Parrish v. United States of America
Filing
18
ORDER granting in part and denying in part 13 Motion for Summary Judgment - The court construes this as a motion to dismiss for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, for summary judgment, pursuant to Federal Rule of Civil Procedure 56. Defendant's motion to dismiss for lack of subject matter jurisdiction is GRANTED in PART and DENIED in PART. Defendant's alternative motion for summary judgment also is GRAN TED in PART and DENIED in PART. Plaintiff may pursue her negligence claim to the extent it is grounded in defendant's failure to inspect the leased premises and initiate repairs, as well as defendant's failure to warn patrons of hazards on the leased premises. The parties are DIRECTED to confer and file with the court within 21 days of this order a proposed case schedule for proceeding to trial. Signed by District Judge Louise Wood Flanagan on 07/27/2015. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 5:13-CV-794-FL
KATIE PARRISH,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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ORDER
This matter comes before the court on the government’s motion for summary judgment
which the court construes as a motion to dismiss for lack of subject matter jurisdiction, pursuant to
Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, for summary judgment, pursuant to
Federal Rule of Civil Procedure 56. The issues raised have been briefed fully and in this posture
are ripe for ruling. For the reasons stated more specifically herein, the government’s motion to
dismiss is granted in part and denied in part, and the government’s motion for summary judgment
is granted in part and denied in part.
STATEMENT OF THE CASE
Plaintiff initiated this action by complaint filed November 14, 2013. Plaintiff alleges a single
count of negligence under North Carolina law, pursuant to the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 1346(b)(1) & § 2671 et seq. Plaintiff alleges defendant negligently maintained certain
leased property when it failed to 1) keep the entranceway free and clear of danger, 2) warn patrons
of a dangerous condition on the premises, 3) adhere to certain safety precautions, and 4) inspect the
premises to determine whether or not a dangerous condition existed.
After a period of discovery, defendant filed the instant motion to dismiss for lack of subject
matter jurisdiction, or in the alternative motion for summary judgment. In support of its motion,
defendant contends the court lacks subject matter jurisdiction by virtue of the “independent
contractor” exception to the FTCA and that, even if the court does have jurisdiction to hear this case,
plaintiff has either failed to establish a prima facie case of negligence or was contributorily negligent
as a matter of law.
In support of its motion, defendant submits a copy of the Lease Agreement in effect between
itself and its landlord. (Lease Agreement, DE 14-1). Defendant also submits certain discovery
responses provided by plaintiff. (Pl.’s Resp. to Def.’s First Set of Interrogs., DE 14-2; Pl.’s Resp.
to Def.’s Second Set of Interrogs., 14-3; Def.’s Resp. to Pl.’s First Set of Interrogs., DE 14-4). In
opposition to defendant’s motion, plaintiff relies upon her own affidavit, (Parrish Aff., DE 17-1);
photographs of the location of the incident, (Photographs, DE 17-2); and the depositions of the
resident Postmaster and another postal employee. (Turnage Dep., DE 17-3; Martin Dep., DE 17-4).
BACKGROUND
Defendant, through the United States Postal Service, operates a Post Office location in
Selma, North Carolina. (See Lease Agreement at 1). Defendant does not own the building in which
the Post Office is located. (See id.). Rather, defendant rents the space. (Id.).
The demised premises consists of a building, used as the Post Office, and a parking lot
approximately 15 feet away from the building. (See Parrish Aff. ¶2; Turnage Dep. 9:4-10).
Connecting the building and parking lot is a single sidewalk, which runs from approximately the
center of the extreme end of the parking lot closest to the Post Office to the Post Office’s main
entrance. (Parrish Aff. ¶2). There is no other paved path connecting the parking lot to the building.
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(Id.). To reach the sidewalk, a patron must walk through the parking lot. (Id.). Alternatively the
patron may leave the parking lot and walk over a portion of the unpaved area between the parking
lot and Post Office until the patron intercepts the sidewalk. (Id.). There is no paved path connecting
the remote ends of the parking lot with the sidewalk. (Id.). Instead, there are concrete “bumpers
guards,” presumably to stop patrons’ from pulling their cars too far forward in the space and leaving
the parking lot. (See id.).
