the stairs,” and that he

“did not anticipate that [he] would need to lift [his] foot higher than [he] was required

to lift [his] feet in order to climb the other stairs.” Moreover, the engineering expert

retained by plaintiff stated in his affidavit that building codes generally require that

the risers of steps be uniform, that the height of the top step exceeded any maximum

height limit for steps that he had observed in available building codes, that the steps

at issue were “defective” and “unreasonably unsafe,” and that, “[f]rom a human

                                            -13-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                    Earls, J., dissenting



factors engineering standpoint, the public who use the stairs become accustomed to

the height of the first four steps and [are] entitled to assume that the last step would

be of a height equal to the first four (4) steps.” Certainly, the height of a single step,

taken in isolation, is unlikely to amount to a hidden danger. Yet, the thrust of

plaintiff’s argument here is that the uniformity of the preceding steps lull an

individual into instinctually expecting this uniformity in height to continue, leaving

the individual unprepared for the unusual deviation in height of the final step, and

thereby giving rise to the danger of a trip and fall. Viewing the evidence on this

account in the light most favorable to plaintiff, as we are bound to do, I conclude that

it is sufficient to raise a question for the jury as to whether the hazardous condition

at issue would have been “obvious to any ordinarily intelligent person using his eyes

in an ordinary manner.” Branks, 320 N.C. at 624, 359 S.E.2d at 782 (citations

omitted); see also City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 655, 268

S.E.2d 190, 194 (1980) (“Negligence actions . . . are rarely suited for summary

disposition because . . . the standard of care of a reasonably prudent person[ ]is

thought to be a matter within the special competence of the jury.” (citations omitted)).

      The majority asserts that plaintiff’s position in this respect is undermined by

this Court’s decision in Garner v. Atl. Greyhound Corp., 250 N.C. 151, 108 S.E.2d 461

(1959), in which the plaintiff tripped on the raised, sloping entryway leading from the

sidewalk into the defendant’s shop. While the specifics of the entryway at issue there



                                            -14-
                  DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                           Earls, J., dissenting



are somewhat difficult to succinctly describe,2 suffice it to say that Garner involved a

single step in isolation, and therefore does not present the lulling effect allegedly

produced here by a single variation in height in an otherwise uniform set of steps. As

a result, I view Garner as inapposite and cannot agree with the majority’s

determination that “[i]f the drop-off in Garner was open and obvious as a matter of

law, regardless of any concealing effect the plaintiff claimed was inherent in its

design, so too is the top step here.” Further, the majority concludes that “[n]o lulling

effect that plaintiff claims is present within the stairs’ design changes” the fact that

the difference in height and structure of the top step would have been obvious to an

objectively reasonable person.            In light of the evidence presented, including the

affidavit of plaintiff’s engineering expert indicating that this lulling effect is the very

purpose of uniformity requirements in building codes and stating that the set of steps

here were “unreasonably unsafe,” and taking the evidence in the light most favorable




       2   The Court summarized the plaintiff’s description of the entryway as follows:

                 In front of the shop is an ordinary concrete sidewalk which slopes
                 downwardly to the south. . . . The entryway is 12 feet wide at the
                 sidewalk and 8 feet 2 inches at the shop doors. It has a depth of 42
                 inches from the doors to the sidewalk. At the south end of the entryway
                 there is a 6-inch perpendicular drop-off to the sidewalk; in the middle
                 a 3-inch drop-off; and at the north end the entryway and sidewalk are
                 approximately flush. There is a downward slope from the doors toward
                 the sidewalk. The slope is 6/10 of a foot from the doors to the sidewalk,
                 2 5/16 inches per foot or a slope of 18% to 19%. The entryway is of
                 terrazzo construction and has strips of abrasive material cemented to
                 the terrazzo at intervals of two to three inches to prevent slipping
                 thereon.

