*1 IN THE COURT OF APPEALS
VON VICZAY v. THOMS MARIKA VON v. Plаintiff SELINE VICZAY, Defendant THOMS,
No. COA99-1312 (Filed 2000) 5 December Liability— icy Premises fall on — conditions properly The trial granted court defendant’s motion for sum- mary judgment a negligence in arising plaintiffs action from fall icy walkway on an party defendant’s housе leaving while in high heels. Plaintiff testified to her knowledge of the ice on the and is not absolved of her to exercise reasonable precaution simply because she claims by she was distracted lack of from the or adjusted house because her had not to the darkness.
Judge dissenting. Greene by Appeal July entered Judge Noble, Oliver L. County Jr. in Superior Buncombe Court. Heard in the September Appeals Court of Tate,
JohnE. Jr. plaintiff-appellаnt. for Queen Frank J. Contrivo and Rick S. defendant-appellee. SMITH,Judge. Viczay
Plaintiff Marika Von appeals (plaintiff) entry of sum- mary judgment in favor defendant Seline Thoms (defendant). presented Evidence on the motion tended to establish that on the evening of 20 holiday party December 1996 attended a guest. temperature as an day home invited The party did not rise freezing. above Snow pre- and ice had fallen the night. vious Defendant’s evidence was to the all her effect that walk- ways day were party, driveway shoveled and salted the plowed, therefore, the snow and ice had melted and the walk- ways percent were “one hundred clear.”
Plaintiff’s evidence tended to show that she arrived at defend- approximately p.m. ant’s house at evening 9:00 dressed in an gown and shoes with two parked to three-inch heels. Plaintiff her car and proceeded up house, grounds the front to the noticing thе surrounding the house were covered snow and ice. Plaintiff saw OF APPEALS THE COURT IN VICZAY THOMS
VON *2 (2000)] N.C. 737 [140 walkway, able to avoid the but was along and ice patches of snow sufficiently illuminated com- the was because them house. ing from the approximately p.m. 11:30 She party at
Plaintiff left defendant’s same front proceeded down the front door and through the exited difficulty seeing had the arrived. Plaintiff walkway which she had on light of the house and her to the her back was because taking apрroximately ten After adjusted the darkness. had not patch fell, ice walkway, plaintiff slipped on a and steps the down compound a wrist fracture. injuries included sustaining which alleging plaintiff filed the instant action September 1998, 17On and remove the ice failing in to discover negligence defendant’s dangerous failing warn of the and in front the summary judg- for moved March defendant On 1 condition. motion, finding July granted court 1999the trial ment, and on is “en- defendant any material fact” and that issue as to genuine “no appeals. of law.” Plaintiff judgment a as a matter titled to summary grant of assigns to the trial court’s Plaintiff error presented grounds on defendant in favor of judgment as to defend a issue of material fact dеmonstrating genuine the standard of review It is well established that negligence. ant’s requires two-part summary judgment for a motion grant inter pleadings, depositions, answers to whether, “(1) the analysis of affidavits, file, with the show together on rogatоries, and admissions any fact; (2) the mov as to material and issue that there is a matter of law.” Gaunt v. as ing party is entitled to App. 778, -, Pittaway, 139 N.C. - (2000) (citations omitted). summary judgment, a defendant’s motion In to survive order by showing: prima negligence cаse of facie must establish performance proper care failed to exercise “(1) that defendant duty was of that plaintiff; negligent breach (2) owed ordinary pru injury; and plaintiff’s (3) proximate cause plaintiff’s probable under have foreseen dence should App. 857, 859-60,463 Schultz, 120N.C. LaVellev. the circumstances.” (1995), disc. review plaintiffs lacking from show of any are If such elements (1996). proper. Id. at evidence, summary judgment is See IN THE COURT OF APPEALS
VON VICZAY v. Supreme
Our
recently
Cоurt
abolished the distinction between
licensees and
invitees and held both are owed the
of reasonable
Freeland,
care. See
Nelson
A landowner is under no against dangers visitor either apparent they known or so reasonably may obvious and be expected discovered. Lorinovich v. K Corp., Mart 134 N.C. App. 158, 162, 643, (citation 516 S.E.2d omitted), 646 cert. 351 N.C. 107, - S.E.2d - (1999); Hussey Seawell, see also v. 137 N.C. App. 172, 175, 527 S.E.2d 92 Similarly, a landowner need any “apparent not warn of hazards or circumstances of which the equal superior invitee has or knowledge.” Jenkins v. Lake Montoniа Club, Inc., App. 102, (1997) 479 S.E.2d (citation omitted). Rather, should be observant to “[a] avoid from known and danger.” Farrelly obvious v. Hamilton Square, App. 119 N.C. 541, 546, S.E.2d 23, 27 (1995) (citation omitted).