When entering the Post Office many patrons walk along the unpaved edge of the parking lot.
(See id.). As a result, a dirt path has been worn down in what once was a grassy area. (Id.).
Patrons’ foot traffic has taken its greatest effect immediately adjacent to the sidewalk, where one
would step from the unpaved dirt footpath to the paved sidewalk. (See id. ¶¶2, 4). A combination
of foot traffic and weather has resulted in the sidewalk being “several inches” higher than the
unpaved path, requiring a step-up when accessing the sidewalk. (Id. ¶4). Defendant was aware of
the worn foot-path, and presumably that it was uneven with the adjacent sidewalk. (Turnage Dep.
22:17-21, 22:8-12, 23:3-6; Martin Dep. 35:3-36:15, 39:4-7)
In addition, the sidewalk running from the parking lot to the Post Office is itself in disrepair.
A portion of the sidewalk is cracked and broken. (Parrish Aff. ¶4). As a result, the sidewalk is not
an even surface. (See id.). It is unclear how long the sidewalk had been damaged, however,
defendant had never received any complaints about its condition. (Def.’s Resp. to Pl.’s First Set of
Interrogs., ¶7).
On February 21, 2011, plaintiff visited the Post Office. (Parrish Aff. ¶2). Once there,
plaintiff parked her car in the lot and made her way through the unpaved area toward the sidewalk.
(Id.). Plaintiff tripped, but did not fall, while stepping onto the sidewalk, as a result of the sidewalk
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being “several inches” above the worn foot path. (Id. ¶4). Plaintiff stumbled onto the sidewalk and
again tripped, this time while stepping over the broken portion of the sidewalk. (Id.). Already being
unsteady, plaintiff fell as she stepped on the uneven portion of the sidewalk. (See id.). Although
plaintiff had been to the Post Office on numerous occasions, often taking the same route, she had
never noticed the sidewalk to be uneven. (Id. ¶7). As a result of her fall, plaintiff severely injured
her left hand. (Id. ¶¶8-13).
Defendant and its landlord have incorporated into the Lease Agreement a “maintenance
rider,” containing several provisions regarding maintenance of and repair to the property, including
the sidewalk. (Lease Agreement at 7-9). Specifically, the Lease Agreement requires the landlord
“maintain the demised premises . . . in good repair and tenable condition” for the duration of the
lease. (Id. at 7). The Lease Agreement allows the landlord “at reasonable times, and upon
reasonable notice to the facility manager, [to] enter and inspect” the property and to make any
necessary repairs. (Id.).
The Lease Agreement gives defendant broad power to demand its landlord make needed
repairs. (Id. at 8). For example, the government may compel a repair if it, in its discretion,
determines the premises is “unfit for use or occupancy,” or whenever it observes “a need for
maintenance, repair, or replacement” which the landlord is obligated to perform under the Lease
Agreement. (Id.). When defendant demands a repair, the landlord has the affirmative obligation
to “rebuild or repair the premises as necessary to restore them to tenantable [sic] condition to the
satisfaction of the Postal Service.” (Id.). If the landlord does not make such repairs in a timely
manner, defendant may repair the premises itself or contract with a third party to undertake such
repair. (See id.). The Lease Agreement gives defendant’s landlord the right to inspect the property,
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but imposes no affirmative obligation on her to do so. (See Lease Agreement at 7; id. passim). In
addition, defendant’s landlord is not required to repair damage caused by defendant’s own
negligence. (Id. at 7).
COURT’S DISCUSSION
A.
