John M. Kirby April 21, 2014

In Fox v. PGML, decided by the Court of Appeals on June 18, 2013, the court addressed issues of negligence and contributory negligence when a police officer fell on a stairway.

In this case, the police officer was investigating the circumstances surrounding the death of a person, and she fell down an exterior stairway, injuring her shoulder. She alleged that the stairs were slippery. She submitted expert testimony that the stairs were too slick, that the stairs did not have proper guards, and that the risers and treads were improper, under the building code. The Defendant, which owned the building, presented expert testimony that the stairway was in compliance with the stairway. The trial court granted summary judgment to the defendant.

On appeal, the court held that the conflicting expert testimony created an issue of fact, such that summary judgment was improper on the basis of the absence of negligence by the defendant. The court did not expressly address whether the defendant had knowledge that the stairway violated the building code.

Regarding the issue of contributory negligence, the court held that summary judgment was not proper on this basis, stating, "Defendants argue that plaintiff was negligent because at the time she found Tomasulo's body at the base of the wet metal stairs, she had notice that the stairs were dangerous . In addition, defendants point to plaintiff's testimony which indicated that she did not see the wet stairs or take any extra precautions when descending the stairs. However, this evidence does not establish conclusively that plaintiff's failure to recognize the condition of the stairs was unreasonable. While defendants conclusion may be plausible based on the evidence, it is not clearly the only reasonable conclusion that could be reached."

John Kirby has handled numerous premises liability cases in North Carolina, including cases involving violations of the building code and improper stairways.