Newton v. New Hanover County Board of Education

443 S.E.2d 347 (1994) 114 N.C. App. 719

Stewart B. NEWTON, Appellant,
v.
NEW HANOVER COUNTY BOARD OF EDUCATION, Appellee.

No. 935SC819.

Court of Appeals of North Carolina.

May 17, 1994.

William H. Dowdy and John K. Burns, Wilmington, for plaintiff-appellant.

Crossley McIntosh Prior & Collier, by Francis B. Prior and Sharon J. Stovall, Wilmington, for defendant-appellee.

WELLS, Judge.

In allowing defendant's motion for judgment notwithstanding the verdict, the trial court made these findings:

The Undersigned hereby finds that evidence presented in this case discloses as a matter of law that the plaintiff was a licensee as opposed to an invitee at the time of the injury on the defendant's premises. The Undersigned also finds that there was no evidence presented that defendant violated the duty owed to a licensee;

The Court also finds that if the plaintiff were an invitee on the premises of the defendant at the time of the injury, the Court finds as a matter of law that there was insufficient evidence of negligence on part of the defendant for the issue to be submitted to the jury;

The Court also holds that the evidence presented in this case demonstrates as a matter of law that the plaintiff was contributorily negligent;

. . . . . .

Plaintiff argues that the trial court erred in holding that he was a licensee at the time of the accident and finding that he was contributorily negligent; therefore, the trial court's order granting defendant's motion for judgment notwithstanding the verdict should be reversed. We agree.

In considering a motion for judgment notwithstanding the verdict, the trial court must consider the evidence in the light most favorable to the nonmovant and may grant the motion only if the evidence is insufficient to justify a verdict for the nonmovant. Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). Any conflicts in the evidence must be resolved in the nonmovant's favor, and the nonmovant must be given the benefit of every inference which can reasonably be drawn in his favor. Daughtry v. Turnage, 295 N.C. 543, 246 S.E.2d 788 (1978). Upon reviewing a trial court's decision upon a motion for judgment notwithstanding the verdict, an appellate court is presented with "the identical question which was presented to the trial court by defendant's motion ..., namely, whether the evidence, when considered in the light most favorable to plaintiff, was sufficient for submission to the jury." Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). In a negligence action, if the evidence, when viewed in the light most favorable to the plaintiff and giving him the benefit of all permissible inferences from it, tends to support all essential elements of actionable negligence, then it is sufficient to survive the motion to nonsuit. Lake v. Harris Express, Inc., 249 N.C. 410, 106 S.E.2d 518 (1959).

We first address plaintiff's contention that the trial court erred by holding that he was a licensee at the time of the accident. The standard of care owed to plaintiff by defendant depends upon whether plaintiff was a licensee or invitee. Mazzacco v. Purcell, 303 N.C. 493, 279 S.E.2d 583 (1981). Our Supreme Court has discussed the distinction between the status of licensee and invitee:

The distinction between an invitee and a licensee is determined by the nature of the business bringing a person to the premises. A licensee is one who enters on the premises with the possessor's permission, express or implied, solely for his own purposes rather than the possessor's benefit. An invitee is a person who goes upon the premises in response to an express or implied invitation by the landowner for the mutual benefit of the landowner and himself. Mazzacco v. Purcell, supra. (Emphasis added.)

In the case sub judice, plaintiff went to defendant's property in response to a silent alarm. Plaintiff entered defendant's premises at defendant's implied request in order to perform a service beneficial to defendant and not for his own pleasure, interest or benefit.

Defendant argues that plaintiff should be considered a licensee because public policy considerations prohibit a police officer from recovering from a property owner when the officer entered the premises in the course of performing his duty and was injured by the condition which required his presence. We note, however, that plaintiff was injured not as a result of a risk incident to the performance of his duties as a police officer, but from a condition of the premises which plaintiff's evidence tended to show was inherently dangerous. Since plaintiff entered defendant's property at defendant's implied invitation to perform a service which was of benefit to defendant, we conclude that plaintiff entered defendant's premises as an invitee.

A defendant property owner owes an invitee the duty to use ordinary care to keep his property reasonably safe and to warn of hidden perils or unsafe conditions that could be ascertained by reasonable inspection. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 414 S.E.2d 339 (1992). In order to recover, an invitee must show that the property owner either negligently created the condition that caused the injury or that the owner failed to correct the condition after receiving actual or constructive notice of its existence. Id.

When viewed in the light most favorable to plaintiff (non-movant), the evidence at trial tended to show that the stairs at the field house were inherently dangerous. Plaintiff testified that since he had graduated from New Hanover High School in 1982, until the time of his injury in 1989, he had observed no changes in the stairs. Thus, the stairs had remained in the same condition for many years. The evidence, when viewed in the light most favorable to plaintiff, shows that defendant had constructive, if not actual, knowledge of the dangerous condition of the stairs and negligently failed to correct the situation.

