 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Goynias v. Spa Health Clubs2/5/2002
Appeal by plaintiff from order entered 13 April 2000 by Judge Orlando F. Hudson in Superior Court, Orange County. Heard in the Court of Appeals 10 October 2001.
Plaintiff filed a complaint for personal injury against defendant, alleging he was injured as a result of defendant's negligence while he was on the premises of defendant's fitness establishment. Plaintiff alleged in his complaint that he fell on a slippery and wet floor after leaving the men's shower area and returning to the locker room area. Plaintiff alleged he subsequently developed neck and back pain as a result of the fall. Defendant filed an answer denying negligence and alleging contributory negligence of plaintiff. Defendant filed a motion for summary judgment, which was granted by the trial court. Plaintiff appeals.
Plaintiff first argues the trial court erred in granting defendant's motion for summary judgment because there exists a triable issue of fact with regard to defendant's negligence. We disagree.
A defendant is entitled to summary judgment if the record shows "that there is no genuine issue as to any material fact and that [defendant] is entitled to . . . judgment as a matter of law." N.C. Gen. Stat. ยง 1A-1, Rule 56(c) (1999). As the moving party, a defendant has the burden of establishing the absence of any triable issue of fact. The trial court must construe the evidence in the light most favorable to the non-moving party. See Nourse v. Food Lion, Inc., 127 N.C. App. 235, 488 S.E.2d 608 (1997), aff'd, 347 N.C. 666, 496 S.E.2d 379 (1998).
In general, property owners have "the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors." Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998). A property owner "is required to exercise reasonable care to provide for the safety of all lawful visitors on his property, the same standard of care formerly required only to invitees. Whether the care provided is reasonable must be judged against the conduct of a reasonably prudent person under the circumstances." Lorinovich v. K Mart Corp., 134 N.C. App. 158, 161, 516 S.E.2d 643, 646, cert. denied, 351 N.C. 107, 541 S.E.2d 148 (1999). This duty includes the "duty to exercise ordinary care to keep the premises in a reasonably safe condition and to warn the invitee of hidden perils or unsafe conditions that can be ascertained by reasonable inspection and supervision." Byrd v. Arrowood, 118 N.C. App. 418, 421, 455 S.E.2d 672, 674 (1995).
In order to show negligence by a defendant, a "plaintiff must show that defendant either (1) negligently created the condition causing injury , or (2) negligently failed to correct the condition after actual or constructive notice of its existence." Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342-43 (1992).
In the case before us, plaintiff has failed to show that defendant negligently created the situation which caused plaintiff's injury. Plaintiff's own expert testified in his deposition that the tile floor was textured and possessed a .64 coefficient of friction, significantly higher than the .04 standard for a bathtub or shower floor. Plaintiff's expert testified the floor was sloped; however, the expert performed no tests which would indicate what that slope was or if it was significant enough to be the cause of the accident. Plaintiff's expert testified the lighting in the room was such that a person could not see a puddle which had formed; however, the expert examined the area two and a half years after the accident, and offered no evidence or factual basis as to what the lighting conditions were at the time of the accident. Plaintiff's expert
Page 1 2 3 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|