Green v. Duke Power Co., 78A81

• Decision Date: 04 May 1982
• Docket Number: No. 78A81,78A81
• Citation: 305 N.C. 603,290 S.E.2d 593
• Court: North Carolina Supreme Court
• Parties: Andrea D. GREEN, by her Guardian ad Litem, Kenneth R. Downs, and Henry Frank Green, Plaintiffs, v. DUKE POWER COMPANY, a North Carolina corporation, Defendant and Third-Party Plaintiff, v. Henry Thomas EANES and Housing Authority of the City of Charlotte, North Carolina, Third-Party Defendants.

Page 593

290 S.E.2d 593

305 N.C. 603

Andrea D. GREEN, by her Guardian ad Litem, Kenneth R. Downs, and Henry Frank Green, Plaintiffs, v. DUKE POWER COMPANY, a North Carolina corporation, Defendant and Third-Party Plaintiff, v. Henry Thomas EANES and Housing Authority of the City of

Charlotte, North Carolina, Third-Party Defendants.

No. 78A81.

Supreme Court of North Carolina.

May 4, 1982.

Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by William I. Ward, W. Edward Poe, Jr., William E. Poe, and Irvin W. Hankins, III, Charlotte, for Duke Power Co.

Hedrick, Feerick, Eatman, Gardner & Kincheloe by Hatcher Kincheloe, Charlotte, for Eanes.

Golding, Crews, Meekins, Gordon & Gray by James P. Crews, Charlotte, for Housing Authority of the City of Charlotte.

BRANCH, Chief Justice.

I

The first issue before this Court is whether the Court of Appeals erred in dismissing appellant Duke Power's appeal of the summary judgment granted in favor of third party defendants Eanes and Housing Authority. For the reasons stated below, we find no error.

Appellant's sole ground of appeal is the contention that the granting of third party defendants' motions for summary judgment affected a substantial right. Both G.S. 1-277 and G.S. 7A-27(d) provide for immediate appeal of a judicial order or determination that affects a substantial right. Duke insists that it had a substantial right to have its claim for contribution from Eanes and Housing Authority determined in the same proceeding in which Duke's liability to Green is determined. Cf. Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976).

As we noted in Bailey v. Gooding, 301 N.C. 205, 210, 270 S.E.2d 431, 434 (1980), "[t]he 'substantial right' test for appealability is more easily stated than applied." See also Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978). One writer, in seeking to formulate a rule based on our decisions in these cases, has concluded:

The right to avoid one trial on the disputed issues is not normally a substantial right that would allow an interlocutory appeal, while the right to avoid the possibility of two trials on the same issues can be such a substantial right.

Survey of Developments in N. C. Law, 1978, 57 N.C.L.Rev. 827, 907-08 (1979); quoted with approval in, W. Shuford, N. C. Civil Practice & Procedure § 54-5 (2 Ed. 1981). We adhere to our earlier statement that "[i]t is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal was sought is entered." Waters v. Personnel, Inc., 294 N.C. at 208, 240 S.E.2d at 343. However, we are of the opinion that the above statement constitutes, as the author suggests, only "a general proposition that in many circumstances should be helpful in analyzing the substantial right issue." Survey, supra, 57 N.C.L.Rev. at 907.

In instant case, the issue in the action for contribution is whether Eanes and Housing Authority violated a duty of care to plaintiff Green. The issue in the principal case is whether Duke independently violated a separate and unrelated duty of care to plaintiff. Plaintiff has advanced no allegations of joint or concurring negligence. Thus, whether third party defendants are liable to plaintiff Green is in no way dependent upon the resolution of the issue of Duke's liability to Green. The resolution of these ultimate issues does not depend upon similar factual issues or similar proof.

We hold that no substantial right would be lost by Duke's inability to take an immediate appeal from the summary judgment against it. If Duke were to win in the principal action, Duke would have no right to appeal. G.S. 1-271 (only an aggrieved party may appeal). If Duke were to lose, its exception to the entry of summary judgment would fully and adequately preserve its right to thereafter seek contribution.

