             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-246

                              Filed: 2 February 2016

Durham County, No. 13 CVS 3625

SHERMAN L. STEELE, Plaintiff

             v.

CITY OF DURHAM, Defendant


      Appeal by plaintiff from order entered 13 August 2014 by Judge Orlando F.

Hudson, Jr. in Durham County Superior Court. Heard in the Court of Appeals 26

August 2015.


      Office of the City Attorney, by Kimberly M. Rehberg, for the City of Durham.

      Perry, Perry & Perry, P.A., by Robert T. Perry, for plaintiff-appellant.


      CALABRIA, Judge.


      Sherman L. Steele (“plaintiff”) appeals from an order granting summary

judgment in favor of the City of Durham (“the City”). This negligence case presents

the issue of whether the City or the State owed a legal duty to maintain a reasonably

safe sidewalk located within the City limits beside a State Municipal System

Highway. We conclude that because there was no contract delegating maintenance

of the sidewalk, the City, not the State, had a statutory duty to maintain the sidewalk

in a reasonably safe manner. In addition, plaintiff’s forecast of evidence presents

genuine issues of material fact as to the City’s negligence and plaintiff’s contributory

negligence, precluding summary judgment. Therefore, we reverse and remand.
                                  STEELE V. CITY OF DURHAM

                                        Opinion of the Court



                                        I. Background

       Around midnight on 7 August 2011, plaintiff was walking in the City along the

eastern sidewalk of South Alston Avenue, also known as North Carolina State

Highway 55 (“Highway 55”), when he stepped into a hole in the sidewalk and fell.

Plaintiff sustained injuries to his shoulder, which required arthroscopic surgery.

According to plaintiff’s evidence, the hole was not visible due to overgrown vegetation.

On 10 July 2013, plaintiff filed an action against the City,1 alleging negligence in

failing to inspect, maintain, and repair the sidewalk. The City filed its answer,

defenses, and affirmative defenses. On 2 May 2014, the City filed a motion for

summary judgment.

       During the summary judgment hearing on 14 July 2014, the City presented

evidence that the pertinent stretch of Alston Avenue was a State right-of-way because

it runs beside Highway 55, which is part of the State Highway System, as defined by

19A N.C.A.C. 2D.0404(2). Plaintiff presented affidavits from five residents who live

near the pertinent area of Alston Avenue; in summary, the residents indicated that

City employees had generally maintained the area by trimming back vegetation and

placing a cone in the hole in the sidewalk. Plaintiff also presented the deposition of

Dwight Murphy, the Operations Manager for the City’s Public Works Department.



       1 Plaintiff has also filed an action with the North Carolina Industrial Commission against the
North Carolina Department of Transportation (“NCDOT”), which has been stayed pending the
resolution of this appeal.

                                                -2-
                             STEELE V. CITY OF DURHAM

                                  Opinion of the Court



Murphy stated that he was notified of plaintiff’s injury and investigated the hole,

which he discovered appeared to be caused by a utility vault in the sidewalk. Murphy

noted there was a cone in the hole but stated it did not belong to the City. Murphy

was not aware of which entity—the City or the NCDOT—was responsible for

maintaining the subject sidewalk.       Murphy formerly worked for the City of

Greensboro, where the State maintained certain sidewalks adjacent to state-owned

highways.   However, after learning of plaintiff’s injury, Murphy stated that he

discovered “[i]n Durham, the State does not maintain any sidewalks.” Plaintiff also

pointed to 19A N.C.A.C. 2D.0404(c)(6), promulgated by the NCDOT, which provides

that the State’s maintenance duty does not extend to sidewalks.

      In summary, it is undisputed that plaintiff fell and sustained injuries on a

portion of the sidewalk which runs along Highway 55, also known as Alston Avenue,

which is a “State Municipal System Highway,” as defined by 19A N.C.A.C.

