An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-515

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

DONNA K. CURRIN,

Plaintiff

v.

Harnett County

No. 12 CVS 840

REX HEALTHCARE, INC. and REX 

HOSPITAL, INC.,

Defendants

Appeal by plaintiff from order entered 18 January 2013 by 

Judge Shannon R. Joseph in Harnett County Superior Court. Heard 

in the Court of Appeals 26 September 2013.

Bain, Buzzard & McRae, LLP, by Edgar R. Bain and L. Stacy 

Weaver III, for Plaintiff.

Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch and 

F. Marshall Wall, for Defendants.

ERVIN, Judge.

Plaintiff Donna K. Currin appeals from an order granting

summary judgment in favor of Defendants Rex Healthcare, Inc., 

and Rex Hospital, Inc., with respect to a personal injury claim 

that she had asserted against Defendants. On appeal, Plaintiff 

argues that the trial court erroneously entered summary judgment 

in favor of Defendants on the grounds that the record reflected 
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the existence of genuine issues of material fact concerning the 

extent to which Plaintiff sustained personal injury as the 

result of Defendants’ negligence and the extent to which her 

claim was barred on contributory negligence grounds. After 

careful consideration of Plaintiff’s challenge to the trial 

court’s order in light of the record and the applicable law, we 

conclude that the trial court’s order should be affirmed.

I. Factual Background

A. Substantive Facts

As part of her treatment for breast cancer, Plaintiff 

underwent surgery at Defendant Rex Hospital on 30 November 2009. 

A few days later, Plaintiff began undergoing radiation therapy 

at Defendant Rex Hospital. On eight separate occasions within 

three days of the date upon which she was injured, including the 

date upon which her injury occurred, Plaintiff went to Defendant 

Rex Hospital for radiation therapy.

At 9:00 a.m. on 9 December 2009, Plaintiff went to receive 

radiation therapy at Defendant Rex Hospital, having been driven 

there by her daughter, Donna Lynn Currin. Plaintiff arrived for

her second treatment that day at 3:00 p.m. At approximately 

3:30 p.m., after completing the second treatment, Plaintiff 

exited Defendant Rex Hospital. As she left the facility and 

headed across a circular driveway that ran in front of the 
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hospital’s cancer center toward a parking facility that was 

specifically reserved for oncology patients, Plaintiff was 

walking alongside and talking with Ms. Currin. At the time that 

she left Defendant Rex Hospital, Plaintiff felt “fine” and was 

not experiencing any difficulty walking. Plaintiff did not have 

any vision-related difficulties which would have prevented her 

from seeing conditions at her feet.

Although Plaintiff has no memory of the events that 

occurred after she left Defendant Rex Hospital, Ms. Currin

testified that, at the time of Plaintiff’s departure from the 

hospital, the sun was out and the weather was clear. In 

addition, no leaves or similar objects obscured the surface of 

the area in which Plaintiff was walking.

As the two women crossed the driveway about six feet 

outside a marked crosswalk, Plaintiff suddenly fell and landed 

on her face. After Plaintiff fell, Ms. Currin attempted to 

determine what could have caused her mother’s fall and observed

a plastic object in plain sight on the pavement. Neither 

Plaintiff nor Ms. Currin had noticed the plastic object over 

which Plaintiff fell at the time that they entered Defendant Rex 

Hospital or as they returned to the parking lot prior to 

Plaintiff’s fall. Ms. Currin photographed the area in which 
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Plaintiff’s fall occurred on both the day on which her mother 

fell and on the following evening.

After Ms. Currin called for help, a number of nurses and a 

security guard came to Plaintiff’s assistance. Eventually, 

Plaintiff was taken to the emergency room by stretcher. As a 

result of her fall, Plaintiff broke her nose, hurt her knee, cut 

her face, and still had facial scarring and knots on her knees 

three years later.

