Appeal by plaintiff from judgment entered 20 September 1999 by
Judge J.B. Allen, Jr. in Orange County Superior Court. Heard in
the Court of Appeals 14 February 2001.
Browne, Flebotte, Wilson & Horne by Linda L. Czyzyk for
plaintiff-appellant.
McGuire, Woods, Battle & Boothe by Kurt E. Lindquist, II and
Arden Lynn Achenberg for defendant-appellee.
THOMAS, Judge.
Plaintiff Joanne Keller filed a complaint alleging defendant
Willow Springs Long Term Care Facility, Inc. was negligent by
creating a hidden and dangerous condition which resulted in serious
injury to her back. From the grant of defendant's motion for
summary judgment, plaintiff appeals.
Plaintiff was employed as a physical therapy assistant for
Home Health Agency of Chapel Hill, Inc. Her duties included caring
for several residents of a rest home in Carrboro being operated bydefendant.
On 21 December 1993, plaintiff went to the room of Peter
Koutouzakis (Koutouzakis), a stroke victim, in order to provide
physical therapy. She had previously provided care for him
including exercise, transfers (moving him from bed to wheelchair
and return) and gait training. According to plaintiff's
allegations, she noticed Koutouzakis sitting on the edge of his
bed, agitated, with one of defendant's employees attempting to
assist him into a wheelchair. The employee was not trained to care
for patients, had not locked the wheelchair and had failed to put
a leg brace or gait belt on him. As plaintiff entered the room,
the employee backed away and Koutouzakis began to slide off the
bed. Plaintiff rushed to his aid, putting her knees in front of
him to prevent his fall. Plaintiff then placed a gait belt around
Koutouzakis and transferred him to the wheelchair. In catching him
and placing him in his wheelchair, however, she suffered injury to
her back resulting in permanent and total disability.
According to plaintiff, “the situation which existed in the
room” was the hidden and dangerous condition caused by the actions
and inactions of defendant. According to the defendant, plaintiff
in effect is arguing that Koutouzakis himself was the dangerous
condition.
The trial court allowed defendant's motion for summary
judgment on 20 September 1999, which plaintiff assigns as error.
The standard for granting a motion for summary judgment is
well-established. A party is entitled to summary judgment only “if
the pleadings, depositions, answers to interrogatories andadmissions on file, together with the affidavits, if any, show that
there is no genuine issue of material fact, and that any party is
entitled to judgment as a matter of law.” N.C. Gen. Stat. § 1A-1
Rule 56.
The party moving for summary judgment has the
burden of establishing the lack of any triable
issue. Caldwell v. Deese, 288 N.C. 375, 218
S.E.2d 379 (1975). The movant may meet this
burden by proving that an essential element of
the opposing party's claim is non existent, or
by showing through discovery that the opposing
party cannot produce evidence to support an
essential element of his claim or cannot
surmount an affirmative defense which would
bar the claim. Bernick v. Jurden, 306 N.C.
435, 293 S.E.2d 405 (1982); Dickens v.
Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).
Mozingo v. Pitt County Memorial Hosp., Inc., 331 N.C. 182, 187, 415
S.E.2d 341, 344 (1992) (citing Collingwood v. General Electric Real
Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427
(1989)).
Here, plaintiff alleges defendant was negligent in that it: a)
failed to exercise ordinary care to keep and maintain the premises
in a reasonably safe condition; b) created a hidden and dangerous
condition by failing to properly medicate Koutouzakis; c) failed to
train its employees and agents and properly staff its facility; d)
failed to timely toilet him; e) failed to transfer him to an
intermediate care facility to provide more extensive medical care
and supervision when his health condition deteriorated; f) failed
to warn plaintiff of hidden perils and unsafe conditions of which
defendant knew or, by reasonable inspection, could have discovered;
g) failed to reasonably inspect him and to correct unsafeconditions which such an examination would have revealed; and h)
generally failed to warn plaintiff of these hidden and dangerous
conditions.
In order to establish negligence, plaintiff must show that: 1)
defendant owed a legal duty to the plaintiff; 2) the defendant
breached the duty; 3) plaintiff sustained injuries; and 4) the
plaintiff's injuries were proximately caused by defendant's breach.
Pulley v. Rex Hospital, 326 N.C. 701, 392 S.E.2d 380 (1990).
