Green Ex Rel. Downs v. Duke Power Co. , 305 N.C. 603 ( 1982 )

290 S.E.2d 593 (1982)

Andrea D. GREEN, by her Guardian ad Litem, Kenneth R. Downs, and Henry Frank Green, Plaintiffs,
v.
DUKE POWER COMPANY, a North Carolina corporation, Defendant and Third-Party Plaintiff,
v.
Henry Thomas EANES and Housing Authority of the City of Charlotte, North Carolina, Third-Party Defendants.

No. 78A81.

Supreme Court of North Carolina.

May 4, 1982.

Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by William I. Ward, W. Edward Poe, Jr., William E. Poe, and Irvin W. Hankins, III, Charlotte, for Duke Power Co.

Hedrick, Feerick, Eatman, Gardner & Kincheloe by Hatcher Kincheloe, Charlotte, for Eanes.

Golding, Crews, Meekins, Gordon & Gray by James P. Crews, Charlotte, for Housing Authority of the City of Charlotte.

BRANCH, Chief Justice.

I

The first issue before this Court is whether the Court of Appeals erred in dismissing appellant Duke Power's appeal of the summary judgment granted in favor of third party defendants Eanes and Housing Authority. For the reasons stated below, we find no error.

Appellant's sole ground of appeal is the contention that the granting of third party defendants' motions for summary judgment affected a substantial right. Both G.S. 1-277 and G.S. 7A-27(d) provide for immediate appeal of a judicial order or determination that affects a substantial right. Duke insists that it had a substantial right to have its claim for contribution from Eanes and Housing Authority determined in the same proceeding in which Duke's liability to Green is determined. Cf. Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976).

As we noted in Bailey v. Gooding, 301 N.C. 205, 210, 270 S.E.2d 431, 434 (1980), "[t]he ``substantial right' test for appealability is more easily stated than applied." See also Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978). One writer, in seeking to formulate a rule based on our decisions in these cases, has concluded:

The right to avoid one trial on the disputed issues is not normally a substantial right that would allow an interlocutory appeal, while the right to avoid the possibility of two trials on the same issues can be such a substantial right.

Survey of Developments in N. C. Law, 1978, 57 N.C.L.Rev. 827, 907-08 (1979); quoted with approval in, W. Shuford, N. C. Civil Practice & Procedure § 54-5 (2 Ed. 1981). We adhere to our earlier statement that "[i]t is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal was sought is entered." Waters v. Personnel, Inc., 294 N.C. at 208, 240 S.E.2d at 343. However, we are of the opinion that the above statement constitutes, as the author suggests, only "a general proposition that in many circumstances should be helpful in analyzing the substantial right issue." Survey, supra, 57 N.C.L. Rev. at 907.

In instant case, the issue in the action for contribution is whether Eanes and Housing Authority violated a duty of care to plaintiff Green. The issue in the principal case is whether Duke independently violated a separate and unrelated duty of care to plaintiff. Plaintiff has advanced no allegations of joint or concurring negligence. Thus, whether third party defendants are liable to plaintiff Green is in no way dependent upon the resolution of the issue of Duke's liability to Green. The resolution of these ultimate issues does not depend upon similar factual issues or similar proof.

We hold that no substantial right would be lost by Duke's inability to take an immediate appeal from the summary judgment against it. If Duke were to win in the principal action, Duke would have no right to appeal. G.S. 1-271 (only an aggrieved party may appeal). If Duke were to lose, its exception to the entry of summary judgment would fully and adequately preserve its right to thereafter seek contribution.

