               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1158

                                 Filed: 6 June 2017

Brunswick County, No. 15 CVS 245

VANESSA RASH, Plaintiff,

              v.

WATERWAY LANDING HOMEOWNERS ASSOCIATION, INC., Defendant.


        Appeal by plaintiff from order entered 17 August 2016 by Judge Jerry Cash

Martin in Brunswick County Superior Court. Heard in the Court of Appeals 19 April

2017.


        The Regan Law Firm, PLLC, by Conor P. Regan, for plaintiff-appellant.

        Marshall, Williams & Gorham, L.L.P., by William Robert Cherry, Jr., for
        defendant-appellee.


        ELMORE, Judge.


        Vanessa Rash (plaintiff) filed a negligence action against Waterway Landing

Homeowners Association, Inc. (defendant) after she slipped and fell on a molded

walkway in her condominium complex. The trial court granted summary judgment

for defendant, concluding that plaintiff’s admission that she was not looking down at

the walkway established her contributory negligence as a matter of law. Because the

evidence, viewed in the light most favorable to plaintiff, presents a genuine issue of
               RASH V. WATERWAY LANDING HOMEOWNERS ASS’N, INC.

                                 Opinion of the Court



material fact as to whether plaintiff exercised ordinary care to protect herself from

injury, we reverse.

                                  I. Background

      Prior to her fall, plaintiff had been a tenant of the Waterway Landing

Condominiums for about six years. Plaintiff alleged that she always accessed her

unit by a stairway located on the side of the building. That changed in August 2012,

when plaintiff began using the elevator while she recovered from a rotator cuff

surgery.

      Plaintiff could reach the parking lot from the elevator via one of two wooden

walkways located on either side of the building. Each walkway contains a ninety-

degree turn around a white column. As plaintiff’s exhibits demonstrate, tenants

would exit the building, proceed down the walkway to the white column, make the

turn around the column, and continue a few more feet on the walkway before reaching

the parking lot.

      During 2012 and 2013, defendant contracted with Community Association

Management Specialists (CAMS) to maintain its common areas, including the

wooden walkways. Darlene Greene was one of two CAMS employees assigned to the

condominiums. In November 2012, Greene notified defendant that the walkways

were hazardous due to a mold growth which caused them to become slick when wet.




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She submitted an estimate to power wash the walkways but never received a

response from defendant.

      On 3 January 2013, plaintiff arrived at Waterway Landing after visiting her

mother in South Carolina. Tired from the drive, plaintiff left her suitcase in the car

and went directly to her unit. An overnight rainfall moistened the mold growth on

the walkway and caused it to become slick.

      The next morning, plaintiff took the elevator to the ground floor to retrieve her

suitcase. She testified in her deposition that she left her unit unaware that it had

rained overnight. When she reached the ground floor, plaintiff exited the building

and proceeded down the walkway. She made the ninety-degree turn around the white

column and, as she approached the parking lot only a few feet away, plaintiff slipped

on the slimy walkway and fell—breaking her femur.

      On 9 February 2015, plaintiff filed a negligence action against defendant.

Defendant raised contributory negligence as an affirmative defense and moved for

summary judgment. At the hearing on defendant’s motion, the trial court concluded

that the evidence was sufficient to establish defendant’s negligence, but plaintiff was

contributorily negligent because she failed to look down at the walkway:

             Looking at the counterclaim that the plaintiff, Vanessa
             Rash, was contributorily negligent, the law doesn’t place a
             responsibility on a person who has two feet to walk and
             look where you’re going. It’s a matter of common sense.
             Here on this occasion, Ms. Rash has indicated [in] her
             deposition, “I didn’t pay any attention” and . . . “I did not


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             look down.” That is showing, in the Court’s view, a person
             is not exercising reasonable care and a person who is not
             complying with that common sense duty to keep a proper
             lookout; that is, when you walk, you must not only look but
             you must see what you ought to see. And if it’s raining on
             the sidewalk or wet on the sidewalk, or whatever the
             condition of the sidewalk is, look before you go there and
             see what you ought to see and here, this is a person who
             was not being careful. I think, as a matter of law, it does
             show that she was contributorily negligent.


The trial court granted summary judgment in favor of defendant. Plaintiff timely

appeals.

