Kelly v. Briles

242 S.E.2d 883 (1978) 35 N.C. App. 714

George Edward KELLY and Rufus Hamilton Kelly
v.
Mary Lee BRILES and Ruth Addison Briles, Individually and as Executors of the Estate of Bertie Wallace Briles.

No. 7718SC237.

Court of Appeals of North Carolina.

April 4, 1978.

Schoch, Schoch & Schoch by Arch Schoch, Jr., High Point, for plaintiffs-appellants.

Douglas, Ravenel, Hardy, Crihfield & Bullock by Frank W. Bullock, Jr., Greensboro, for defendants-appellees.

MORRIS, Judge.

Plaintiffs' complaint should be dismissed under Rule 12(b)(6) only if "it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." (Emphasis deleted.) Sutton v. Duke, 277 N.C. 94, 103, 176 S.E.2d 161, 166 (1970), quoting 2A Moore's Federal Practice (2d ed. 1968), § 12.08. We now review the complaint in this action in light of the requirements of Sutton v. Duke to determine whether it states a cause of action under G.S. 74-13 (now repealed) and, if not, whether it states a cause of action on the basis of negligence.

Plaintiff has relied in part upon former G.S. 74-4 and G.S. 74-13 to state a claim. G.S. 74-4 was a statute enacted to protect the public health and safety. It provided that "[a]ll underground entrances to any place not in actual course of working or extension shall be properly fenced across the whole width of such entrance so as to prevent persons from inadvertently entering the same." G.S. 74-4. A subsequent section of the act imposes criminal penalties for a violation of the statute. G.S. 74-13, furthermore, created a cause of action for a person injured by a mineowner's willful failure to comply with G.S. 74-4. These statutes, although now repealed, were in effect at the time of the occurrence alleged in the complaint.

G.S. 74-4 requires that the openings of mines "be properly fenced . . . to prevent persons from inadvertently entering the same." (Emphasis added.) Plaintiffs' complaint alleges that plaintiff "decided to explore one of the mines" (emphasis added), and "was climbing in one of the mines" (emphasis added) when he was injured. Sound statutory construction requires that the plain meaning of the word "inadvertently" be used. Webster's Third New International Dictionary (1968) in its definition of "inadvertent" suggests four synonyms: heedless, negligent, inattentive, and unintentional. When the plain meaning of "inadvertently" is used, it becomes obvious that the purpose of the requirement of G.S. 74-4 was to prevent persons from accidentally falling into abandoned mines. In this case, the plaintiff intentionally climbed into the mine.

There was no statutory duty to fence or barricade the mines so securely that even an intentional entry would be impossible. The statute only imposed the duty to fence or barricade "so as to prevent persons from inadvertently entering the same." Because the cause of action purportedly stated in plaintiffs' complaint necessitates a duty to fence so as to prevent intentional entry, plaintiff cannot rely upon G.S. 74-4 and 13.

In addition, the North Carolina Courts have repeatedly said that even though violation of a health or safety statute is negligence, there will be liability only if the violation is the proximate cause or one of the proximate causes of the injury. See, e. g., Bell v. Page, 271 N.C. 396, 156 S.E.2d 711 (1967); Smith v. Metal Co., 257 N.C. 143, 125 S.E.2d 377 (1962). It seems apparent that under no state of facts could the failure to fence so as to prevent inadvertent entry be the proximate cause of an injury resulting from an intentional entry. We are of the opinion that plaintiffs' cause of action, if any, does not come within the purview of the statutes upon which they rely.

We now determine whether plaintiffs' complaint states a claim under a negligence theory. The complaint alleges that persons frequently visited the mines and that defendants were well aware of that use, but the complaint alleges no benefit to the defendants from the visits. Under these facts, the plaintiff clearly was not an invitee when he entered the mine but would occupy the status of a licensee when he entered the mine since the open use by the public implies an invitation. See generally Hood v. Coach Co., 249 N.C. 534, 107 S.E.2d 154 (1959).

