{ "id": 9439499, "name": "SONJA EVETTE PRICE, Plaintiff v. CITY OF WINSTON-SALEM, Defendant", "name_abbreviation": "Price v. City of Winston-Salem", "decision_date": "2000-12-19", "docket_number": "No. COA99-1266", "first_page": "55", "last_page": "63", "citations": [ { "type": "official", "cite": "141 N.C. App. 55" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "352 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684896, 684966, 685030, 685044, 684885 ], "year": 2000, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0672-03", "/nc/352/0672-01", "/nc/352/0672-05", "/nc/352/0672-04", "/nc/352/0672-02" ] }, { "cite": "532 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "833", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496234 ], "year": 2000, "pin_cites": [ { "page": "195", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0191-01" ] }, { "cite": "378 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "324 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482580 ], "year": 1989, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0427-01" ] }, { "cite": "532 S.E.2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "842", "parenthetical": "quoting Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989)" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 85", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9495882 ], "year": 2000, "pin_cites": [ { "page": "95", "parenthetical": "quoting Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0085-01" ] }, { "cite": "496 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "347 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551172 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0666-01" ] }, { "cite": "488 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "612" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 235", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11794156 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/127/0235-01" ] }, { "cite": "531 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "134 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "year": 2000, "opinion_index": 0 }, { "cite": "157 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "613", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "272 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570955 ], "year": 1967, "pin_cites": [ { "page": "97", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0094-01" ] }, { "cite": "385 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "325 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2490816, 2492481, 2492003, 2489232, 2490425 ], "year": 1989, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0547-02", "/nc/325/0547-04", "/nc/325/0547-03", "/nc/325/0547-05", "/nc/325/0547-01" ] }, { "cite": "381 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "796", "parenthetical": "citation omitted" }, { "page": "796" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 96", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519597 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "99-100", "parenthetical": "citation omitted" }, { "page": "99-100" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0096-01" ] }, { "cite": "353 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "year": 2000, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "530 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "355", "parenthetical": "citation omitted" }, { "page": "355" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 99", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078680 ], "year": 2000, "pin_cites": [ { "page": "102", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0099-01" ] }, { "cite": "534 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "664", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 778", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497849 ], "year": 2000, "pin_cites": [ { "page": "784", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0778-01" ] }, { "cite": "188 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "658" } ], "opinion_index": 1 }, { "cite": "14 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550688 ], "year": 1972, "pin_cites": [ { "page": "517" } ], "opinion_index": 1, "case_paths": [ "/nc-app/14/0514-01" ] }, { "cite": "536 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 1 }, { "cite": "138 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11081120 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/nc-app/138/0651-01" ] }, { "cite": "153 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "788" } ], "opinion_index": 