Standard of Review
1. Rule 12(b)(1)
A Rule 12(b)(1) motion challenges the court’s subject matter jurisdiction, and the plaintiff
bears the burden of showing that federal jurisdiction is appropriate when challenged by the
defendant. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain,
697 F.2d 1213, 1219 (4th Cir. 1982). Such a motion may either 1) assert the complaint fails to state
facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject
matter jurisdiction in fact, apart from the complaint. Adams, 697 F.2d at 1219. Under the former
assertion, the moving party contends that the complaint “simply fails to allege facts upon which
subject matter jurisdiction can be based.” Id. In that case, “the plaintiff, in effect, is afforded the
same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Id. “[T]he
facts alleged in the complaint are assumed true, and the motion must be denied if the complaint
alleges sufficient facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d 187,
192 (4th Cir. 2009). When the defendant challenges the factual predicate of subject matter
jurisdiction, a court “is to regard the pleadings’ allegations as mere evidence on the issue, and may
consider evidence outside the pleadings without converting the proceeding to one for summary
judgment.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th
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Cir. 1991). The nonmoving party “must set forth specific facts beyond the pleadings to show that
a genuine issue of material fact exists.” Id.
2.
Summary Judgment
Summary judgment is appropriate where an examination of the pleadings, affidavits, and
other discovery materials properly before the court demonstrates “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (holding that a factual
dispute is “material” only if it might affect the outcome of the suit and “genuine” only if there is
sufficient evidence for a reasonable jury to find for the non-moving party). When faced with crossmotions for summary judgment, the court must ask “whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 251; see also Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.
2003) (“[T]he court must review each motion separately on its own merits to determine whether
either of the parties deserves judgment as a matter of law.”) (internal citations and quotations
omitted).
The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the moving party has met its burden, the non-moving party must then
“set forth specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co.
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). There is no issue for trial unless there is
sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.
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Anderson, 477 U.S. at 250. In making this determination, the court must view the inferences drawn
from the underlying facts in the light most favorable to the nonmoving party. United States v.
Diebold, Inc., 369 U.S.654, 655 (1962).
Nevertheless, “permissible inferences must still be within the range of reasonable probability,
. . . and it is the duty of the court to withdraw the case from the jury when the necessary inference
is so tenuous that it rests merely upon speculation and conjecture.” Lovelace v. Sherwin-Williams
Co., 681 F.2d 230, 241 (4th Cir. 1982) (quotations omitted). Thus, judgment as a matter of law is
warranted where “a reasonable jury could reach only one conclusion based on the evidence,” or
when “the verdict in favor of the non-moving party would necessarily be based on speculation and
conjecture.” Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir. 2005). By contrast,
when “the evidence as a whole is susceptible of more than one reasonable inference, a jury issue is
created,” and judgment as a matter of law should be denied. Id. at 489-90.
B.
Analysis
The issues raised in briefing primarily implicate this court’s subject matter jurisdiction. See
Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). As a sovereign, the United States may
not be sued without its consent. Lane v. Pena, 518 U.S. 187, 192 (1996); Ready Transp., Inc. v.
Military Traffic Mgmt Command, 86 F. App’x 561, 565 (4th Cir. 2004). Absent consent to be sued
“unequivocably manifested in the text of a statute” the court lacks subject matter jurisdiction. See
Williams v. United States, 242 F.3d 169, 173 (4th Cir. 2001).
The FTCA provides “a limited waiver of sovereign immunity, making the Federal
Government liable to the same extent as a private party for certain torts of federal employees acting
within the scope of their employment.” United States v. Orleans, 425 U.S. 807, 813 (1976).
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However, the FTCA contains a number of jurisdictional exceptions, both explicit, see 28 U.S.C. §
2680 (listing statutory exceptions to jurisdiction), and implicit, see 28 U.S.C. § 2671; Orleans, 425
U.S. at 814-15 (discussing independent contractor exception to jurisdiction). The FTCA’s waiver
of sovereign immunity is “strictly construed, in terms of scope, in favor of the sovereign.” Williams,
242 F.3d at 173. Thus, by implication, this court must construe the statute’s jurisdictional
exceptions broadly. See id.
To the extent plaintiff grounds her claim generally in the negligent maintenance of the
demised premise, the court lacks subject matter jurisdiction to hear plaintiff’s claim. Defendant
delegated to its landlord, an independent contractor, the obligation to maintain the premises. The
FTCA explicitly waives sovereign immunity for:
injury . . . caused by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). An “employee of the government” is any “person[] acting on behalf of a
federal agency in an official capacity, temporarily or permanently, in the service of the United
States, with or without compensation.” 28 U.S.C. § 2671. However, § 1346(b)(1)’s waiver of
sovereign immunity for the actions of “employees” does not extend to “independent contractors.”