Garner v. Atl. Greyhound Corp., 250 N.C. 151, 153, 108 S.E.2d 461, 463 (1959).
                                                   -15-
               DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                    Earls, J., dissenting



to plaintiff, the question of whether the allegedly defective condition of the top step

would have been obvious to an objectively reasonable person should be decided by the

jury.   See Lease-Afex, 300 N.C. at 655, 268 S.E.2d at 194 (“Negligence actions,

particularly, are rarely suited for summary disposition because one essential element

of the action—the standard of care of a reasonably prudent person—is thought to be

a matter within the special competence of the jury.” (citations omitted)).

        Regarding defendant’s contention that plaintiff had equal or superior

knowledge of the alleged hazard, plaintiff’s evidence clearly raises an issue of fact on

this issue. In his deposition, plaintiff testified that after descending the steps he was

not aware of any dangerous condition and, when asked whether he had “any concern

that [he] had to step too far to get to that first step,” plaintiff stated, “[n]o, I didn’t

recognize that.” Thus, plaintiff presented evidence showing that he was unaware of

the hazardous condition of the steps when he fell; his credibility and the

reasonableness of his failure to perceive the alleged hazard are questions for the jury.

See Lease-Afex, 300 N.C. at 655, 268 S.E.2d at 193–94 (“If there is any question as to

the credibility of affiants in a summary judgment motion or if there is a question

which can be resolved only by the weight of the evidence, summary judgment should

be denied.” (citing Fieldcrest Mills, 296 N.C. at 470, 251 S.E.2d at 422)).

        Defendant’s argument in this latter respect appears in earnest to be a

contention not that plaintiff had equal or superior knowledge of the alleged hazard,

but rather that plaintiff, based on his previous experience using the steps, should

                                            -16-
                 DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                         Earls, J., dissenting



have had equal or superior knowledge of the hazard. I consider this question as one

more properly addressed as an issue of contributory negligence,3 rather than one of

defendant’s general duty as a property owner to warn lawful visitors of hidden

defects—that is, it is an issue of whether a reasonably prudent person in plaintiff’s

position, having recently descended the steps without incident, would in the exercise

of due care have perceived the danger posed by an otherwise hidden defect. See, e.g.,

Smith v. Fiber Controls Corp., 300 N.C. 669, 673, 268 S.E.2d 504, 507 (1980)

(“[C]ontributory negligence consists of conduct which fails to conform to an objective

standard of behavior—‘such care as an ordinarily prudent person would exercise

under the same or similar circumstances to avoid injury.’ ” (second emphasis added)

(quoting Clark v. Roberts, 263 N.C. 336, 343, 139 S.E.2d 593, 597 (1965))); e.g.

Tyburski v. Stewart, 204 N.C. App. 540, 546, 694 S.E.2d 422, 426 (2010) (“We conclude

that a jury could reasonably find that an ordinarily prudent person in plaintiff’s

position would also have entered the sunroom without concern for the lock after

having disengaged it.” (emphasis added)). Nonetheless, these issues involve related


        3 For instance, in Holland v. Malpass, the Court concluded that a “stiff-knee” (a type of car

jack) on the floor of an automobile repair garage did not constitute a hidden danger given that “[w]alk
spaces past work benches and around vehicles under repair in a busy automobile garage are not
infrequently used as places for the temporary deposit of tools, equipment and parts.” 266 N.C. 750,
752, 147 S.E.2d 234, 236 (1966). The Court then also concluded that the plaintiff, “an experienced
garage worker,” who worked for the defendant for four months in the same garage at issue, was
contributorily negligent in that he “failed to look before he stepped where he should have anticipated
some obstruction was likely.” Id. at 752, 147 S.E.2d at 236–37. Defendant contends that Holland is
controlling because it is “sufficiently analogous” to the case here. Given the substantial differences
between aisles in a “busy automobile garage” and the steps entering a church, as well as the
substantial experience of the plaintiff in Holland with respect to working in automobile garages,
including working in the specific garage at issue for four months, I consider Holland inapposite to the
issues presented here.
                                                 -17-
                 DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                         Earls, J., dissenting