                                   II. Discussion

      Plaintiff argues that the trial court erred in granting summary judgment for

defendant because the evidence raises genuine issues of material fact as to plaintiff’s

contributory negligence—specifically, whether plaintiff exercised ordinary care to

protect herself from injury.

      We review a trial court’s order of summary judgment de novo. In re Will of

Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008).         Summary judgment is

appropriate only “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) (2015). In determining whether such

judgment is proper, the evidence and all reasonable inferences drawn therefrom must



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be viewed in the light most favorable to the nonmoving party. Barger v. McCoy

Hillard & Parks, 346 N.C. 650, 662, 488 S.E.2d 215, 221 (1997). To survive a motion

for summary judgment, the nonmoving party must offer “substantial evidence that

creates a genuine issue of material fact.” United Cmty. Bank v. Wolfe, No. 289PA15,

slip op. at 5 (N.C. May 5, 2017) (citing Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d

829, 835 (2000)). “Substantial evidence” is that which “a reasonable mind might

accept as adequate to support a conclusion.” Thompson v. Wake Cnty. Bd. of Educ.,

292 N.C. 406, 414, 233 S.E.2d 538, 544 (1977) (citations omitted) (internal quotation

marks omitted).

      The defendant has the burden of proving contributory negligence. Martishius

v. Carolco Studios, Inc., 355 N.C. 465, 479, 562 S.E.2d 887, 896 (2002) (citing

Nicholson v. Am. Safety Util. Corp., 346 N.C. 767, 774, 488 S.E.2d 240, 244 (1997)).

Whether contributory negligence exists “is ordinarily a question for the jury.” Id.

The issue may be decided on summary judgment “only where the evidence establishes

a plaintiff’s negligence so clearly that no other reasonable conclusion may be

reached.” Id. (citing Nicholson, 346 N.C. at 774, 488 S.E.2d at 244).

      Contributory negligence arises from a breach of the plaintiff’s duty to exercise

ordinary care for his own safety. Clark v. Roberts, 263 N.C. 336, 343, 139 S.E.2d 593,

597 (1965); Holderfield v. Rummage Bros. Trucking Co., 232 N.C. 623, 625, 61 S.E.2d

904, 906 (1950). “Ordinary care” means that degree of care which “a reasonable and



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prudent person would exercise” under the same or similar circumstances.

Martishius, 355 N.C. at 473, 562 S.E.2d at 892 (citing Hart v. Ivey, 332 N.C. 299, 420

S.E.2d 174 (1992)); see also Alford v. Washington, 244 N.C. 132, 140, 92 S.E.2d 788,

794 (1956) (“Ordinarily the law imposes upon a person sui juris the obligation to use

ordinary care for his own protection, and the degree of such care should be

commensurate with the danger to be avoided.” (citations omitted)). If the plaintiff’s

“failure to exercise due care for his own safety is one of the proximate contributing

causes of his injury,” his contributory negligence “will bar recovery.” Holderfield, 232

N.C. at 625, 61 S.E.2d at 906.

      A plaintiff may be found negligent when he “ignores unreasonable risks or

dangers which would have been apparent to a prudent person exercising ordinary

care for his own safety.” Smith v. Fiber Controls Corp., 300 N.C. 669, 673, 268 S.E.2d

504, 507 (1980) (citations omitted); see also Chaffin v. Brame, 233 N.C. 377, 380, 64

S.E.2d 276, 279 (1951) (“[A] plaintiff [cannot] be guilty of contributory negligence

unless he acts or fails to act with knowledge and appreciation, either actual or

constructive, of the danger of injury which his conduct involves.” (citation omitted)).

As our Supreme Court has explained in more concise terms, “a person has a legal

duty to avoid open and obvious dangers.” Martishius, 355 N.C. at 479, 562 S.E.2d at

896 (citing Gibbs v. Carolina Power & Light Co., 268 N.C. 186, 150 S.E.2d 207 (1966)).

Accordingly, “a plaintiff may not recover in a negligence action where the hazard in



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

circumstances.” Dowless v. Kroger Co., 148 N.C. App. 168, 171, 557 S.E.2d 607, 609

(2001).

      Still, a person may be excused from failing to recognize “an existing dangerous

condition” that “he ordinarily would or should have seen” if there is “some fact,

condition, or circumstance which would or might divert the attention of an ordinarily

prudent person from” discovering the same. Walker v. Cnty. of Randolph, 251 N.C.