See 28 U.S.C. § 2671; Orleans, 425 U.S. 413-15; Logue v. United States, 412 U.S. 521, 528 (1973).
Williams, 50 F.3d at 304-05.
To determine whether an individual is an independent contractor the court examines the
“terms of the contract defining the relationship” between the United States and the purported
contractor. Williams, 50 F.3d at 304-05; see also Wood v. Standard Prods. Co., 671 F.2d 825, 829
(4th Cir. 1982). The crux of the inquiry is “whether the government exercises day-to-day control
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over the performance of the work under contract.” Berkman v. United States, 957 F. 2d 108, 114
(4th Cir. 1992). An individual otherwise properly categorized as an independent contractor is not
transformed into an employee because the government controls the “peripheral, administrative acts
relating to [the primary activity for which the parties have contracted.]” Id. Stated another way, the
court must determine whether the United States “act[ed] generally as an overseer” or whether the
government properly is characterized as a manager, which supervised the alleged tortious conduct.
Williams, 50 F.3d at 306; Leone v. United States, 910 F.2d 46, 50 (2d Cir. 1990).
Viewing the contract as one for the provision of maintenance and repair services, plaintiff’s
claim must fail. The terms of the Lease Agreement make clear that the government did not control
its landlord’s principle obligation to maintain and repair the leased premises. The Lease Agreement
provides that the landlord alone bears the responsibility to repair all damage to the property, except
damage resulting from an act or the negligence of the Postal Service. (Lease Agreement at 7).
Moreover, the Lease Agreement allowed the landlord to enter the premises and inspect for defects,
(id.), as well as required her to repair the premises when notice was provided to her by the Postal
Service.
The Postal Service acted merely as an overseer, requiring the landlord to perform repairs “to
[its] satisfaction.” (Lease Agreement at 8). The contract did not prescribe the manner in which the
work was to be done. It did not mandate that the landlord perform the repairs herself. Nor did it
obligate her to hire a specified third-party contractor. Moreover, the Lease Agreement did not fix
specified times during which maintenance could take place. Finally, the Agreement contains no
language suggesting that the landlord acted on behalf of the United States government. See Robb,
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80 F.3d at 889-90 (discussing a non-exclusive list of factors relevant to the independent contractor
analysis).
The Lease Agreement’s requirement that defendant’s landlord adhere to certain federal
standards does not counsel in favor of the opposite conclusion. The government does not lose its
immunity simply by setting standards with which its contractors must comply. See Orleans, 425 U.S.
at 816 (“[B]y contract, the Government may fix specific and precise conditions to implement federal
objectives [without losing immunity].”); Williams, 50 F.3d at 306 (“[T]he agency . . . was not an
agent or employee of the United States for purposes of the FTCA, even though the United States set
specific conditions to implement federal objectives and took action to compel compliance with
federal standards.”). Here, the provisions mandating compliance with certain Occupational Safety
and Health Administration standards, as well as requiring compliance with all other applicable
federal, state, and local regulations does not abrogate the government’s immunity. (See generally,
License Agreement, at 8-9).
In addition, the contractual provision requiring defendant’s landlord perform repairs “to the
satisfaction of the Postal Service” does not work to undermine the United States’s sovereign
immunity. This provision is akin to allowing the government to inspect its landlord’s work. See
Viault v. United States, 609 F. Supp. 2d 518, 525 (E.D.N.C. 2009) (finding right to “periodically
evaluate” akin to the right to inspect). The Fourth Circuit has recognized that the government
securing for itself the right to inspect the contractor’s work is a permissible procedural safeguard.
See Williams, 50 F.3d at 306 (citing Brooks v. A.R. & S. Enters., Inc., 622 F.2d 8, 12 (1st Cir.
