Willis v. City of New Bern , 137 N.C. App. 762 ( 2000 )

529 S.E.2d 691 (2000)

Jacqueline WILLIS, Plaintiff,
v.
CITY OF NEW BERN, a Municipality, Defendant.

No. COA99-768.

Court of Appeals of North Carolina.

May 2, 2000.

Whitley, Jenkins & Riddle, by Robert E. Whitley, Jr., Kinston, for plaintiff appellant.

McCotter, McAfee & Ashton, PLLC, by Rudolph A. Ashton, III, and Robert J. McAfee; and Ward, Ward & Davis, by A.D. Ward, New Bern, for defendant appellee.

HORTON, Judge.

In North Carolina, a city is under a duty to keep the public streets, sidewalks, alleys, and bridges in proper repair. N.C. Gen.Stat. § 160A-296(a)(1) (1999). To prove a claim of negligent maintenance of its sidewalk against defendant,

"the plaintiff must introduce evidence sufficient to support these findings by the jury: (1) She fell and sustained injuries; (2) the proximate cause of the fall was a defect in or condition upon the sidewalk; (3) the defect was of such a nature and extent that a reasonable person, knowing of its existence, should have foreseen that if it continued some person using the sidewalk in a proper manner would be likely to be injured by reason of such condition; (4) the city had actual or constructive notice of the existence of the condition for a sufficient time prior to the plaintiff's fall to remedy the defect or guard against injury therefrom."

Cook v. Burke County, 272 N.C. 94, 97, 157 S.E.2d 611, 613 (1967) (citation omitted).

"[S]ummary judgment may be granted in a negligence action where there are no genuine issues of material fact and the plaintiff fails to show one of the elements of negligence." Lavelle v. Schultz, 120 N.C.App. 857, 859, 463 S.E.2d 567, 569 (1995), disc. review denied, 342 N.C. 656, 467 S.E.2d 715 (1996). In Bagwell v. Brevard, 256 N.C. 465, 124 S.E.2d 129 (1962), the plaintiff fell and injured herself on a sidewalk in the Town of Brevard, and she sued the Town, alleging negligence. Our Supreme Court held that

[t]he legal duty of defendant, a municipal corporation, is to exercise ordinary care to maintain its sidewalks in a reasonably safe condition for travel by those using them in a proper manner and with due care. It is not an insurer of the safety of its sidewalks.

Here, the alleged defect or irregularity is a difference in elevation of approximately one inch between two adjacent concrete sections of the sidewalk. Defendant's failure to correct this slight irregularity did not constitute a breach of its said legal duty.

Id. at 466, 124 S.E.2d at 130. See also Joyce v. City of High Point, 30 N.C.App. 346, 226 S.E.2d 856 (1976) (the trial court properly entered summary judgment for defendants where the evidence tended to show that part of the sidewalk was elevated one to two inches; the mishap occurred during the day when the sun was shining; the defect had been present for several years; and plaintiff did not see the defect until she fell).

Here, there is no evidence that defendant breached its duty to plaintiff. According to plaintiff's testimony in her deposition, the difference in elevation between the two adjacent sections of the concrete sidewalk at the spot where plaintiff fell, was about one and one-quarter inch. Plaintiff does not contend that defendant had actual notice of any defect in the sidewalk at the place of her fall, but contends that defendant should have had constructive notice of the defect. In response, defendant offered the affidavit of Mr. Morris, in which he stated that he found no record of any complaints for the four-year period prior to plaintiff's accident of any defects in the sidewalk on which plaintiff fell. Mr. Morris also stated in his affidavit that he had no personal recollection of any complaints or requests for improvements to the sidewalks in that area of New Street. The sidewalk in question was resurfaced by Centenary United Methodist Church in 1996, following damage to the area from Hurricane Bertha.

Further, plaintiff cannot offer proof of any factor which should have given the City constructive notice of a defect in its sidewalk. Plaintiff's affidavit reveals that she did not notice any defect in the sidewalk herself until after she had fallen.

"The happening of an injury does not raise the presumption of negligence. There must be evidence of notice either actual or constructive. (Citing cases). The existence of a condition which causes injury is not negligence per se. (Citing a case). The doctrine of res ipsa loquitur does not apply in actions against municipalities by reason of injuries to persons using its public streets."

Smith v. Hickory, 252 N.C. 316, 318, 113 S.E.2d 557, 559 (1960) (citation omitted). When the party moving for summary judgment supports his motion as provided in Rule 56, the party opposing the motion

"may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

Atkins v. Beasley, 53 N.C.App. 33, 38, 279 S.E.2d 866, 870 (1981) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(e)). Plaintiff fails to offer any evidence that the City had either actual or constructive notice of any alleged defect in its sidewalk so as to create a genuine issue of material fact.

Because the trial court properly entered summary judgment on the issue of negligence, we need not reach the issue of plaintiff's alleged contributory negligence.

The judgment of the trial court is hereby

Affirmed.

Judges WYNN and SMITH concur.