As early as 2003, plastic bases into which stanchions could 

be inserted had been placed in particular areas on the roads and 

driveways around Defendant Rex Hospital to keep cars from 

parking along the curb when parking spaces were unavailable, a 

problem which had become acute during the construction of a new 

parking deck. The bases utilized at Defendant Rex Hospital were 

approximately six inches in diameter and one and a half to two 

inches high, black in color, and connected to the asphalt by an 

adhesive. The surface onto which the bases were affixed was

generally a “grayish black” color. The stanchions that were 

inserted into the bases were either fluorescent orange or white. 

After construction of the deck was completed, the stanchions 

were removed from the plastic bases. When inclement weather 

necessitated the closing of the Women’s Center Deck, poles would 

be inserted into the plastic bases for the purpose of holding 
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signs to redirect traffic. Although the bases, which had not 

been used for months and which had been placed away from the 

crosswalk, could have been removed with relative ease without 

damaging the asphalt surface, they had been left in place

because they could not be reattached to the asphalt following 

their removal and because procuring new bases would be

expensive.

Laura Reynolds, who served as Defendant Rex Hospital’s

Protective Services Manager, went to the location at which 

Plaintiff had fallen before Plaintiff had been taken to the 

emergency room. At the location in question, Ms. Reynolds 

encountered Ms. Currin, who was irate about what had occurred. 

Although it was customary for an investigative report to be 

prepared when an injury occurred on the premises, no such report 

was developed in this instance. Instead, Ms. Reynolds discussed 

the situation with Defendant Rex Hospital’s director of 

buildings and grounds. At the conclusion of that discussion, 

the two of them decided to have the plastic bases removed and to

identify a new system for directing people to the parking deck,

and took steps to have that decision implemented on the 

following date. Subsequently, the bases were removed.

According to Ms. Reynolds, the bases did not present a 

hazard to anyone walking to the hospital. In addition, Randy 
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Mullen, the facility maintenance manager in charge of the 

hospital grounds, testified that safety inspections were 

conducted at Defendant Rex Hospital and that he had never heard 

of anyone else falling on one of the bases before the date upon 

which Plaintiff was injured.

B. Procedural Facts

On 20 April 2012, Plaintiff filed a complaint in which she 

sought to recover damages from Defendants on the grounds that 

the injuries which she sustained on 9 December 2009 resulted 

from their negligence. On 25 June 2012, Defendants filed an 

answer in which they denied the material allegations of 

Plaintiff’s complaint and asserted contributory negligence; 

intervening, superseding, insulating, or concurring negligence; 

and assumption of the risk as affirmative defenses. On 21 

December 2012, Defendants filed a motion seeking the entry of 

summary judgment in their favor on the grounds that the 

undisputed facts showed that Plaintiff was not injured as a

proximate result of their negligence or, in the alternative, 

that Plaintiff’s claim was barred by the doctrines of 

contributory negligence or assumption of the risk. After 

holding a hearing concerning the merits of Defendants’ summary 

judgment motion, the trial court entered an order granting that 
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motion on 18 January 2013. Plaintiff noted an appeal to this 

Court from the trial court’s order.

II. Legal Analysis

A. Standard of Review

Summary judgment is appropriate “if the pleadings, 

depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that any party is 

entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 

1A-1, Rule 56(c). “In ruling on [a motion for summary 

judgment,] the court must consider the evidence in the light 

most favorable to the nonmovant, and the slightest doubt as to 

the facts entitles him to a trial.” Williams v. 100 Block 

Assocs., 132 N.C. App. 655, 657, 513 S.E.2d 582, 583 (1999) 

(quotation marks omitted) (quoting Snipes v. Jackson, 69 N.C. 

App. 64, 72, 316 S.E.2d 657, 661, disc. review denied, 312 N.C. 

85, 321 S.E.2d 899 (1984)). As the Supreme Court has stated:

While [N.C. Gen. Stat. § 1A-1,] Rule 56, 

like its federal counterpart, is available 

in all types of litigation to both plaintiff 

and defendant, we start with the general 

proposition that issues of negligence . . . 

are ordinarily not susceptible [to] summary 

adjudication either for or against the 

claimant, but should be resolved by trial in 

the ordinary manner. It is only in 

exceptional negligence cases that summary 

judgment is appropriate. This is so because 

the rule of the prudent man (or other 
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applicable standard of care) must be 

applied, and ordinarily the jury should 

apply it under appropriate instructions from 

the court.