2D0404(a)(3). On 13 August 2014, the trial court considered the evidence and both

parties’ arguments and granted summary judgment in favor of the City. Plaintiff

appeals.

                                   II. Negligence

      Plaintiff contends the trial court erred by granting summary judgment in favor

of the City. Specifically, plaintiff contends that the forecast of evidence, viewed in

the light most favorable to plaintiff, shows that (1) the City had a legal duty to



                                         -3-
                               STEELE V. CITY OF DURHAM

                                    Opinion of the Court



maintain the sidewalk, (2) genuine issues of material fact exist as to whether the City

provided a reasonably safe sidewalk, and (3) plaintiff was not contributorily

negligent. We agree.

A. Legal Duty

       Turning first to whether the City owed plaintiff a legal duty, “[w]hen there is

no dispute as to the facts . . . the issue of whether a duty exists is a question of law

for the court.” Mozingo by Thomas v. Pitt Cty. Mem'l Hosp., Inc., 101 N.C. App. 578,

588, 400 S.E.2d 747, 753 (1991) (citations omitted), aff'd, 331 N.C. 182, 415 S.E.2d

341 (1992). Absent a legal duty, there can be no negligence. Turner v. North Carolina

Dept. of Transp., 223 N.C. App. 90, 93, 733 S.E.2d 871, 874 (2012) (citation omitted).

This duty may arise by statute or operation of law. Pinnix v. Toomey, 242 N.C. 358,

362, 87 S.E.2d 893, 897 (1955) (citation omitted). Plaintiff contends the City owed

him a statutory duty to keep the sidewalk reasonably safe. We agree.

       The City acknowledges its statutory authorization to maintain sidewalks

within its corporate boundaries under N.C. Gen. Stat. § 160A-296, which imposes

upon municipalities “[t]he duty to keep the public streets, sidewalks, alleys, and

bridges [within its corporate limits] in proper repair” and “[t]he duty to keep the

public streets, sidewalks, alleys, and bridges [within its corporate limits] . . . free from

unnecessary obstructions[.]” N.C. Gen. Stat. § 160A-296 (a)(1)-(2) (2015) (emphasis




                                           -4-
                             STEELE V. CITY OF DURHAM

                                  Opinion of the Court



added). The statute vests municipalities with authority and control of all public

passages, except certain streets and bridges, located within its municipal boundaries:

             (a) A city shall have general authority and control over all
             public streets, sidewalks, alleys, bridges, and other ways of
             public passage within its corporate limits except to the
             extent that authority and control over certain streets and
             bridges is vested in the Board of Transportation [NCDOT].

N.C. Gen. Stat. § 160A-296(a) (2015) (emphasis added).         Furthermore, we take

judicial notice, pursuant to N.C. Gen. Stat. § 150B-21.22 (2015), of the following

relevant provision of the North Carolina Administrative Code relating to the

maintenance of the state highway system within a municipality: “The maintenance

of sidewalks is a municipal responsibility.” 19A N.C.A.C. 2D.0404(c)(6).

      The City asserts that while it has a general duty regarding sidewalks, this

particular sidewalk does not fall within the purview of the statute, but rather within

an exception provided for in N.C. Gen. Stat. § 160A-297, because Highway 55 is a

“state-maintained road.” The City argues:

             Appellant would have the Court completely ignore the fact
             that the sidewalk in question is in the right-of-way of
             [Highway 55], which is a state-maintained road. While it
             is true that [N.C. Gen. Stat. §] 160A-296 creates a statutory
             duty to maintain “streets, sidewalks, alleys and bridges,”
             that duty is limited to municipal “streets, sidewalks, alleys
             and bridges” and does not extend to those that made [sic] a
             part of the State Highway System.