1 }, { "cite": "270 N.C. 43", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565143 ], "year": 1967, "pin_cites": [ { "page": "48" } ], "opinion_index": 1, "case_paths": [ "/nc/270/0043-01" ] }, { "cite": "496 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "parenthetical": "quoting Black's Law Dictionary 1034" } ], "opinion_index": 1 }, { "cite": "347 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551172 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/nc/347/0666-01" ] }, { "cite": "488 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "quoting Black's Law Dictionary 33 (6th ed. 1990)" } ], "opinion_index": 1 }, { "cite": "127 N.C. App. 235", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11794156 ], "year": 1997, "pin_cites": [ { "parenthetical": "quoting Black's Law Dictionary 33 (6th ed. 1990)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/127/0235-01" ] } ], "analysis": { "cardinality": 794, "char_count": 20818, "ocr_confidence": 0.763, "pagerank": { "raw": 2.7507614309105587e-07, "percentile": 0.8327114824068894 }, "sha256": "a7f9e8491c64b4f569ec43a54c7d15c751dde90b0ec8f5d68765f43318f93c0e", "simhash": "1:5ae0f264c1062c7f", "word_count": 3339 }, "last_updated": "2023-07-14T21:28:13.659098+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge EDMUNDS concurs.", "Judge GREENE dissents." ], "parties": [ "SONJA EVETTE PRICE, Plaintiff v. CITY OF WINSTON-SALEM, Defendant" ], "opinions": [ { "text": "FULLER, Judge.\nPlaintiff Sonja Evette Price (\u201cplaintiff\u2019) appeals the entry of summary judgment in favor of defendant City of Winston-Salem (\u201cdefendant\u201d). Evidence presented on the motion tended to show that on 11 August 1995 plaintiff was walking among a group of pedestrians on Church Street in Winston-Salem when her right heel lodged in a space in the sidewalk. Plaintiff lost her balance and fell on a wooden stake protruding from the ground at the edge of the sidewalk. Plaintiff sustained injuries which included a fractured foot. As a result, on 11 August 1998 plaintiff initiated this suit alleging defendant\u2019s negligence in failing to warn of and remedy a dangerous condition. On 7 May 1999 defendant moved for summary judgment, and the motion was heard on 24 May 1999.\nPlaintiff offered evidence that she fell on the sidewalk located on the west side of the 100 block of North Church Street near the corner of North Church and Second Streets and in front of City Hall. Plaintiff submitted the affidavit of Frank Evans, a Senior Coordinator for defendant, who stated that the portion of sidewalk on which plaintiff fell was an \u201cexpansion joint\u201d where a piece of felt is placed in the sidewalk to prevent buckling. The length of the expansion joint was approximately 554 feet long, 1A inches wide, and zero to !4 inch deep. Plaintiff submitted her own affidavit wherein she testified the black felt material normally used to fill such an expansion joint had eroded, leaving a surface the same color as the surrounding sidewalk. Plaintiff testified the expansion joint \u201cwas not an obvious defect\u201d and the gap was \u201cnot easy to see because its surface was the same color as the sidewalk.\u201d Plaintiff testified the wooden stake was also \u201ccamouflaged\u201d because it blended with surrounding \u201cnumerous landscaping wood chips.\u201d\nDefendant proffered evidence that although it had engaged in construction surveying work involving the placing of stakes on Church Street at the relevant time, any such staking work was performed in the 100 block of South Church Street and not the 100 block of North Church Street in front of City Hall and near the intersection of Second Street. Defendant offered the affidavit of City Engineer Jack Anderson Leonard who testified that all survey staking work for the City is performed by City surveyors in the Engineering Division, and that diligent review of all Engineering Division records revealed that in 1995 no City Engineering Division employee, nor anyone contracted by the Engineering Division, performed survey staking on the west side of North Church Street in front of City Hall. Rather, Engineering Division records showed that in 1995 defendant engaged in engineering and construction work around the old City employee parking lot, bounded by First Street, South Chestnut Street, Belews and Main Street. The stakes were removed from the site before the sidewalks were reopened to pedestrians.