An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-515
                       NORTH CAROLINA COURT OF APPEALS
                            Filed:    18 February 2014
DONNA K. CURRIN,
     Plaintiff

                                              Harnett County
      v.
                                              No. 12 CVS 840

REX HEALTHCARE, INC. and REX
HOSPITAL, INC.,
     Defendants


      Appeal by plaintiff from order entered 18 January 2013 by

Judge Shannon R. Joseph in Harnett County Superior Court.                     Heard

in the Court of Appeals 26 September 2013.


      Bain, Buzzard & McRae, LLP, by Edgar R. Bain and L. Stacy
      Weaver III, for Plaintiff.

      Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch and
      F. Marshall Wall, for Defendants.


      ERVIN, Judge.


      Plaintiff Donna K. Currin appeals from an order granting

summary judgment in favor of Defendants Rex Healthcare, Inc.,

and Rex Hospital, Inc., with respect to a personal injury claim

that she had asserted against Defendants.                 On appeal, Plaintiff

argues that the trial court erroneously entered summary judgment

in favor of Defendants on the grounds that the record reflected
                                         -2-
the existence of genuine issues of material fact concerning the

extent      to   which    Plaintiff    sustained       personal        injury   as      the

result of Defendants’ negligence and the extent to which her

claim    was     barred    on   contributory     negligence        grounds.         After

careful      consideration       of   Plaintiff’s      challenge        to   the    trial

court’s order in light of the record and the applicable law, we

conclude that the trial court’s order should be affirmed.

                                I. Factual Background

                                A. Substantive Facts

       As    part    of   her    treatment     for    breast      cancer,    Plaintiff

underwent surgery at Defendant Rex Hospital on 30 November 2009.

A few days later, Plaintiff began undergoing radiation therapy

at Defendant Rex Hospital.              On eight separate occasions within

three days of the date upon which she was injured, including the

date upon which her injury occurred, Plaintiff went to Defendant

Rex Hospital for radiation therapy.

       At 9:00 a.m. on 9 December 2009, Plaintiff went to receive

radiation therapy at Defendant Rex Hospital, having been driven

there by her daughter, Donna Lynn Currin.                   Plaintiff arrived for

her second treatment that day at 3:00 p.m.                         At approximately

3:30    p.m.,     after    completing    the     second     treatment,       Plaintiff

exited Defendant Rex Hospital.                 As she left the facility and

headed      across   a    circular    driveway       that   ran   in    front      of   the
                                               -3-
hospital’s     cancer       center       toward       a    parking         facility     that    was

specifically        reserved        for       oncology         patients,          Plaintiff     was

walking alongside and talking with Ms. Currin.                               At the time that

she left Defendant Rex Hospital, Plaintiff felt “fine” and was

not experiencing any difficulty walking.                          Plaintiff did not have

any vision-related difficulties which would have prevented her

from seeing conditions at her feet.

      Although        Plaintiff         has    no        memory       of    the     events     that

occurred      after     she      left     Defendant        Rex    Hospital,          Ms.     Currin

testified that, at the time of Plaintiff’s departure from the

hospital,     the     sun     was    out      and    the       weather       was    clear.       In

addition, no leaves or similar objects obscured the surface of

the area in which Plaintiff was walking.

      As   the     two      women    crossed         the       driveway      about      six    feet

outside a marked crosswalk, Plaintiff suddenly fell and landed

on her face.            After Plaintiff fell, Ms. Currin attempted to

determine what could have caused her mother’s fall and observed

a   plastic    object       in    plain       sight       on    the    pavement.           Neither

Plaintiff nor Ms. Currin had noticed the plastic object over

which Plaintiff fell at the time that they entered Defendant Rex

Hospital      or   as    they       returned        to    the     parking         lot   prior   to

Plaintiff’s fall.             Ms. Currin photographed the area in which
                                     -4-
Plaintiff’s fall occurred on both the day on which her mother

fell and on the following evening.

    After Ms. Currin called for help, a number of nurses and a

security    guard    came   to   Plaintiff’s   assistance.        Eventually,

Plaintiff was taken to the emergency room by stretcher.                  As a

result of her fall, Plaintiff broke her nose, hurt her knee, cut

her face, and still had facial scarring and knots on her knees

three years later.