1980)). The “broad supervisory power[] to control a contractor’s compliance with [a] contract’s
specifications does not establish the agency relationship necessary for FTCA jurisdiction over the
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[g]overnment.” Fisko v. U.S. Gen. Servs. Admin, 395 F. Supp. 2d 57, 62 (S.D.N.Y. 2005); accord
Hsieh v. Consol. Eng’g Servs., Inc., 569 F. Supp. 2d 159, 178 (D.D.C. 2008) (holding no jurisdiction
over government where the contract at issue “provided GSA with the right to inspect work
performed [by the contractor] for purposes of evaluating [the contractor’s] compliance with its
obligations under the [contract].”).
Moreover, the contractual provision allowing defendant to complete work not performed in
a timely manner, either itself or through a third-party contractor, does not transform the
government’s relationship with its landlord and thereby make defendant liable for her negligence.
Notably, this provision has no bearing on the government’s right to control its purported
independent contractor. Thus, this clause is nothing more than a procedural safeguard, allowing the
government to render the demised premises safe and habitable through alternative means where its
landlord does not do so in a timely manner. Although the government ultimately may be liable
where it actually undertakes to repair the premises, there is no suggestion that the government ever
made such an attempt in this case.
Plaintiff’s suggestion to the contrary is of no effect. Plaintiff argues that the primary purpose
of the parties’ agreement is to establish the lessor-lessee relationship, and that defendant’s act of
contracting performance of maintenance and repair services to its landlord was merely ancillary to
that agreement. To the extent plaintiff suggests the independent contractor exception cannot apply
in this case because defendant’s maintenance contract is with its landlord, not a third party, the court
disagrees. The FTCA’s waiver of sovereign immunity is narrowly construed in favor of the
government. See Williams, 242 F.3d at 173. Consistent with that purpose, defendant may assert
the independent contractor exception even where the contractor is its landlord.
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Insofar as plaintiff concedes that the independent contractor may apply in this case, but
contends the focus of the court’s “independent contractor” analysis, that is the “central purpose”
of defendant’s agreement with its landlord, was the establishment of the lessor-lessee relationship
that theory renders plaintiff’s claim untenable. The Supreme Court has noted that the relationship
between defendant and its purported contractor is considered under general principles of agency law.
See Orleans, 425 U.S. at 815 n.4 (discussing common law principles of agency law in independent
contractor analysis under the FTCA); Robb v. United States, 80 F.3d 884, 887-89 (4th Cir. 1996)
(applying common law principles to determine federal question of whether physician was an
independent contractor for purposes of FTCA); see also N.L.R.B. v. United Ins. Co., 390 U.S. 254,
255-56 (1968) (applying common law principles to distinguish between independent contractor and
employee under the National Labor Relations Act). In that light, to view the purpose of the contract
as provision of rental property alone would be fatal to plaintiff’s claim.
The nature of the lessor-lessee relationship represents an even more attenuated connection
between two parties than a contractor relationship. See Restatement (Third) of Agency § 1.01 cmt.
c. (suggesting no vicarious liability for the acts of “nonagent service providers”); Restatement
(Second) of Agency § 220(2) (describing factors relevant to independent contractor analysis; all
factors relating to work); 41 Am. Jur. 2d Independent Contractors § 1 (2015) (describing an
independent contractor as one who provides labor or “contracts to do certain work”). Because of
the attenuated connection between a lessor and lessee, the government hardly could be liable for
negligent maintenance services provided by its landlord if it had entered into an agreement the
primary purpose of which was to provide rental property. Accordingly, resolving the issue in the
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light most favorable to plaintiff, as the court must do here, the proper focus of defendant’s contract
with its landlord is the provision of maintenance and repair services.
In sum, the court is without jurisdiction to hear any claim or argument that plaintiff’s injuries
were sustained as a result of defects in the property resulting defendant’s landlord’s negligent
maintenance of the property. See 28 U.S.C. § 2671. However, that is not to say the court is without
jurisdiction to hear plaintiff’s claim in its entirety. While defendant’s landlord generally was
responsible for maintenance and repair of the premises, the Lease Agreement specifically excepted
her from that responsibility where damage occurred as a result of defendant’s own negligence. In
addition, the Lease Agreement is silent on the issue of whether defendant or its landlord was to
inspect the premises and warn patrons of potential hazards. To the extent plaintiff rests her
negligence claim on these grounds, the court may exercise jurisdiction.