Page v. Sloan, 281 N.C. 697, 706, 190 S.E.2d 189, 194 (1972) 

(omission in original) (citations and quotation marks omitted). 

Thus, a trial court should only grant summary judgment in the 

event that the material facts, taken in the light must favorable 

to the non-moving party, show no basis for any decision other 

than the entry of judgment in favor of the moving party, with a 

decision by a trial court to enter summary judgment in favor of 

a particular party subject to de novo review on appeal. In re 

Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) 

(quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 

(2007)).

B. Substantive Legal Analysis

A person or entity owning or controlling the use of 

property is subject to “the duty to exercise reasonable care in 

the maintenance of their premises for the protection of lawful 

visitors.” Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 

882, 892 (1998). “In order to prove a defendant’s negligence, a 

‘plaintiff must show that the defendant either (1) negligently 

created the condition causing the injury, or (2) negligently 

failed to correct the condition after actual or constructive 

notice of its existence.’” Fox v. PGML, LLC, __ N.C. App. __, 
-9-

__, 744 S.E.2d 483, 485 (2013) (quoting Roumillat v. Simplistic 

Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342-43 

(1992)). “A landowner is under no duty to protect a visitor 

against dangers either known or so obvious and apparent that 

they reasonably may be expected to be discovered . . . [and]

need not warn of any ‘apparent hazards or circumstances of which 

the invitee has equal or superior knowledge.’” Von Viczay v. 

Thoms, 140 N.C. App. 737, 739, 538 S.E.2d 629, 631 (2000) 

(citations omitted) (quoting Jenkins v. Lake Montonia Club, 

Inc., 125 N.C. App. 102, 105, 479 S.E.2d 259, 262 (1997) ), 

aff’d, 353 N.C. 445, 545 S.E.2d 210 (2001). However, “[i]f a 

reasonable person would anticipate an unreasonable risk of harm 

to a visitor on his property, notwithstanding the lawful 

visitor’s knowledge of the danger or the obvious nature of the 

danger, the landowner has a duty to take precautions to protect 

the lawful visitor.” Martishius v. Carolco Studios, Inc., 142 

N.C. App. 216, 223, 542 S.E.2d 303, 308 (2001), aff’d, 355 N.C. 

465, 562 S.E.2d 887 (2002).

In seeking to persuade us that the trial court erred by 

granting summary judgment in favor of Defendants, Plaintiff 

argues that she was injured as the result of Defendants’ 

negligence on the grounds that the base over which she tripped

was not an apparent hazard and posed a foreseeable risk of harm
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to pedestrians in the area in which Plaintiff was walking at the 

time that she fell and that Defendants were negligent in 

creating such an obstacle and in failing to remove it. In the 

alternative, Plaintiff contends that, at an absolute minimum,

there was a genuine issue of material fact concerning whether 

the base was apparent, a determination which, if accepted, would 

preclude a decision to grant summary judgment in Defendants’ 

favor. We do not find Plaintiff’s arguments persuasive.

In seeking to persuade us that the base over which she fell 

was not apparent, Plaintiff relies upon a number of different 

factors. More particularly, Plaintiff argues that the base was 

too small to be visible and was located on “a surface of the 

same color.” In addition, Plaintiff points out that the base 

was not at eye level and emphasizes the fact that a reasonable 

person would expect the surface of a driveway to be smooth. As 

the result of all of these factors, Plaintiff contends that the 

base over which she fell was not apparent and that Defendants 

should, for that reason, be deemed to have acted negligently by 

installing the base and by failing to remove it prior to the 

date upon which she was injured.

A careful examination of the undisputed evidence presented 

for the trial court’s consideration at the time of the summary 

judgment hearing establishes that the base over which Plaintiff 
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fell was six inches in diameter and approximately two inches

tall. At the time that Plaintiff fell, the weather was clear, 

the sun was out, and no leaves or similar objects covered the 

base or otherwise interfered with Plaintiff’s ability to see it. 

