Shepard v. Catawba Coll.

Citation: Not availableDocket: 19-101

Court: Court of Appeals of North Carolina; February 17, 2020; North Carolina; State Appellate Court

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Plaintiff Starr Lynn Shepard appeals a trial court order granting summary judgment to defendant Catawba College, which dismissed her negligence claim related to an injury sustained while attending a baseball game on the college's bleachers. Shepard alleged that a wooden slat on the bleachers caused her foot to become caught, leading to her fall and resulting in severe injuries. Catawba College denied the allegations and claimed contributory negligence on Shepard's part. The trial court ruled in favor of the College on July 10, 2018. On appeal, the Court of Appeals of North Carolina found that Shepard had presented sufficient evidence, when viewed favorably to her, to establish a genuine issue of material fact regarding the College's negligence. Consequently, the appellate court reversed the trial court's decision and remanded the case for further proceedings. The court emphasized that summary judgment should be applied cautiously in negligence cases, where the facts typically require a jury's assessment based on the reasonable person standard.

On March 18, 2016, the plaintiff attended a college baseball game at Newman Park, where her son was the pitcher for Catawba College. While seated in her usual spot near the press box on wooden bleachers constructed in 1934, the plaintiff stood up and subsequently fell approximately 13 to 15 feet to the pavement, resulting in serious injuries, including a broken back. She experienced memory loss and could not recall the fall itself but mentioned feeling as if her foot was 'trapped' before it occurred. The plaintiff described that while standing and stepping to the right, a board flexed and caught her toe, causing her to fall. Her husband witnessed the incident and confirmed that she had indicated her foot got caught, suggesting a board gave way, propelling her down the bleachers.

Following the fall, the plaintiff was taken to the hospital, and neither she nor her husband examined the location of the incident at that time. Although the plaintiff could not identify the specific board involved, she marked her seating area on a photograph during her deposition. An expert witness, Mr. David Harlowe, inspected the bleachers on December 7, 2016, after delays in obtaining access from the defendant. Plaintiff’s counsel had notified Catawba College of the claim and requested inspection access shortly after the incident, emphasizing the need to preserve the condition of the stadium as it was at the time of the fall. Follow-up letters reiterated the request and advised against any alterations to the stadium before an inspection could occur.

In August 2016, plaintiff’s counsel urged the defendant’s insurance carrier to preserve the condition of the bleachers for inspection. On December 7, 2016, the day of the inspection, Mr. Harlowe found the bleachers in the area where the plaintiff fell were being disassembled, limiting his ability to inspect and photograph the site. He noted that several rows of boards had already been removed, leaving only the metal frame. During his broader inspection of the stadium, he observed significant rot and decay, describing the stadium as resembling a neglected relic from the 1940s. The Catawba College athletic website indicated that the grandstand was built in 1934, with renovations in 1996 and 2004, but did not specify any updates to the bleachers.

Mr. Harlowe reported that the bleachers’ condition was poor, with discolored and rotting wooden boards, makeshift steps, and a gap between seatboards and footboards averaging 13 1/2 inches, significantly exceeding the Consumer Product Safety Commission's recommended gap. He opined that the bleachers had likely never been inspected by a qualified person and were either untreated or beyond their safe life expectancy due to visible decay. He concluded that Catawba College had severely neglected the bleachers, contributing directly to the plaintiff's injury, and suggested that the bleachers should have been condemned and replaced with aluminum ones long ago. 

Additionally, the presence of a work crew dismantling the bleachers during the inspection, without visible permits, suggested an attempt to address the issue without drawing attention to potential liability. The defendant's evidence, including testimony from Mr. Jeffrey Childress, contradicted some aspects of the plaintiff’s claims, suggesting that the plaintiff may have fallen while turning to look at a foul ball while holding onto the railing, and that the condition of the steps did not contribute to her fall.

Two Catawba College student witnesses testified that they observed the plaintiff falling while descending steps and noted that they had never encountered issues with the bleachers at previous games. The evidence must be interpreted in the light most favorable to the plaintiff for summary judgment considerations. The plaintiff argues that the trial court incorrectly granted summary judgment to the defendant, asserting a prima facie case of negligence, which requires showing that the defendant failed to exercise proper care, that this failure was a proximate cause of the injury, and that a reasonable person would foresee the injury under the circumstances.

In premises liability claims, the primary question is whether the defendant maintained their property with reasonable care for lawful visitors. A plaintiff can demonstrate negligence by showing the defendant either created the hazardous condition or failed to rectify it after gaining actual or constructive notice of it. Landowners are not required to protect against dangers that are known or obvious, unless it is foreseeable that a visitor could suffer unreasonable harm despite their knowledge of the danger. The defendant is not an insurer of safety but must exercise ordinary care regarding known unsafe conditions and warn of hidden dangers.

Evidence that a hazard existed prior to the incident can establish constructive notice. However, the defendant argues that the plaintiff has not proven proximate cause or notice of the alleged defective condition, largely due to the plaintiff's inability to specify where she fell or the state of the board involved in the accident. The focus now shifts to the issue of whether the defendant had notice of the purported defective condition.

Defendant argues that plaintiff, Mrs. Shepard, failed to provide conclusive evidence regarding the specific location and condition of the bleachers where she fell, thus impeding Catawba's ability to have actual or constructive notice of any defective condition. Without this evidence, Mrs. Shepard cannot establish a prima facie case of negligence against Catawba. The defendant cites Roumillat v. Simplistic Enterprises, Inc. as precedent, where the plaintiff's claim of a slippery substance in a parking lot was dismissed due to lack of evidence regarding the duration or notice of the condition. The Supreme Court emphasized that when a dangerous condition is due to third parties, the plaintiff must show that the defendant had reasonable time to be aware of the hazard. The excerpt also references a contrasting case, Warren v. Rosso, where the presence of human excrement in a grocery store created a material fact dispute, preventing summary judgment because evidence suggested the store employees had prior knowledge of the hazard.

