Langley v. R. J. Reynolds Tobacco Co. , 92 N.C. App. 327 ( 1988 )

374 S.E.2d 443 (1988) 92 N.C. App. 327

Pete J. LANGLEY, Plaintiff,
v.
R.J. REYNOLDS TOBACCO COMPANY, Defendant. and
GEORGE W. KANE, INC., Defendant and Third-Party Plaintiff,
v.
HERRING DECORATING, INC., Third-Party Defendant.

No. 8821SC358.

Court of Appeals of North Carolina.

December 20, 1988.

B. Jeffrey Wood, Winston-Salem, for plaintiff, appellant.

Avery, Crosswhite & Whittenton by William E. Crosswhite, Statesville, for third-party defendant, appellant.

Womble Carlyle, Sandridge & Rice by Reid C. Adams, Jr., Winston-Salem, for defendant, appellee R.J. Reynolds Tobacco Co.

Petree Stockton & Robinson by Robert J. Lawing and Jane C. Jackson, Winston-Salem, for defendant, appellee George W. Kane, Inc.

HEDRICK, Chief Judge.

Plaintiff argues the trial court erred in granting defendants' motions for summary judgment. We must first determine plaintiff's relationship to defendant Kane, the general contractor, and defendant Reynolds, the owner of the premises. It is well-settled in this state that a contractor and his employees who go upon the premises of the owner, at the owner's request, are invitees. Spivey v. Wilcox Company, 264 N.C. 387, 141 S.E.2d 808 (1965). The owner, therefore, owes a duty of due care under all the circumstances to the contractor and the contractor's employees. Id. Our Supreme Court, in Deaton v. Elon College, 226 N.C. 433, 438, 38 S.E.2d 561, 565 (1946), stated the general rule as follows:

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).

It is also well-settled that the employee of a subcontractor working for a general contractor is an invitee in relation to the general contractor. Wellmon v. Hickory Construction Co., 88 N.C.App. 76, 362 S.E.2d 591 (1987); Cowan v. Laughridge Construction Co., 57 N.C.App. 321, 291 S.E.2d 287 (1982). Ordinarily, therefore, both the general contractor and the owner of the premises owe to the subcontractor and its employees the duty of ordinary care. This rule extends only to defects which the subcontractor or his employees could not have reasonably discovered and of which the owner or general contractor knew or should have known. Wellmon v. Hickory Construction Co., 88 N.C. App. 76, 362 S.E.2d 591 (1987).

Applying the foregoing principles to the facts in the present case, we hold the forecast of evidence is sufficient under G.S. 1A-1, Rule 56 to give rise to an inference that plaintiff, as an employee of Herring, was an invitee on the premises of both defendants wherein he was performing work in furtherance of his employer's contract with the general contractor. We further hold that the forecast of evidence is such as to require reversal of summary judgment entered in favor of both defendants. The forecast of evidence is such as to give rise to an inference that defendant Reynolds knew or had reason to know that the canopy over the loading dock had been damaged when the general contractor, defendant Kane, dropped debris onto the canopy through which plaintiff fell. The forecast of evidence is also sufficient to raise an inference that defendant Kane, in response to defendant Reynolds' request, undertook to remedy and correct the situation caused by the falling debris by placing tires and plywood over the canopy. From this forecast, the jury could find that not only the owner, defendant Reynolds, knew or had reason to know of the unsafe condition of the canopy, but that the general contractor, defendant Kane, knew or had reason to know of the weakened and unsafe condition of the canopy through which plaintiff fell. The condition of the canopy immediately before plaintiff fell and what, if anything, the owner knew or should have known, and what, if anything, the general contractor knew or should have known are all circumstances to be resolved by the trier of the facts after plaintiff has had an opportunity to develop his case before a judge and jury.

Defendants' contentions that the evidence discloses contributory negligence on the part of plaintiff as a matter of law is likewise without merit. The same evidence that gives rise to genuine issues of material fact with respect to the negligence of defendants also gives rise to material questions of fact as to plaintiff's contributory negligence. Issues of contributory negligence, like those of ordinary negligence, are rarely appropriate for summary judgment. Meadows v. Lawrence, 75 N.C.App. 86, 330 S.E.2d 47 (1985), aff'd per curiam, 315 N.C. 383, 337 S.E.2d 851 (1986). Summary judgment will only be granted where plaintiff's own evidence so clearly discloses contributory negligence that no other reasonable conclusion could be reached. Izard v. Hickory City Schools Bd. of Education, 68 N.C.App. 625, 315 S.E.2d 756 (1984).

The forecast of evidence is such as to give rise to an inference that plaintiff did not know and did not have reason to know that the canopy above the loading dock was unsafe. The forecast is such as to give rise to inferences that defendant Kane's own employees walked upon the canopy, and they attempted to protect the canopy by placing tires and plywood over it as a shield. Whether the unsafe condition of the canopy was obvious and would bar plaintiff's claim by his own negligence in walking upon it is for the jury's determination, taking into consideration all of the circumstances surrounding the accident. In our opinion, none of the numerous cases cited by defendants in support of their contentions are controlling.

The purported appeal of the third-party defendant of its denial of its motion for summary judgment will be dismissed. Ordinarily, an appeal does not lie from the denial of a motion for summary judgment because no substantial right is affected. See G.S. 1-277; Hill v. Smith, 38 N.C.App. 625, 248 S.E.2d 455 (1978); Motyka v. Nappier, 9 N.C.App. 579, 176 S.E.2d 858 (1970).

Summary judgment for defendants with respect to plaintiff's claims are reversed and the cause remanded to the superior court for further proceedings.

REVERSED AND REMANDED IN PART; DISMISSED IN PART.

JOHNSON and PARKER, JJ., concur.