Gray v. Small , 104 N.C. App. 222 ( 1991 )

408 S.E.2d 538 (1991) 104 N.C. App. 222

Carmen P. GRAY and husband, Billy Gray, Plaintiffs,
v.
Lyndon F. SMALL and wife, Lynn McQueen Small, Defendants.

No. 901SC1287.

Court of Appeals of North Carolina.

October 1, 1991.

Twiford, O'Neal & Vincent, by Russell E. Twiford and Edward A. O'Neal, Elizabeth City, for plaintiff, appellants.

Hornthal, Riley, Ellis, & Maland, by L.P. Hornthal, Jr., Elizabeth City, for defendant, appellees.

HEDRICK, Chief Judge.

Plaintiff's sole argument on appeal is that the trial court erred in granting defendants' motion for summary judgment.

Summary judgment is proper when the pleadings, depositions and admissions on file, together with any affidavits show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610 (1980). N.C.R.Civ.P. 56. In determining whether summary judgment is proper, the court must view the evidence in the light most favorable to the non-moving party, giving to it the benefit of all reasonable inferences and resolving all inconsistencies in its favor. Freeman v. Sturdivant Dev. Co., 25 N.C.App. 56, 212 S.E.2d 190 (1975).

The record shows that plaintiffs were social guests in defendants' home and therefore, held the status of licensees. "The duty of care owed to a licensee by an owner or possessor of land ordinarily is to ``refrain from doing the licensee willful injury and from wantonly and recklessly exposing [her] to danger.'" DeHaven v. Hoskins, 95 N.C.App. 397, 400, 382 S.E.2d 856, 858, cert. denied, 325 N.C. 705, 388 S.E.2d 452 (1989), (quoting McCurry v. Wilson, 90 N.C.App. 642, 369 S.E.2d 389 (1988)). "It follows that, as a general rule, the owner... is not liable for injuries to licensees due to the condition of the property, or ... due to passive negligence or acts of omission." Id. 95 N.C.App. at 400, 382 S.E.2d at 858, (quoting, Pafford v. J.A. Jones Constr. Co., 217 N.C. 730, 9 S.E.2d 408 (1940) (emphasis in original).

The record in this case affirmatively establishes that plaintiffs were social guests, licensees, in the home of defendants when the female plaintiff slipped and fell as she and her husband exited defendants' premises. Thus, summary judgment for defendants would be improper if the evidentiary matter offered in support of or in opposition to the motions for summary judgment raised genuine issues of material fact with respect to defendants' gross negligence or willful or wanton conduct causing the injuries of which plaintiffs' complained.

The forecast of evidence in this record raises at most issues as to defendants' ordinary or passive negligence. No issue is raised as to defendants' gross negligence. Thus, summary judgment for defendants was proper.

Affirmed.

ARNOLD, J., concurs.

PHILLIPS, J., dissents.

PHILLIPS, Judge, dissenting.

In my opinion the rules of law stated by the majority do not apply to plaintiffs' case. Plaintiff does not allege that she was injured by a condition of the premises that existed when she got there, in which event the host's gross negligence or willful and wanton conduct would have to be shown. Her claim is that she was injured because after her arrival on the premises defendants actively increased the hazard to her by negligently causing grass to accumulate on the steps. This basis for imposing liability on a host property owner has been approved in many cases starting with Jones v. Southern Railway Co., 199 N.C. 1, 153 S.E. 637 (1930). Also see Prosser and Keeton, The Law of Torts Sec. 60, p. 416 (5th ed. 1984).

In my view plaintiffs' affidavits raise an issue of fact as to defendants' active negligence in increasing the hazard to the femme plaintiff after she got on the property and the summary judgment should be reversed.