In Bryd Arrowood, v. 455 S.E.2d (1995), plaintiff slipped on the floor of the defendant-church after rain water had been tracked into holding summary the church. In proper, for the defendant Supreme emphasized our Court plaintiff could not forecast evidence that the church had actual or dangerous constructive notice of the condition; rather, evi dence plaintiff equal established the had superior or of knowledge the condition:
Even if the floor was wet evening, due the rain that this condi- tion would have danger been an obvious plaintiff which should have been aware since likely raining she knew it was outside and it was people would track on water in their shoes. Plaintiffs assertions that the crowded presence conditions and the young prevented children her seeing the floor do not over- come the obvious fact might that the floor have been wet due to people tracking in. only These put plaintiff factors would plaintiff notice to be extra careful. Since and the church had equal knowledge of this obvious danger plaintiff and since has APPEALS THE OF IN COURT
VON VICZAT notice that actual or constructive that the church had not shown this wet, to warn spot was the church had no this potential peril. 421-22, at 674.
Id. at Home, Inc., 270 Similarly, in Wrenn v. Hillcrest Convalescent Supreme affirmed our Court (1967), plaintiff’s where evidence showed the suit dismissal of the icy superior knowledge of the condition the defend- equal or had fell: plaintiff slipped and on which the ant’s sidеwalk knowledge plenary plaintiff had full evidence that There danger area. The created freezing and condition obvious, presents no facts plaintiff’s condition had more knowl- it can be inferred that defendant from which dangerous or unsafe condition. alleged edge than ... we hold that the evidence Thus, considering all the evidence part of on the defendant. negligence actionable shows 448-49, Id. at present case, plaintiff testified to her of the ice
In the walkways; icy patches as traversed the she she saw Furthermore, Byrd, not front door. as that led to the precaution simply to exercise reasonable absolved of *4 light the lack of from the she was distracted because she claims The to the darkness. fact had not focused house or because shoes, proceeded wearing high heeled dress plaintiff, that remains patches of ice. which she knew cоntained down a darkened plain- duty plaintiff from or warn protect no to either Defendant had presents no facts danger where the “evidence tiff about this obvious had more can be inferred that defendant from which it Wrenn, alleged dangerous or unsafe condition.” than Lorinovich, 484; also, e.g., 134 N.C. 154 S.E.2d at see N.C. at App. 646; Jenkins, 125 N.C. at at at properly granted defendant’s motion for 262. The trial court S.E.2d at summary judgment.
Affirmed.
Judge EDMUNDS concurs.
Judge GREENE dissents.
IN THE OF COURT APPEALS
VON VICZAY v.
Judge dissenting. Gkeene majority disagree
I with the that no of material fact issue regarding duty. exists I, thеrefore, whether defendant owed Additionally, dissent. I because believe is a genuine there issue of material regarding plaintiff, fact to I address defend- argument ant’s recovery that is barred ground contributorily negligent. she
Duty
Generally,
“there
against
lawful visitor
dangers
apparent
which are either known
himto
or so obvious and
they reasonably may
expected
to be discovered.” Lorinovich
Corp.,
v. K Mart
App. 158, 162,
134 N.C.
cert.
denied,
In this evidence that defendant had party in appropriate party her home and attire for the included dress shoes. Defendant’s from а leading parking area to her home patches only by contained of ice and light- snow and was illuminated ing coming from inside the home. Visitors to defendant’s home used evidence, to enter and leave home. Based on this plaintiff, jury viewed in the most favorable to the could deter- *5 person “anticipate mine that a reasonable would an unreasonable using walkway regardless risk of harm” to a visitor the of whether the patches visitor was the аware contained of ice and snow. S.E.2d (conditions steps See id. at 755 such as that “ safety ‘cannot negotiated with though reasonable even the [visi- ” fully may is aware of create unreasonable risk tor] [the conditions]’ (quoting оf harm to the visitor 61, 394-95)). § Law Torts Whether OF APPEALS IN THE COURT v. THOMS
VON VICZAY duty was that duty plaintiff and whether a to owed defendant jury. was, therefore, question for the a breached Contributory negligence that, assuming she to this Court argues her brief Defendant “barred plaintiff, is nevertheless owed to breached to issue as recovery law there is as matter of since contributory disagree. I negligence.” [plaintiff’s] own injury is personal action in a plaintiffs right to recover “[A] contributory Raba, 347 negligence.” Cobo v. upon finding barréd contributorily A is (1998). from risk care to herself when she fails to use due negligent person prudent apparent to “a risk have been if the would safety.” v. Fiber ordinary Smith care for own exercising [her] “In Corp., 300 N.C. Controls vis- lawful whеre the landowner retains those instances [a] nature of present, the obvious danger an obvious though itor even part contributory negligence on the evidence of danger the some n.2, Lorinovich, at 162-63 the lawful visitor.” addеd). (emphasis at 646 n.2 assuming jury determined defendant owed case,
In the duty, the nature obvious and defendant breached be some by and ice on the would caused snow danger contributorily walking negligent went Plaintiff, however, presented еvidence that when she walkway. employee unlocked and party, an of defendant to leave defendant’s plaintiff exited leading exit door opened an plaintiff. door behind employee locked the through the door. The attempted to reenter would have Whether circumstances ask for under these house and assistance jury. 516 S.E.2d at question See id. at is a of fact summary granting court’s order I would reverse trial Accordingly, in favor of defendant.