McKinney v. Greater Gethsemane African Methodist Episcopal Zion Church of Charlotte, N.C., Inc. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA13-1448
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
RUTH McKINNEY, individually and as
Administratrix for the Estate of
QUINTON McKINNEY, and the Estate
of QUINTON McKINNEY,
Plaintiffs,
v. Mecklenburg County
No. 13 CVS 2506
GREATER GETHSEMANE AFRICAN
METHODIST EPISCOPAL ZION CHURCH OF
CHARLOTTE, N.C., INC.,
Defendant.
Appeal by plaintiffs from order entered 23 September 2013
by Judge Richard D. Boner in Mecklenburg County Superior Court.
Heard in the Court of Appeals 7 May 2014.
Gray & Johnson, LLP, by Mark V.L. Gray and Nekia Pridgen,
for plaintiff-appellants.
Dean Gibson Hofer & Nance, PLLC, by Rodney Dean, for
defendant-appellee.
BRYANT, Judge.
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Where the evidence indicates that the decedent was clearly
contributorily negligent, the granting of defendant church’s
motion for summary judgment was appropriate.
Plaintiffs Ruth McKinney, individually and as
Administratrix for the Estate of Quinton McKinney, and the
Estate of Quinton McKinney (“plaintiffs”), filed a complaint
against several defendants including Greater Gethsemane African
Methodist Episcopal Zion Church of Charlotte, N.C., Inc.
(defendant “church”). Plaintiffs alleged that on 23 February
2011, Quinton McKinney died while performing maintenance work
for defendant church. Specifically, plaintiffs alleged that
defendant church solicited McKinney, a member of defendant
church, to remove a tree limb hanging over the church parking
lot and that while doing so McKinney fell from a ladder and
died.
McKinney’s fall was not witnessed. Clinton Clinkscales, a
member of defendant church who had a “job partnership” with
McKinney doing yard maintenance and home repairs, stated that he
went with McKinney to the church that day to perform various
maintenance tasks as volunteers for defendant church.
Clinkscales said that while changing light bulbs inside the
church, he received a call from McKinney that McKinney was ready
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to cut down the tree limb; Clinkscales asked McKinney to wait
until he could come outside and help. Clinkscales stated that
when he walked outside of the church a few minutes later, he saw
McKinney lying on the ground. An A-frame ladder, a chainsaw,
and a tree limb were all near McKinney. McKinney was declared
dead at the hospital. Although medical evidence suggested that
McKinney had a “cardiac episode” which may have caused him to
fall off the ladder, the medical examiner determined that
McKinney’s ultimate cause of death was a spinal cord injury
caused by his fall.
Defendants filed a motion for summary judgment on 4 June
2013. On 23 July 2013, the trial court issued an order granting
defendants’ motion to dismiss as to the insurance company
defendants1 and reserving ruling as to defendant church.
On 23 September 2013, the trial court granted defendant
church’s motion for summary judgment. Plaintiffs appeal.
_______________________
On appeal, plaintiffs raise several issues regarding the
trial court’s award of summary judgment for defendant church.
1
On 15 March 2013, defendants filed a motion to dismiss
insurance company defendants Philadelphia Insurance Companies;
Philadelphia Consolidated Holding, Corp.; Tokio Marine Group;
Tokio Marine Holdings, Inc.; and Tokio Marine and Nichido Fire
Insurance Co.
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"Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the
record shows that there is no genuine issue as to any material
fact and that any party is entitled to a judgment as a matter of
law." Blackwell v. Hatley, 202 N.C. App. 208, 211, 688 S.E.2d
742, 745 (2010) (citations omitted). "The showing required for
summary judgment may be accomplished by proving an essential
element of the opposing party's claim does not exist, cannot be
proven at trial, or would be barred by an affirmative
defense[.]" Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829,
835 (2000) (citation omitted). In considering a motion for
summary judgment, "[a]ll facts asserted by the [nonmoving] party
are taken as true and their inferences must be viewed in the
light most favorable to that party." Nationwide Prop. & Cas.
