Wyrick v. K-MART APPAREL FASHIONS CORP.

Court of Appeals of North Carolina

Wyrick v. K-MART APPAREL FASHIONS CORP.

378 S.E.2d 435, 93 N.C. App. 508, 1989 N.C. App. LEXIS 200

CourtCourt of Appeals of North Carolina

DecidedApril 18, 1989

Docket8823SC971

StatusPublished

Cited by8 cases

This text of 378 S.E.2d 435 (Wyrick v. K-MART APPAREL FASHIONS CORP.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wyrick v. K-MART APPAREL FASHIONS CORP., 378 S.E.2d 435, 93 N.C. App. 508, 1989 N.C. App. LEXIS 200 (N.C. Ct. App. 1989).

Pincite

Opinion

LEWIS, Judge.

Plaintiff was an invitee at K-Mart. She went to the store’s garden shop to purchase a plant and some potting soil. As she started walking toward a display, she saw “this garden hose where they water down . . . the flowers, and I started over it, which I thought I could have made it.” Plaintiff caught her foot in the garden hose and fell. She testified that instead of walking across the garden hose, she could have gone “all the way back around and went the long way” to reach her destination.

Summary judgment is appropriate “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.” G.S. 1A-1, Rule 56(c). Even in a negligence action, summary judgment is proper if the forecast of evidence fails to show defendant’s negligence, establishes plaintiff’s contributory negligence or shows defendant’s alleged negligence was not the proximate cause of plaintiff’s injury. Hale v. Power Co., 40 N.C. App. 202, 252 S.E. 2d 265, cert. denied, 297 N.C. 452, 256 S.E. 2d 805 (1979). In affirming summary judgment for the defendant in Jacobs v. Hill’s Food Stores, Inc., 88 N.C. App. 730, 364 S.E. 2d 692 (1988), this Court stated:

This evidence shows that the concrete block was an obvious condition and that plaintiff either knew or should have known of the location of the concrete block on the walkway. Defendant had no duty to warn plaintiff of an obvious condition. Thus, plaintiff’s own evidence establishes that defendant did not breach any duty owed to plaintiff. Moreover, plaintiff’s own testimony demonstrates her own negligence in failing to watch where she was walking.

Id. at 733, 364 S.E. 2d at 694. When an invitee sees an obstacle not hidden or concealed and proceeds with full knowledge and awareness, there can be no recovery. Stansfield v. Mahowsky, 46 N.C. App. 829, 266 S.E. 2d 28, disc. rev. denied, 301 N.C. 96, 273 S.E. 2d 442 (1980).

*510 Summary judgment was properly entered.

Affirmed.

Judges Arnold and Greene concur.

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LEWIS, Judge.

Plaintiff was an invitee at K-Mart. She went to the store’s garden shop to purchase a plant and some potting soil. As she started walking toward a display, she saw “this garden hose where they water down . . . the flowers, and I started over it, which I thought I could have made it.” Plaintiff caught her foot in the garden hose and fell. She testified that instead of walking across the garden hose, she could have gone “all the way back around and went the long way” to reach her destination.

Summary judgment is appropriate “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.” G.S. 1A-1, Rule 56(c). Even in a negligence action, summary judgment is proper if the forecast of evidence fails to show defendant’s negligence, establishes plaintiff’s contributory negligence or shows defendant’s alleged negligence was not the proximate cause of plaintiff’s injury. Hale v. Power Co., 40 N.C. App. 202, 252 S.E. 2d 265, cert. denied, 297 N.C. 452, 256 S.E. 2d 805 (1979). In affirming summary judgment for the defendant in Jacobs v. Hill’s Food Stores, Inc., 88 N.C. App. 730, 364 S.E. 2d 692 (1988), this Court stated:

This evidence shows that the concrete block was an obvious condition and that plaintiff either knew or should have known of the location of the concrete block on the walkway. Defendant had no duty to warn plaintiff of an obvious condition. Thus, plaintiff’s own evidence establishes that defendant did not breach any duty owed to plaintiff. Moreover, plaintiff’s own testimony demonstrates her own negligence in failing to watch where she was walking.

Id. at 733, 364 S.E. 2d at 694. When an invitee sees an obstacle not hidden or concealed and proceeds with full knowledge and awareness, there can be no recovery. Stansfield v. Mahowsky, 46 N.C. App. 829, 266 S.E. 2d 28, disc. rev. denied, 301 N.C. 96, 273 S.E. 2d 442 (1980).

*510 Summary judgment was properly entered.

Affirmed.

Judges Arnold and Greene concur.

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378 S.E.2d 435, 93 N.C. App. 508, 1989 N.C. App. LEXIS 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wyrick-v-k-mart-apparel-fashions-corp-ncctapp-1989.

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