Wellmon v. HICKORY CONST. CO., INC. , 88 N.C. App. 76 ( 1987 )

362 S.E.2d 591 (1987)

Brian K. WELLMON
v.
HICKORY CONSTRUCTION CO., INC.

No. 8718SC137.

Court of Appeals of North Carolina.

December 15, 1987.

Smith, Patterson, Follin, Curtis, James & Harkavy by Michael K. Curtis, Greensboro, for plaintiff-appellant.

Smith Helms Mulliss & Moore by J. Donald Cowan, Jr. and Diane S. Peake, Greensboro, for defendant-appellee.

JOHNSON, Judge.

The issues on this appeal concern (1) the granting of defendant's motion for directed verdict made on the grounds of insufficient evidence of negligence; (2) the granting of defendant's motion for directed verdict on the grounds of plaintiff's contributory negligence; and (3) the denial of plaintiff's motion to submit the issue of wilful and wanton negligence to the jury. For the following reasons, we conclude it was not error to grant defendant, Hickory Construction's motion for a directed verdict.

The first issue is whether the court erred in granting defendant's motion for directed verdict based on insufficient evidence of negligence.

A motion by a defendant for a directed verdict under G.S. 1A-1, Rule 50(a) tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. On such a motion, the nonmoving party's evidence must be taken as true and considered in the light most favorable to the plaintiff, giving plaintiff the benefit of every reasonable inference to be drawn therefrom. A directed verdict for the defendant is not properly allowed unless it appears as a matter of law that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977); Everhart v. LeBrun, 52 N.C.App. 139, 277 S.E.2d 816 (1981). If, when so viewed, the evidence is such that reasonable minds could differ as to whether the plaintiff is entitled to recover, a directed verdict should not be granted and the case should go to the jury. State Auto. Mutual Insurance Co. v. Smith Dry Cleaners, Inc., 285 N.C. 583, 206 S.E.2d 210 (1974).

Defendant, as general contractor, subcontracted with plaintiff's employer for steel erection. Plaintiff, as employee of a subcontractor working on the building, was an invitee of defendant. Southern Railway Co. v. A.D.M. Milling Co., 58 N.C. App. 667, 294 S.E.2d 750 (1982); Cowan v. Laughridge Construction Co., 57 N.C. App. 321, 291 S.E.2d 287 (1982).

The duty defendant owed to the plaintiff is aptly described in Deaton v. Board of Trustees of Elon College, 226 N.C. 433, 438, 38 S.E.2d 561, 564-65 (1946).

[I]t is generally held that one who is having work done on his premises by an independent contractor is under the obligation to exercise ordinary care to furnish reasonable protection against the consequences of hidden dangers known, or which ought to be known, to the proprietor and not to the contractor or his servants. (Citation omitted) (Emphasis added).

The rule applies only to latent dangers which the contractor or his servants could not reasonably have discovered and of which the owner knew or should have known. (Citations omitted) (Emphasis added).

The owner is not responsible to an independent contractor for injuries from defects or dangers of which the contractor knew or should have known, ``but if the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this he is liable for resultant injury.' (Citations omitted).

Deaton, citing, Douglass v. Peck & L. Co., 89 Conn., 622, 629, 95 A. 22, 25 (1915). Furthermore, "defendant [is] under no duty to warn plaintiff, as an invitee, of an obvious condition or of a condition of which the plaintiff [has] equal or superior knowledge." Wrenn v. Hillcrest Convalescent Home, Inc., 270 N.C. 447, 448, 154 S.E.2d 483, 484 (1967).

Plaintiff contends defendant was negligent in failing to warn him of the danger created by placing the barrel of concrete sealant, which defendant knew to be flammable or explosive, in an area directly under a place where it knew welders would be operating. We disagree.

The evidence revealed that the barrel of sealant had been in the middle of the building for two to three weeks. The building was in its early stages and had no walls or roof. This sealant was made of highly flammable material, the barrel label contained such a warning, and plaintiff's foreman had observed the barrel on location for four days prior to the explosion.

The evidence further revealed that the custom for welders is to check around for flammables prior to commencing any type of welding. Plaintiff testified he did not inspect the area for flammables before beginning his welding, nor did he inspect during his welding. The evidence also reveals that the barrel was properly labeled and was out in the open, in plain view for plaintiff to see. Since the barrel was in plain view and clearly marked, it was obvious, and its obvious existence required plaintiff to inspect the barrel to ascertain its contents.

Plaintiff relies upon Diamond v. McDonald Service Stores, as dispositive in the case sub judice. 211 N.C. 632,191 S.E. 358 (1937). We find it distinguishable.

In Diamond, the defendant, operator of a gasoline filling station, engaged an independent contractor to cut some metal upon the premises with an acetylene torch. The plaintiff, a welder, and employee of the independent contractor, examined the area around the work to make sure that no flammable material was located within range of fire from the torch, and finding nothing dangerous, began work. Located about four feet from the point at which plaintiff was using the torch was a barrel of alcohol. On the barrel, in large letters, appeared the words "Firestone Super-pyro Anti-Freeze." Despite having examined the area, plaintiff testified he never saw the can of alcohol that exploded; nor did he know the can was in the pit. The flame from the torch soon came into contact with the barrel of alcohol, and in the ensuing explosion and fire, the plaintiff sustained serious burns.

Reversing a nonsuit, the Supreme Court held that it was for the jury to determine (1) whether the defendant should have warned plaintiff of the presence of the nearby barrel of alcohol, and (2) whether the plaintiff was contributorily negligent.

In the case sub judice, there is no evidence from which the jury could reasonably infer that the barrel of sealant was a latent or hidden danger. In Diamond, there was a question as to the location of the barrel, creating the issue of a hidden danger, whereas in the case sub judice, there is no question as to the location of the barrel or its contents. The barrel was clearly marked and sitting out in the open to be seen by those who but merely looked. "[T]he law is unable to protect those who have eyes and will not see." Hargrove v. Plumbing and Heating Service of Greensboro, Inc., 31 N.C.App. 1, 5, 228 S.E.2d 461, 464, cert. denied, 291 N.C. 448, 230 S.E.2d 765 (1976).

Plaintiff further contends that even if the barrel was obvious, it would still be a jury question as to whether Hickory fulfilled its duty. We disagree. Plaintiff's foreman had seen the barrel for four days, both plaintiff and his foreman knew this project was a rush job and the concrete finishers were still working. Under these circumstances defendant had no further duty.

Having determined that the directed verdict on the issue of negligence was proper, we find it unnecessary to review plaintiff's remaining assignments of error.

We conclude therefore, that the decision of the trial court is

Affirmed.

BECTON and PARKER, JJ., concur.