Whitaker v. Blackburn

266 S.E.2d 763 (1980)

Essie Mae WHITAKER v. Charles A. BLACKBURN, Jr., and Mrs. Charles A. Blackburn, Jr.

No. 7910DC1099.

Court of Appeals of North Carolina.

June 3, 1980.

*764 Kimzey, Smith & McMillan by Duncan A. McMillan, Raleigh, for plaintiff-appellant.

Johnson, Patterson, Dilthey & Clay by D. James Jones, Jr., Raleigh, for defendants-appellees.

HARRY C. MARTIN, Judge.

The only question on appeal is whether the court erred in granting summary judgment for defendants. Generally, summary judgment is not appropriate in negligence cases where the standard of the *765 reasonably prudent man is to be applied to the facts. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972); Robinson v. McMahan, 11 N.C.App. 275, 181 S.E.2d 147, cert. denied, 279 N.C. 395, 183 S.E.2d 243 (1971). However, summary judgment may be appropriate in negligence cases when it appears there can be no recovery for plaintiff even if the facts as claimed by plaintiff are accepted as true. Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970). If the materials before the court at the summary judgment hearing would require a directed verdict for defendants at trial, defendants are entitled to summary judgment. Id. The holding in Pridgen has been followed in Gibson v. Tucker, 42 N.C.App. 214, 256 S.E.2d 288 (1979); Gladstein v. South Square Assoc., 39 N.C.App. 171, 249 S.E.2d 827 (1978), disc. rev. denied, 296 N.C. 736, 254 S.E.2d 178 (1979); Robinson v. Moving and Storage, Inc., 37 N.C.App. 638, 246 S.E.2d 839 (1978); Forte v. Paper Co., 35 N.C.App. 340, 241 S.E.2d 394, disc. rev. denied, 295 N.C. 89, 244 S.E.2d 258 (1978); Joyce v. City of High Point, 30 N.C.App. 346, 226 S.E.2d 856 (1976); Town of Southern Pines v. Mohr, 30 N.C.App. 342, 226 S.E.2d 865 (1976); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, cert. denied, 283 N.C. 257, 195 S.E.2d 689 (1973), and is now firmly embedded in our body of law.

An employer is not an insurer of his employee's safety, but he does have a duty to exercise ordinary care to provide his employee with a reasonably safe place to work, Gaither v. Clement, 183 N.C. 450, 111 S.E. 782 (1922), and to warn the employee of any dangers which are known to the employer and not to the employee. Clark v. Roberts, 263 N.C. 336, 139 S.E.2d 593 (1965). As a concomitant part of their duty to provide plaintiff with a reasonably safe place in which to work, defendants must make a reasonable inspection of the premises to determine the presence of any dangerous conditions. Burgess v. Power Co., 193 N.C. 223, 136 S.E. 711 (1927); Orr v. Rumbough, 172 N.C. 754, 90 S.E. 911 (1916). The defendants must make such inspection that a reasonably prudent person would make under the same or similar circumstances. Young v. Barrier, 268 N.C. 406, 150 S.E.2d 734 (1966). Defendants' duty is to exercise ordinary care to keep the premises in a reasonably safe condition and to give warning or notice of hidden perils or unsafe conditions insofar as they can be ascertained by reasonable inspection and supervision. Spell v. Smith-Douglas Co., 250 N.C. 269, 108 S.E.2d 434 (1959).

Applying these rulings to the facts of this case, we hold the summary judgment for defendants was properly granted. Although there is a factual dispute whether Mr. Blackburn heard a stairstep creak earlier in the day, it is not a material question of fact. There is no evidence that he heard a creak from the stairstep that gave way under plaintiff. Plaintiff stated in her affidavit that Mr. Blackburn told her he had heard "one of the steps at the top of the stairs creak" earlier that same day. Assuming the stair did so creak, it does not help plaintiff's case. If a reasonable inspection of the stairway is required by the creak, it would not have disclosed the hidden defect that plaintiff contends caused her fall. The stairs were completely wrapped in carpet, preventing defendants from seeing the manner of construction of the stairsteps and their condition. Although defendants made no formal inspection of the stairway, they did use it and observe it daily. Defendants had never observed any defects or indications of any possible defects in the stairs.

The mere existence of a condition which causes an injury is not negligence per se, and the occurrence of the injury does not raise a presumption of negligence. Spell v. Contractors, 261 N.C. 589, 135 S.E.2d 544 (1964). Plaintiff has the burden to prove a breach of duty by defendants, and in this case must show that defendants knew of the defect in the stairway that caused her injury, or that they could have discovered it by the exercise of ordinary care. Orr v. Rumbough, supra. Plaintiff has failed so to do. The evidence before the trial court is insufficient to show that a reasonable inspection would have disclosed *766 the hidden defect which caused plaintiff's fall. Spell v. Smith-Douglas Co., supra. The evidence and materials before the trial court would have required a directed verdict for defendants at trial. The entry of summary judgment for defendants was proper. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971); Pridgen v. Hughes, supra.

Affirmed.

WEBB and WELLS, JJ., concur.