Where the court properly may exercise jurisdiction over a limited aspect of plaintiff’s
negligence claim, the FTCA provides that the United States is liable in tort in “circumstances where
the United States, if a private person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28 U.S.C. § 2672. Thus the court must apply North
Carolina law to plaintiff’s claims. Defendant moves for summary judgment arguing that plaintiff
cannot establish a prima facie case of negligence, or in the alternative that plaintiff was
contributorily negligent as a matter of law.
The court first addresses defendant’s argument that plaintiff cannot establish a prima facie
case of negligence. Under North Carolina law a negligence claim requires plaintiff to plead “duty,
breach of duty, proximate cause, and damages.” Estate of Mullis ex rel. Dixon v. Monroe Oil Co.,
349 N.C. 196, 202 (1998). Plaintiff contends defendant was negligent in three ways: 1) creating the
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allegedly hazardous condition; 2) failing to inspect the premises and initiate necessary repairs; and
3) failing to warn of the allegedly hazardous condition.
With regard to plaintiff’s first proffered ground in defense of defendant’s motion for
summary judgment, the court disagrees. Plaintiff has pleaded no facts and produced no evidence
from which the court may infer defendant’s actions caused plaintiff’s injury. Accordingly,
defendant is entitled to summary judgment on this ground.
Plaintiff contends defendant created the hazard that ultimately led to her injury by placing
certain impediments in the parking lot, which made full use of the sidewalk more difficult and
necessitated the use of the “shortcut” path on which plaintiff fell. However, plaintiff cites no
evidence that suggests defendant actually placed concrete “bumpers” in the parking lot. Rather,
plaintiff’s evidence shows that defendant knew the “shortcut” existed, (Turnage Dep. 22:17-21;
Martin Dep. 35:3-22, 39:4-7), and that it was heavily used. (Turnage Dep. 22:8-12, 23:3-6; Martin
Dep. 35:9-22). Based on that evidence alone, it would be unreasonable to infer that defendant
actually created the allegedly hazardous condition. In addition, plaintiff does not direct the court
to any evidence which supports her suggestion that defendant negligently created the condition of
the sidewalk. Accordingly, because plaintiff has failed to produce any evidence tending to show
defendant’s negligence, defendant’s motion for summary judgment must be allowed on that discrete
point.1
However, with respect to plaintiff’s second and third proffered ground, defendant’s motion
for summary judgment is denied. Plaintiff has created a genuine question of fact as to whether
1
Certain evidence by plaintiff suggests that defendant may have placed concrete bumpers in a certain portion
of the parking lot. (See Turnage Dep. 35:11-37:3). However, the record suggests that these additions occurred on the
other side of the parking lot, away from where plaintiff fell. (See id. Ex. A.).
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defendant’s failure to either correct the allegedly hazardous condition or warn of the hazard after
receiving actual or constructive knowledge of its existence breached a duty.
Under North Carolina law a business owes to plaintiff the duty of “ordinary care to keep in
a reasonably safe condition those portions of its premises which it may expect will be used by its
customers during business hours, and to give warning of hidden perils or unsafe conditions insofar
as they can be ascertained by reasonable inspection and supervision.” Roumillat v. Simplistic
Enters., Inc., 331 N.C. 57, 64 (1992), abrogated on other grounds by, Nelson v. Freeland, 349 N.C.
615 (1998).2 Defendant at least had constructive knowledge of the well-worn footpath, which
plaintiff describes as “several inches” below the sidewalk. (Turnage Dep. 22:17-21, 22:8-12, 23:36; Martin Dep. 35:3-22, 39:4-7). In addition, it is fair to infer that defendant would have seen the
crack in the sidewalk had it inspected the property. (See Parrish Aff. ¶7). Moreover, plaintiff has
adduced sufficient evidence on the issue of causation. In particular plaintiff has submitted an
affidavit averring that both impediments, working in concert, caused her injury. (Parrish Aff. ¶¶67). Finally, plaintiff has presented sufficient evidence to show that she has been damaged, namely
that she hurt her left hand, lost wages, and requires ongoing medical treatment. (Id. ¶¶8-15).