inquiries. For example, if a hazardous condition is open and obvious, or if a plaintiff

has equal or superior knowledge of the hazard, then not only does defendant owe no

duty to warn of that hazard, Branks, 320 N.C. at 624, 359 S.E.2d at 782, but it is also

contributory negligence for a plaintiff to proceed with knowledge of the hazard or to

fail to perceive the obvious hazard through his or her failure to exercise due care, see,

e.g., Dunnevent v. S. Ry. Co., 167 N.C. 232, 232, 83 S.E. 347, 348 (1914) (stating that

the plaintiff was contributorily negligent where, “[w]ith full knowledge of the

dangerous conditions, and with his own lantern that had lighted his way to the

station sitting by his side, he voluntarily went to the east platform in the darkness,

where he knew the conditions were dangerous”); Allsup v. McVille, Inc., 139 N.C. App.

415, 416, 533 S.E.2d 823, 824 (2000) (“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.” (citing Pulley v. Rex

Hosp., 326 N.C. 701, 705, 392 S.E.2d 380, 383 (1990))), aff’d per curiam, 353 N.C. 359,

543 S.E.2d 476 (2001).          Ultimately, regardless of whether the issue raised by

defendant here is addressed in the context of a defendant’s duty to warn or in the

context of a plaintiff’s contributory negligence, “the facts must be viewed in their

totality to determine if there are factors which make the existence of a defect[,] . . . in

light of the surrounding conditions, a breach of the defendant’s duty and less than

‘obvious’ to the plaintiff.”4 Pulley, 326 N.C. at 706, 392 S.E.2d at 384, abrogated by


      4   Defendant argues that the Court of Appeals majority erred in applying this Court’s decision
                                                 -18-
                DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                        Earls, J., dissenting



Nelson, 349 N.C. 615, 507 S.E.2d 882; see also, e.g., Dowless v. Kroger Co., 148 N.C.

App. 168, 171, 557 S.E.2d 607, 609 (2001) (“Whether construed in terms of negating

a defendant’s duty to warn, or in terms of establishing a plaintiff’s contributory

negligence, it is clear that a plaintiff may not recover in a negligence action where

the hazard in question should have been obvious to a person using reasonable care

under the circumstances.”).

       Here, in viewing the evidence in the light most favorable to plaintiff, I cannot

conclude that plaintiff’s prior use of the steps renders the hazardous condition of the

top step “obvious” as a matter of law. It is far from implausible that following a single

descent of the steps, aided by gravity, the allegedly inconspicuous variation in height

of the fifth riser (or, when descending, the first riser) would escape the notice of a

reasonably prudent person who was previously unfamiliar with the steps at issue.

While a jury would certainly be free to make such a finding, just as it would be free

to find that any danger posed by the top step is an open and obvious hazard regardless

of plaintiff’s prior experience using the steps, I would not remove the question from

the jury’s consideration at this stage of the litigation.

       II. Contributory Negligence




in Lamm v. Bissette Realty, Inc., 327 N.C. 412, 395 S.E.2d 112 (1990), by requiring actual knowledge
from a plaintiff in order for a condition to be open and obvious, disregarding the question of whether
plaintiff had constructive knowledge of the hazardous condition based on his prior use of the steps.
This appears to simply reflect confusion over whether such constructive notice should be analyzed
alongside defendant’s duty to warn or with plaintiff’s alleged contributory negligence. The majority
below clearly considered defendant’s prior use of the steps in its analysis and I do not view the
majority’s decision as being in conflict with Lamm.
                                                -19-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Earls, J., dissenting



      Defendant next contends that the evidence before the trial court established

plaintiff’s contributory negligence as a matter of law. Plaintiff argues that the record

reveals genuine issues of material fact regarding his contributory negligence that

preclude the entry of summary judgment in this case. I conclude that the issue of

plaintiff’s contributory negligence is properly for the jury.

