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Goynias v. Spa Health Clubs2/5/2002
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Defendant was required to keep its premises in a reasonably safe condition. The record shows defendant placed mats on the floor and provided a drain with a slope. Also, the texture of the floor exceeded the required slip resistant standard for bathroom flooring. There is no evidence defendant was actually or constructively aware of an unobvious dangerous condition which it failed to correct. Therefore, plaintiff failed to show defendant breached its duty to plaintiff.
As we have concluded summary judgment was appropriate on the issue of defendant's negligence, we do not need to address plaintiff's second assignment of error concerning contributory negligence.
We affirm the order of the trial court granting defendant's motion for summary judgment.
Affirmed.
Judge TIMMONS-GOODSON concurs.
Judge BIGGS dissents.
BIGGS, Judge dissenting.
Summary judgment is a drastic remedy and should be used with great caution. Moore v. City of Creedmoor, 120 N.C. App. 27, 36, 460 S.E.2d 899, 904 (1995) (citation omitted). Moreover, such relief is particularly disfavored in cases of negligence or contributory negligence. Thompson v. Bradley, 142 N.C. App. 636, 544 S.E.2d 258, disc. review denied, 353 N.C. 532, 550 S.E.2d 506 (2001). Indeed, as expressed by the North Carolina Supreme Court, "it is only in exceptional negligence cases that summary judgment is appropriate, since the standard of reasonable care should ordinarily be applied by the jury under appropriate instructions from the court." Ragland v. Moore, 299 N.C. 360, 363, 261 S.E.2d 666, 668 (1980) (citation omitted).
In the case sub judice, whether defendant exercised reasonable care in the maintenance of its premises is a question of fact for the jury. Moreover, a jury question is presented as to plaintiff's contributory negligence. It was error for the trial court to grant summary judgment and therefore, I respectfully dissent.
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