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
How later courts described this case
- 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
- plaintiff failed to observe two-inch difference in height of sidewalk slabs
Written by the judges who cited it.
The opinion
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 (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
*350
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 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 defendant’s entitlement to a summary judgment.
The judgment of the trial court is
Affirmed.
Judges Hedrick and Arnold concur.