      In other words, the City contends that under N.C. Gen. Stat. § 160A-297, it is

responsible only for sidewalks within its municipal borders that do not run along


                                         -5-
                             STEELE V. CITY OF DURHAM

                                  Opinion of the Court



“state-maintained roads.” It is true that N.C. Gen. Stat. § 160A-297 limits a city’s

responsibility to maintain certain streets and bridges:

             (a) A city shall not be responsible for maintaining streets
             or bridges under the authority and control of the [NCDOT],
             and shall not be liable for injuries to persons or property
             resulting from any failure to do so.

N.C. Gen. Stat. § 160A-297 (2015).         But the statute does not limit a city’s

responsibility to maintain sidewalks.

      The City’s arguments overlook the fact that the applicable statutes and

regulations governing maintenance of roadways define all of the different components

of the roadway itself separately—such as pavements, storm drainage or storm sewers,

open drainage, shoulders, and sidewalks. See 19A N.C.A.C. 2D.0404(a) (defining

roadways and components). The cases cited by the City address streets or bridges—

not sidewalks—and thus are inapplicable to the instant case. Although the terms

“street” or “highway” are often used generally in these statutes and regulations to

refer to roadways used by motor vehicles, the statutes and regulations also set forth

distinctly whether the State or municipality is responsible to maintain the various

components of the roadways. This distinction depends upon whether the roadway is

within the “State Highway System as described in [N.C. Gen. Stat. §] 136-44.1,” a

“State Municipal Street System or Highway,” a “Non-State System Municipal Street

or Highway,” or a “Rural Highway or Street.” See 19A N.C.A.C. 2D.0404(a)(2)-(5).

The area in question is a “sidewalk,” as defined by 19A N.C.A.C. 2D.0404(a)(13),


                                         -6-
                             STEELE V. CITY OF DURHAM

                                  Opinion of the Court



which runs parallel to Highway 55, a “State Municipal . . . Highway,” as defined by

19A N.C.A.C. 2D.0404(a)(3); according to 19A N.C.A.C. 2D.0404(c)(6), “[t]he

maintenance of sidewalks is a municipal responsibility.”

      In its attempt to demonstrate that NCDOT is solely responsible to maintain

this particular sidewalk, the City offered the plans and municipal agreement between

the State Highway Commission and the City, entered in 1970, for the widening and

improvement of “Alston Avenue from Price Street north to the Expressway.” But this

agreement addresses only the construction and financing of the project; it does not

allocate responsibility for maintenance of the road or sidewalk after construction. In

addition, the City offered the affidavit of H. Wesley Parham, P.E., who has “worked

for the City of Durham since 1986” and was “employed as Assistant Transportation

Director for the [NCDOT].” Parham’s affidavit states that the plans for the 1970

project included the area where plaintiff fell and that he is not aware of any “re-

engineering or construction improvements” at the location since the 1970 project was

completed. Parham also stated that he is unaware of any “agreement that applies to

the City of Durham which would require the City to assume street and/or sidewalk

maintenance and improvement responsibility” for the relevant area of sidewalk.

      Essentially, the City argues that it would be responsible to maintain the

sidewalk only if it had entered into an agreement with the NCDOT to provide

maintenance, and it has not done so. But the City is responsible to maintain the



                                         -7-
                                  STEELE V. CITY OF DURHAM

                                        Opinion of the Court



sidewalk unless it has entered into a maintenance agreement that says otherwise.

See N.C. Gen. Stat. § 160A-296 (a)(1)-(2); see also 19A N.C.A.C. 2D.0404(c)(6). The

City’s responsibility to maintain the sidewalk was created by N.C. Gen. Stat. § 160A-

296 and by 19A N.C.A.C. 2D.0404, and the City has not forecast any evidence that

the NCDOT has agreed to take on maintenance responsibility for this sidewalk.2 All

of the evidence forecast by both the City and plaintiff shows that the City was

responsible to maintain this particular sidewalk. Therefore, the trial court could not

properly grant summary judgment for the City based upon the absence of a legal duty

to maintain the sidewalk, and we must consider the remaining issues.