The photographs contained in the record, including those taken 

by Ms. Currin on the following evening, show that the base was

not identical in color to the driveway surface and was easily 

visible at night. Despite arguing that Defendants were 

negligent because the base was not at eye level, Plaintiff has 

cited no authority tending to suggest that the fact that an 

object over which a plaintiff trips was not at eye level has any

specific bearing on the issue of whether that object was 

apparent for purposes of North Carolina negligence law, and we 

have found no such authority in the course of our own research. 

Instead, “our prior cases merely establish that the facts must 

be viewed in their totality to determine if there are factors 

which make the existence of a defect in a sidewalk, in light of 

the surrounding conditions, a breach of the defendant’s duty and 

less than ‘obvious’ to the plaintiff.” Pulley v. Rex Hosp., 326 

N.C. 701, 706, 392 S.E.2d 380, 384 (1990). As a result, after 

considering all of the evidence contained in the record in 

light of the totality of the circumstances, we conclude that 

there is no genuine issue of material fact concerning the extent 
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to which the base over which Plaintiff tripped constituted an

apparent hazard and that the base in question was, in fact, 

apparent.

In an attempt to avoid the obvious legal implications of 

this determination, Plaintiff contends that, even if the base 

over which she fell constituted an apparent hazard, the trial 

court erred by granting summary judgment in favor of Defendants 

on the grounds that the record demonstrates the existence of a 

genuine issue of material fact concerning whether she should 

have been expected to see the base over which she fell.

1 More 

specifically, Plaintiff argues, in reliance upon the Supreme 

Court’s decision in Pulley, that “facts must be viewed in their 

totality to determine if there are factors which make the 

existence of a defect in a sidewalk, in light of the surrounding 

conditions, a breach of the defendant’s duty and less than 

‘obvious’ to the plaintiff” and that such factors “include the 

 

1The decisions upon which Plaintiff relies inconsistently

address the extent to which a plaintiff could have reasonably 

failed to observe an otherwise apparent hazard as having to do 

with the issue of the defendant’s negligence or the plaintiff’s 

contributory negligence. As a result of the fact that there are 

decisions that adopt both approaches, the fact that the 

decisions addressing this issue discuss cases sounding in both 

negligence and contributory negligence interchangeably, and the 

fact that we need not resolve that analytical issue in order to 

decide this case, we will not attempt to determine which 

approach is preferable and will, for simplicity’s sake, address 

the decisions upon which Plaintiff relies as relevant to the 

issue of Defendants’ negligence rather than Plaintiff’s 

contributory negligence.
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nature of the defect in the sidewalk, the lighting at the time 

of the accident, and whether any other reasonably foreseeable 

conditions existed which might have distracted the attention of 

one walking on the sidewalk.” Id. (second emphasis added). 

Although there are, as Plaintiff notes, a number of decisions 

that establish that a plaintiff’s failure to detect and avoid an 

obvious defect in a defendant’s property may be overlooked under 

certain circumstances, we do not believe that those decisions 

justify a decision to reverse the trial court’s order in this 

instance.

In Norwood v. Sherwin-Williams Co., 303 N.C. 462, 468, 279 

S.E.2d 559, 563 (1981), reversed in part, Nelson, 349 N.C. at 

616, 507 S.E.2d at 883, the Supreme Court stated that, in

considering whether or not a plaintiff was contributorily 

negligent for tripping over a generally visible hazard, “[t]he 

question is not whether a reasonably prudent person would have 

seen the [hazard] had he or she looked but whether a person 

using ordinary care for his or her own safety under similar 

circumstances would have looked down at the floor.” Based upon

that premise, the Supreme Court found the existence of a prima 

facie case of negligence on the part of the defendant in a case 

in which one of the defendant’s employees put a platform near an 

aisle that “protruded into the aisle” and then “placed a display 
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upon the platform and items along the aisle which were designed 

and intended to draw the customer’s attention upward and away 

from the floor.” 303 N.C. at 468, 279 S.E.2d at 563. Based 

upon these facts, the Supreme Court found that a reasonable 

juror could find that the plaintiff was not contributorily 

negligent in failing to see the protrusion that led to the 

plaintiff’s fall based upon the relatively dim lighting in the 

store and the distractions to which the plaintiff was subject as 

a result of the display. Id. at 469-70, 279 S.E.2d at 563-64.