Under other circumstances third party defendants might be free at a subsequent trial to deny Duke's liability to plaintiffs Green, leaving the jury in the contribution trial free to find that Duke was not liable to plaintiffs Green despite a finding by a different jury in the principal case that Duke was liable. Such might be the case, for example, if third party defendants had never been brought into the principal action, or if, upon being impleaded, they had asserted as a defense to Duke's third party complaint that Duke was not liable in negligence to plaintiffs Green. We are faced with neither of these situations herein. The answers in instant case have already been filed. Both third party defendants alleged in their answers that "the active and primary negligence of Duke Power Company is pleaded in bar of Duke Power Company's claim for contribution from this defendant." Neither asserted in the alternative that Duke was not liable to plaintiffs Green for negligence. A party will ordinarily be bound by his pleadings. Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617 (1964); Davis v. Rigsby, 261 N.C. 684, 136 S.E.2d 33 (1964). We are aware, of course, that leave to amend the pleading "shall be freely given when justice so requires," G.S. 1A-1, Rule 15; however, third party defendants herein have failed to assert this defense and have voluntarily foregone their opportunity in the principal action to disprove Duke's liability. The interests of justice in instant case would preclude the granting of leave to amend the pleadings to include this new defense at this late date. Thus, although Duke could be forced to undergo a full trial on the issue of its liability to Green followed by a full trial on the issue of Eanes' and Housing Authority's liability to Green, under the circumstances of the case there are no overlapping issues so as to justify an immediate appeal of an interlocutory order.

The avoidance of one trial is not ordinarily a substantial right. Bailey v. Gooding, 301 N.C. at 210, 270 S.E.2d at 434; Industries, Inc. v. Insurance Co., 296 N.C. 486, 492, 251 S.E.2d 443, 447-48 (1979); Waters v. Personnel, Inc., 294 N.C. at 208, 240 S.E.2d at 344. See also Survey, supra, 57 N.C.L.Rev. at 907. We agree that "the right to avoid the possibility of two trials on the same issues can be ... a substantial right." Survey, 57 N.C.L.Rev. at 908. (Emphasis added.) Such is not the case here. The possible second trial in instant case would not involve the same issues and therefore would not warrant immediate appeal. Ordinarily the possibility of undergoing a second trial affects a substantial right only when the same issues are present in both trials, creating the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue. This not being the case before us, we hold the Court of Appeals' dismissal of Duke's appeal was without error.

II

All parties to this appeal have requested that we consider the merits of the case, pointing to the fact that this matter has been in the courts since 1978.

In order to expedite the administration of justice, we elect, pursuant to our supervisory authority and the provisions of G.S. 7A-31, to review the decision of the trial judge granting summary judgment in favor of third party defendants Eanes and Housing Authority. See Consumers Power v. Power Co., 285 N.C. 434, 439, 206 S.E.2d 178, 182 (1974).

G.S. 1B-1(a) provides that "where two or more persons become jointly or severally liable in tort for the same injury ... there is a right of contribution among them." Appellant Duke Power Company claims contribution upon appellees' alleged liability to plaintiffs Green under the so-called attractive nuisance doctrine. See Walker v. Sprinkle, 267 N.C. 626, 148 S.E.2d 631 (1966); Brannon v. Sprinkle, 207 N.C. 398, 177 S.E. 114 (1934).

The rule governing liability in this case is aptly stated in the leading case of Briscoe v. Lighting and Power Co., 148 N.C. 396, 411, 62 S.E. 600, 606 (1908), wherein this Court stated:

It must be conceded that the liability for injuries to children sustained by reason of dangerous conditions on one's premises is recognized and enforced in cases in which no such liability accrues to adults. This we think sound in principle and humane policy. We have no disposition to deny it or to place unreasonable restrictions upon it. We think that the law is sustained upon the theory that the infant who enters upon premises, having no legal right to do so, either by permission, invitation or license or relation to the premises or its owner, is as essentially a trespasser as an adult; but if, to gratify a childish curiosity, or in obedience to a childish propensity excited by the character of the structure or other conditions, he goes thereon and is injured by the failure of the owner to properly guard or cover the dangerous conditions which he has created, he is liable for such injuries, provided the facts are such as to impose the duty of anticipation or prevision; that is, whether under all of the circumstances he should have contemplated that children would be attracted or allured to go upon his premises and sustain injury.