In the instant case, plaintiff bases her negligence claim on
a premises liability theory. She contends a lack of proper care
for Koutouzakis caused an unsafe condition which breached a duty to
plaintiff as a business invitee.
Our Supreme Court has held that landowners owe a duty to
exercise reasonable care in the maintenance of their premises to
all lawful visitors. Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d
882 (1998), reh'g denied, 350 N.C. 108, 533 S.E.2d 467 (1999). The
Court in Nelson also eliminated the distinction between licensees
and business invitees for the purposes of premises liability and
instead imposed a duty on landowners to exercise reasonable care to
all lawful visitors. Landowners have a duty to maintain their
premises in a reasonably safe condition for their intended use.
Pulley v. Rex Hospital, 326 N.C. 701, 392 S.E.2d 380 (1990).
To withstand summary judgment under a premises liability
theory, plaintiff must demonstrate substantial evidence showing
defendant failed to exercise reasonable care in the maintenance of
its premises. Nelson, 349 N.C. at 633, 507 S.E.2d at 893. Plaintiff argues that a staff shortage resulted in
Koutouzakis
not being toiletted and properly medicated prior to his 10:00 a.m.
appointment with plaintiff. She says this failure created a hidden
and dangerous condition which resulted in her injury. In essence,
plaintiff advances the novel theory that the rest home resident
himself became a dangerous condition. Some of the dangerous
conditions recognized by North Carolina Courts have included uneven
and/or broken sidewalks, indentures in walkways, a dirt filled
ditch, uneven stairs and/or the absence of handrails, wet floors,
and unlighted parking lots. See Newsom v. Byrnes, 114 N.C. App.
787, 443 S.E.2d 365 (1994); Rappaport v. Days Inn of America,
Inc., 296 N.C. 382, 250 S.E.2d 245 (1979). Additionally, this
Court has held that a hospital owes a duty to protect a patient
against foreseeable assaults by another patient. Burns v. Forsyth
County Hosp. Authority, Inc., 81 N.C. App. 556, 344 S.E.2d 839
(1986). There is no reasonable analogy from any of these holdings
to the present case.
Our review of the record shows no evidence that defendant
failed to act outside the standard of care in the maintenance of
its premises, that the premises were improperly maintained or of
any other breach of duty owed to plaintiff. Plaintiff has not
indicated any evidence of a defective, dangerous or unsafe
condition on the property of defendant.
Even if it were determined that the resident was a dangerous
condition, or as plaintiff argues, the “situation” in the room was
the dangerous condition with defendant not properly caring for itsresidents, plaintiff's contention would still fail. Our Supreme
Court, in Branks, held that dismissal of plaintiff's complaint
alleging premises liability was appropriate where the alleged
hazard was obvious to her. 320 N.C. 621, 359 S.E.2d 780 (1987).
Similarly in Newsom, this Court held that “even if the condition
. . . had been rendered unsafe under the circumstances, plaintiff
knew of the unsafe condition.” Therefore, defendant was not
liable. Newsom, 114 N.C. App. at 790, 443 S.E.2d at 368.
In the case at bar, plaintiff claims the condition was both
dangerous and hidden. Even while arguably dangerous, however, the
condition was in no way hidden from plaintiff. Her argument goes
to Koutouzakis' condition at the moment she entered the room being
unexpected, not hidden. Plaintiff also claims defendant had a last
clear chance to avoid injury to plaintiff, but fails to adequately
analyze the theory or cite appropriate authority.
The ultimate facts are straightforward. Plaintiff voluntarily
went to the aid of a resident with the admitted knowledge that he
was agitated, needed to use the restroom and was not utilizing his
leg brace. She also was aware the wheelchair was not in a locked
position. Plaintiff is a physical therapy assistant capable of
making proper bed to wheelchair transfers. The only danger alleged
by plaintiff was a human condition of which plaintiff was apprised
and well-trained to address. Plaintiff may not recover where the
allegedly dangerous condition would be obvious to an ordinary
person or where plaintiff had equal or superior knowledge of the
allegedly dangerous condition. See Pulley v. Rex Hospital, 326N.C. 701, 392 S.E.2d 380 (1990); Branks v. Kerns, 320
N.C. 621,
359 S.E.2d 780 (1987). Accordingly, this assignment of error is
rejected and the decision of the trial court affirmed.
AFFIRMED.
Judges WYNN and MCGEE concur.
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