Plaintiff also argues that the trial court erred in granting defendant's motion for judgment notwithstanding the verdict based on its finding that plaintiff was contributorily negligent. The evidence at trial established that plaintiff had attended New Hanover High School and that he had frequently been in the field house while he was a student and since he had finished high school in 1982.

A plaintiff is contributorily negligent when he fails to exercise such care as an ordinary prudent person would exercise under the circumstances in order to avoid injury. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504 (1980). Plaintiff entered defendant's premises in response to a silent alarm. He went to the top of the stairs in order to make sure that the building was secure. Once plaintiff was at the top of the stairs, he had no choice but to come down. Plaintiff testified that he made a conscious effort to use care as he descended the stairs. The determination of whether plaintiff exercised the care of an ordinary prudent person under all the attendant circumstances was a determination properly before the jury, and the jury's finding that plaintiff was not contributorily negligent was supported by the evidence at trial. Thus, the trial court erred in holding that plaintiff was contributorily negligent as a matter of law.

For the reasons stated above, we reverse the trial court's order granting defendant's motion for judgment notwithstanding the verdict and remand this case to the trial court for entry of judgment for plaintiff in accordance with the jury's verdict.

Reversed and remanded.

JOHN, J., concurs.

JOHNSON, J., dissents.

JOHNSON, Judge, dissenting.

I respectfully dissent in this case of first impression. As a police officer entering defendant's property in response to a silent alarm, plaintiff's status fits neither the definition of an invitee or a licensee.

Our Courts have stated:

The distinction between an invitee and a licensee is determined by the nature of the business bringing a person to the premises. A licensee is one who enters on the premises with the possessor's permission, express or implied, solely for his own purposes rather than the possessor's benefit. An invitee is a person who goes upon the premises in response to an express or implied invitation by the landowner for the mutual benefit of the landowner and himself.

Martin v. City of Asheville, 87 N.C.App. 272, 274-75, 360 S.E.2d 467, 469 (1987) (emphasis retained), quoting Mazzacco v. Purcell, 303 N.C. 493, 279 S.E.2d 583 (1981).

The police officer herein does not neatly fit the status of a licensee, "one who enters on the premises with the possessor's permission, express or implied, solely for his own purposes rather than the possessor's benefit," because the police officer is not entering the premises solely for his own purposes, rather than the school's benefit. The police officer clearly is not an invitee, "a person who goes upon the premises in response to an express or implied invitation by the landowner for the mutual benefit of the landowner and himself," because the police officer does not intend to benefit himself by going onto the school's premises; rather, the police officer intends to benefit the landowner and the public. I believe that the predominant "nature of the business bringing [the police officer] to the premises" herein is the officer's duty, as a law enforcement officer, to carry out the responsibilities of his job. A police officer is one who enters the premises of a property owner under the authority of law. On the facts herein, the police officer is entering the school property for the benefit of the public, to maintain civil order and to promote the public welfare.

Therefore, in determining the duty the property owner owes to the police officer, I believe plaintiff's status more closely resembles that of a licensee. As a "quasi-licensee," defendant's duty to plaintiff was to refrain from wilful and wanton conduct, as enumerated in Wagoner v. R.R., 238 N.C. 162, 77 S.E.2d 701 (1953).

I note the following persuasive reasoning in Burroughs Add. Mach. Co. v. Fryar, 132 Tenn. 612, 179 S.W. 127 (1915), where a police officer was injured while investigating an open door in an establishment. The Court opined:

[T]he officer is a mere licensee[.] ... Under such circumstances, a policeman... goes on the premises by permission of the law. In the discharge of his duty to the public he may enter upon the premises in disregard of the owner's wishes. He is not an invitee. He may enter whether the property owner is willing or unwilling, and his right to enter does not depend on the property owner's invitation, express or implied, but his entry is licensed by the public interest[.]

179 S.W. at 128. Several other jurisdictions have similarly held that police officers entering premises in the discharge of their duties have the status of licensees. See Louisville & N.R. Co. v. Griswold, 241 Ala. 104, 1 So. 2d 393 (1941); Hall v. Holton, 330 So. 2d 81 (Fla. 2nd DCA 1976), cert. denied, 348 So. 2d 948 (Fla.1977); London Iron & Metal Co., Inc. v. Abney, 245 Ga. 759, 267 S.E.2d 214 (1980); Pincock v. McCoy, 48 Idaho 227, 281 P. 371 (1929); Sherman v. Suburban Trust Co., 282 Md. 238, 384 A.2d 76 (1978); Nared v. School Dist. of Omaha in Douglas County, 191 Neb. 376, 215 N.W.2d 115 (1974); Davy v. Greenlaw, 101 N.H. 134, 135 A.2d 900 (1957); Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163, 192 N.E.2d 38 (1963); Kithcart v. Feldman, 89 Okla. 276, 215 P. 419 (1923); Cook v. Demetrakas, 108 R.I. 397, 275 A.2d 919 (1971); Walters v. Southern S.S. Co., 113 S.W.2d 320 (Tex.Civ.App.1938).

I would affirm the decision of the trial court.