\nIn addition, defendant offered evidence that a private construction company engaged in construction work on North Church Street in 1995. Mr. Leonard testified in his affidavit that a private company employed to construct the Wachovia Bank parking deck removed and replaced portions of sidewalk on the west side of North Church Street adjoining City Hall while constructing an underground tunnel. Defendant submitted therewith a copy of an Easement Agreement signed 2 May 1994 wherein defendant granted Wachovia Bank a temporary easement over portions of the sidewalk in the 100 block of North Church Street for purposes of constructing the tunnel.\nIn response, plaintiff submitted deposition testimony of City surveyor John Spainhour to the effect that he performed staking work on Second Street and on Church Street south of City Hall between First Street and Salem Avenue. Mr. Spainhour testified he spent five hours on Second Street doing construction staking work the week plaintiff fell, and six horns on Church Street staking around the city parking lot south of City Hall. Plaintiff also offered the deposition testimony of Steve Fleming, a claims adjuster for defendant, who testified he believed defendant had performed construction staking work on Church Street. Further deposition testimony offered by plaintiff tended to establish defendant conducted construction staking work in the \u201c100 block of Church Street,\u201d and that subsequent to plaintiffs accident barricades were placed in the 100 block of North Church Street where plaintiff fell.\nAt the hearing\u2019s conclusion the trial court entered an order granting summary judgment in favor of defendant, finding \u201cthere is no genuine issue as to any material fact and the defendant is entitled to a judgment as a matter of law.\u201d Plaintiff appeals.\nPlaintiff assigns error to the trial court\u2019s entry of summary judgment in favor of defendant, arguing there existed genuine issues of material fact sufficient to survive defendant\u2019s motion. It is well-established that our review of the grant of a motion for summary judgment requires the two-part analysis of whether, \u201c(1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact, and (2) the moving party is entitled to judgment as a matter of law.\u201d Gaunt v. Pittaway, 139 N.C. App. 778, 784, 534 S.E.2d 660, 664 (2000) (citations omitted). Summary judgment is rarely appropriate in a negligence action, Cucina v. City of Jacksonville, 138 N.C. App. 99, 102, 530 S.E.2d 353, 355, disc, review denied, 353 N.C. 588,-S.E.2d-(2000) (citation omitted), and should only be granted after the facts are clearly established or admitted, and the issue of negligence has been reduced to a mere question of law. Osborne v. Annie Penn Memorial Hospital, 95 N.C. App. 96, 99-100, 381 S.E.2d 794, 796, disc. review denied, 325 N.C. 547, 385 S.E.2d 500 (1989) (citation omitted).\nIn order to establish a city\u2019s negligence in the maintenance of its sidewalks, a plaintiff must introduce evidence sufficient to support jury findings that the plaintiff, (1) fell and sustained injuries, (2) the proximate cause of the injuries was a defect in the sidewalk, (3) the defect was such that a reasonable person knowing of its existence should have foreseen the likelihood of the injury, and (4) the city had actual or constructive notice of the defect for a sufficient time prior to the plaintiff\u2019s fall such that the condition could have been remedied. See Cook v. Burke County, 272 N.C. 94, 97, 157 S.E.2d 611, 613 (1967) (citation omitted). In a summary judgment proceeding, defendant carries the burden of establishing that no genuine issue as to any of these necessary elements exists and that plaintiff cannot produce evidence sufficient to support an essential element of the claim. See Cucina, 138 N.C. App. at -, 530 S.E.2d at 355. All evidence must be considered in the light most favorable to the non-movant. Lynn v. Burnette, 134 N.C. 731, 531 S.E.2d 275 (2000).\nAs a preliminary matter, we are unpersuaded that the stake upon which plaintiff fell is relevant to the outcome of this appeal. Plaintiff repeatedly argues defendant was actively negligent in placing the stake in close proximity to the sidewalk. Defendant argues that the stake likely was pl\u00e1ced there by a private contractor. Regardless of who placed the stake, the evidence does not reveal that the stake in any way caused plaintiff\u2019s fall, and indeed, there is no forecast of evidence tending to show plaintiffs injuries were any more significant than had the stake not been present. Plaintiff has not argued a theory of enhanced injury based on the placement of the stake, and we will not reach out to address this unbriefed issue.