Appellant Duke relies on the deposition statement of third party defendant Eanes that he knew of the dangerous condition of the transformer and that he had informed third party defendant Housing Authority of the transformer's condition to argue that the owner (Housing Authority) and the occupier (Eanes) of land may be held liable for the injuries to young Green. Duke cites several cases which have held landowners liable under the attractive nuisance doctrine for injuries to children resulting from dangerous conditions on the landowner's property, known to the owner but which he neither created nor maintained. We believe these cases are distinguishable in that, while the defendants therein did not create or maintain the dangerous conditions on their land, they "knowingly suffered [the dangerous conditions] to continue." Benton v. Montague, 253 N.C. 695, 704, 117 S.E.2d 771, 777 (1961). Such is not the case before us.

Appellant Duke Power Company cites two New Jersey cases for the proposition that:

If an artificial condition exists upon the land, of which the landowner or occupier has knowledge, and which reasonable men may recognize as having propensities for causing an unreasonable risk of harm to infant trespassers, then it makes no difference whether the condition was created by third persons or by the defendant himself.

Simmel v. New Jersey Coop. Co., 28 N.J. 1, 10, 143 A.2d 521, 526 (1958); see also Lorusso v. De Carlo, 48 N.J.Super. 112, 136 A.2d 900 (1957). The Simmel court made clear, however, that the actual knowledge of a landowner of the existence on his property of a dangerous condition created by a third party was significant because it indicated "toleration or sufferance of, or acquiescence in, the acts of others...." 28 N.J. at 11, 143 A.2d at 526. Both of these New Jersey cases involved fires set on a landowner's property by third persons. Infant trespassers were injured in both fires. We believe the courts in those cases reasoned properly in deciding in each that the landowner, if he had actual knowledge of the fire, should have extinguished it, and failure to do so indicated a "toleration or sufferance of, or acquiescence in" the existence of the dangerous condition on his property. These cases are distinguishable in that defendants therein appear to have been free to extinguish the fires. There was no indication in either case that the third party who set the fire had any right or authority to maintain a fire on the defendant's property absent defendant's (express or implied) approval. Duke's legal right by easement to maintain a transformer on third party defendant's property removes this case from the fact situation faced in Simmel and Lorusso.

The case of Haddad v. First National Stores, Inc., 109 R.I. 59, 280 A.2d 93 (1971), is also distinguishable. That case centered upon the injury to a child playing with a shopping cart left on a supermarket parking lot. Certainly the store would have been within its rights to have removed its carts from its own lot. Third party defendants in instant case were not free to remove the transformer from their property under the terms of Duke's easement.

We believe that the dispositive issue in this case is not whether Housing Authority and Eanes knew of the dangerous condition of the transformer, but whether they can be said to have "suffered it to continue," Benton v. Montague, 253 N.C. at 704, 117 S.E.2d at 777, i.e., tolerated or acquiesced in it. Cf. Simmel v. New Jersey Coop. Co., 28 N.J. at 11, 143 A.2d at 526. We think not.

In instant case, neither the owner nor the occupier of the property on which the transformer was located had the right to deny access to the transformer or to remedy the dangerous condition of the device. The transformer was the sole property of appellant Duke Power. It was placed on the premises pursuant to a valid easement the terms of which granted to Duke "the right, privilege and easement ... to construct, maintain and operate [thereon] ... transformers... together with the right at all times to enter said premises ...." Any interference or tampering with Duke's transformer would clearly encroach upon the rights granted to Duke by the easement. Likewise, locking or fencing the transformer would impair Duke's access to it and would be inconsistent with the terms of the easement. It was not reasonably practical for the owner of the realty, Housing Authority, or the occupier, Eanes, to prevent access to the transformer or to render it harmless.

This view is in accord with the general rule that "[i]t is not only the right but the duty of the owner of an easement to keep it in repair; the owner of the servient tenement is under no duty to maintain or repair it, in the absence of an agreement therefor.", 25 Am.Jur.2d Easements and Licenses § 85 (1966), and cases cited therein; see also Rose v. Peters, 59 Cal. App. 2d 833, 139 P.2d 983 (1943); Nixon v. Welch, 238 Iowa 34, 24 N.W.2d 476 (1946). Another rule follows from the first; viz. "If the character of the easement is such that a failure to keep it in repair will result in injury to the servient estate or to third persons, the owner of the easement will be liable in damages for the injury so caused." 28 C.J.S. Easements § 94 c (1941) and cases cited therein; see also Richardson v. Kier, 34 Cal. 63, 91 Am.Dec. 681 (1867); Wells v. North East Coal Co., 274 Ky. 268, 118 S.W.2d 555 (1938); Swingler v. Robinson, 321 S.W.2d 29 (Mo.App.1959).

