UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHASE ROBERTSON NEVILLE,
Plaintiff-Appellant,

v.

GREAT LAKES AVIATION LIMITED,
d/b/a Northern Star Airlines,                                       No. 97-2627
Defendant-Appellee,

and

MIDWAY AIRLINES CORPORATION,
Defendant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CA-96-1980-2-11)

Argued: September 23, 1998

Decided: December 2, 1998

Before WILKINSON, Chief Judge, and HAMILTON and
MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: George Trenholm Walker, PRATT-THOMAS, PEARCE,
EPTING & WALKER, P.A., Charleston, South Carolina, for Appel-
lant. Craig Burgess, NELSON, MULLINS, RILEY & SCARBOR-
OUGH, L.L.P., Charleston, South Carolina, for Appellee. ON
BRIEF: Richard B. Watson, NELSON, MULLINS, RILEY &
SCARBOROUGH, L.L.P., Charleston, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Chase Robertson Neville, while exiting an airplane operated by
Great Lakes Aviation, Ltd., slipped on the airplane's retractable stairs
and severed her achilles tendon. She brought suit in the United States
District Court for the District of South Carolina alleging negligence
on the part of Great Lakes. The district court granted Great Lakes'
motion for summary judgment, and Neville appeals. We affirm.

I.

On April 15, 1996, Neville boarded a Great Lakes commuter flight
from Charleston to Raleigh-Durham. The aircraft had a retractable
stairway built into the door of the plane. The stairs consisted of sev-
eral steps covered with a non-slip surface and ringed with a slightly
raised thin metal strip, or nosing. On either side of the stairs a cable
served as a handhold. As Neville descended the plane's stairs, her left
foot allegedly slipped on the metal nosing of the second or third step.
She grabbed the right handhold to steady herself, but it gave slightly.
Her left foot then slid down the left side of the stairs where it hit a
latch, completely severing her Achilles tendon.

Neville filed a diversity tort action against Great Lakes in the
United States District Court for the District of South Carolina. She
alleged several hazardous conditions in the stairs and handhold of the
airplane, that Great Lakes knew or should have known of these alleg-

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edly hazardous conditions, and that Great Lakes failed to warn her of
them. The district court granted Great Lakes' motion for summary
judgment. It held that Neville produced insufficient evidence of a
defect in the stairs and handhold. It further held that Great Lakes nei-
ther created any alleged defect nor had actual or constructive knowl-
edge of such a defect, and therefore had no duty to correct it or warn
Neville of it. Neville appeals.

II.

Both parties agree that, as the locus of the accident, North Carolina
law applies. See Algie v. Algie, 198 S.E.2d 529 (S.C. 1973). Under
North Carolina law, a common carrier owes its passengers "the high-
est degree of care for their safety so far as is consistent with the prac-
tical operations and conduct of its business." Mann v. Virginia Dare
Transp. Co., 198 S.E.2d 558, 565 (N.C. 1973) (internal quotation
marks omitted). Moreover, a common carrier has the duty to inspect
its equipment and "where an accident results from a defect which
might have been discovered by a proper test made by the carrier, it
is liable therefor." Id. (internal quotation marks omitted). Neverthe-
less, a common carrier does not insure its passengers' safety and is
liable only for negligence that proximately causes an injury. Id. Con-
sequently, to hold a defendant liable for injury to its passengers, a
plaintiff must demonstrate either: 1) that the defendant created the
hazard that caused the injury; or 2) that the defendant failed to correct
the hazard or warn of it after having received actual or constructive
knowledge of its existence. Newton v. New Hanover County Bd. of
Educ., 467 S.E.2d 58, 64 (N.C. 1996).

A.

Neville argues first that the district court misapplied North Caro-
lina law by requiring her to show either that Great Lakes created the
hazards of which she complains or had actual or constructive knowl-
edge of them. Neville argues that this standard does not apply to com-
mon carriers. Instead, Neville claims that she may raise a jury
question simply by showing that she was injured"by machinery and
appliances wholly under the carrier's control." Humphries v. Queen
City Coach Co., 45 S.E.2d 546, 548 (N.C. 1947). In essence, Neville
argues that if she can show she was injured as a result of tripping on

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the stairs of Great Lakes' aircraft, summary judgment is inappropri-
ate.

Neville misreads North Carolina law. It is true that the North Caro-
lina Supreme Court has held that "[i]n actions against common carri-
ers, . . . when a passenger is injured by machinery and appliances
wholly under the carrier's control, this fact is sufficient prima facie
to show negligence." Id. But this rule is based on the doctrine of res
ipsa loquitur. Saunders v. Norfolk & W. Ry. Co. , 117 S.E. 4, 5 (N.C.
1923). Consequently, it applies only when: 1) the object which injures
the plaintiff is under the complete control of the defendant; and 2) the
accident is one that does not normally occur absent negligence on the
part of the defendant. Id. The rule does not alter the fact that the plain-
tiff's cause of action is based on negligence. Nor does it alter the
more general rule that "[t]he inference of negligence arises, not from
the fact of the injury, but from the circumstances under which it
occurred." Id. at 6 (internal quotation marks omitted).