    As early as 2003, plastic bases into which stanchions could

be inserted had been placed in particular areas on the roads and

driveways    around    Defendant    Rex    Hospital   to   keep   cars   from

parking along the curb when parking spaces were unavailable, a

problem which had become acute during the construction of a new

parking deck.       The bases utilized at Defendant Rex Hospital were

approximately six inches in diameter and one and a half to two

inches high, black in color, and connected to the asphalt by an

adhesive.     The surface onto which the bases were affixed was

generally a “grayish black” color.             The stanchions that were

inserted into the bases were either fluorescent orange or white.

After construction of the deck was completed, the stanchions

were removed from the plastic bases.             When inclement weather

necessitated the closing of the Women’s Center Deck, poles would

be inserted into the plastic bases for the purpose of holding
                                          -5-
signs to redirect traffic.                Although the bases, which had not

been used for months and which had been placed away from the

crosswalk, could have been removed with relative ease without

damaging       the   asphalt    surface,       they    had     been     left    in    place

because they could not be reattached to the asphalt following

their     removal       and    because     procuring         new     bases     would     be

expensive.

      Laura     Reynolds,      who    served    as     Defendant       Rex     Hospital’s

Protective      Services       Manager,    went      to     the    location     at    which

Plaintiff had fallen            before Plaintiff had been                taken to the

emergency      room.      At    the    location       in    question,    Ms.     Reynolds

encountered Ms. Currin, who was irate about what had occurred.

Although it was customary for an investigative report to be

prepared when an injury occurred on the premises, no such report

was developed in this instance.                Instead, Ms. Reynolds discussed

the     situation       with    Defendant       Rex        Hospital’s     director       of

buildings and grounds.               At the conclusion of that discussion,

the two of them decided to have the plastic bases removed and to

identify a new system for directing people to the parking deck,

and     took    steps    to    have    that     decision          implemented    on     the

following date.         Subsequently, the bases were removed.

      According to        Ms. Reynolds,         the bases          did not     present a

hazard to anyone walking to the hospital.                          In addition, Randy
                                              -6-
Mullen,    the     facility       maintenance         manager         in    charge   of    the

hospital        grounds,    testified          that        safety      inspections        were

conducted at Defendant Rex Hospital and that he had never heard

of anyone else falling on one of the bases before the date upon

which Plaintiff was injured.

                                B. Procedural Facts

       On 20 April 2012, Plaintiff filed a complaint in which she

sought to recover damages from Defendants on the grounds that

the injuries which she sustained on 9 December 2009 resulted

from their negligence.              On 25 June 2012, Defendants filed an

answer     in    which     they    denied           the    material         allegations     of

Plaintiff’s       complaint       and     asserted             contributory     negligence;

intervening, superseding, insulating, or concurring negligence;

and    assumption    of    the    risk    as        affirmative       defenses.       On    21

December 2012, Defendants filed a motion seeking the entry of

summary    judgment        in    their    favor           on    the   grounds     that     the

undisputed facts showed that Plaintiff                           was not injured as a

proximate result of their negligence or, in the alternative,

that     Plaintiff’s       claim        was    barred           by    the    doctrines      of

contributory       negligence      or     assumption             of   the    risk.        After

holding a hearing concerning the merits of Defendants’ summary

judgment motion, the trial court entered an order granting that
                                   -7-
motion on 18 January 2013.        Plaintiff noted an appeal to this

Court from the trial court’s order.

                           II. Legal Analysis

                        A. Standard of Review

    Summary     judgment    is    appropriate       “if    the     pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that any party is

entitled to a judgment as a matter of law.”               N.C. Gen. Stat. §

1A-1,   Rule   56(c).      “In   ruling   on   [a    motion      for   summary

judgment,] the court must consider the evidence in the light

most favorable to the nonmovant, and the slightest doubt as to

the facts entitles him to a trial.”             Williams v. 100 Block

Assocs., 132 N.C. App. 655, 657, 513 S.E.2d 582, 583 (1999)

(quotation marks omitted) (quoting Snipes v. Jackson, 69 N.C.

App. 64, 72, 316 S.E.2d 657, 661, disc. review denied, 312 N.C.