This Court in the past has recognized that the owner of the easement is the party to be charged with its maintenance. Richardson v. Jennings, 184 N.C. 559, 114 S.E. 821 (1922). We hold that Duke Power Company had the sole duty to keep safe the transformer which was Duke's sole property. Duke had expressly bound itself to "maintain [the transformer] ... in a proper manner" in the instrument granting to Duke the easement and pursuant to which the transformer had been erected. We are of the opinion that the knowledge of third party defendants is irrelevant to the question of their liability where, as here, the third party defendants had no control over the transformer. In so doing we follow the well-reasoned holding of the Hawaii Supreme Court that in such cases "it is the control and not the ownership which determines the liability." Levy v. Kimball, 50 Haw. 497, 499, 443 P.2d 142, 144 (1968). Accord Benton v. Montague, 253 N.C. at 703, 117 S.E.2d at 777, quoting 2 Harper & James, The Law of Torts § 27.19 at 1526 (1956) ("It is not enough ... to show that the third person's conduct foreseeably and unreasonably jeopardized plaintiff. Plaintiff must also show that the occupier ... had a reasonable opportunity to prevent or control such conduct.") (Emphasis added.)

Since the duty was Duke's, the only obligation to act was Duke's, and the only possible liability in this case is Duke's alone. The granting of summary judgment for third party defendants, Eanes and Housing Authority, was proper.

Third party defendants clearly had no duty to Duke to apprise it of its potential liability for the dangerous condition of its transformer. Neither does it follow that such notification would have necessarily resulted in Duke's discharging of its duty to plaintiff to render the transformer safe, although it may be said that such notification would be reasonably calculated to prevent the injury.

Even assuming arguendo, however, that sound public policy would require the imposition of a duty upon third party defendants to take steps reasonably calculated to prevent injury, we are of the opinion that the materials before the trial court on the motion for summary judgment forecast uncontroverted evidence that such an effort was made. The deposition of third party defendant Henry Thomas Eanes was offered by third party plaintiff Duke as a basis for the denial of the motion for summary judgment. Eanes' testimony was that he had seen plaintiff Andrea Green playing with other children on the unlocked transformer and had told them to stay away from it because someone would get hurt. He testified that they heeded his warning and left. "I told that little Angela ... one time and I never did see Angela get back on there until she got hurt." Duke offered no materials that would impeach or contradict Eanes' testimony on this point.

This Court has held that summary judgment may be entered on the basis of testimonial evidence of an interested party (1) when there are only latent doubts as to the witness's credibility (i.e., doubts stemming from the witness's status as an interested party); (2) when the opposing party has failed to present materials in opposition, failed to point to specific areas of impeachment and contradiction, and failed to utilize Rule 56(f); and (3) when summary judgment is otherwise appropriate. Kidd v. Early, 289 N.C. 343, 370, 371, 222 S.E.2d 392, 410, 411 (1976). Applying the above rule to instant case, if Duke's success in its third party action depended upon its proof at trial that third party defendants violated a duty to take steps reasonably calculated to prevent injury, then the uncontradicted deposition testimony that Eanes warned Andrea Green to stay away from the transformer established the lack of a genuine issue as to that material fact. G.S. 1A-1, Rule 56(c); Kidd v. Early, supra. Whether in addition to warning Andrea to stay away from the box, Eanes also called Duke to notify it of the condition of the transformer is thus rendered immaterial. We are of the opinion that, as a matter of law, by warning Andrea he took action reasonably calculated to prevent her injury. This uncontradicted evidence establishes the discharge of any minimal duty that could fairly be imposed upon these defendants.

The decision of the Court of Appeals dismissing Duke's appeal was proper. On the merits of this case, we affirm the trial judge's granting of summary judgment for the third party defendants, Eanes and Housing Authority.

AFFIRMED.

Mitchell did not participate in the consideration or decision of this case.