Accordingly, plaintiff may pursue her claim inasmuch as she grounds it in defendant’s failure to
inspect the property and initiate repair or defendant’s failure to warn patrons of potential hazards.
Nevertheless, defendant argues that it had no duty to warn or initiate repair of the alleged
hazards because they were “open and obvious.” The court disagrees.
2
Although the Lease Agreement obligated defendant’s landlord to repair the premises, defendant could be
negligent in failing to contact its landlord and initiate those repairs.
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“Reasonable persons are assumed, absent diversions or distraction, to be vigilant in the
avoidance of a known and obvious danger.” Roumillat, 331 N.C. at 66. Accordingly, “[a] proprietor
has no duty to warn . . . of an obvious danger or a condition of which the [patron] has equal or
superior knowledge.” Id. at 66-67. Here the evidence viewed in the light most favorable to plaintiff
establish a genuine dispute as to whether she had equal or superior knowledge of the hazard.
Defendant was aware of the worn foot-path, and had defendant inspected the premises it would have
known that the path and sidewalk were uneven. (Turnage Dep. 22:17-21, 22:8-12, 23:3-6; Martin
Dep. 35:3-36:15, 39:4-7). In addition, given the nature of the crack in the sidewalk, it is fair to infer
that, had defendant inspected the sidewalk, it would have known of the crack as well. (Parrish Aff.
¶7). By contrast, plaintiff had no knowledge of the allegedly hazardous condition. (Id. ¶¶4,6).
Because the evidence, when considered in the light most favorable to plaintiff, creates a genuine
dispute of material fact as to whether plaintiff equal or greater knowledge of the hazards defendant’s
motion must be denied to the extent defendant argues it had no duty to inspect and repair or to warn.
In any event, defendant contends summary judgment is appropriate on the alternative basis
of contributory negligence. In North Carolina where a plaintiff negligently contributes to her own
injury the doctrine of contributory negligence acts as a complete bar to recovery. Sorrells v. M.Y.B.
Hospitality Ventures of Asheville, 332 N.C. 645, 648 (1992). Contributory negligence is an
affirmative defense and defendant bears the burden of proof. Warren v. Lewis, 273 N.C. 457, 460
(1968). To determine whether plaintiff was contributorily negligent, the court asks whether “a
person using ordinary care for . . . her own safety under similar circumstances” would have seen the
hazards which caused plaintiff to fall. Norwood v. Sherwin-Williams Co., 303 N.C. 462, 468
(1981), abrogated on other grounds by Nelson, 349 N.C. 615 (1998).
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The court cannot conclude plaintiff was contributorily negligent as a matter of law when the
facts are considered in the light most favorable to plaintiff. Defendant’s own evidence demonstrates
a material dispute of fact. Defendant admits it never received any complaints about the sidewalk.
(Def.’s Resp. to Pl.’s First Set of Interrogs., ¶7). When viewed in the light most favorable to
plaintiff, this evidence suggests that a person of reasonable prudence would not have seen the
alleged hazard, thus creating a question of fact as to plaintiff’s alleged contributory negligence.
Moreover, to the extent defendant grounds its motion in plaintiff’s equal or superior knowledge of
the alleged hazards, as discussed above, a genuine dispute of material fact precludes entry of
summary judgment in defendant’s favor on that point.
CONCLUSION
Based on the foregoing defendant’s motion to dismiss for lack of subject matter jurisdiction
is GRANTED in PART and DENIED in PART. Defendant’s alternative motion for summary
judgment also is GRANTED in PART and DENIED in PART. Plaintiff may pursue her negligence
claim to the extent it is grounded in defendant’s failure to inspect the leased premises and initiate
repairs, as well as defendant’s failure to warn patrons of hazards on the leased premises. The parties
are DIRECTED to confer and file with the court within 21 days of this order a proposed case
schedule for proceeding to trial.
SO ORDERED, this the 27th day of July, 2015.
_____________________________
LOUISE W. FLANAGAN
United States District Judge
17
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