85, 321 S.E.2d 899 (1984)).      As the Supreme Court has stated:

          While [N.C. Gen. Stat. § 1A-1,] Rule 56,
          like its federal counterpart, is available
          in all types of litigation to both plaintiff
          and defendant, we start with the general
          proposition that issues of negligence . . .
          are ordinarily not susceptible [to] summary
          adjudication either for or against the
          claimant, but should be resolved by trial in
          the ordinary manner.       It is only in
          exceptional negligence cases that summary
          judgment is appropriate. This is so because
          the rule of the prudent man (or other
                                   -8-
           applicable  standard   of   care)  must   be
           applied, and ordinarily the jury should
           apply it under appropriate instructions from
           the court.

Page v. Sloan, 281 N.C. 697, 706, 190 S.E.2d 189, 194 (1972)

(omission in original) (citations and quotation marks omitted).

Thus, a trial court should only grant summary judgment in the

event that the material facts, taken in the light must favorable

to the non-moving party, show no basis for any decision other

than the entry of judgment in favor of the moving party, with a

decision by a trial court to enter summary judgment in favor of

a particular party subject to de novo review on appeal.            In re

Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)

(quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385

(2007)).

                      B. Substantive Legal Analysis

    A   person   or    entity   owning   or   controlling   the   use   of

property is subject to “the duty to exercise reasonable care in

the maintenance of their premises for the protection of lawful

visitors.”   Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d

882, 892 (1998).      “In order to prove a defendant’s negligence, a

‘plaintiff must show that the defendant either (1) negligently

created the condition causing the injury, or (2) negligently

failed to correct the condition after actual or constructive

notice of its existence.’”       Fox v. PGML, LLC, __ N.C. App. __,
                                             -9-
__, 744 S.E.2d 483, 485 (2013) (quoting Roumillat v. Simplistic

Enterprises,     Inc.,     331    N.C.       57,    64,    414    S.E.2d       339,   342-43

(1992)).       “A landowner is under no duty to protect a visitor

against dangers either known or so obvious and apparent that

they reasonably may be expected to be discovered . . . [and]

need not warn of any ‘apparent hazards or circumstances of which

the invitee has equal or superior knowledge.’”                            Von Viczay v.

Thoms,   140    N.C.     App.    737,    739,       538    S.E.2d       629,   631    (2000)

(citations     omitted)     (quoting         Jenkins       v.    Lake    Montonia      Club,

Inc., 125 N.C. App. 102, 105, 479 S.E.2d 259, 262 (1997)                                  ),

aff’d, 353 N.C. 445, 545 S.E.2d 210 (2001).                             However, “[i]f a

reasonable person would anticipate an unreasonable risk of harm

to   a   visitor    on     his    property,         notwithstanding            the    lawful

visitor’s knowledge of the danger or the obvious nature of the

danger, the landowner has a duty to take precautions to protect

the lawful visitor.”            Martishius v. Carolco Studios, Inc., 142

N.C. App. 216, 223, 542 S.E.2d 303, 308 (2001), aff’d, 355 N.C.

465, 562 S.E.2d 887 (2002).

     In seeking to persuade us that the trial court erred by

granting   summary       judgment       in    favor       of    Defendants,      Plaintiff

argues   that    she     was     injured       as    the       result    of    Defendants’

negligence on the grounds that the base over which she tripped

was not an apparent hazard and posed a foreseeable risk of harm
                                     -10-
to pedestrians in the area in which Plaintiff was walking at the

time   that    she    fell   and   that   Defendants   were   negligent   in

creating such an obstacle and in failing to remove it.              In the

alternative, Plaintiff contends that, at an absolute minimum,

there was a genuine issue of material fact concerning whether

the base was apparent, a determination which, if accepted, would

preclude a decision to grant summary judgment in Defendants’

favor.   We do not find Plaintiff’s arguments persuasive.

       In seeking to persuade us that the base over which she fell

was not apparent, Plaintiff relies upon a number of different

factors.      More particularly, Plaintiff argues that the base was

too small to be visible and was located on “a surface of the

same color.”         In addition, Plaintiff points out that the base

was not at eye level and emphasizes the fact that a reasonable

person would expect the surface of a driveway to be smooth.               As

the result of all of these factors, Plaintiff contends that the

base over which she fell was not apparent and that Defendants

should, for that reason, be deemed to have acted negligently by

installing the base and by failing to remove it prior to the

date upon which she was injured.

       A careful examination of the undisputed evidence presented

for the trial court’s consideration at the time of the summary

judgment hearing establishes that the base over which Plaintiff
                                       -11-
fell was six inches in diameter and approximately two inches

tall.     At the time that Plaintiff fell, the weather was clear,

the sun was out, and no leaves or similar objects covered the

base or otherwise interfered with Plaintiff’s ability to see it.

