This is а slip and fall case. Appellant/plaintiff Theresa Papera appeals from the order of the superior court granting summary judgment to appellee TOC Retail, Inc. d/b/a Majik Market.
Appellant was walking from the gasoline pump parking area of Majik Markеt to the ladies’ rest room. Instead of taking a more indirect route and using the sidewalk, she walked near two parked cars and placed one foot upon a curb which was painted neon yellow. She now asserts that as she stepped onto the curb, the shoe heel of her trailing foot became caught in a hole in the pavement causing her to fall. Held:
1. The applicable summary judgment standard is that of
Lau’s Corp. v. Haskins,
Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences flowing therefrom in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each еssential element of the case. Id. at 495.
2. Appellant submitted evidence by way of affidavit that the hole in the pavement, “although apparent after [her] fall,
was not clearly visible
when considering the time of day,
and dark conditions of the area,
as well as the distraction of yellow paint painted on the raised edge of the nearby sidewalk.” (Emphasis suрplied.) However, her prior deposition testimony reveals the following inconsistent statements as to condition of visibility and lighting in the vicinity where the hole was located: “There was lighting enough that [appellant] could see the curb”; it was light enough to see the depression or hole. Moreover, appellant testified that she could not recall whether she saw the hole before falling; that she does nоt recall seeing the hole, as
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she was looking at the curb; and that she “may have even seen the hole and been walking . . . just past it.” To the extent appellant’s affidavit asserts as fact that the hole was not clearly visible because of the time of day and degree of darkness, such evidence is inconsistent with her deposition testimony; no reasonable explanation was offered for this inconsistеncy. Accordingly, as to this particular evidence, we apply the rule of inconsistent or contradictory testimony from
Prophecy Corp. v. Charles Rossignol, Inc.,
3. Appellant contends on appeal that she fell when she stepped upon the curb with one foot and her trailing foot either caught upon the side of the hole in the pavement or got stuck therein. However, her deposition testimony contains sеveral contradictions regarding the cause of her fall or whether she even remembers how the fall occurred; there is no reаsonable explanation offered for these various inconsistencies. When we subject these unexplained contradictions tо the rule of
Prophecy Corp.,
supra, the state of the remaining evidence as to this matter is that appellant does not know exactly how her fall wаs caused other than she slipped and fell after putting one foot upon the curb. Any other conclusion would be based on pure supposition. Compare
Kenny v. M & M Supermarket,
Assuming that appellant’s testimony was not inconsistent regarding whether she remembered how her fall occurred, the trial court still did not err in granting summary judgment to appellee. By appellant’s own admission, the hole in the pavement was not concealed by darkness; it was obviоus and was there to be observed by the prudent pedestrian. Broken, missing, or uneven pavement is a static condition which alone is not dаngerous until someone steps on or in it.
Gaydos v. Grupe &c. Investors,
4. Appellant’s claim that she was distracted by the yellow painted curb is without merit. Nothing in appellant’s deposition testimony or affidavit is adequate to raise a claim that she was actually distracted by the curbing from looking where she was walking; rаther, it can reasonably be inferred from her deposition testimony only that of her own volition she was looking at the curbing while she was walking toward it. “ ‘ “One valid line of distinction existing in the so-called ‘distraction’ cases concerns the cause of the distraction. Where[, as in this case, any existing] distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence.” ’ ”
Yeaple v. Grand Union Co.,
For each above-discussed reason, we find appellant’s enumerations of error to be without merit; the trial court did not err in granting summary judgment to appellee. Compare
Sinclair v. Orozco,
Judgment affirmed.