805, 810, 112 S.E.2d 551, 554 (1960). When contributory negligence is alleged in a

slip-and-fall case, “[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.” Norwood v. Sherwin-Williams Co., 303 N.C. 462, 468, 279 S.E.2d 559, 563

(1981), abrogated on other grounds by Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d

882 (1998).

      In Pulley v. Rex Hospital, 326 N.C. 701, 392 S.E.2d 380 (1990), abrogated on

other grounds by Nelson, 349 N.C. 615, 507 S.E.2d 882, for example, the plaintiff was

injured after tripping on an uneven sidewalk outside of a hospital. Id. at 703, 392

S.E.2d at 382. The plaintiff’s forecast of evidence tended to show that the sidewalk

was poorly lit, she had to duck to avoid overhanging tree branches, and she had to

divert her path on the sidewalk to accommodate other pedestrians. Id. The trial



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court awarded summary judgment for the defendant. Id. The Court of Appeals

affirmed, concluding that the evidence established the plaintiff’s contributory

negligence as a matter of law because she “admitted that she was not looking at the

sidewalk as she walked, and that ‘had she been focusing her full attention on the

sidewalk, she would have seen the unevenness.’ ” Pulley v. Rex Hosp., 95 N.C. App.

89, 92, 381 S.E.2d 892, 894 (1989) (alterations omitted), rev’d, 326 N.C. 701, 392

S.E.2d 380. The Supreme Court disagreed: “While the plaintiff had a duty to look

where she was walking, that duty did not require her to walk along with her eyes

constantly focused at her feet.” Pulley, 326 N.C. at 708, 392 S.E.2d at 385. Reversing

the decision of this Court, the Supreme Court explained 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, . . . less than ‘obvious’

to the plaintiff.” Id. at 706, 392 S.E.2d at 384. Because there were genuine issues of

material fact “as to whether the combination of the lighting, the tree branches, and

oncoming pedestrians made it reasonable for the plaintiff to turn her attention away

from the sidewalk,” the defendant was not entitled to summary judgment. Id. at 708–

09, 392 S.E.2d at 385.

      Similarly, in Dowless the plaintiff was injured after she inadvertently steered

her shopping cart into a hole in the parking lot asphalt. 148 N.C. App. at 169–70,

557 S.E.2d at 608. The trial court granted summary judgment for the defendants,



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who claimed that the plaintiff was contributorily negligent because “the hole was an

obvious hazard.” Id. at 172, 557 S.E.2d at 610. Reversing the trial court’s order in

part, this Court concluded that the “facts do not establish as a matter of law that the

hole in the asphalt would have been obvious to a person employing reasonable care.”

Id. Although the plaintiff admitted that she would have seen the hole had she looked

down, she swore in her affidavit that “her view of the ground was obstructed by the

merchandise in her shopping cart, and [ ] her attention was focused on the heavy

traffic in the parking lot in order to ensure that she would reach her car safely.” Id.

at 172–73, 557 S.E.2d at 610; see also Yates v. Haley, 103 N.C. App. 604, 607–09, 406

S.E.2d 659, 661–62 (1991) (reversing summary judgment for the defendant where the

plaintiff’s evidence tended to show that his view of a puddle was partially obstructed

and his attention was focused on the bathroom door); cf. Swinson v. Lejeune Motor

Co., Inc., 147 N.C. App. 610, 615–19, 557 S.E.2d 112, 117–19 (2001) (McCullough, J.,

dissenting) (concluding that evidence established contributory negligence as a matter

of law where the plaintiff claimed she fell while looking for her car in the parking lot

but a large defect in the asphalt was in her unobstructed plain view and there were

no cars in area), rev’d per curiam for the reasons stated in the dissent, 356 N.C. 286–

87, 569 S.E.2d 646 (2002).

      Finally, in Crane v. Caldwell, 113 N.C. App. 362, 438 S.E.2d 449 (1994), the

plaintiff broke his leg while descending an irregular staircase leading to a lake. Id.



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at 363–64, 438 S.E.2d at 450–51. The plaintiff testified at trial that the area “on the

steps where he slipped was poorly lit, wet, and covered with slippery moss.” Id. at

364, 438 S.E.2d at 450. He had navigated the steps before and conceded that he had

to “use caution” because of their irregular lengths. Id. at 364, 438 S.E.2d at 450–51.