B. Genuine Issues of Material Fact

       Plaintiff contends the trial court erred by granting the City’s motion for

summary judgment because there were genuine issues of material fact regarding

whether the City maintained the sidewalk in a reasonably safe manner. We agree.

       “Our standard of review of an appeal from summary judgment is de novo; such

judgment is appropriate only when the record shows that ‘there is no genuine issue

as to any material fact and that any party is entitled to a judgment as a matter of



       2  For projects completed since July of 1978, there would normally be a pedestrian facilities
maintenance agreement setting out maintenance responsibilities for a sidewalk, based upon 19A
N.C.A.C. 2D.0406: “The Department shall execute a pedestrian facilities maintenance agreement
specifying responsibility for long term maintenance with the lead government entity or other local
sponsor prior to construction for a proposed sidewalk.” 19A N.C.A.C. 2D.0406(e). When the sidewalk
along Alston Avenue was constructed in 1970, this provision was not in effect, and under the forecast
of evidence for purposes of summary judgment, there was no “pedestrian facilities maintenance
agreement” for this project.

                                                -8-
                               STEELE V. CITY OF DURHAM

                                   Opinion of the Court



law.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation

omitted). “When considering a motion for summary judgment, the trial judge must

view the presented evidence in a light most favorable to the nonmoving party.”

Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001) (citation omitted).

“Negligence claims are rarely susceptible of summary adjudication, and should

ordinarily be resolved by trial of the issues.” Lamb v. Wedgewood South Corp., 308

N.C. 419, 425, 302 S.E.2d 868, 871 (1983) (citation omitted).

             The city is not liable for an injury sustained by such a fall
             unless a reasonable person, observing the defect prior to
             the accident, would have concluded that it was of such a
             nature and extent that, if it were allowed to continue, an
             injury to some person using the sidewalk in a proper
             manner could reasonably be anticipated.

Waters v. City of Roanoke Rapids, 270 N.C. 43, 48, 153 S.E.2d 783, 787 (1967)

(citations omitted). “[T]he duty of a municipality to keep its streets and sidewalks in

a reasonably safe condition implies the duty of reasonable inspection from time to

time.” Rogers v. City of Asheville, 14 N.C. App. 514, 517, 188 S.E.2d 656, 658 (1972)

(citation omitted). “The happening of an injury does not raise the presumption of

negligence. There must be evidence of notice either actual or constructive.” Willis v.

City of New Bern, 137 N.C. App. 762, 765, 529 S.E.2d 691, 693 (2000) (quotation

marks and citation omitted).

      “Constructive [notice] of a dangerous condition can be established in two ways:

the plaintiff can present direct evidence of the duration of the dangerous condition,


                                          -9-
                             STEELE V. CITY OF DURHAM

                                    Opinion of the Court



or the plaintiff can present circumstantial evidence from which the fact finder could

infer that the dangerous condition existed for some time.” Price v. City of Winston-

Salem, 141 N.C. App. 55, 63, 539 S.E.2d 304, 309 (2000) (citation omitted). “When

observable defects in a highway [or sidewalk] have existed for a time so long that they

ought to have been observed, notice of them is implied, and is imputed to those whose

duty it is to repair them.” Desmond v. City of Charlotte, 142 N.C. App. 590, 596, 544

S.E.2d 269, 273 (2001) (citing Fitzgerald v. Concord, 140 N.C. 110, 113, 52 S.E. 309,

310 (1905) (citation omitted)). Sidewalks must be reasonably safe during the day and

at night under such light as the municipality provides. Waters, 270 N.C. at 47, 153

S.E.2d at 787 (citation omitted).

      To assert an actionable claim of negligent sidewalk maintenance against a city,

a pedestrian must present evidence that:

             (1) [the plaintiff] fell and sustained injuries; (2) the
             proximate cause of the fall was a defect in or condition upon
             the sidewalk; (3) the defect was of such a nature and extent
             that a reasonable person, knowing of its existence, should
             have foreseen that if it continued some person using the
             sidewalk in a proper manner would be likely to be injured
             by reason of such condition; (4) the city had actual or
             constructive notice of the existence of the condition for a
             sufficient time prior to the plaintiff’s fall to remedy the
             defect or guard against injury therefrom.