Under other circumstances third party defendants might be free at a subsequent trial to deny Duke's liability to plaintiffs Green, leaving the jury in the contribution trial free to find that Duke was not liable to plaintiffs Green despite a finding by a different jury in the principal case that Duke was liable. Such might be the case, for example, if third party defendants had never been brought into the principal action, or if, upon being impleaded, they had asserted as a defense to Duke's third party complaint that Duke was not liable in negligence to plaintiffs Green. We are faced with neither of these situations herein. The answers in instant case have already been filed. Both third party defendants alleged in their answers that "the active and primary negligence of Duke Power Company is pleaded in bar of Duke Power Company's claim for contribution from this defendant." Neither asserted in the alternative that Duke was not liable to plaintiffs Green for negligence. A party will ordinarily be bound by his pleadings. Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617 (1964); Davis v. Rigsby, 261 N.C. 684, 136 S.E.2d 33 (1964). We are aware, of course, that leave to amend the pleading "shall be freely given when justice so requires," G.S. 1A-1, Rule 15; however, third party defendants herein have failed to assert this defense and have voluntarily foregone their opportunity in the principal action to disprove Duke's liability. The interests of justice in instant case would preclude the granting of leave to amend the pleadings to include this new defense at this late date. Thus, although Duke could be forced to undergo a full trial on the issue of its liability to Green followed by a full trial on the issue of Eanes' and Housing Authority's liability to Green, under the circumstances of the case there are no overlapping issues so as to justify an immediate appeal of an interlocutory order.

The avoidance of one trial is not ordinarily a substantial right. Bailey v. Gooding, 301 N.C. at 210, 270 S.E.2d at 434; Industries, Inc. v. Insurance Co., 296 N.C. 486, 492, 251 S.E.2d 443, 447-48 (1979); Waters v. Personnel, Inc., 294 N.C. at 208, 240 S.E.2d at 344. See also Survey, supra, 57 N.C.L.Rev. at 907. We agree that "the right to avoid the possibility of two trials on the same issues can be ... a substantial right." Survey, 57 N.C.L.Rev. at 908. (Emphasis added.) Such is not the case here. The possible second trial in instant case would not involve the same issues and therefore would not warrant immediate appeal. Ordinarily the possibility of undergoing a second trial affects a substantial right only when the same issues are present in both trials, creating the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue. This not being the case before us, we hold the Court of Appeals' dismissal of Duke's appeal was without error.

II

All parties to this appeal have requested that we consider the merits of the case, pointing to the fact that this matter has been in the courts since 1978.

In order to expedite the administration of justice, we elect, pursuant to our supervisory authority and the provisions of G.S. 7A-31, to review the decision of the trial judge granting summary judgment in favor of third party defendants Eanes and Housing Authority. See Consumers Power v. Power Co., 285 N.C. 434, 439, 206 S.E.2d 178, 182 (1974).

G.S. 1B-1(a) provides that "where two or more persons become jointly or severally liable in tort for the same injury ... there is a right of contribution among them." Appellant Duke Power Company claims contribution upon appellees' alleged liability to plaintiffs Green under the so-called attractive nuisance doctrine. See Walker v. Sprinkle, 267 N.C. 626, 148 S.E.2d 631 (1966); Brannon v. Sprinkle, 207 N.C. 398, 177 S.E. 114 (1934).

The rule governing liability in this case is aptly stated in the leading case of Briscoe v. Lighting and Power Co., 148 N.C. 396, 411, 62 S.E. 600, 606 (1908), wherein this Court stated:

It must be conceded that the liability for injuries to children sustained by reason of dangerous conditions on one's premises is recognized and enforced in cases in which no such liability accrues to adults. This we think sound in principle and humane policy. We have no disposition to deny it or to place unreasonable restrictions upon it. We think that the law is sustained upon the theory that the infant who enters upon premises, having no legal right to do so, either by permission, invitation or license or relation to the premises or its owner, is as essentially a trespasser as an adult; but if, to gratify a childish curiosity, or in obedience to a childish propensity excited by the character of the structure or other conditions, he goes thereon and is injured by the failure of the owner to properly guard or cover the dangerous conditions which he has created, he is liable for such injuries, provided the facts are such as to impose the duty of anticipation or prevision; that is, whether under all of the circumstances he should have contemplated that children would be attracted or allured to go upon his premises and sustain injury.

Appellant Duke relies on the deposition statement of third party defendant Eanes that he knew of the dangerous condition of the transformer and that he had informed third party defendant Housing Authority of the transformer's condition to argue that the owner (Housing Authority) and the occupier (Eanes) of land may be held liable for the injuries to young Green. Duke cites several cases which have held landowners liable under the attractive nuisance doctrine for injuries to children resulting from dangerous conditions on the landowner's property, known to the owner but which he neither created nor maintained. We believe these cases are distinguishable in that, while the defendants therein did not create or maintain the dangerous conditions on their land, they "knowingly suffered [the dangerous conditions] to...