At the close of the plaintiff’s evidence, the trial court granted the defendant’s motion

for directed verdict on the basis that the plaintiff was contributorily negligent as a

matter of law. Id. at 364, 438 S.E.2d at 451. This Court disagreed because the

evidence showed, inter alia, that the “plaintiff was not fully aware of the wet, slippery

condition of the stairway which caused him to fall.” Id. at 368, 438 S.E.2d at 453.

The Court explained:

             [P]laintiff testified that he did not know that the steps were
             wet and slippery. Although there was evidence that it had
             rained earlier in the day, there was also evidence that this
             rainfall had evaporated and that the steps were wet due to
             defendant’s prior use of a lawn sprinkler. Plaintiff was
             unaware of the stairway’s wet condition which, according
             to his testimony, was not discernable upon visual
             inspection. Plaintiff testified that he had used the steps on
             several prior occasions, yet there was no evidence that he
             had used the steps at night or when they were wet.


Id. at 367, 438 S.E.2d at 452. Because the evidence did not establish the plaintiff’s

contributory negligence as a matter of law, this Court reversed the order for directed

verdict. Id. at 368, 438 S.E.2d at 453.




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      In this case, we agree with plaintiff that there are genuine issues of material

fact as to whether plaintiff exercised ordinary care to protect herself from injury.

Plaintiff’s affidavit and deposition testimony show that she had no knowledge of the

dangerous condition created by the mold growth on the walkway. She testified that

she never observed mold on the stairway she used regularly, or on the walkway itself

she had used five or six times since August 2012. On those occasions when she had

used the walkway, it was dry. Plaintiff had never used any of the molded walkways

during wet conditions and she “was unaware that the mold would form a slippery

slime when it had been exposed to water.” She was not made aware of the hazardous

condition and was not advised to avoid the walkways under wet conditions. Although

plaintiff did concede that she “never paid attention” to the walkway prior to, or at the

time of, her fall, Greene did not notify defendant of the mold until November 2012,

indicating that plaintiff could have traversed a clean walkway—sans mold—for two

months.

      In addition, a jury could find that plaintiff acted as a reasonable and prudent

person even though she was not looking directly down at the walkway when she

slipped. Plaintiff had just completed her turn around the white column before she

proceeded on the shorter portion of the walkway. She fell within only a few feet of

completing her turn. A reasonable juror could assume that it would take a few steps

for plaintiff to re-direct her attention from the column, see, e.g., Price v. Jack Eckerd



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Corp., 100 N.C. App. 732, 736, 398 S.E.2d 49, 52 (1990) (rejecting conclusion that

failure to look down at the floor established the plaintiff’s negligence as a matter of

law where, after making a turn, she tripped over a box that “was so close to her that

she had barely taken two steps before tripping over it”), or that plaintiff justly focused

her attention on the parking lot which she was about to enter, rather than looking

out for hazards on the short walkway spanning only a few feet, see Alford, 244 N.C.

at 140, 92 S.E.2d at 794 (“[T]he degree of [ ] care should be commensurate with the

danger to be avoided.”).

      Even if plaintiff had looked down at the walkway, the evidence does not

conclusively establish that she would have recognized the dangerous condition

presented by the mold. Plaintiff’s photographic exhibits only show a discoloration on

the walkway. In her affidavit, she asserts: “Without actually testing the slipperiness

of the substance where the mold had grown, the appearance of the walkway in a wet

or dry condition appear[s] no different to the naked eye.” Plaintiff testified in her

deposition that she was unware that it had rained the night before she fell on the

walkway. And because she “had never utilized the walkway in question or any [of

the other] walkways containing mold during wet conditions,” plaintiff was not aware

that the mold would become slippery when wet. Based on the foregoing, we conclude

that plaintiff presented substantial evidence to create a genuine issue of material fact

as to her contributory negligence.



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                                   III. Conclusion

      When viewed in the light most favorable to plaintiff, the evidence fails to

establish that she was negligent as a matter of law. Despite plaintiff’s admission that

she was not looking down at the walkway when she fell, a jury could still find that

plaintiff exercised ordinary care to protect herself from injury. The trial court’s order

granting summary judgment for defendant is reversed.

      REVERSED.

      Judges INMAN and BERGER concur.




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