Street Ex Rel. Street v. Moffitt

351 S.E.2d 821 (1987) 84 N.C. App. 138

J.D. STREET, Individually and Jason Dont Street, By and Through his Guardian Ad Litem, J.D. Street
v.
Glenn MOFFITT and wife, Ola Mae Moffitt.

No. 8624SC841.

Court of Appeals of North Carolina.

January 20, 1987.

G.D. Bailey and J. Todd Bailey, Burnsville, for plaintiffs-appellants.

Moore, Willardson & Lipscomb, by William F. Lipscomb, Wilkesboro, for defendants-appellees.

JOHNSON, Judge.

The only issue we must address is whether there was a material issue of fact presented by the parties pleadings and affidavits such that it constituted reversible error for the trial court to conclude that defendants were entitled to a judgment as a matter of law. We conclude that the forecast of evidence submitted by the parties does not present a material triable issue of fact and accordingly we affirm the trial court's judgment.

We are advertent to the well known principle that summary judgment is a drastic remedy. First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972). The granting of summary judgment is appropriate when the forecast of the evidence discloses that there is no genuine issue as to any material fact and that a party is entitled to a judgment as a matter of law. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610 (1980). Ordinarily summary judgment is not appropriate in negligence cases. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). However, summary judgment is appropriate if it is established that the alleged negligence of a defendant was not the proximate cause of a plaintiff's injury. Hale v. Duke Power Co., 40 N.C. App. 202, 252 S.E.2d 265, cert. denied, 297 N.C. 452, 256 S.E.2d 805 (1979).

In order to determine the liability, if any, of defendants for the minor plaintiff's injuries we must first determine the nature of defendants' duty to the minor plaintiff. Any such duty owed by a landlord is determined by the visitor's status. See Hood v. Coach Co., 249 N.C. 534, 107 S.E.2d 154 (1959). In the case at bar the minor plaintiff was a social guest of defendants' tenants, Terry and Jane Byrd. On that basis the minor plaintiff's status may be established as a licensee as to the tenant. See Haddock v. Lassiter, 8 N.C. App. 243, 174 S.E.2d 50 (1970) (citing Murrell v. Handley, 245 N.C. 559, 96 S.E.2d 717 (1957)). Moreover, even though the minor plaintiff may have been injured in a common area his status is that of a licensee. See generally Andrews v. Taylor, 34 N.C.App. 706, 239 S.E.2d 630 (1977) (a visitor who drowned in a swimming pool while visiting a tenant was a licensee and the only duty owed by the owner to that licensee was the duty to refrain from injuring him willfully or through wanton negligence and from doing any act which increases the hazard to the licensee while he is on the premises). In the case sub judice, we find no evidence of any willful or wanton negligence. There is nothing in the record on appeal to indicate that defendants increased any hazard to the minor plaintiff. Thus, we are unable to find any evidence that defendants breached a duty to the minor plaintiff.

Plaintiffs rely upon Anderson v. Butler, 284 N.C. 723, 202 S.E.2d 585 (1974), for their assertion that a higher measure of care is required when young children are involved. However, the Court in Anderson, supra, stated that "[i]f the owner, while the licensee is on the premises exercising due care for his own safety, is actively negligent in the management of his property or business, as a result of which the licensee is subjected to increased danger, the owner will be liable for injuries sustained as a result of such active or affirmative negligence." Anderson, supra, at 729, 202 S.E.2d at 589 (emphasis supplied). As defendants in their brief are quick to point out, there is nothing in the record on appeal to indicate that they knew the minor plaintiff was on their property. It is undisputed that Jane Byrd was the only person who knew that the children were on the premises and in spite of that fact decided to mow the lawn with a lawn mower that she knew was defective.

For reasons stated hereinabove, the judgment is

Affirmed.

ARNOLD and EAGLES, JJ., concur.