\nMoreover, we note that the first three elements of plaintiffs claim are not in dispute. Defendant does not dispute that plaintiff fell and injured herself on the expansion joint. Despite defendant\u2019s evidence that the expansion joint was \u201cstandard,\u201d defendant has also not produced evidence to counter plaintiffs affidavit testimony that the black felt material normally used to fill such a joint had eroded, and therefore the unevenness in the sidewalk created by the expansion joint was hidden. Nor has defendant proffered any evidence in support of its motion tending to show that a reasonable person, knowing the condition of the expansion joint and adjacent stake, would not have foreseen the likelihood of plaintiffs injury.\nRather, the dispositive issue on appeal is whether there is sufficient evidence from which a jury could find that defendant was in such proximity to the expansion joint that defendant was on constructive notice of its alleged defect. Defendant\u2019s evidence focuses on testimony from City officials that although defendant was engaged in staking work on Church Street at the relevant time, defendant did not perform work in the 100 block of North Church Street where plaintiff allegedly fell. Therefore, defendant argues plaintiff failed to establish that defendant created a dangerous condition or had actual or constructive notice of any such condition.\nHowever, plaintiff presented deposition testimony tending to show City employees performed staking work on Second Street and in the \u201c100 block of Church Street\u201d during the week plaintiff fell. In Nourse v. Food Lion, Inc., 127 N.C. App. 235, 488 S.E.2d 608 (1997), affirmed, 347 N.C. 666, 496 S.E.2d 379 (1998), this Court held the entry of summary judgment in favor of the defendant-store improper where the plaintiff\u2019s evidence raised an inference that the defendant had constructive notice of the presence of a grape and water on its floor. While the defendant presented evidence to show none of its employees was aware of the water or grape on the floor, the plaintiff presented evidence that the grape was brown, giving inference that it had been on the floor for some time, and that the water likely resulted from ice that had fallen from the grape display and had been on the floor long enough to melt. Id. at 241, 488 S.E.2d at 612. This court held such an inference was sufficient to create a genuine issue as to whether the defendant had constructive notice of the condition which caused the plaintiffs fall. Id.\nLikewise, in the present case, plaintiffs evidence is sufficient to create an inference from which a jury might conlcude that defendant\u2019s agents were working in the vicinity of plaintiffs accident, and thus, should have had either actual or constructive knowledge of the condition of the expansion joint. We cannot hold the facts of what occurred and whether defendant created or should have known of the condition leading to plaintiffs injuries were clearly established or admitted and that \u201cthe issue of negligence has been reduced to a mere question of law.\u201d See Osborne, 95 N.C. App. at 99-100, 381 S.E.2d at 796. In fact, a most careful review of the entire record now before this Court leaves the reader unclear about precisely where the various events took place. Where such questions exist, it is the jury\u2019s proper role to answer them. The entry of summary judgment was therefore improper.\nMoreover, defendant argues summary judgment was also appropriately granted on grounds that plaintiff was contributorily negligent as a matter of law. While the trial court\u2019s order is not clear as to whether contributory negligence was a factor in the entry of summary judgment, \u201c \u2018[i]f the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal. If the correct result has been reached, the judgment will not be disturbed even though the trial court may not have assigned the correct reason for the judgment entered.\u2019 \u201d Harter v. Vernon, 139 N.C. App. 85, 95, 532 S.E.2d 836, 842 (2000) (quoting Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989)).\nHere, however, the trial court\u2019s entry of summary judgment cannot be supported by plaintiff\u2019s alleged contributory negligence. \u201cIssues of contributory negligence, like those of ordinary negligence, are ordinarily questions for the jury and are rarely appropriate for summary judgment. Only where the evidence establishes the plaintiff\u2019s own negligence so clearly that no other reasonable conclusion may be reached is summary judgment to be granted.