      As an initial matter, defendant asserts that plaintiff was contributorily

negligent “because he walked into a danger that was open and obvious.” The majority

here agrees. However, in light of the fact that the alleged danger was, in my view,

not open and obvious as a matter of law, this argument too must fail.

      Defendant, echoing the opinion of the dissenting judge below, further contends

that plaintiff’s deposition testimony establishes that plaintiff actually tripped on the

non-defective fourth step, as opposed to the defective top step leading into the church,

and therefore, plaintiff was contributorily negligent as a matter of law and the alleged

defect was not the proximate cause of plaintiff’s fall.         Having found plaintiff

contributorily negligent by not looking and noticing the condition of the top step, the

majority does not consider this argument. Defendant focuses in particular on the

following exchange from plaintiff’s deposition:

             Q.     What is shown in this photo?

             A.     Okay, this is the step and the entry to the church.
             Now, when I’m saying top step, I’m saying right—right, you
             know what I mean, in this here. What I tripped on is this
             part right here going up into the church.


                                           -20-
 DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                     Earls, J., dissenting



Q.    So I have got a blue pen and I’m going to write on
the back here, make sure my pen is working. I’m going to
hand you this blue pen and I would like you to make an X,
a small X on the photo where you say you tripped.

A.   Okay, I started tripping right along here. (Witness
marking).

Q.    Make it as dark as you can so we can see it. Can I
see where you made the mark?

A.    Okay.

Q.    So are you saying you tripped on the brick or the
white wooden door threshold?

A.    I’m saying I started—started tripping right in here.

Q.     So what you’re saying is, you are pointing to the
concrete is where you started tripping. There’s a step that
has a mat in there. Do you see that? You see the top step
has a, looks like a rubber mat there?

A.    Right.

Q.     Are you tripping where that step begins, or are you
tripping on the brick, or are you tripping on the white door
threshold? What are you tripping on first?

A.   I’m tripping on this step here, and this threshold,
whatever you call it here. That’s what I’m going down.

Q.    Are you tripping on concrete or brick?

A.    Both of them, really.

Q.    Which one do you trip on first?

A.    Well, it would have to be that one first because it
comes first.

Q.    Which one? The concrete?
                        -21-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                    Earls, J., dissenting




             A.     Yeah, it would have to be that.

             Q.     Would it be the front of the concrete you trip on, that
             step of concrete?

             A.     No, it would have to be [the] front of it.

This portion of deposition testimony is ambiguous, and given the imprecise language

and terminology used, as well as the area indicated by plaintiff on the photograph, it

is unclear whether plaintiff, in attempting to communicate the step or the area where

he “started tripping,” was identifying the specific riser upon which his forward foot

first became entangled, as opposed to the tread upon which his rear leg would have

been standing when he first “started tripping.” The ambiguity in this portion of

plaintiff’s deposition testimony is further heightened given the fact that while the

risers and treads of the first four steps are all concrete, the riser of the allegedly

defective top step is brick and concrete, with an additional recessed portion of wood

as well. Moreover, the tread of the top step—that is, the floor of the church—is also

concrete. As plaintiff testified:

             A.    When I went down, I went down on the inside.
             That’s where I landed at.

             ....

             Q.    And when you say your legs and knees hit the
             ground, did they come into contact with the ground outside
             the door entrance?

             A.     No, inside.

             Q.     Inside. That floor, I think, is that concrete?
                                          -22-
               DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                     Earls, J., dissenting




              A.     Concrete.

Significantly, I note that plaintiff also testified as follows:

              Q.     And so is there any problem carrying this casket the
              25 to 30 feet to the bottom of the stairs?

              A.     No problem.

              Q.      Describe for me what happens as you’re going up the
              stairs.

              A.     Then we started going up the stairs and I can
              remember hearing Mr. McCoy saying, you guys slow down.
              I can remember that. And as we went up the stairs, next
              thing I know I was missing, stumbling across that first step,
              and right down onto that concrete floor, both knees.

