North Carolina Lawyers Weekly
Taylor v. Sandbank (Lawyers Weekly No. 11-16-0366, 12 pp.) (Ann Marie Calabria, J.) Appealed from Guilford County Superior Court. (Edwin G. Wilson Jr., J.) N.C. App. Unpub. Click here for the full text of the opinion.
Holding: The plaintiff-exterminator said he walked around the perimeter of defendants’ house before he started applying ant bait to the house’s exterior, but he did not notice that he was standing above a below-grade doorway until its plywood covering gave way beneath him. Plaintiff also said the plywood was covered with leaves and grass. There is a genuine issue of fact as to whether the plywood covering was an open and obvious condition about which the defendant-homeowners had no duty to warn plaintiff.
We reverse summary judgment for defendants.
Plaintiff was a lawful visitor on defendants’ property, he was injured on defendants’ property, and the proximate cause of his injury was falling three to four feet onto a recessed stairwell. The day of the incident was the first time plaintiff had been to defendants’ home, so he was unfamiliar with the residence.
The issue here is whether defendants were negligent in failing to exercise reasonable care in the maintenance of their premises.
Defendants generally owed plaintiff a duty to warn him of a dangerous condition on their premises unless it was an open and obvious danger on their property which a person of ordinary intelligence, using his eyes in an ordinary manner, would have seen.
If the condition was open and obvious, or plaintiff had equal or superior knowledge of the dangerous condition, defendants had no duty to warn him.
Since the undisputed evidence is that defendants had superior knowledge of their property, we examine only if the evidence established that the plywood was an open and obvious danger as a matter of law.
Mr. Sandbank stated in his answers to interrogatories that some time prior to July 7, 2003, he purchased plywood. He placed two pieces of four-foot-by-eight-foot weather-treated plywood, measuring 3/4-inch in width, over the recessed stairwell to cover the below-grade doorway from rain.
Mr. Sandbank was unsure of the exact age of the pieces of plywood, how much weight the pieces of plywood could hold, or how long they could resist the elements before they deteriorated. Mr. Sandbank admitted that he periodically mowed his lawn, including the area next to the plywood.
Plaintiff testified in his deposition that on July 7, 2003, he walked around the exterior of defendants’ home and visually inspected the perimeter. Plaintiff further testified that before he applied the gel bait, he looked at the ground where he walked before walking on it, but did not notice there was a doorway present at the location of the recessed stairwell and a sidewalk that ran parallel to the rear wall of the home.
Plaintiff also testified that it was only after he fell that he realized he was previously standing on plywood because right before he fell, he thought he was standing on the “normal part of the ground.”
During plaintiff’s deposition, he viewed Exhibit 1, a photograph of the rear side of the home that was taken Oct. 7, 2003. Exhibit 1 shows the home, the piece of plywood, the door, and the sidewalk.
Plaintiff stated that the plywood was completely covered with “leaves, grass, and everything” and disputed that the sidewalk and piece of plywood were clearly visible. Plaintiff’s testimony and Exhibit 1 present genuine issues of material fact as to whether the condition that plaintiff characterized as a dangerous condition was visible, open and obvious or whether the condition was dangerous because it was not visible, open or obvious; whether plaintiff should have seen the condition; and whether defendants should have warned plaintiff since it was his first visit to their property.
Defendants failed to meet their burden of demonstrating the absence of material issues of fact on the question of whether defendants failed to use reasonable care in the maintenance of their premises since they had knowledge whether the condition was open and obvious, whether defendants owed plaintiff a duty to notify him of the dangerous condition since it was not open and obvious, and defendants were more familiar with the dangerous condition than plaintiff. Therefore, summary judgment on this basis would be inappropriate.
Nor would summary judgment be appropriate on the ground of contributory negligence.
While plaintiff had a duty to avoid open and obvious dangers, there is
a genuine issue of material fact as to whether the plywood was an open and obvious danger. Further, the leaves, dirt, and lawn debris covering and surrounding the plywood, combined with plaintiff’s attentiveness to applying ant bait to an insect-infested area on the exterior of the home, could have diverted the attention of a reasonable person using ordinary care from looking at the location of the hazard or discovering or seeing the hazard.
Moreover, plaintiff walked around the home and observed the perimeter of the home before he applied the ant bait. Plaintiff testified that he did not see the plywood either during his visual inspection or while applying the ant bait.
Considering all of the circumstances and the precautions taken by plaintiff, a reasonable person using ordinary care for his safety under similar circumstances may not have looked in the location of the hazard.
There is a genuine issue of material fact as to whether plaintiff was contributorily negligent.
Reversed.
