In a recent North Carolina appellate case, the plaintiff sued a Homeowners’ Association when she fell and hurt herself on a moldy walkway in her condo complex. Before falling, she’d been a tenant for six years and went to her unit by using a staircase on the side of the building. After having a rotator cuff surgery, she had to start using the elevator to get to her unit.
She could get to the parking lot from the elevator by using the wooden walkways. There were two, each of which included a 90-degree turn around a column. Tenants would come out of the building, walk down the wooden walkway, turn at the column, and keep walking on the walkway to get to the parking lot.
The HOA contracted with a management company in 2012 and 2013, and the company took over maintenance of the walkways. An employee of the management company told her employer that the walkways were dangerous because of mold that made them slick when wet in 2012. She submitted an estimate to get the walkways power washed, but the defendant didn’t respond.
The plaintiff came back after a trip and went to her unit, leaving her suitcase in the car. Rain made the mold slick. On the next morning, she went down the elevator to get her suitcase, not aware that there was rain overnight. She came out of the building, slipped on the slimy walkway, and broke her femur bone.
She sued the HOA, which raised the defense of contributory negligence — which serves as a complete bar to recovery if proven. The HOA brought a motion to obtain a dismissal. At the hearing, the trial court found that the evidence was enough to establish the defendant’s negligence, but the plaintiff was contributorily negligent for not looking down. The plaintiff had testified she didn’t look down, and the court said this showed someone wasn’t complying with a common sense duty to keep a proper lookout and showed contributory negligence as a matter of law.
The plaintiff appealed. The appellate court explained that the defendant bore the burden of showing contributory negligence. Contributory negligence occurs when the plaintiff breaches a duty to use ordinary care for safety purposes. This is the degree of care that a reasonable or prudent person would use under the same circumstances. Someone is negligent if he or she ignores unreasonable dangers that would have been obvious to someone using ordinary care. However, you can’t be at fault under contributory negligence unless you fail to act with actual or constructive knowledge.
You can be excused from not recognizing an existing dangerous condition that you usually would or should have seen if there is a fact that would divert a reasonable person from discovering the condition. If contributory negligence is claimed in a slip and fall, the question isn’t whether a reasonably prudent person would have seen the danger had they looked, but whether someone using ordinary care would look down. In this case, the plaintiff had no knowledge of the dangerous condition.
The appellate court found she wasn’t negligent as a matter of law and reversed.
If you suffered injuries due to negligently maintained property, the experienced North Carolina premises liability lawyers at Maurer Law may be able to help you recover compensation. Contact us at 919-229-8359 or via our online form.
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