The facts of this case demonstrate the inapplicability of res ipsa
loquitur. Tripping on the stairs of an airplane is simply not an event
that results predominantly from an airline's negligence. Quite often,
people trip as a result of their own inattentiveness. Neville's claim,
therefore, may not benefit from the presumption that tripping nor-
mally occurs because of Great Lake's negligence, and her claim does
not fall under the Humphries rule. Neville must demonstrate that a
hazard exists and show that Great Lakes either created it, or had
actual or constructive knowledge of it.

B.

Neville alleges that several characteristics of the aircraft's stairs
constitute hazards. Specifically, Neville claims: 1) the riser height of
the first and second stairs is non-uniform; 2) the stair width of the first
and second stairs is non-uniform; 3) the metal nosing surrounding the
stair tread is worn, slippery, and slightly elevated; and 4) the cable
handhold is unstable.

We agree with the district court that Neville did not raise a genuine
issue of material fact as to whether these characteristics are hazards.
With the exception of Neville's claim that the metal nosing is worn

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and slippery, each of the conditions she identifies is part of the design
of the plane. Although common carriers are liable for design defects
which they might have discovered with a proper inspection, Mann,
198 S.E.2d at 565, the design at issue must first be found defective.
Under North Carolina law, to demonstrate a defective design, a plain-
tiff must show that the manufacturer failed in its duty to design a rea-
sonably safe product. See Warren v. Colombo, 377 S.E.2d 249, 252
(N.C. App. 1989). Proving the product to be unreasonably unsafe typ-
ically requires a balancing of the risk and utility of the design. See
City of Greenville v. W.R. Grace & Co., 827 F.2d 975, 979 (4th Cir.
1987).

Neville failed to introduce any evidence establishing that the risks
inherent in the design of the plane's stairs and handhold outweighed
its utility. She rested her claim predominantly on the testimony of her
expert witness, Leonard Greene. Greene is a registered engineer with
no experience in the design or construction of airplanes. He based his
opinions on nothing more than his examination of the plane's stairs,
the Journal of the National Academy of Forensic Engineers, a text-
book entitled Forensic Engineering Reconstruction of Accidents, and
the Southern Standard Building Code. None of these sources has any
direct application to airplanes.

Nevertheless, Neville contends that Greene's testimony is suffi-
cient to create a genuine issue of material fact for two reasons. First,
Greene previously investigated other slip and fall cases involving
building staircases and ladders. Second, she claims"[a] stair is a stair
is a stair." Neither of these arguments is adequate. Greene's investiga-
tion of slip and fall cases concerning building staircases and ladders
simply has nothing to do with whether the risks inherent in the design
of these aircraft stairs outweigh its utility. For the same reason, an
assertion that a stair is a stair is a stair is insufficient to demonstrate
a defective design. Indeed, the balancing standard applicable to
design defects rests upon a realization that design requirements may
differ for various products. As the district court noted, the stairs in
this case were part of the door of the plane and had to be designed
with the performance of the entire aircraft in mind. As such, the stairs
undoubtedly were subject to certain size, weight, and material limita-
tions -- limitations about which Greene was unable to supply an
opinion. Without that opinion, Neville cannot establish a genuine

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issue of material fact concerning the allegedly hazardous nature of the
riser heights, stair widths, nosing elevation, and handhold stability.

We turn finally to Neville's claim that the metal nosing that sur-
rounds each stair is worn and slippery. Although this claim does not
rest on the design of the aircraft's stairs, it also fails. Neville's own
expert witness testified that he had no reason to believe that Great
Lakes had negligently maintained the aircraft's stairs. Moreover, Nev-
ille's claim is nearly identical to one found insufficient in Hedgepeth
v. Rose's Stores, 251 S.E.2d 894 (N.C. App. 1979). In Hedgepeth, as
in this case, the plaintiff alleged that she slipped on stairs that were
ringed by a thin metal strip. The only evidence the plaintiff introduced
as to the condition of the stairs was that they were"worn" and "very
slippery." Id. at 896. She too was unable to determine the exact stair
on which she slipped. Moreover, she was unable to provide any evi-
dence that the stairs on which she might have slipped were any differ-
ent from any other stair in the flight. The court held that evidence that
the steps were "worn" or "very slick," without evidence of the particu-
lar defective condition that caused her fall, was insufficient "to sup-
port a finding by the jury that the steps had become so worn that their
use would be hazardous." Id. For the same reason, Neville's evidence
is insufficient here.

C.

Neville argues that Great Lakes violated its duty to correct these
alleged defects and hazards, or to warn her of them, after it had con-
structive knowledge that they existed. See Newton, 467 S.E.2d at 64.
However, as noted, there are no hazards that Great Lakes had a duty
to correct or about which it needed to warn. We thus affirm the judg-
ment of the district court.

AFFIRMED

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