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Rash v. Waterway Landing Homeowners Association, Inc.

Court of Appeals of North Carolina

June 6, 2017

VANESSA RASH, Plaintiff,
v.
WATERWAY LANDING HOMEOWNERS ASSOCIATION, INC., Defendant.

          Heard in the Court of Appeals 19 April 2017

         Appeal by plaintiff from order entered 17 August 2016 by Judge Jerry Cash Martin in Brunswick County Superior Court. No. 15 CVS 245

          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 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. 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 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 ...

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