in the Court of Appeals 19 April 2017
by plaintiff from order entered 17 August 2016 by Judge Jerry
Cash Martin in Brunswick County Superior Court. No. 15 CVS
Regan Law Firm, PLLC, by Conor P. Regan, for
Marshall, Williams & Gorham, L.L.P., by William Robert
Cherry, Jr., for defendant-appellee.
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 material fact as to whether
plaintiff exercised ordinary care to protect herself from
injury, we reverse.
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.
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.
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. She submitted an estimate to power
wash the walkways but never received a response from
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.
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.
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 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