\u201d Blue v. Canela, 139 N.C. App. 191, 195, 532 S.E.2d 830, 833, disc. review denied, 352 N.C. 672, - S.E.2d -(2000) (citation omitted). Plaintiff testified that both the expansion joint and wooden stake were not readily visible; that because she was walking in a group of pedestrians she was \u201ckeeping a proper lookout\u201d by looking straight ahead; that the sunlight was in her face; and that distractions such as pedestrian and vehicle traffic and loud construction on Church Street were occurring prior to her fall. The evidence does not so clearly establish plaintiffs negligence that a jury could not reasonably reach a differing conclusion.\nThe trial court\u2019s entry of summary judgment in favor of defendant was error.\nReversed and remanded.\nJudge EDMUNDS concurs.\nJudge GREENE dissents.", "type": "majority", "author": "FULLER, Judge." }, { "text": "Judge Greene\ndissenting.\nI disagree with the majority that a genuine issue of material fact exists regarding whether defendant was negligent. I, therefore, would affirm the order of the trial court granting summary judgment in favor of defendant.\nActive negligence\nPlaintiff argues defendant was actively negligent when it placed a stake at the edge of the sidewalk where plaintiff was injured.\n\u201cActive negligence \u2018denotes some positive act or some failure in duty of operation which is equivalent of a positive act.\u2019 \u201d Nourse v. Food Lion, Inc., 127 N.C. App. 235, 238 n.1, 488 S.E.2d 608, 611 n.1 (1997) (quoting Black\u2019s Law Dictionary 33 (6th ed. 1990)), aff\u2019d per curiam, 347 N.C. 666, 496 S.E.2d 379 (1998).\nIn this case, plaintiff presented evidence that a stake had been placed in the ground adjacent to the area of the sidewalk containing the alleged defective expansion joint, which was located on the 100 block of North Church Street. Plaintiff, however, did not present any evidence that defendant actually placed the stake in the ground or performed any work in the area surrounding the stake. Rather, the only evidence is that defendant did not perform any work on the 100 block of North Church Street in 1995. Terry Cornett (Cornett), the street superintendent for defendant, testified at his deposition that defendant did not perform any work in the 100 block of North Church Street in 1995. Instead, Cornett testified the work performed by defendant on Church Street in 1995 was done in the 100 block of South Church Street. Additionally, Frank Evans, a senior coordinator whose division is responsible for pouring concrete for defendant, testified in his deposition that he did not perform any repair work on the 100 block of North Church Street in 1995. Finally, Joe Owens (Owens), an employee with defendant\u2019s street division, testified in his deposition that he inspected repaving work done in the 100 block of South Church Street in 1995. Plaintiff, however, contends the deposition testimony of Steve Fleming that Ronnie Swicegood and Owens both told him repair work was done in \u201cthe 100 block of Church Street\u201d in 1995 is evidence defendant performed work in the 100 block of North Church Street during this time. Because Fleming did not specify in his testimony whether work was done on the north or south \u201c100 block of Church Street,\u201d his testimony does not raise a genuine issue of material fact regarding whether defendant performed work in the area where plaintiff was injured on North Church Street. Accordingly, there is no genuine issue of material fact regarding whether defendant was actively negligent.\nPassive negligence\nPlaintiff also argues defendant was passively negligent because defendant had actual and constructive notice of the alleged defect in the sidewalk that caused plaintiff\u2019s injury.\n\u201cPassive negligence \u2018is negligence which permits defects, obstacles, or pitfalls to exist on premises.\u2019 \u201d Id. (quoting Black\u2019s Law Dictionary 1034). In order to show a city was passively negligent in allowing a defect to exist on a sidewalk, plaintiff must present evidence, in pertinent part, that \u201cthe city had actual or constructive notice of the existence of the condition for a sufficient time prior to the plaintiff\u2019s fall to remedy the defect or guard against injury therefrom.\u201d Waters v. Roanoke Rapids, 270 N.C. 43, 48, 153 S.E.2d 783, 788 (1967).\n1. actual notice\nPlaintiff argues in her brief to this Court that defendant had actual notice of the alleged defect in the sidewalk because defendant \u201cplaced [in the ground] the stake adjacent to the defective expansion joint.