Bamberger v. Bernholz ( 1989 )

Judge LEWIS

dissenting.

I respectfully dissent. The standard in a legal malpractice case is set out in Rorrer v. Cooke, 313 N.C. 338, 361, 329 S.E.2d 355, 369 (1985). These requirements are: (1) that the original claim was valid; (2) it would have resulted in a judgment in his favor; (3) the judgment would have been collectible. Whether we consider the causes of action brought here by the defendant in negligence, fraud, breach of fiduciary duty or breach of contract, the plaintiff would have to prove the original claim against Mary or Sálly Vilas was valid. This I do not believe is possible and would sustain the trial judge in granting summary judgment.

The entire underlying case turns on whether Mr. Bamberger was a licensee or an invitee the night he visited Ms. Vilas’ home. A social guest in a private home is a licensee; Murrell v. Handley, 245 N.C. 559, 562, 96 S.E.2d 717, 720 (1957). One’s status does not change from licensee to invitee simply because he renders some minor or incidental service for his host or hostess. Id. The plaintiff here went over to his girlfriend’s house to possibly help her type a paper that was due the next day. He in fact never did any typing for her and instead went upstairs to bed. There is nothing in these facts to indicate that he was anything but a licensee. The only duty a person owes a licensee is to refrain from willful, wanton or intentional conduct. There is nothing in the record to indicate that Ms. Vilas willfully or wantonly disregarded the safety of the plaintiff and certainly nothing to indicate any intentional harm inflicted upon him. See Murrell v. Handley, supra; McCurry v. Wilson, 90 N.C. App. 642, 369 S.E.2d 389 (1988). The plaintiffs forecast of the evidence as to the defendant’s quality of representation is certainly unflattering but that is not the main point in this case; the law is clear as to the requirement for the success of a legal malpractice action and in this case the first hurdle cannot be cleared.