Hartman v. Walkertown Shopping Center, Inc., 9321SC120

• Docket Nº: No. 9321SC120
• Citation: 113 N.C.App. 632, 439 S.E.2d 787
• Case Date: February 15, 1994
• Court: Court of Appeal of North Carolina (US)

Page 787

439 S.E.2d 787

113 N.C.App. 632

Donald Royce HARTMAN, Plaintiff/Appellant, v. WALKERTOWN SHOPPING CENTER, INC., Defendant/Appellee.

No. 9321SC120.

Court of Appeals of North Carolina.

Feb. 15, 1994.

Danny T. Ferguson and L. Jayne Stowers, Winston-Salem, for plaintiff-appellant.

Womble Carlyle Sandridge and Rice by Allan R. Gitter and Lawrence Pierce Egerton, Winston-Salem, for defendant-appellee.

JOHNSON, Judge.

The facts underlying this appeal are as follows: During the evening of 23 February 1990, plaintiff Donald Royce Hartman went to defendant Walkertown Shopping Center (hereafter, defendant shopping center) to rent a video from Showtime Video, a tenant of defendant shopping center. Upon leaving Showtime Video, plaintiff crossed the sidewalk in front of the Showtime Video storefront. While stepping off the sidewalk onto the parking lot blacktop, plaintiff stepped into a depressed water meter cover in the parking lot. Plaintiff testified that the water meter cover appeared to be "sunken" and was some four to six inches below the level of the parking lot. The depressed water meter cover is within an easement which was granted by defendant shopping center to the Walkertown Sanitary District in 1971 "for the installation and maintenance of ... water lines. [Defendant shopping center granted Walkertown Sanitary District] a ten (10) foot permanent and perpetual easement to install and maintain underground water lines and water meters upon the property owned by [defendant shopping center] [.]"

The area where the water meter cover is located along with the rest of the entire strip fronting the shops is used as an approach to the tenant stores by invitees. The water meter cover was located between two parking spaces in front of the sidewalk to the storefronts. Plaintiff alleged that defendant shopping center should have known of the dangerous condition of the sunken water meter cover and that there were no warning signs or devices to warn plaintiff of the dangerous condition. Further, plaintiff alleged that the area where the injury occurred was not sufficiently lighted for plaintiff to have seen a dark hole in the parking lot blacktop. Plaintiff suffered personal injuries as a result of this fall.

Plaintiff filed a complaint in this action on 19 February 1992, seeking damages resulting from the negligence of defendant shopping center, Dale Ward (doing business as Showtime Video), and the Town of Walkertown, Inc. Defendant shopping center filed an answer denying negligence and filed a motion for summary judgment. On 5 October 1992, the trial court granted defendant shopping center's motion for summary judgment. From this order, plaintiff has appealed to our Court.

We first address sua sponte whether this interlocutory appeal is properly before our Court. In determining whether we may hear plaintiff's appeal, we note that the trial court's summary judgment order is interlocutory because it does not determine the entire controversy between all of the parties. Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). "An interlocutory order is generally not appealable." Taylor v. Brinkman, 108 N.C.App. 767, 769, 425 S.E.2d 429, 431, disc. review denied, 333 N.C. 795, 431 S.E.2d 30 (1993). There are two methods by which an interlocutory order may be appealed; one of these is "if there has been a final disposition as to one or more but fewer than all of the claims or parties in a case, the trial judge may certify that there is no just reason to delay appeal." Id.; North Carolina General Statutes § 1A-1, Rule 54(b) (1990). The second method when an interlocutory order not immediately appealable may be appealed is pursuant to North Carolina General Statutes § 1-277 (1983) and North Carolina General Statutes § 7A-27(d) (1989). "The most common reason for permitting immediate appeal of an interlocutory order under these statutes is the prejudice of a substantial right of the appellant if appeal is delayed." Taylor, 108 N.C.App. at 770, 425 S.E.2d at 431.

"[T]he right to avoid the possibility of two trials on the same issues can be ... a substantial right." Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982) (citation omitted) (emphasis retained). "A judgment which creates the possibility of inconsistent verdicts on the same issue--in the event an appeal eventually is successful--has been held to affect a substantial right." DeHaven v. Hoskins, 95 N.C.App. 397, 399, 382 S.E.2d 856, 858, disc. review denied, 325 N.C. 705, 388 S.E.2d 452 (1989).

We note that identical factual claims are present in plaintiff's claims against defendant shopping center as well as against defendants Dale Ward, doing business as Showtime Video, and the Town of Walkertown, Inc. We further note that the trial court's summary judgment in favor of defendant Dale Ward was not appealed. However, because our dismissal of this appeal as interlocutory could still result in two different trials on the same issues, creating the possibility of inconsistent verdicts, a substantial right is prejudiced. Therefore, defendant shopping center's motion for summary judgment which was granted by the trial court is immediately appealable by plaintiff.

We now turn to plaintiff's lone assignment of error, that the trial court erred in granting defendant's summary judgment motion. Summary judgment is granted when the movant has established the nonexistence of any genuine issue of fact. This showing must be made in the light most favorable to the nonmoving party and such nonmoving party should be accorded all favorable inferences that may be deduced from the showing. Moye v. Gas Co., 40 N.C.App. 310, 252 S.E.2d 837, disc. review denied, 297 N.C. 611, 257 S.E.2d 219 (1979). Plaintiff argues that the issue before our Court is whether defendant shopping center, the landowner-inviter, "breached its duty of ordinary care to Plaintiff, an invitee, when Plaintiff was injured on a portion of Defendant's paved parking lot in which an easement had been granted for furnishing water to Defendant's Shopping Center, where the easement area was part of the approach to Defendant's tenant shops used by invitees, was insufficiently lighted to reveal the danger, and the dangerous conditions which caused the injuries were known to both the landowner-inviter and the easement holder[.]"

Defendant argues that Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593, an attractive nuisance case, is controlling on the facts in the instant appeal. In Green, a five year old trespassing child was injured when she touched an exposed electrified portion of a ground-level transformer. The plaintiff parents brought suit against the owner of the transformer, Duke Power, contending Duke Power was negligent because the transformer was unlocked. Duke Power brought in as third party defendants the local Housing Authority, which had granted Duke Power an easement, and the lessee of the property, Henry Thomas Eanes. The trial court granted motions for summary judgment by the Housing Authority and Eanes, and Duke Power appealed. Our Supreme Court affirmed the trial court's granting of summary judgment for the third party defendants Housing Authority and Eanes. The Court noted that the injured party in Green was a trespassing child and as such, stated the rules governing liability:

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...