Andrews v. Taylor

• Decision Date: 21 December 1977
• Docket Number: No. 7718SC51,7718SC51
• Citation: 34 N.C.App. 706,239 S.E.2d 630
• Court: North Carolina Court of Appeals
• Parties: 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.

Page 630

239 S.E.2d 630

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.

Dec. 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...