              Q.     Let me go back and ask you this. Help me
              understand what happened here. Are you already on the
              top step and you’re trying to then step into the church and
              that’s when you trip? Or are you tripping on the top step?

              A.     I tripped on the top step and fell into the church.

(Emphases added.) Plaintiff reiterated in his affidavit that, “[a]s [he] stated in [his]

deposition on Page 76, [he] tripped on the top step and fell into the church,” and that

“[t]he only difficulty [he] had with respect to moving the casket into the church was

the top stair, which was unusually high, and [he] did not anticipate that [he] would

need to lift [his] foot higher than [he] was required to lift [his] feet in order to climb

the other stairs.”

       Viewing the evidence as a whole in the light most favorable to plaintiff, I

cannot conclude that the portion of deposition testimony relied upon by defendant

                                             -23-
               DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                   Earls, J., dissenting



clearly establishes that plaintiff tripped on the riser of the non-defective fourth step

or that plaintiff was contributorily negligent as a matter of law. N.C. Farm Bureau

Mut. Ins. Co. v. Sadler, 365 N.C. 178, 182, 711 S.E.2d 114, 117 (2011) (stating that

on review from summary judgment “we view the pleadings and all other evidence in

the record in the light most favorable to the nonmovant and draw all reasonable

inferences in that party’s favor.” (citing Barger v. McCoy Hillard & Parks, 346 N.C.

650, 662, 488 S.E.2d 215, 221 (1997))). Drawing such an inference would be contrary

to the crux of plaintiff’s entire case. As plaintiff alleged in both his original and

amended complaint, he “was walking up the steps of the church building, when his

left foot caught onto the lip of the top step leading into the church,” causing him to

fall.

        Finally, defendant argues that plaintiff was contributorily negligent in: (1)

failing to use a nearby ramp instead of the steps at issue; (2) agreeing to carry the

casket with only four people; (3) failing to suggest the use of a trolley to move the

casket into the church; and (4) turning sideways while climbing the steps with the

casket. With respect to these contentions, I agree with the Court of Appeals majority

below that in light of plaintiff’s testimony that carrying the casket had no effect on

his ability to climb the steps and that he could not, by the naked eye or by descending

the steps previously, perceive the difference in height of the top step, a reasonable

and prudent person would not know to take any precautions. Thus, unaware of the

defect, a reasonably prudent person would not believe that it was necessary to take a

                                           -24-
              DRAUGHON V. EVENING STAR HOLINESS CHURCH OF DUNN

                                    Earls, J., dissenting



ramp, seek additional help, use a trolley, or adjust his position. Therefore, because

carrying a casket into a church for a funeral is not indisputably negligent, I “cannot

conclude that, as a matter of law, Plaintiff was contributorily negligent in electing to

utilize the apparently safe stairs.” Draughon, 828 S.E.2d at 181. In short, these are

all matters for a jury to decide.

                                       Conclusion

      In this case, when the evidence is viewed in the light most favorable to plaintiff,

it does not establish as a matter of law that the allegedly defective condition of the

steps was open and obvious or that plaintiff was contributorily negligent. As such,

this is not the “exceptional negligence case[ ]” in which “summary judgment is

appropriate.” Ragland, 299 N.C. at 363, 261 S.E.2d at 668 (citing Page, 281 N.C. at

706, 190 S.E.2d at 194). For the reasons stated herein, I would affirm the decision of

the Court of Appeals reversing the trial court’s entry of summary judgment in favor

of defendant. Accordingly, I respectfully dissent.

      Justices HUDSON and MORGAN join in this dissenting opinion.




                                            -25-