Ins. Co. v. Martinson, 208 N.C. App. 104, 109, 701 S.E.2d 390,
393 (2010) (citation omitted).
Plaintiffs argue the trial court erred by granting summary
judgment in favor of defendant church. Specifically, plaintiffs
contend the trial court erred by failing to conclude that tree
cutting is an inherently dangerous activity, and that genuine
issues of material fact exist as to whether defendant church was
negligent in soliciting, training, and supervising McKinney in
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cutting down the tree limb; whether defendant church’s actions
were willful and wanton; whether McKinney was contributorily
negligent; and whether McKinney was a third-party beneficiary of
insurance company defendants. Because plaintiffs’ arguments are
closely related, yet offer limited legal authority in support
thereof, we address them together.
In general, one who accepts the services of a volunteer is
not liable for the volunteer’s acts. See N.C. Gen. Stat. § 1-
539.10(b) (2013) (qualified immunity is waived where an
organization secures liability insurance).
However, if the work to be performed . . .
is either (1) ultrahazardous or (2)
inherently dangerous, and the [party
accepting the work] either knows or should
have known that the work is of that type,
liability may attach despite the
[volunteer’s] status. This is because, in
those two areas, the [party accepting the
work] has a non-delegable duty for the
safety of others.
Kinsey v. Spann, 139 N.C. App. 370, 374, 533 S.E.2d 487, 491
(2000) (citations omitted). An "inherently dangerous activity"
is defined
as work to be done from which mischievous
consequences will arise unless preventative
measures are adopted, and that which has a
recognizable and substantial danger inherent
in the work, as distinguished from a danger
collaterally created by the independent
negligence of the [worker], which later
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might take place on a job itself involving
no inherent danger.
O'Carroll v. Roberts Indus. Contractors, Inc., 119 N.C. App.
140, 146, 457 S.E.2d 752, 756 (1995) (citation and quotation
omitted). To be successful, a claim for an inherently dangerous
activity requires a showing of four elements: (1) the activity
must be inherently dangerous; (2) at the time of injury, the
[defendant] either knew, or should have known, that the activity
was inherently dangerous; (3) the [defendant] failed to take the
necessary precautions to control the attendant risks; and, (4)
the failure by the [defendant] proximately caused injury to
plaintiff. Kinsey, 139 N.C. App. at 375, 533 S.E.2d at 492.
Plaintiffs contend the trial court erred in granting
summary judgment to defendant church because tree cutting is an
inherently dangerous activity. In determining whether an
activity is inherently dangerous, this Court has held that “the
area where the activity is to be performed is significant.” Id.
at 376, 533 S.E.2d at 492. As such, our Courts have found that
although tree felling in a rural, forested area is not
inherently dangerous, Young v. Fosburg Lumber Co., 147 N.C. 26,
34—35, 60 S.E. 654, 657—58 (1908), tree felling in a populated
urban area is inherently dangerous. Kinsey, 139 N.C. App. at
376, 533 S.E.2d at 492.
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Cutting and removing a tree in the midst of
a forest would probably not rank as []
hazardous work. But the cutting and removal
of a large tree in close proximity to
dwellings and in an area traversed by many
people, would probably be sufficiently
hazardous as to require precautions with
which we are all familiar.
Evans v. Elliot, 220 N.C. 253, 260, 17 S.E.2d 125, 129—30 (1941)
(citation omitted).
Here, McKinney attempted to remove a limb from a tree that
stood next to defendant church’s parking lot. Although evidence
suggested defendant church was concerned about the tree limb
possibly falling and damaging parishioners’ cars, there is
nothing indicating the limb posed an imminent danger to life or
property, was located in a populated urban area, or that the
entire tree needed to be cut down. Moreover, the statements of
Clinkscales indicated McKinney was experienced in tree
maintenance, including the use of ladders and chainsaws, to
remove tree limbs. As such, the facts of the instant case do
not support plaintiffs’ contention that McKinney was engaged in
an inherently dangerous activity.
