in the Court of Appeals February 13, 2019.
by Plaintiff from order entered 4 June 2018 by Judge Beecher
R. Gray in Harnett County No. 17 CVS 1625 Superior Court.
Adams & Associates, by Gregory A. Posch and Brenton D.
Adams, for Plaintiff-Appellant.
McLamb & Weyher, by Sean T. Partrick and John W. Graebe,
for Defendant/Third-Party Plaintiff-Appellee.
brief filed by Third-Party Defendant.
Milton Draughon, Sr., ("Plaintiff") appeals from an
order granting summary judgment in favor of
Defendant/Third-Party Plaintiff Evening Star Holiness Church
of Dunn (the "Church") on Plaintiff's
negligence claims. Plaintiff argues that summary judgment was
improper, asserting a genuine issue of material fact existed
as to: (1) the presence of a legal duty owed to him by the
Church; and (2) his contributory negligence in falling on a
set of stairs leading into the Church while carrying a
casket. After careful review, we reverse the ruling of the
FACTUAL AND PROCEDURAL HISTORY
record below indicates the following:
attended a funeral at the Church, located at Sampson Avenue
in Dunn, North Carolina, on a sunny day in February of 2015.
Before the service started, Plaintiff entered the Church
sanctuary through an entrance facing Sampson Avenue. As
Plaintiff and a church deacon were speaking, the minister who
would be conducting the service approached and asked
Plaintiff if he would be willing to help carry the
deceased's casket into the sanctuary. Plaintiff declined.
Some time later, an employee of the funeral home, Third-Party
Defendant Dafford Funeral Home, Inc. ("Dafford"),
asked Plaintiff to help carry the casket. Plaintiff
reconsidered and agreed to help, as he felt physically
capable of assisting and Dafford did not have enough
employees on hand to carry the casket into the building.
followed the Dafford employee out of the sanctuary through a
door facing U.S. Route 421, different than the door Plaintiff
had entered earlier, and descended a set of concrete and
brick stairs. Once outside, Plaintiff walked approximately 25
to 30 feet to the hearse containing the casket. Plaintiff
joined three other men at the hearse, and the group carried
the casket, without any apparent difficulty, to the bottom of
the stairs Plaintiff had navigated moments earlier. They then
began ascending the stairs, unhindered by the casket. Before
reaching the entryway, Plaintiff, who was positioned on the
front left side of the casket, tripped on the top step and
injured his knees. The top step was approximately
two-and-a-half inches taller than the preceding steps.
filed suit against the Church on 22 August 2017, alleging
negligence, negligence per se, and res ipsa
loquitur arising out of the stair's defective and
dangerous condition, i.e., the difference in height
between the top step and the ones below it. In response, the
Church filed a combined answer and third-party complaint
against Dafford for contribution and indemnification,
asserting by affirmative defense that Plaintiff was
contributorily negligent in failing to use reasonable care.
Plaintiff, with leave of the trial court, filed an amended
complaint on 5 March 2018.
Church moved for summary judgment on Plaintiff's claims.
The Church's motion argued, among other things, that
Plaintiff possessed equal or superior knowledge of the
alleged defective condition, having descended the stairs
without issue moments before tripping. Plaintiff filed an
affidavit in opposition; he also filed an affidavit from an
engineering expert attesting to the defect in the stairs.
Following a hearing, the trial court granted the Church's
summary judgment motion on the grounds that Plaintiff had
equal or superior knowledge of the open and obvious hazard
and failed to exercise due care in navigating the steps.
argues that because he introduced sufficient evidence
demonstrating genuine issues of material fact, his negligence
claim should have survived summary judgment. The Church
disagrees, asserting that: (1) Plaintiff had equal or
superior knowledge of the alleged defect so the Church did
not owe him a duty of care; and (2) Plaintiff's
contributory negligence caused him to trip. Reviewing the
evidence and applicable law, we agree with Plaintiff and
reverse the trial court.
Standard of Review
standard of review of an appeal from summary judgment is de
novo." In re Will of Jones, 362 N.C. 569, 573,
669 S.E.2d 572, 576 (2008). The party moving for summary
judgment holds the burden of showing "there is no
genuine issue of fact remaining for determination and that he
is entitled to judgment as a matter of law." First
Fed. Sav. & Loan Ass'n v. Branch Banking & Trust
Co., 282 N.C. 44, 51, 191 S.E.2d 683, 688 (1972)
(citation omitted). We must construe the evidence introduced
at summary judgment "in the light most favorable to the
non-moving party and with the benefit of all reasonable
inferences." Jenkins v. Lake Montonia Club,
Inc., 125 N.C.App. 102, 104, 479 S.E.2d 259, 261 (1997).
judgment is rarely appropriate in negligence cases, even when
there is no dispute as to the facts, because the issue of
whether a party acted in conformity with the reasonable
person standard is ordinarily an issue to be determined by a
jury." Surrette v. Duke Power Co., 78 N.C.App.
647, 650, 388 S.E.2d 129, 131 (1986) (citation omitted).
"Issues of contributory negligence, like those of
ordinary negligence are rarely appropriate for summary
judgment. Only where plaintiff's own negligence discloses
contributory negligence so clearly that no other reasonable
conclusion may be reached is summary judgment to be
granted." Jenkins, 125 N.C.App. at 104, 479
S.E.2d at 261 (citations omitted). B. Duty to Warn
parties dispute whether Plaintiff's evidence discloses a
duty owed to him by the Church. Landowners "have a duty
to exercise reasonable care in the maintenance of their
premises for the protection of lawful visitors."
Bolick v. Bon Worth, Inc., 150 N.C.App.
428, 430, 562 S.E.2d 602, 604 (2002) (citing Barber v.
Presbyterian Hosp., 147 N.C.App. 86, 89, 555 S.E.2d 303,
306 (2001)). This "reasonable care" requires
landowners to "warn[ a lawful visitor] of hidden
conditions and dangers of which the landowner has express or
implied notice." Barber, 147 N.C.App. at 89,
555 S.E.2d at 306. That said, "a landowner need not warn
of any 'apparent hazards or circumstances of which the
invitee has equal or ...