Andrews v. Taylor

239 S.E.2d 630 (1977) 34 N.C. App. 706

Lee D. ANDREWS
v.
John R. TAYLOR, Sr. and wife, Betsy Taylor, John R. Taylor, Jr., John R. Taylor Company, Inc., and Meredith Swimming Pool Company.

No. 7718SC51.

Court of Appeals of North Carolina.

December 21, 1977.

Lee D. Andrews, Greensboro, for plaintiff.

Smith, Moore, Smith, Schell & Hunter by Bynum M. Hunter, Greensboro, for defendants.

MARTIN, Judge.

The sole question before this Court is whether the evidence adduced at trial, considered in the light most favorable to the plaintiff, was sufficient to justify a reasonable inference that intestate's death was the proximate result of the alleged negligence of the defendants.

Since the record affirmatively reveals that defendant John R. Taylor, Jr. owned and operated the apartment complex, we initially find that plaintiff has failed to establish any grounds for negligence against defendants John R. Taylor, Sr., Betsy Taylor and John R. Taylor Company, Inc. The judgment in favor of these defendants is affirmed.

In determining the liability, if any, of defendant John R. Taylor, Jr., for the death of the intestate while swimming in defendant's pool, we must first ascertain the nature of defendant's duty to the intestate; any evidence tending to show that defendant Taylor violated this duty in operating and maintaining the swimming pool is evidence of negligence. It is well established that the duty owed a person on the premises of another depends upon the visitor's status—as an invitee, licensee or trespasser. Hood v. Coach Co., 249 N.C. 534, 107 S.E.2d 154 (1959); Clarke v. Kerchner, 11 N.C.App. 454, 181 S.E.2d 787 (1971). When a person enters upon the premises of another solely and exclusively in pursuit of his own pleasure, as did plaintiff's intestate in the instant case, he is a licensee. Adams v. Enka Corp., 202 N.C. 767, 164 S.E. 367 (1932); see Murrell v. Handley, 245 N.C. 559, 96 S.E.2d 717 (1957). Regarding the duty owed by an owner to a licensee, our courts have held that an owner owes to a licensee only the duty to refrain from injuring him wilfully or through wanton negligence, and from doing any act which increases the hazard to the licensee while he is on the premises. Hood v. Coach Co., supra; Dunn v. Bomberger, 213 N.C. 172, 195 S.E. 364 (1938); Haddock v. Lassiter, 8 N.C.App. 243, 174 S.E.2d 50 (1970).

We are of the opinion, and so hold, that in the instant case no facts were presented sufficient to show or justify the inference that defendant Taylor was wilfully or wantonly negligent in the operation and maintenance of the Creekbend Apartment swimming pool. The failure of defendant Taylor to provide lifeguards and rescue equipment at his pool did not amount to negligence in light of the absence of any regulation requiring the same and the presence of the "swim at your own risk" notice. Further, plaintiff has failed to show that the availability of lifeguards or rescue equipment would have prevented intestate's death. See Adams v. Enka Corp., supra. The judgment in favor of defendant Taylor is affirmed.

Plaintiff has also contended that evidence adduced at trial was sufficient to show negligence by defendant Meredith Swimming Pool Company in the design and construction of the swimming pool. We disagree.

The record reveals that plaintiff relied upon the regulations of the Guilford County Board of Health and the recommendations of the North Carolina Commission for Health Services as evidence of the standard of care in the design and construction of swimming pools. However, testimony by plaintiff's experts discloses not only that the design of the pool was in compliance with the applicable slope requirements, but also that there existed substantial doubt as to whether certain recommendations were even applicable to the subject pool because of the difference in the diving board's height. In light of this evidence, any inference which a jury might draw therefrom would be the result of speculation and conjecture. This issue was properly withdrawn from the jury's consideration. Accordingly, the judgment in favor of defendant Meredith Swimming Pool Company is affirmed.

The trial court's entry of judgment for all defendants on their respective motions for directed verdict is

Affirmed.

BRITT and HEDRICK, JJ., concur.