Keith v. Reddick, Inc.

189 S.E.2d 775 (1972)

Samuel Howard KEITH v. G. D. REDDICK, INC.

No. 7218SC240.

Court of Appeals of North Carolina.

June 28, 1972.

*776 David P. Mast, Jr., Winston-Salem, for plaintiff appellant.

Womble, Carlyle, Sandridge & Rice, by Allan R. Gitter and W. F. Womble, Jr., Winston-Salem, for defendant appellee.

MORRIS, Judge.

G.S. § 1A-1, Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law". The standard fixed by the rule does not contemplate that the court is to decide an issue of fact, but rather it impels the court to determine whether a real issue of fact exists. A question of fact which is immaterial does not preclude summary judgment. 3 Barron and Holtzoff, Federal Practice and Procedure, § 1234 (Wright Ed.1958).

Uncontradicted testimony from answers to interrogatories, deposition and affidavits reveals the following: The pallet was approximately three to four feet in width and approximately five to six feet in length. It was made out of two-by-fours with boards interspaced and nailed to the two-by-fours on both sides and was leaning against the wall just to the side of the platform opening. Plaintiff had been to defendant's warehouse about five or six times before the accident and on those occasions had used a similar type crate to get up on the dock into the receiving doors. ". . . I climbed up on this, as I had before, and when I started over in between the wall and the truck something happened to this pallet. It either slipped or broke down, and I went down between the truck and this board like thing against the wall on my left side . . . I don't know whether it broke down, slipped, turned over or what." "At the time I climbed up on the pallet, I couldn't see anything wrong with the pallets at allI mean as far as being defective, I couldn't see that." Plaintiff did not examine the pallet after his fall.

The easternmost portion of the warehouse where the accident occurred was used for receiving merchandise. There are five loading doors on the northern wall of the receiving section of the warehouse. In the westernmost portion of the warehouse, steps are provided for the use of truckers in unloading. If a trucker unloading at the eastern section of the warehouse did *777 not climb up and into the sliding door provided for the unloading of trucks, he would have to walk approximately 100 feet from the centermost doorway to the area where permanent steps are provided as an entrance to the warehouse. The pallets had not been placed there by defendant or any of its employees, nor did the pallets belong to defendant. Plaintiff testified by affidavit that even if he had traveled some 150 feet to the first door with steps, he would still have approximately another 150 feet to travel through the office and warehouse area to reach his unloading dock but that he was not permitted by his employer to pass through warehouse areas to reach the unloading area.

We are of the opinion that the parties were in agreement as to all the factual particulars. The effect of the undisputed facts was a question of law for the court to determine. Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).

Plaintiff was an invitee. It was, therefore, defendant's duty to exercise ordinary care to keep the premises plaintiff was expected to use in a reasonably safe condition in order not to expose him to danger unnecessarily; and to warn plaintiff of hidden conditions and dangers of which he had knowledge or in the exercise of reasonable supervision and inspection should have had knowledge and of which plaintiff had less or no knowledge. Quinn v. P.G.A. Supermarket, Inc., 6 N.C.App. 696, 171 S.E.2d 70 (1969), cert. denied 276 N.C. 184 (1970).

The undisputed facts reveal that plaintiff had used similar pallets before, at the time of the accident noticed no defect in the pallet he used, did not know what happened to the pallet or what caused him to fall; was aware that there were steps some 100 to 150 feet away from where he fell but chose to use the pallet instead because after reaching the steps he would have had a some 150-foot walk back to his truck. Of course, the fact that plaintiff's employer had told him not to go into the warehouse area when unloading is immaterial on the question of defendant's negligence. It appears to us, and we so hold, that defendant has breached no duty it owed to plaintiff and that plaintiff was contributorily negligent as a matter of law in failing to use the steps or in failing to determine whether he could safely use the alternate method; to wit, the pallet.

Affirmed.

VAUGHN and GRAHAM, JJ., concur.