Hilker v. Knox

197 S.E.2d 618 (1973) 18 N.C. App. 628

Dorothy C. HILKER
v.
Lucy KNOX.

No. 7310SC496.

Court of Appeals of North Carolina.

July 11, 1973.

Young, Moore & Henderson by Charles H. Young, Jr., Raleigh, for plaintiff-appellant.

Teague, Johnson, Patterson, Dilthey & Clay by Ronald C. Dilthey, Raleigh, for defendant-appellee.

BRITT, Judge.

We hold that the court did not err in rendering summary judgment in favor of defendant. In our opinion, neither in her affidavit nor in her deposition did plaintiff show actionable negligence on the part of defendant that would support a verdict on the issue of negligence.

Plaintiff concedes that on the occasion in question, she was a licensee. This concession, that an invited guest in the home of the owner is a licensee and not an invitee, is fully supported by the authorities. Cobb v. Clark, 265 N.C. 194, 143 S.E.2d 103 (1965); Murrell v. Handley, 245 N.C. 559, 96 S.E.2d 717 (1957); Clarke v. Kerchner, 11 N.C.App. 454, 181 S.E.2d 787 (1971), cert. den., 279 N.C. 393, 183 S.E.2d 241.

The duty defendant owed plaintiff in the case at bar was to refrain from willful or wanton negligence and from the commission of any act which would increase plaintiff's hazard. Dunn v. Bomberger, 213 N.C. 172, 195 S.E. 364 (1938); Clarke v. Kerchner, supra. Although plaintiff testified orally that she would not swear that plaintiff extinguished the light, and "I do not know what caused me to fall," she argues that on the motion for summary judgment she was entitled to have the evidence and materials presented considered in the light most favorable to her and that in her affidavit she stated that defendant caused the sudden darkness on the porch either by extinguishing the light or closing the front door.

Should we agree with plaintiff that she was entitled to have the evidence and materials considered in the light most favorable to her, with all conflicting statements resolved in her favor, we do not think her statement that defendant either extinguished the light or closed the door would entitle plaintiff to go to the jury on the question of negligence. Assuming, arguendo, that extinguishing the light would be "an act which would increase the hazard," we cannot perceive that closing the front door under the circumstances shown would constitute actionable negligence. If the jury were allowed to consider the issue of negligence on two alternative possibilities, one of which does not constitute negligence, there would be no way of knowing that a finding of negligence was based on a showing of negligence.

The judgment appealed from is

Affirmed.

MORRIS and PARKER, JJ., concur.