The duties of a landowner to a licensee are substantially the same as to a trespasser. Wagoner v. R. R., 238 N.C. 162, 77 S.E.2d 701 (1953). However, even though one is only a licensee, the landowner cannot, while the licensee is on the premises, increase the hazard through active and affirmative negligence in the operation or management of his property. Wagoner v. R. R., supra; Jones v. R. R., 199 N.C. 1, 153 S.E. 637 (1930); Batts v. Telephone Co., 186 N.C. 120, 118 S.E. 893 (1923). Furthermore, a landowner will be liable to a licensee for injury caused by willful or wanton conduct. Haddock v. Lassiter, 8 N.C.App. 243, 174 S.E.2d 50 (1970).

"The duty an owner owes an licensee is described in detail in Dunn v. Bomberger, 213 N.C. 172, 195 S.E. 364:

``As plaintiff's intestate was a licensee, defendant did not owe him the duty to keep his premises in a reasonably safe condition. The only duty resting upon the defendant was to refrain from willful or wanton negligence, and from the commission of any act which would increase the hazard. The owner of land is not required to keep his premises in a suitable or safe condition for those who come there solely as licensees and who are not either expressly invited to enter or induced to come upon them for the purpose for which the premises are appropriated and occupied. In authoritative decisions of this and other jurisdictions, the degree of care to be exercised by the owner of premises toward a person coming upon the premises as a bare or permissive licensee for his own convenience is to refrain from willful or wanton negligence and from doing any act which increases the hazard to the licensee while he is upon the premises. The owner is not liable for injuries resulting to a licensee from defects, obstacles, or pitfalls upon the premises unless the owner is affirmatively and actively negligent in respect to such defect, obstacle, or pitfall while the licensee is upon his premises, resulting in increased hazard and danger to the licensee. Brigman v. Construction Co., 192 N.C. 791, 136 S.E. 125, and cases there cited. The Brigman case is reported and annotated in 49 A.L.R. 773.'" Clarke v. Kerchner, 11 N.C. App. 454, 460, 181 S.E.2d 787, 791 (1971), cert. den. 279 N.C. 393, 183 S.E.2d 241 (1971).

Most jurisdictions now impose a duty upon the landowner to warn licensees of hidden dangers known to the landowner. See, e. g., Holcombe v. Buckland, 130 F.2d 544 (4th Cir. 1942); The Friendship II, 113 F.2d 105 (5th Cir. 1940), rev'd on other grounds 312 U.S. 383, 61 S. Ct. 687, 85 L. Ed. 903 (1941); Haag v. Stone, 127 Ga.App. 235, 193 S.E.2d 62 (1972); Recreation Centre Corporation v. Zimmerman, 172 Md. 309, 191 A. 233 (1937); Malmquist v. Leeds, 245 Minn. 130, 71 N.W.2d 863 (1955); Reagan v. Perez, 215 Va. 325, 209 S.E.2d 901 (1974). But see, e. g., Louisville & Nashville Railroad Company v. Hobbs, 155 Ky. 130, 159 S.W. 682 (1913); Reardon v. Thompson, 149 Mass. 267, 21 N.E. 369 (1889). See also Restatement (Second) of Torts, §§ 335 and 342 (1964); Annot., 55 A.L.R. 2d 525 (1957). The requirements of the Restatement (Second) of Torts impose an even more stringent duty upon the landowner to inspect the premises for potential danger to licensees. North Carolina, however, retains the rule that "the licensee who enters on premises by permission only goes there at his own risk and enjoys the license subject to its concomitant perils," Pafford v. Construction Co., 217 N.C. 730, 737, 9 S.E.2d 408, 412 (1940), with the landowner being assessed for liability only for willful or wanton negligence, and the commission of any act which would increase the hazard to the licensee while he is upon the premises. Clarke v. Kerchner, supra. It is not within our province to apply a different rule.

The complaint in this action does not allege willful and wanton negligence, nor do the plaintiffs seriously contend that it does.

For the reasons stated herein, the judgment of the trial tribunal must be

Affirmed.

CLARK and MITCHELL, JJ., concur.