For the second time this year the North Carolina Court of Appeals has decided a slip and fall case in favor of an injured plaintiff. The case marks the second time this year that the Court of Appeals has decided a case in favor of the plaintiff in a premises liability case.
The case is Shepard v. Catawba College (COA19-2020; February 18, 2020). Justice Stroud wrote the opinion for the three-judge panel, which also included Justices Inman and Burger.
The case relates to an injury suffered by a spectator when she tripped and fell on a set of wooden bleachers owned and maintained by the defendant university. At the time of the incident the victim and her husband were watching the university baseball team play.
In the trial court, the defendant moved for summary judgment. The trial court determined that summary judgment was warranted and entered judgment in favor of the defendant, resulting in dismissal of the plaintiff’s cause of action. The plaintiff then appealed. The Court of Appeals sided with the plaintiff, reversing the entry of summary judgment and remanding the case to Mecklenburg County superior court.
Plaintiff’s evidence showed that, while the plaintiff could not remember precisely what caused her fall, she remembered her foot feeling trapped immediately before her fall occurred. During her deposition the plaintiff was unable to identify the specific board on which she tripped, she did mark the location of the incident on a photograph of the bleachers section where she fell.
After plaintiff retained counsel, the attorney hired an investigator to visit the scene of the incident, take photographs, create diagrams, inspect the bleachers and otherwise investigate the cause of the plaintiff’s fall. When the investigator arrived he observed workers disassembling and removing sections of the bleachers, including the area of the bleachers where the plaintiff fell.
While inspecting portions of the bleachers that had not yet been removed, the investigator was able to observe areas of rot and decay. He determined that the rot and decay and the dilapidated condition of the bleachers exposed spectators to a risk of serious injury.
The plaintiff alleged in her lawsuit that the university negligently failed to maintain the bleachers and that the dangerous condition of the bleachers was a proximate cause of her fall and resultant injury.
Defendant argued that it lacked notice that the bleachers were in a dangerous condition. The Court distinguished prior cases determined in favor of defendants where the allegedly dangerous condition of the property was created by third parties. A good example of such a case would be a slip and fall caused by a juice spill on the floor of a grocery store that was caused by a shopper, not the store owners. In such cases, the interval of time between the spill and the fall can be relevant, as this can show whether the store owner knew of should have known of the spill. In this case, the Court pointed out, the bleachers had been constructed in 1934 and the university had been responsible for maintaining the bleachers since that date.
The Court ruled that, since more than 70 years had elapsed since the construction of the bleachers and because the university had a duty to keep them in good repair, a jury could reasonably find that the university knew or should have known that the bleachers were in disrepair and posed a danger to spectators.
The Court further found that the plaintiff had sufficiently demonstrated that the condition of the bleachers caused her to fall. Although plaintiff could not identify the specific board on which she fell, the evidence demonstrated that she fell in the general area where she had been seated, an area which the investigator determined to be in disrepair.
The Court indicated that it based its decision on the university’s disassembly of the bleachers which resulted in the destruction of relevant evidence, a legal doctrine known as spoliation. Because these actions deprived the plaintiff of the opportunity to inspect the specific location where she fell, the Court held that dismantling the bleachers prejudiced the plaintiff’s case. For this reason, the plaintiff’s inability to identify the specific board or structure that caused here to fall could be excused.
It is difficult to succeed in a North Carolina trip and fall case. The law is not favorable, and trial courts frequently dismiss these cases before they reach trial. I am currently handling several slip and fall cases, one of which was dismissed by my trial court. That case is on appeal, and on March 10, 2020 I will argue that case before the North Carolina Supreme Court.
Unlike many personal injury lawyers in North Carolina, I still agree to work on North Carolina slip and fall cases where the evidence supports a reasonable expectation of success. If you or a loved one has been injured in a fall and you believe that the property or business owners is responsible, please contact me at your earliest convenience. Acting quickly can be crucial, as this case reveals. Act before the property owner can tear down the bleachers or otherwise destroy evidence that could be critical to your case!
Mark R. McGrath
I can be reached at firstname.lastname@example.org and by telephone at 910-210-0587.