In fact, as noted herein, the facts were found to be
insufficient to sustain a negligence claim against defendant
church based on any theory of negligence. Nevertheless,
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assuming arguendo a negligence claim had been shown, the
evidence indicates McKinney was contributorily negligent.
In answering the "pivotal question"
whether the evidence supports a finding of
contributory negligence, a plaintiff's
conduct must be judged in the light of the
general principle that the law does not
require a person to shape his behavior by
circumstances of which he is justifiably
ignorant, and the resultant particular rule
that a plaintiff cannot be guilty of
contributory negligence unless he acts or
fails to act with knowledge and
appreciation, either actual or constructive,
of the danger of injury which his conduct
involves.
Shelton v. Steelcase, Inc., 197 N.C. App. 404, 424, 677 S.E.2d
485, 499 (2009) (citations and quotation omitted). Although the
issue of contributory negligence is “rarely appropriate for
summary judgment,” summary judgment is appropriate “where the
evidence establishes a plaintiff’s negligence so clearly that no
other reasonable conclusion may be reached.” Martishius v.
Carolco Studios, Inc., 355 N.C. 465, 479, 562 S.E.2d 887, 896
(2002) (citation omitted).
The trial court noted during its hearing on defendant
church’s motion for summary judgment that: based on the
respective heights of McKinney, the ladder, and the tree limb,
to reach the tree limb McKinney had to have stood on the top
rung of the ladder; the ladder used by McKinney was clearly
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marked with safety instructions and warnings, including a
warning notifying users not to stand on the top rung of the
ladder; the ladder was placed on soft ground which would have
made it very unstable, even though the tree limb could have been
removed if the ladder had been placed several feet over onto the
paved parking lot; Clinkscales told McKinney to wait so he could
help McKinney, but McKinney did not wait; and McKinney was
experienced in tree maintenance and, thus, was aware of the
safety risks involved in cutting and removing tree limbs in the
manner as indicted by these facts. The trial court also found
that while no one witnessed McKinney’s accident, medical
evidence suggested McKinney may have had a heart attack while
cutting down the tree limb which led to him falling off the
ladder and sustaining a fatal spinal cord injury. The trial
court further noted there was no evidence indicating defendant
church demanded or required McKinney to remove the tree limb or
that defendant church was aware of the danger involved in
removing the tree limb; that Clinkscales stated both he and
McKinney were aware that if they felt they could not remove the
tree limb safely, defendant church would hire a professional
tree service to handle it; and that defendant church had
discussed the tree limb generally with McKinney and Clinkscales
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because defendant church knew McKinney and Clinkscales were
experienced with such tasks.
In granting defendant church’s motion for summary judgment,
the trial court told plaintiffs that:
This case is shot through with so many
holes that even giving you every benefit of
the doubt and every inference, if we were
trying to [go] to the jury, it wouldn’t go
to the jury.
You’ve got problems with how the
accident happened. We don’t know why
[McKinney] fell. They’d have to – the jury
would have to speculate as to why that
happened. Was it truly – was this an
unfortunate accident or whether, you know,
what happened.
You’ve got problems with the fact that
there’s – the evidence is that nobody from
[defendant] church specifically said,
“You’ve got to go up there and do it,” or,
“We need you to do it.” There’s no evidence
as required by the Spann case that
[defendant] church knew or should have known
before making the request that this was an
ultra-hazardous activity. I mean, you don’t
have any of that.
As the trial court notes, every factual inference points
toward McKinney being contributorily negligent. Accordingly, the
trial court’s granting of defendant church’s motion for summary
judgment was appropriate.
Affirmed.
Judges CALABRIA and GEER concur.
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Report per Rule 30(e).