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Viczay v. Thoms12/5/2000
Appeal by plaintiff from judgment entered 12 July 1999 by Judge Oliver L. Noble, Jr. in Buncombe County Superior Court. Heard in the Court of Appeals 12 September 2000.
Plaintiff Marika Von Viczay (plaintiff) appeals the entry of summary judgment in favor of defendant Seline Thoms (defendant). Evidence presented on the motion tended to establish that on the evening of 20 December 1996 plaintiff attended a holiday party at defendant's home as an invited guest. The temperature on the day of the party did not rise above freezing. Snow and ice had fallen the previous night. Defendant's evidence was to the effect that all her walkways were shoveled and salted the day of the party, her driveway was plowed, and therefore, the snow and ice had melted and the walkways were "one hundred percent clear."
Plaintiff's evidence tended to show that she arrived at defendant's house at approximately 9:00 p.m. dressed in an evening gown and shoes with two to three-inch heels. Plaintiff parked her car and proceeded up the front walkway to the house, noticing the grounds surrounding the house were covered in snow and ice. Plaintiff saw patches of snow and ice along the walkway, but was able to avoid them because the walkway was sufficiently illuminated by light coming from the house.
Plaintiff left defendant's party at approximately 11:30 p.m. She exited through the front door and proceeded down the same front walkway on which she had arrived. Plaintiff had difficulty seeing the walkway because her back was to the light of the house and her eyes had not adjusted to the darkness. After taking approximately ten steps down the walkway, plaintiff slipped on a patch of ice and fell, sustaining injuries which included a compound wrist fracture.
On 17 September 1998, plaintiff filed the instant action alleging defendant's negligence in failing to discover and remove the ice from the front walkway and in failing to warn plaintiff of the dangerous condition. On 1 March 1999, defendant moved for summary judgment, and on 12 July 1999 the trial court granted the motion, finding "no genuine issue as to any material fact" and that defendant is "entitled to a judgment as a matter of law." Plaintiff appeals.
Plaintiff assigns error to the trial court's grant of summary judgment in favor of defendant on grounds that plaintiff presented evidence demonstrating a genuine issue of material fact as to defendant's negligence. It is well established that the standard of review of the grant of a motion for summary judgment requires a two-part analysis of whether, "(1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law." Gaunt v. Pittaway, ___ N.C. App. ___, ___, 534 S.E.2d 600, ___ (29 August 2000) (COA98-823) (citations omitted).
In order to survive a defendant's motion for summary judgment, a plaintiff must establish a prima facie case of negligence by showing: "(1) that defendant failed to exercise proper care in the performance of a duty owed plaintiff; (2) the negligent breach of that duty was a proximate cause of plaintiff's injury ; and (3) a person of ordinary prudence should have foreseen that plaintiff's injury was probable under the circumstances." LaVelle v. Schultz, 120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995), disc. review denied, 342 N.C. 656, 467 S.E.2d 715 (1996). If any such elements are lacking from plaintiff's show of evidence, summary judgment is proper. See Id. at 862, 467 S.E.2d at 571.
Our Supreme Court recently abolished the distinction between license
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