The photographs contained in the record, including those taken

by Ms. Currin on the following evening, show that the base was

not identical in color to the driveway surface and was easily

visible    at   night.        Despite       arguing    that        Defendants      were

negligent because the base was not at eye level, Plaintiff has

cited no authority tending to suggest that the fact that an

object over which a plaintiff trips was not at eye level has any

specific    bearing    on    the    issue     of   whether     that       object    was

apparent for purposes of North Carolina negligence law, and we

have found no such authority in the course of our own research.

Instead, “our prior cases merely establish that the facts must

be viewed in their totality to determine if there are factors

which make the existence of a defect in a sidewalk, in light of

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

less than ‘obvious’ to the plaintiff.”                Pulley v. Rex Hosp., 326

N.C. 701, 706, 392 S.E.2d 380, 384 (1990).                   As a result, after

considering     all   of    the    evidence   contained       in    the    record    in

light of the totality of the circumstances, we conclude that

there is no genuine issue of material fact concerning the extent
                                            -12-
to which the base over which Plaintiff tripped constituted an

apparent hazard and that the base in question was, in fact,

apparent.

    In an attempt to avoid the obvious legal implications of

this determination, Plaintiff contends that, even if the base

over which she fell constituted an apparent hazard, the trial

court erred by granting summary judgment in favor of Defendants

on the grounds that the record demonstrates the existence of a

genuine issue of material fact concerning whether she should

have been expected to see the base over which she fell.1                           More

specifically,        Plaintiff     argues,     in    reliance      upon   the   Supreme

Court’s decision in Pulley, that “facts must be viewed in their

totality    to   determine       if    there       are   factors    which   make   the

existence of a defect in a sidewalk, in light of the surrounding

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

‘obvious’ to the plaintiff” and that such factors “include the
    1
      The decisions upon which Plaintiff relies inconsistently
address the extent to which a plaintiff could have reasonably
failed to observe an otherwise apparent hazard as having to do
with the issue of the defendant’s negligence or the plaintiff’s
contributory negligence. As a result of the fact that there are
decisions that adopt both approaches, the fact that the
decisions addressing this issue discuss cases sounding in both
negligence and contributory negligence interchangeably, and the
fact that we need not resolve that analytical issue in order to
decide this case, we will not attempt to determine which
approach is preferable and will, for simplicity’s sake, address
the decisions upon which Plaintiff relies as relevant to the
issue   of  Defendants’  negligence   rather  than   Plaintiff’s
contributory negligence.
                                        -13-
nature of the defect in the sidewalk, the lighting at the time

of the accident, and whether any other reasonably foreseeable

conditions existed which might have distracted the attention of

one walking on the sidewalk.”                  Id. (second emphasis added).

Although there are, as Plaintiff notes, a number of decisions

that establish that a plaintiff’s failure to detect and avoid an

obvious defect in a defendant’s property may be overlooked under

certain circumstances, we do not believe that those decisions

justify a decision to reverse the trial court’s order in this

instance.

       In Norwood v. Sherwin-Williams Co., 303 N.C. 462, 468, 279

S.E.2d 559, 563 (1981), reversed in part, Nelson, 349 N.C. at

616,   507   S.E.2d   at   883,    the       Supreme   Court   stated    that,   in

considering    whether     or     not    a     plaintiff   was   contributorily

negligent for tripping over a generally visible hazard, “[t]he

question is not whether a reasonably prudent person would have

seen the [hazard] had he or she looked but whether a person

using ordinary care for his or her own safety under similar

circumstances would have looked down at the floor.”                     Based upon

that premise, the Supreme Court found the existence of a prima

facie case of negligence on the part of the defendant in a case

in which one of the defendant’s employees put a platform near an

aisle that “protruded into the aisle” and then “placed a display
                                                -14-
upon the platform and items along the aisle which were designed

and intended to draw the customer’s attention upward and away

from the floor.”              303 N.C. at 468, 279 S.E.2d at 563.                                Based

upon these facts, the                Supreme Court found that a reasonable

juror    could       find     that       the    plaintiff       was    not    contributorily

negligent      in     failing       to    see    the    protrusion       that         led   to     the

plaintiff’s fall based upon the relatively dim lighting in the

store and the distractions to which the plaintiff was subject as

a result of the display.                 Id. at 469-70, 279 S.E.2d at 563-64.