In the case referenced, the Supreme Court highlighted the importance of a defendant's notice of a dangerous condition in premises liability claims. The Southern Railway case involved a plaintiff who repeatedly slipped on grain in a work area, where the defendant was aware of the issue but failed to address it, making the question of reasonable care a jury matter. In contrast, the Roumillat case involved an unsafe condition created by a third party, necessitating evidence of the duration of that condition to establish the defendant's notice. 

The discussion shifts to a specific case regarding dilapidated bleachers, which the defendant constructed and maintained since 1934. Unlike a transient hazard, such as a greasy spot, the condition of the bleachers had allegedly existed long enough for the defendant to have constructive notice. Evidence suggested that the bleachers had deteriorated over time, indicating a failure by the defendant to conduct reasonable inspections or maintenance. 

The court emphasized that the crux of evaluating premises liability is whether the defendant breached their duty of care to visitors, which includes not exposing them to unnecessary danger and warning of hidden hazards. This duty encompasses a reasonable response to foreseeable risks, aligning with a standard of negligence focused on the defendant’s actions relative to what a reasonable person would do in similar circumstances.

Plaintiff's evidence indicates that the bleachers had been neglected for years, with rotting and decaying wooden boards that should have been identified as hazardous through even a basic inspection. This evidence creates a genuine issue of material fact regarding defendant's knowledge or reasonable awareness of the dangerous conditions. However, the defendant challenges the proximate cause of the fall, arguing that since the plaintiff could not pinpoint where her foot was caught, she cannot establish a defective board as the cause of her fall. The defendant references two cases to support its argument. In *Gibson v. Ussery*, the court found insufficient evidence linking the condition of the stairs to the plaintiff's fall, as testimony indicated she fell forward without tripping on anything, and other witnesses did not identify any issues with the stairs. Similarly, in *Hedgepeth v. Rose’s Stores*, the plaintiff could not specify which step she fell on or which foot slipped, despite claiming that the steps were slick and worn. Both cases highlight the necessity of clear evidence connecting the alleged negligence to the injury, which the court found lacking in the plaintiff's arguments.

No evidence demonstrates that the condition of the step where the plaintiff slipped differed from the rest of the steps. The plaintiff's claims regarding a worn metal strip and slick steps pertain generally to all steps and lack sufficient support to establish that the steps were hazardous. Allegations of wear are insufficient to counter a motion for directed verdict due to the absence of specific evidence linking the fall to a particular defect. The court rejected the plaintiff's argument that obstructed railings caused her fall, emphasizing her lack of knowledge about the cause and reliance on speculation. The plaintiff bears the burden of proof for negligence and proximate cause, which she failed to meet.

In contrast to similar cases, the plaintiff in this instance clearly identified her seating area and the actions leading to her fall. Her husband witnessed the incident, and her expert provided a detailed report on the defendant's negligence regarding the condition of the bleachers. The defendant contested the inspection of the fall site, claiming the plaintiff did not specify where she fell; however, the court found this misrepresented the expert's testimony, who was aware of the fall's location. The area was under reconstruction, indicating ongoing issues with the bleachers. Although the plaintiff could not identify the exact board involved, she did pinpoint the area where she was seated and fell.

Evidence presented by the plaintiff indicates that the bleacher boards were over 75 years old, rotting, and easily flexed, which contributed to the plaintiff's fall by trapping her foot. The court highlights the significance of potential spoliation of evidence by the defendant, who had prior notice of the plaintiff's claims and requests to inspect the bleachers before any alterations were made. The removal of boards from the exact location of the incident shortly before an inspection creates an adverse inference against the defendant, suggesting that an expert inspection would reveal harmful evidence regarding the condition of the bleachers.

Destruction of relevant evidence can occur at various levels of fault, and even accidental destruction can warrant an adverse inference if it prejudices the opposing party. The court notes that the timing of the defendant's actions may be coincidental, but when viewed favorably for the plaintiff, it supports an inference of bad faith in the destruction of evidence. At a summary judgment hearing, the defendant's counsel attempted to refute the spoliation claim by discussing practices for assessing the safety of the bleachers, emphasizing that no spoliation occurred and that video evidence was collected. The defendant's counsel clarified that their firm was not involved during the critical period of evidence handling, indicating no suggestion of bad faith on their part.

An attorney's video of the bleachers is deemed insufficient to replace a formal inspection of the boards' strength, as the defendant did not provide a valid response to the plaintiff’s requests for access for expert evaluation. The defendant's counsel failed to address the spoliation issue regarding the disassembly of the stadium, instead discussing standard inspection practices without justifying the lack of response to inspection requests. The plaintiff’s expert, previously barred from inspecting the area of the fall, contended that the bleachers were in a dangerously deteriorated state, warranting condemnation.

Despite the defendant's claim of innocence regarding the timing of the disassembly, the plaintiff argues that this inaction prejudiced her case. The evidence suggests that the defendant had a duty to maintain the bleachers, which were 82 years old and exhibited significant decay, thereby creating a foreseeable risk of injury to the plaintiff. The court noted that the plaintiff had adequately identified the location and cause of her fall, and any lack of detail in her evidence could lead to an adverse inference against the defendant due to their removal of the boards following repeated requests for inspection.

Ultimately, the court found sufficient evidence to suggest that a jury could conclude the defendant failed to reasonably maintain the bleachers, leading to the plaintiff's injury. The decision to grant summary judgment for the defendant was reversed, and the case was remanded for further proceedings.