\u201d As noted above, plaintiff did not present evidence that defendant placed a stake in the ground in the 100 block of North Church Street or that defendant even performed any work in the 100 block of North Church Street in 1995. Accordingly, there is no genuine issue of material fact regarding whether defendant had actual notice of the alleged defect in the sidewalk.\n2. constructive notice\nPlaintiff also argues defendant had constructive notice of the alleged defect in the sidewalk because \u201cif [defendant] had reasonably inspected the sidewalk, it would have known of the complete deterioration of the expansion joint.\u201d\n\u201cConstructive [notice] of a dangerous condition can be established in two ways: the plaintiff can present direct evidence of the duration of the dangerous condition, or the plaintiff can present circumstantial evidence from which the fact finder could infer that the dangerous condition existed for some time.\u201d Thompson v. Wal-Mart Stores, Inc., 138 N.C. App. 651, 536 S.E.2d 662, (2000). Further, \u201c[t]he duty of a municipality to keep its streets and sidewalks in a reasonably safe condition implies the duty of reasonable inspection from time to time.\u201d Rogers v. City of Asheville, 14 N.C. App. 514, 517, 188 S.E.2d 656, 658 (1972). Evidence that a dangerous condition existed for a time period during which defendant would have had a duty \u201cof reasonable inspection\u201d and evidence a \u201creasonable inspection\u201d would have revealed the dangerous condition is, therefore, evidence of constructive notice.\nIn this case, plaintiff did not present any direct evidence regarding how long the alleged defective condition in the sidewalk existed prior to her injury. Additionally, Plaintiff did not present any circumstantial evidence that the alleged defective condition existed for a period of time sufficient to show a \u201creasonable inspection\u201d- by defendant would have revealed the alleged defect. Plaintiff, therefore, did not present evidence defendant had constructive notice of the alleged defective condition. Accordingly, because plaintiff did not present sufficient evidence to raise a genuine issue of material fact regarding whether defendant was actively or passively negligent, I would affirm the triai court\u2019s order granting summary judgment in favor of defendant.\n. Plaintiff also argues John Spainhour (Spainhour) testified in his deposition that defendant was \u201cplanting stakes on Church and Second streets\u201d in 1995. Spainhour\u2019s testimony, however, makes no reference to North Church Street. Rather, Spainhour testified he performed work on Second Street during this time period.", "type": "dissent", "author": "Judge Greene" } ], "attorneys": [ "Kennedy, Kennedy, Kennedy & Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy for plaintiff-appellant.", "Womble, Carlyle, Sandridge & Rice, PLLC, by Gusti W. Frankel and Alison R. Bostfor defendant-appellee." ], "corrections": "", "head_matter": "SONJA EVETTE PRICE, Plaintiff v. CITY OF WINSTON-SALEM, Defendant\nNo. COA99-1266\n(Filed 19 December 2000)\n1. Cities and Towns\u2014 fall on sidewalk \u2014 expansion joint\u2014 notice of defect \u2014 negligence\nThe trial court erred by granting summary judgment for defendant-city based on the absence of negligence in an action arising from plaintiff falling on a wooden stake after her heel lodged in an expansion joint in a sidewalk. The dispositive issue is whether there is sufficient evidence from which a jury could find that defendant was in such proximity to the site as to be on constructive notice of the alleged defect and it cannot be held that the facts on the issue were clearly established or admitted.\n2. Cities and Towns\u2014 fall on sidewalk \u2014 contributory negligence\nThe trial court erred by granting summary judgment for defendant-city based upon contributory negligence in an action arising from a fall by plaintiff after her heel lodged in an expansion joint in a sidewalk. The evidence did not so clearly establish plaintiffs negligence that a jury could not reasonably reach a differing conclusion.\nJudge Greene dissenting.\nAppeal by plaintiff from order entered 24 May 1999 by Judge Richard L. Doughton in Forsyth County Superior Court. Heard in the Court of Appeals 12 September 2000.\nKennedy, Kennedy, Kennedy & Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy for plaintiff-appellant.\nWomble, Carlyle, Sandridge & Rice, PLLC, by Gusti W. Frankel and Alison R. Bostfor defendant-appellee." }, "file_name": "0055-01", "first_page_order": 85, "last_page_order": 93 }