       This    Court        has   reached        similar      results    on       a    number       of

occasions.          In Dowless v. Kroger Co., 148 N.C. App. 168, 172-73,

557     S.E.2d       607,     610    (2001),           we    rejected    the          defendant’s

contention that a verdict should have been directed in its favor

given that the plaintiff injured herself by falling over an

“obvious hazard” and the plaintiff’s admission that, “if she had

looked down, there is no reason that she would not have seen the

hazard,”       on     the    grounds       that        the    shopping       cart       that       the

plaintiff      was      returning         partially          blocked    her       view      of    the

pothole which caused her fall and that the plaintiff was focused

on the heavy traffic in the parking lot in which the pothole was

situated.        Similarly, in Kremer v. Food Lion, Inc., 102 N.C.

App.    291,     295,       401   S.E.2d        837,    839    (1991),       we    noted         that,

“[a]lthough failure to discover an obvious defect will usually
                                           -15-
be considered contributory negligence as a matter of law, this

general    rule      does   not    apply     when     circumstances       divert   the

attention of an ordinarily prudent person from discovering an

existing dangerous condition.”                  As a result, we held that the

trial   court     properly     denied      the     defendant’s   directed     verdict

motion because “[e]vidence was offered that items were placed

above the cooler [to which the plaintiff was walking] designed

to draw the attention of shoppers.”                   Id.   Finally, in Price v.

Jack Eckerd Corp., 100 N.C. App. 732, 736, 398 S.E.2d 49, 52

(1990),    we   held    that      “the   evidence     support[ed]     a    reasonable

inference       or     conclusion        that      [the     plaintiff]      was    not

[contributorily] negligent in failing to look down at the floor”

given     the   “possibility        that     the     plaintiff’s    attention      was

diverted by the cashier’s directions and by the advertisements.”

In explaining our decision, we stated that:

            When a plaintiff does not discover and avoid
            an obvious defect, that plaintiff will
            usually    be   considered    to   have   been
            [contributorily] negligent as a matter of
            law.    However, where there is some fact,
            condition, or circumstance which would or
            might divert the attention of an ordinarily
            prudent person from discovering or seeing an
            existing dangerous condition, the general
            rule does not apply.        Additionally, our
            Supreme Court has rejected an unbending
            application of the general rule stating that
            the contributory negligence defense does not
            automatically    bar    from    recovery   the
            plaintiff who trips or falls over an object
            on the premises of another, even when the
                                               -16-
             object was in a position at which the
             plaintiff would have seen it had he or she
             looked.

Id. (citations and quotation marks omitted) (quoting Norwood,

303 N.C. at 468, 279 S.E.2d at 563 and Thomas v. Dixson, 88 N.C.

App. 337, 341, 363 S.E.2d 209, 212 (1988)).                              As a result, a

number      of     decisions        of   the     Supreme       Court    and    this       Court

establish that, in the event that other conditions existing in

the   vicinity       of   the       object      over     which    the    plaintiff        fell

distracted his or her attention or interfered with his or her

vision, the existence of an apparent hazard does not bar the

plaintiff’s right to recover damages for personal injury.

      The    decisions         in    question     do     not,    however,      suffice      to

justify a decision to overturn the trial court’s order granting

summary     judgment      in    Defendants’           favor.      As    we    have    already

noted,      each     of   the       decisions         upon   which     Plaintiff      relies

involved the presence of a factor that could have obstructed the

plaintiff’s ability to see an apparent hazard or operated to

distract the plaintiff’s attention from an apparent hazard.                                   A

careful review of the record reveals the absence of any evidence

tending to show that other conditions in the vicinity of the

base over which Plaintiff tripped had the potential to obstruct

her ability to see the base or distract her attention.                                    As a

result,     the     trial      court     did     not     err    by     refusing      to   deny
                               -17-
Defendants’   summary   judgment   motion    on   the   theory   that

Plaintiff’s failure to see the base over which she fell could be

explained by other conditions in the area.

                         III. Conclusion

    Thus, for the reasons set forth above, we conclude that the

trial court did not err by granting summary judgment in favor of

Defendants.   As a result, the trial court’s order should be, and

hereby is, affirmed.

    AFFIRMED.

    Judges ROBERT N. HUNTER, JR., and DAVIS concur.

    Report per Rule 30(e).