Cook v. Burke County, 272 N.C. 94, 97, 157 S.E.2d 611, 613 (1967) (quotation marks

and citation omitted).




                                           - 10 -
                              STEELE V. CITY OF DURHAM

                                   Opinion of the Court



      In the instant case, plaintiff’s affidavit establishes sufficient evidence of the

first and second elements. Plaintiff’s forecast of evidence suggests that plaintiff was

walking along the sidewalk at night and a defect on the surface of the sidewalk caused

plaintiff to sustain injuries. Plaintiff also presented affidavits from five residents of

Alston Avenue indicating the hole existed in the sidewalk for at least five years and

that employees of the City occasionally trimmed the vegetation growing from the

sidewalk and the hole. Furthermore, although Murphy testified that he was unaware

that an orange cone, which signals “caution,” was placed inside a portion of the hole,

there is evidence from an Alston Avenue resident that employees of the City replaced

the cone after cutting the grass near the hole. Plaintiff’s evidence also indicates that

although the City maintained the vegetation around the hole, at the time of the

incident, this hole had not been trimmed and the overgrown vegetation may have

obstructed plaintiff’s view of the hole and orange cone.

      From the forecast of evidence, we conclude a reasonable juror might find that

the City had constructive notice of the defect, that it was foreseeable that the failure

to remedy the defect might cause injury to a pedestrian, and that the City failed to

reasonably maintain this particular section of the sidewalk. In fact, Murphy, a City

employee, testified by deposition that he was not aware that the City was responsible

for this section of the sidewalk. Additionally, the forecast of evidence might also

support a finding that a defect of this magnitude, in addition to the orange warning



                                          - 11 -
                             STEELE V. CITY OF DURHAM

                                 Opinion of the Court



cone, should have alerted plaintiff to the danger of the sidewalk and his own

negligence would bar recovery against the City. In any event, there is conflicting

evidence regarding whether the City breached the standard of care in its maintenance

of the sidewalk that must be resolved by a jury. Since we are not satisfied that the

affidavits presented at the summary judgment hearing support the trial court’s

conclusion that there were no genuine issues as to any material fact regarding the

City’s maintenance of the sidewalk, we conclude the trial court erred by granting the

City’s motion for summary judgment.

C. Governmental Immunity

      We have considered the City’s argument that it was immune from liability

under the doctrine of governmental immunity and overrule its contention because

sidewalks are specifically excluded from such immunity. See, e.g., Sisk v. City of

Greensboro, 183 N.C. App. 657, 659, 645 S.E.2d 176, 179 (“If the activity complained

of is governmental, the municipality is entitled to governmental immunity.

Maintenance of a public road and highway is generally considered a governmental

function; however, exception is made in respect to streets and sidewalks of a

municipality.”) (citation omitted), disc. review denied, 361 N.C. 569, 650 S.E.2d 813

(2007).

                                 III. Conclusion




                                        - 12 -
                             STEELE V. CITY OF DURHAM

                                  Opinion of the Court



      According to the applicable North Carolina General Statutes and regulations,

absent an agreement to the contrary, the City was responsible to maintain this

sidewalk which runs parallel to Highway 55 within its municipal borders. After

determining that the City owed plaintiff a statutory duty of care, we reviewed the

record evidence and conclude genuine issues of material fact were presented as to

whether the City had actual or constructive notice of the defective condition of this

sidewalk. These issues of fact are directly relevant to whether the City was negligent.

Therefore, the trial court’s order granting summary judgment for the City must be

reversed, and this case must be remanded for further proceedings.

      Reversed and remanded.

      Judges STROUD and INMAN concur.




                                         - 13 -
