Hussey v. Seawell, COA99-487.

• Decision Date: 21 March 2000
• Docket Number: No. COA99-487.,COA99-487.
• Citation: 527 S.E.2d 90,137 NC App. 172
• Parties: Deborah HUSSEY, Plaintiff, v. Jerry W. SEAWELL, Defendant.
• Court: North Carolina Court of Appeals

527 S.E.2d 90

137 NC App. 172

Deborah HUSSEY, Plaintiff, v. Jerry W. SEAWELL, Defendant.

No. COA99-487.

Court of Appeals of North Carolina.

March 21, 2000.

Van Camp, Hayes & Meacham, P.A., by James R. Van Camp and Michael J. Newman, Pinehurst, for plaintiff-appellee.

Anderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Steven C. Lawrence, Fayetteville, for defendant-appellant.

GREENE, Judge.

Jerry Wade Seawell (Defendant) appeals from the denial of his motion for a directed verdict at the close of all of the evidence, a judgment filed 17 September 1998 in favor of Deborah Faye Hussey (Plaintiff), and an order filed 8 October 1998 denying Defendant's motion for judgment notwithstanding the verdict and alternatively Defendant's motion for a new trial.

On 12 December 1996, at Defendant's request, Plaintiff was moving two of Defendant's horses from one pasture to another. One of these horses was a "spirited horse" and had on previous occasions attempted to kick people. To make the transfer, Plaintiff and the horses had to pass through an iron tubing gate located on Defendant's property, and the gate was installed on posts with hinges. When the gate was first installed, the gate would remain open after it was swung open. Sometime after its installation, Defendant modified the hinges so the gate would not remain open after opening and instead would swing closed a short time after being opened.

Defendant did not inform Plaintiff about the condition of the gate and did not inform her about the prior kicking incidents with one of the horses.¹ Plaintiff approached the horses in the pasture, placed halters on them, and began leading them to the other pasture. As she approached the gate, she opened it, swung it back, and began leading the horses through the gate. Before the second horse cleared the passageway, the gate swung closed hitting this horse in the hindquarters. The horse "reared straight up in the air," taking Plaintiff into the air and trapping her between the two horses. She was kicked in the face by one of the horses, receiving injuries requiring several surgeries and leaving her with some partial paralysis.

Defendant's motion for a directed verdict was denied. The case was submitted to the jury on negligence and contributory negligence. The jury was instructed Plaintiff was an invitee on Defendant's land and Defendant had a duty to "keep the premises in a reasonably safe condition," and to warn Plaintiff "of any hidden or concealed dangerous condition about which [Defendant] knows or, in the exercise of ordinary care, should have known." The instruction further provided that Defendant was not "required to warn of obvious dangers or conditions."

The jury found Defendant was negligent and Plaintiff was not contributorily negligent, and it entered a damage award of $60,000. Defendant's motion for a judgment notwithstanding the verdict and alternatively, for a new trial was denied.

The dispositive issue is whether there exists substantial evidence Defendant, a landowner, breached his standard of care to Plaintiff, a lawful visitor on his property.

Defendant first submits this case must be judged by the law as it existed prior to Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998), because this case was tried prior to the decision in Nelson and consistent with the law as it existed prior to Nelson. We disagree. The teachings of Nelson are to be applied retrospectively, as well as prospectively, Nelson v. Freeland, 349 N.C. at 633, 507 S.E.2d at 893, and we must, therefore, review the issues raised in this appeal in that context.

Defendant argues he had no duty to warn Plaintiff of the "free-swinging" nature of the farm gate, because it did not present a "hazardous or dangerous condition." In any event, he contends, the condition of the gate was obvious to Plaintiff and, therefore, no warning was required.

Under Nelson, a landowner has a duty to any lawful visitor on his property "to take reasonable precautions to ascertain the condition of [his] property and to either make it reasonably safe or give warnings as may be reasonably necessary to inform of any foreseeable danger." Lorinovich v. K Mart Corporation, 134 N.C.App. 158, 161, 516 S.E.2d 643, 646, cert. denied, 351 N.C. 107, ___ S.E.2d ___ (1999). Whether the actions of the landowner are reasonable are to be judged against the conduct of a reasonably prudent person under the circumstances. Id. "[T]here is no duty to protect a lawful visitor against dangers which are either known to him or so obvious and apparent that they reasonably may be expected to be discovered." Id.

In this case, the evidence shows Defendant was aware the gate through which Plaintiff would have to pass with the horses would not remain open, one of the fenced horses had a "spirited" nature, and horses "tend to spook" if hit from behind. Under the circumstances, was the gate...