Steele v. City of Durham (Lawyers Weekly No. 011-049-16, 13 pp.) (Ann Marie Calabria, J.) Appealed from Durham County Superior Court (Orlando Hudson Jr., J.) N.C. App.
Holding: Even though Highway 55 is a state municipal highway, the sidewalk running parallel to it is the responsibility of the defendant-city.
We reverse summary judgment for the city.
The city’s responsibility to maintain the sidewalk was created by G.S. § 160A-296 and 19A N.C.A.C. 2D.0404, and the city has not forecast any evidence that the state Department of Transportation has agreed to take on maintenance responsibility for this sidewalk. Therefore, the trial court could not properly grant summary judgment for the city based on the absence of a legal duty to maintain the sidewalk.
Plaintiff’s forecast of evidence suggests that plaintiff was walking along the sidewalk at night when a defect on the surface of the sidewalk caused plaintiff to sustain injuries.
Plaintiff also presented affidavits from five residents of Alston Avenue/Highway 55 indicating that the hole had existed in the sidewalk for at least five years and that employees of the city occasionally trimmed the vegetation growing from the sidewalk and the hole. Furthermore, although Dwight Murphy, the Operations Manager for the city’s Public Works Department, testified that he was unaware that an orange cone, which signals “caution,” was placed inside a portion of the hole, there is evidence from an Alston Avenue resident that employees of the city replaced the cone after cutting the grass near the hole. Plaintiff’s evidence also indicates that, although the city maintained the vegetation around the hole, at the time of the incident, this hole had not been trimmed and the overgrown vegetation may have obstructed plaintiff’s view of the hole and orange cone.
A reasonable juror might find that the city had constructive notice of the defect, that it was foreseeable that the failure to remedy the defect might cause injury to a pedestrian, and that the city failed to reasonably maintain this particular section of the sidewalk.
Reversed and remanded.