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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-384 NORTH CAROLINA COURT OF APPEALS Filed: 18 May 2004 ANNIE M. WILLIAMS, Plaintiff, v. E. J. POPE & SON, INC., d/b/a HANDY MART NO. 14, Defendant. Appeal by plaintiff from order entered 8 November 2002 by Judge Dwight L. Cranford in Halifax County Superior Court. in the Court of Appeals 19 April 2004. Perry Anthony & Sosna, by Cedric R. Perry, for plaintiffappellant. Cogburn, Goosmann, Brazil & Rose, P.A., by Santaniello and Frank J. Contrivo, Jr., for appellee. MARTIN, Chief Judge. Plaintiff brought this action, alleging negligence, after she was injured in a fall at defendant's store. Defendant answered, Andrew J. defendantHeard Halifax County No. 01 CvS 1428

denying negligence and asserting plaintiff's own negligence as an affirmative defense. judgment. Evidence before the trial court at the summary judgment hearing showed that plaintiff visited defendant's Handy Mart No. 14 convenience store in Scotland Neck at approximately 8:30 A.M. on 4 After discovery, defendant moved for summary

-2December 2000. Plaintiff testified during her deposition that on

Sunday, 3 December 2000, the day before her fall, it had snowed almost all day. Plaintiff had not seen any sleet or freezing rain On the following morning,

falling in addition to the snow.

plaintiff stopped at the store to fill her car with gasoline on her way to work. Plaintiff noticed that the snow had not been cleared

from the store's parking lot and the area around the gasoline pumps. No warning signs had been placed outside the store and no

slip retardant substances had been applied to the area around the gas pumps. Plaintiff got out of her car, pumped gasoline into her As she walked

car's tank, and replaced the gas nozzle on the pump.

behind her car towards the store building to pay for the gasoline, plaintiff slipped, fell and broke her leg. Regarding the cause of her fall, plaintiff testified at her deposition taken on 5 April 2002: Q. A. What did you slip on? Well, the people that helped me got [sic] up, they said it was ice because they say I cracked the ice when I fell. Did you look at it when you were . . . I was hurting anything. too bad to look at

Q. A.

. . . . Q. I know you just told me you didn't look at whatever exactly it was that you fell on. But when you're down there on the ground, was there still snow and ice all around you? Yes.

A.

-3. . . . Q. A. Q. A. Q. Do you have any reason to doubt that it wasn't ice that you slipped on? No. So you think it was ice? Yes, sir. Was it an oil slick or tire iron or something like that, that was laying down there? No, sir, because I heard them saying that I cracked the ice.

A.

. . . . Q. A. Q. A. Were you surprised that there was ice in that parking lot? Yes. And why is that? Because it had just snowed. I didn't know it was sleet or whatever, to have ice down up under it. The ice was underneath the snow? So they say, I don't know. I don't.

Q. A.

However, in an affidavit filed on 16 October 2002, plaintiff stated that the defendant's premises were covered with "snow and ice under the snow." Plaintiff appeals from an order granting defendant's motion for summary judgment. Summary judgment For the reasons which follow, we affirm. 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

-4issue as to any material fact and that any party is entitled to a judgment as a matter of law." (2003). N.C. Gen. Stat.

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