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Williams v. City of Durham8/20/1996
JOHN, Judge.
Defendant and third-party plaintiff City of Durham (the City) appeals a consent judgment designating as a "final judgment" the trial court's previous entry of summary judgment in favor of third-party defendant Euroclassics, Ltd. (Euroclassics). The City contends summary judgment was improper. We disagree.
Pertinent facts and procedural information are as follows: plaintiff Barbara J. Williams instituted the instant action 3 April 1992 against the City in consequence of injuries sustained in falling upon "a sunken, depressed area" of a public sidewalk in Durham. Plaintiff's complaint alleged, inter alia, that the City breached its duty to maintain said public sidewalk in a reasonably safe condition for pedestrian travel.
The City filed answer denying liability, and on 21 September 1992 commenced a third-party action against Euroclassics, an auto sales and repair business located on property abutting the portion of sidewalk upon which plaintiff fell. The City alleged plaintiff's injury was caused by the negligence of Euroclassics in that the latter: (1) "failed to properly maintain the level of its driveway as required by § 18-63 of the Durham City Code," and (2) "breached its common-law duty to repair or properly construct the sidewalk abutting its property when it installed its driveway approach."
Euroclassics' subsequent motion for summary judgment was allowed 29 March 1993 and the City appealed. However, this Court dismissed the appeal as interlocutory. The City thereafter reached a settlement with plaintiff, and a consent judgment filed 15 December 1994 designated the earlier entry of summary judgment in favor of Euroclassics a "final judgment." On 9 January 1995, the City again filed notice of appeal to this Court.
Summary judgment is proper only where
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.R. Civ. P. 56(c). The burden of establishing the lack of a triable issue rests with the moving party, and the facts will be viewed in the light most favorable to the non-moving party. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985).
The City advances several theories under which it contends Euroclassics may be held liable for plaintiff's injuries. First, the City points to § 18-63 of the Durham City Code (the Code), and argues the provisions thereof establish a duty of care on the part of Euroclassics to maintain the sidewalk abutting its property. Upon breach of that duty, the City continues, Euroclassics is liable to pedestrians injured by its negligence. The Code section at issue provides:
Driveway approaches shall cross the sidewalk area at the sidewalk grade established by the City.
In essence, the City argues violation of the foregoing Code section constitutes negligence per se. We agree that public safety statutes customarily set forth a standard of care such that noncompliance constitutes negligence per se. See Baldwin v. GTE South, Inc., 110 N.C. App. 54, 57, 428 S.E.2d 857, 859, cert. denied, 334 N.C. 619, 435 S.E.2d 331 (1993), rev'd on other grounds, 335 N.C. 544, 439 S.E.2d 108 (1994). However,
not every statute purporting to have generalized safety implications may be interpreted to automatically result in tort liability for its violation.
Id. This Court must examine the purpose of the ordinance in deciding whether to adopt its behavioral mandate as the standard of care for a reasonable p
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