Joyce v. City of High Point

226 S.E.2d 856 (1976) 30 N.C. App. 346

Nannie Iva JOYCE, Plaintiff,
v.
CITY OF HIGH POINT, Defendant and Third-Party Plaintiff,
v.
AMERICAN FRIENDS SERVICE COMMITTEE, INC., Third-Party Defendant.

No. 7518SC1015.

Court of Appeals of North Carolina.

August 4, 1976.

Gardner & Tate, by Raymond A. Bretzmann, High Point, for plaintiff appellant.

Bencini, Wyatt, Early & Harris, by Frank B. Wyatt and William E. Wheeler, High Point, for defendant and third-party plaintiff appellee, City of High Point.

Jordan, Wright, Nichols, Caffrey & Hill, by Thomas C. Duncan, Greensboro, for third-party defendant appellee, American Friends Service Committee, Inc.

MORRIS, Judge.

Plaintiff contends that the trial court erred in granting defendant City's and defendant AFSC's joint summary judgment motion. We disagree.

As we have stated previously, ". . . summary judgment is proper where it appears that even if the facts as claimed by the plaintiff are proved, there can be no recovery. . . ." Pridgen v. Hughes, 9 N.C.App. 635, 638, 177 S.E.2d 425, 427 (1970); also see Haithcock v. Chimney Rock Co., 10 N.C.App. 696, 179 S.E.2d 865 (1971).

In support of the motion for summary judgment defendants offered the pleadings, interrogatories and answers thereto, and portions of plaintiff's deposition. In response to the motion, plaintiff introduced the affidavit of Mrs. M. L. Brown, the pleadings, interrogatories and answers thereto, and portions of plaintiff's deposition.

The evidence indicates that as a matter of law the defendant City and defendant AFSC breached no legal duty to plaintiff. In Bagwell v. Brevard, 256 N.C. 465, 124 S.E.2d 129 (1962), the plaintiff allegedly fell on a sidewalk in which the adjoining concrete slabs left a one inch declivity. Our Supreme Court in Bagwell affirmed the trial court's dismissal of the action on demurrer holding at page 466, 124 S.E.2d at page 130 that ". . . 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 . . . duty." Also see: Smith v. Hickory, 252 N.C. 316, 113 S.E.2d 557 (1960); Falatovitch v. Clinton, 259 N.C. 58, 129 S.E.2d 598 (1963); 5 Strong, N.C.Index 2d, Municipal Corporations, § 14. But cf.: Radford v. Asheville, 219 N.C. 185, 13 S.E.2d 256 (1941).

Furthermore, it appears from plaintiff's own evidence—which is not disputed—and particularly the affidavit of Mrs. Brown, that plaintiff was guilty of contributory negligence as a matter of law.

It appears obvious that in this case defendants have met their burden to establish the lack of a triable issue of fact. They have presented materials which would require a directed verdict in their favor if presented at trial. See Pridgen v. Hughes, supra; Haithcock v. Chimney Rock Co., supra. The materials presented by plaintiff in opposition have shown nothing which would defeat a directed verdict. On the contrary, plaintiff's evidence on motion for summary judgment merely solidifies defendants' entitlement to a summary judgment.

The judgment of the trial court is

Affirmed.

HEDRICK and ARNOLD, JJ., concur.