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Viczay v. Thoms12/5/2000
d to plaintiff, plaintiff is nevertheless "barred from recovery as a matter of law since there is no genuine issue as to [plaintiff's] own contributory negligence." I disagree.
" plaintiff's right to recover in a personal injury action is barred upon a finding of contributory negligence." Cobo v. Raba, 347 N.C. 541, 545, 495 S.E.2d 362, 365 (1998). A plaintiff is contributorily negligent when she fails to use due care to protect herself from risk of injury if the risk would have been apparent to "a prudent person exercising ordinary care for own safety." Smith v. Fiber Controls Corp., 300 N.C. 669, 673, 268 S.E.2d 504, 507 (1980). "In those instances where the landowner retains a duty to lawful visitor even though an obvious danger is present, the obvious nature of the danger is some evidence of contributory negligence on the part of the lawful visitor." Lorinovich, 134 N.C. App. at 162-63 n.2, 516 S.E.2d at 646 n.2 (emphasis added).
In this case, assuming the jury determined defendant owed a duty to plaintiff and defendant breached that duty, the obvious nature of the danger caused by snow and ice on the walkway would be some evidence that plaintiff was contributorily negligent by walking on the walkway. Plaintiff, however, presented evidence that when she went to leave defendant's party, an employee of defendant unlocked and opened an exit door leading to the walkway and plaintiff exited through the door. The employee locked the door behind plaintiff. Whether a reasonable person would have attempted to re-enter defendant's house and ask for assistance under these circumstances is a question of fact for the jury. See id. at 163, 516 S.E.2d at 647. Accordingly, I would reverse the trial court's order granting summary judgment in favor of defendant.
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