Rash v. Waterway Landing Homeowners Ass'n, Inc.
Rash v. Waterway Landing Homeowners Ass'n, Inc.
Opinion
*747 Vanessa Rash (plaintiff) filed a negligence action against Waterway Landing Homeowners Association, Inc. (defendant) after she slipped and fell on a molded walkway in her condominium complex. The trial court granted summary judgment for defendant, concluding that plaintiff's admission that she was not looking down at the walkway established her contributory negligence as a matter of law. Because the evidence, viewed in the light most favorable to plaintiff, presents a genuine issue of material fact as to whether plaintiff exercised ordinary care to protect herself from injury, we reverse.
I. Background
Prior to her fall, plaintiff had been a tenant of the Waterway Landing Condominiums for about six years. Plaintiff alleged that she always *748 accessed her unit by a stairway located on the side of the building. That changed in August 2012, when plaintiff began using the elevator while she recovered from a rotator cuff surgery.
Plaintiff could reach the parking lot from the elevator via one of two wooden walkways located on either side of the building. Each walkway contains a ninety-degree turn around a white column. As plaintiff's exhibits demonstrate, tenants would exit the building, proceed down the walkway to the white column, make the turn around the column, and continue a few more feet on the walkway before reaching the parking lot.
During 2012 and 2013, defendant contracted with Community Association Management Specialists (CAMS) to maintain its common areas, including the wooden walkways. Darlene Greene was one of two CAMS employees assigned to the condominiums. In November 2012, Greene notified defendant that the walkways were hazardous due to a mold growth which caused them to become slick when wet. She submitted an estimate to power wash the walkways but never received a response from defendant.
On 3 January 2013, plaintiff arrived at Waterway Landing after visiting her mother in South Carolina. Tired from the drive, plaintiff left her suitcase in the car and went directly to her unit. An overnight rainfall moistened the mold growth on the walkway and caused it to become slick.
The next morning, plaintiff took the elevator to the ground floor to retrieve her suitcase.
*377 She testified in her deposition that she left her unit unaware that it had rained overnight. When she reached the ground floor, plaintiff exited the building and proceeded down the walkway. She made the ninety-degree turn around the white column and, as she approached the parking lot only a few feet away, plaintiff slipped on the slimy walkway and fell-breaking her femur.
On 9 February 2015, plaintiff filed a negligence action against defendant. Defendant raised contributory negligence as an affirmative defense and moved for summary judgment. At the hearing on defendant's motion, the trial court concluded that the evidence was sufficient to establish defendant's negligence, but plaintiff was contributorily negligent because she failed to look down at the walkway:
Looking at the counterclaim that the plaintiff, Vanessa Rash, was contributorily negligent, the law doesn't place a responsibility on a person who has two feet to walk and look where you're going. It's a matter of common sense. Here on this occasion, Ms. Rash has indicated [in] her *749 deposition, "I didn't pay any attention" and ... "I did not look down." That is showing, in the Court's view, a person is not exercising reasonable care and a person who is not complying with that common sense duty to keep a proper lookout; that is, when you walk, you must not only look but you must see what you ought to see. And if it's raining on the sidewalk or wet on the sidewalk, or whatever the condition of the sidewalk is, look before you go there and see what you ought to see and here, this is a person who was not being careful. I think, as a matter of law, it does show that she was contributorily negligent.
The trial court granted summary judgment in favor of defendant. Plaintiff timely appeals.
II. Discussion
Plaintiff argues that the trial court erred in granting summary judgment for defendant because the evidence raises genuine issues of material fact as to plaintiff's contributory negligence-specifically, whether plaintiff exercised ordinary care to protect herself from injury.
We review a trial court's order of summary judgment
de novo
.
In re Will of Jones
,
The defendant has the burden of proving contributory negligence.
Martishius v. Carolco Studios, Inc.
,
Contributory negligence arises from a breach of the plaintiff's duty to exercise ordinary care for his own safety.
Clark v. Roberts
,
A plaintiff may be found negligent when he "ignores unreasonable risks or dangers which would have been apparent to a prudent person exercising ordinary care for his own safety."
Smith v. Fiber Controls Corp.
,
Still, a person may be excused from failing to recognize "an existing dangerous condition" that "he ordinarily would or should have seen" if there is "some fact, condition, or circumstance which would or might divert the attention of an ordinarily prudent person from" discovering
*751
the same.
Walker v. Cnty. of Randolph
,
In
Pulley v. Rex Hospital
,
*379
Similarly, in
Dowless
the plaintiff was injured after she inadvertently steered her shopping cart into a hole in the parking lot asphalt.
Finally, in
Crane v. Caldwell
,
[P]laintiff testified that he did not know that the steps were wet and slippery. Although there was evidence that it had rained earlier in the day, there was also evidence that this rainfall had evaporated and that the steps were wet due to defendant's prior use of a lawn sprinkler. Plaintiff was unaware of the stairway's wet condition which, according to his testimony, was not discernable upon visual inspection. Plaintiff testified that he had used the steps on several prior occasions, yet there was no evidence that he had used the steps at night or when they were wet.
*753
Id. at 367,
In this case, we agree with plaintiff that there are genuine issues of material fact as to whether plaintiff exercised ordinary care to protect herself from injury. Plaintiff's affidavit and deposition testimony show that she had no knowledge of the dangerous condition created by the mold growth on the walkway. She testified that she never observed mold on the stairway she used regularly, or on the walkway itself she had used five or six times since August 2012. On those occasions when she had used the walkway, it was dry. Plaintiff had never used any of the molded walkways during wet conditions and she "was unaware that the mold would form a slippery slime when it had been exposed to water." She was not made aware of the hazardous condition and was not advised to avoid the walkways under wet conditions. Although plaintiff did concede that she "never paid attention" to the walkway prior to, or at the time of, her fall, Greene did not notify defendant of the mold until November 2012, indicating that plaintiff could have traversed *380 a clean walkway-sans mold-for two months.
In addition, a jury could find that plaintiff acted as a reasonable and prudent person even though she was not looking directly down at the walkway when she slipped. Plaintiff had just completed her turn around the white column before she proceeded on the shorter portion of the walkway. She fell within only a few feet of completing her turn. A reasonable juror could assume that it would take a few steps for plaintiff to re-direct her attention from the column,
see, e.g.
,
Price v. Jack Eckerd
Corp.
,
Even if plaintiff had looked down at the walkway, the evidence does not conclusively establish that she would have recognized the dangerous condition presented by the mold. Plaintiff's photographic exhibits only show a discoloration on the walkway. In her affidavit, she asserts: "Without actually testing the slipperiness of the substance *754 where the mold had grown, the appearance of the walkway in a wet or dry condition appear[s] no different to the naked eye." Plaintiff testified in her deposition that she was unware that it had rained the night before she fell on the walkway. And because she "had never utilized the walkway in question or any [of the other] walkways containing mold during wet conditions," plaintiff was not aware that the mold would become slippery when wet. Based on the foregoing, we conclude that plaintiff presented substantial evidence to create a genuine issue of material fact as to her contributory negligence.
III. Conclusion
When viewed in the light most favorable to plaintiff, the evidence fails to establish that she was negligent as a matter of law. Despite plaintiff's admission that she was not looking down at the walkway when she fell, a jury could still find that plaintiff exercised ordinary care to protect herself from injury. The trial court's order granting summary judgment for defendant is reversed.
REVERSED.
Judges INMAN and BERGER concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.