This Court has reached similar results on a number of 

occasions. In Dowless v. Kroger Co., 148 N.C. App. 168, 172-73, 

557 S.E.2d 607, 610 (2001), we rejected the defendant’s 

contention that a verdict should have been directed in its favor 

given that the plaintiff injured herself by falling over an 

“obvious hazard” and the plaintiff’s admission that, “if she had 

looked down, there is no reason that she would not have seen the 

hazard,” on the grounds that the shopping cart that the 

plaintiff was returning partially blocked her view of the 

pothole which caused her fall and that the plaintiff was focused 

on the heavy traffic in the parking lot in which the pothole was 

situated. Similarly, in Kremer v. Food Lion, Inc., 102 N.C. 

App. 291, 295, 401 S.E.2d 837, 839 (1991), we noted that, 

“[a]lthough failure to discover an obvious defect will usually 
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be considered contributory negligence as a matter of law, this 

general rule does not apply when circumstances divert the 

attention of an ordinarily prudent person from discovering an 

existing dangerous condition.” As a result, we held that the 

trial court properly denied the defendant’s directed verdict 

motion because “[e]vidence was offered that items were placed 

above the cooler [to which the plaintiff was walking] designed 

to draw the attention of shoppers.” Id. Finally, in Price v. 

Jack Eckerd Corp., 100 N.C. App. 732, 736, 398 S.E.2d 49, 52

(1990), we held that “the evidence support[ed] a reasonable 

inference or conclusion that [the plaintiff] was not 

[contributorily] negligent in failing to look down at the floor” 

given the “possibility that the plaintiff’s attention was 

diverted by the cashier’s directions and by the advertisements.” 

In explaining our decision, we stated that:

When a plaintiff does not discover and avoid 

an obvious defect, that plaintiff will 

usually be considered to have been 

[contributorily] negligent as a matter of 

law. However, where there is some fact, 

condition, or circumstance which would or 

might divert the attention of an ordinarily 

prudent person from discovering or seeing an 

existing dangerous condition, the general 

rule does not apply. Additionally, our 

Supreme Court has rejected an unbending 

application of the general rule stating that 

the contributory negligence defense does not 

automatically bar from recovery the 

plaintiff who trips or falls over an object 

on the premises of another, even when the 
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object was in a position at which the 

plaintiff would have seen it had he or she 

looked.

Id. (citations and quotation marks omitted) (quoting Norwood, 

303 N.C. at 468, 279 S.E.2d at 563 and Thomas v. Dixson, 88 N.C. 

App. 337, 341, 363 S.E.2d 209, 212 (1988)). As a result, a 

number of decisions of the Supreme Court and this Court 

establish that, in the event that other conditions existing in 

the vicinity of the object over which the plaintiff fell 

distracted his or her attention or interfered with his or her 

vision, the existence of an apparent hazard does not bar the 

plaintiff’s right to recover damages for personal injury.

The decisions in question do not, however, suffice to 

justify a decision to overturn the trial court’s order granting 

summary judgment in Defendants’ favor. As we have already 

noted, each of the decisions upon which Plaintiff relies 

involved the presence of a factor that could have obstructed the 

plaintiff’s ability to see an apparent hazard or operated to 

distract the plaintiff’s attention from an apparent hazard. A 

careful review of the record reveals the absence of any evidence 

tending to show that other conditions in the vicinity of the 

base over which Plaintiff tripped had the potential to obstruct 

her ability to see the base or distract her attention. As a 

result, the trial court did not err by refusing to deny 
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Defendants’ summary judgment motion on the theory that 

Plaintiff’s failure to see the base over which she fell could be 

explained by other conditions in the area.

III. Conclusion

Thus, for the reasons set forth above, we conclude that the 

trial court did not err by granting summary judgment in favor of 

Defendants. As a result, the trial court’s order should be, and 

hereby is, affirmed.

AFFIRMED.

Judges ROBERT N. HUNTER, JR., and DAVIS concur.

Report per Rule 30(e).