Jenkins v. Lake Montonia Club, Inc.

• Decision Date: 07 January 1997
• Docket Number: No. COA96-315,COA96-315
• Citation: 479 S.E.2d 259,125 N.C.App. 102
• Parties: David C. JENKINS, Plaintiff, v. LAKE MONTONIA CLUB, INC., Defendant.
• Court: North Carolina Court of Appeals

Page 259

479 S.E.2d 259

125 N.C.App. 102

David C. JENKINS, Plaintiff, v. LAKE MONTONIA CLUB, INC., Defendant.

No. COA96-315.

Court of Appeals of North Carolina.

Jan. 7, 1997.

Roberts & Rhodes, P.A. by Joseph B. Roberts, III, Gastonia, for plaintiff-appellant.

Crews & Klein, P.C. by James P. Crews and Paul I. Klein, Charlotte, for defendant-appellee.

SMITH, Judge.

Plaintiff instituted this action to recover for injuries suffered as a result of a dive made from a sliding board at Lake Montonia Club, Inc., located in Kings Mountain, North Carolina. Plaintiff was 18 years old at the time of the accident. On 27 June 1994, at approximately 8 p.m. plaintiff David C. Jenkins broke his neck when he made a flat, shallow dive from a kneeling position from a sliding board at Lake Montonia. While plaintiff was rendered permanently, partially paralyzed, he does have limited mobility by using braces and a walker.

Plaintiff and his girlfriend went to Lake Montonia in the early evening of 27 June 1994. They entered the swimming area and plaintiff went to the sliding board. Plaintiff slid down the sliding board on his knees. When he got to the end of the sliding board he attempted to dive out across the water. Plaintiff's head came into contact with the concrete bottom of the swimming area, located immediately in front of the sliding board. Subsequently this action was filed.

On 18 July 1995 defendant Lake Montonia Club moved for summary judgment. The trial court granted the motion and found that there was no genuine issue as to any material fact and plaintiff was contributorily negligent as a matter of law. From this judgment plaintiff appeals. Plaintiff brings forth two assignments of error. We determine that plaintiff's own negligence precludes recovery from defendant.

Summary judgment is properly granted where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. N.C.Gen.Stat. § 1A-1, Rule 56(c) (1990). The party moving for summary judgment has the burden of showing there is no triable issue of material fact. Pembee Manufacturing Corp. v. Cape Fear Construction Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). The Court must look at the evidence in the light most favorable to the non-moving party and with the benefit of all reasonable inferences. Isbey v. Cooper Companies, Inc., 103 N.C.App. 774, 775, 407 S.E.2d 254, 256 (1991), disc. review denied, 330 N.C. 613, 412 S.E.2d 87 (1992). Issues of contributory negligence, like those of ordinary negligence are rarely appropriate for summary judgment. Ballenger v. Crowell, 38 N.C.App. 50, 55, 247 S.E.2d 287, 291 (1978). Only where plaintiff's own negligence discloses contributory negligence so clearly that no other reasonable conclusion may be reached is summary judgment to be granted. Izard v. Hickory City Schools Bd. of Education, 68 N.C.App. 625, 627-28, 315 S.E.2d 756, 758 (1984).

In order for plaintiff to recover from defendant for his injuries, he must show defendant breached the standard of care owed to him. The standard of care of defendant depends upon the status of plaintiff, whether he was an invitee, a licensee or a trespasser. See Hoots v. Pryor, 106 N.C.App. 397, 406, 417 S.E.2d 269, 275, disc. review denied, 332 N.C. 345, 421 S.E.2d 148 (1992).

"The distinction between an invitee and a licensee is determined by the nature of the business bringing a person to the premises. A licensee is one who enters on the premises with the possessor's permission, express or implied, solely for his own purposes rather than the possessor's benefit. An invitee is a person who goes upon the premises in response to an express or implied invitation by the landowner for the mutual benefit of the landowner and himself."

Newton v. New Hanover County Bd. of Ed., 114 N.C.App. 719, 723, 443 S.E.2d 347, 350 (1994) (citation omitted), aff'd, 342 N.C. 554, 467 S.E.2d 58 (1996). "An owner of premises owes to an invitee the duty to exercise ordinary care to keep the premises in a reasonably safe condition and to warn the invitee of hidden perils or unsafe conditions that can be ascertained by reasonable inspection and supervision." Byrd v. Arrowood, 118 N.C.App. 418, 421, 455 S.E.2d 672, 674 (1995) (citing Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342 (1992)). However, a premises owner does not have to warn an invitee of apparent hazards or circumstances of which the invitee has equal or superior knowledge. Farrelly v. Hamilton Square, 119 N.C.App. 541, 546, 459 S.E.2d 23, 27 (1995) (citing Roumillat, 331 N.C. 57, 67, 414 S.E.2d 339, 344.) An invitee is still required to exercise ordinary care for his own safety.

"Every person having the capacity to exercise ordinary care for his own safety against injury is required by law to do so, and if he fails to exercise such care, and such failure, concurring and cooperating with the actionable negligence of defendant contributes to the injury complained of, he is guilty of contributory negligence. Ordinary care is such care as an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury.

* * * * * *

Plaintiff may be contributorily negligent if his conduct ignores unreasonable risks or dangers which would have been apparent to a prudent person exercising ordinary care for his own safety."

Smith v. Fiber Controls Corp., 300 N.C. 669, 673, 268 S.E.2d 504, 507 (1980) (quoting Clark v. Roberts, 263 N.C. 336, 139 S.E.2d 593 (1965)).

"A licensee is one who enters on the premises with the possessor's permission, express or implied, solely for his own purposes rather than for the possessor's benefit." Hoots, 106 N.C.App. at 406, 417 S.E.2d at 275. If the owner is actively negligent in managing the property while the licensee is exercising due care on the premises and subjects the licensee to increased danger, the owner will be liable for injuries sustained as a result of such active conduct or affirmative negligence. DeHaven v. Hoskins, 95 N.C.App. 397, 400, 382 S.E.2d 856, 858, disc. review denied, 325 N.C. 705, 388 S.E.2d 452 (1989).

A property owner has no duty, however, to keep the premises safe for the licensee's use, protect him from injuries caused by the condition of the property, or protect him from damages caused by ordinary use of the premises. Pafford v. J.A. Jones Construction Co., 217 N.C. 730, 736, 9 S.E.2d 408, 412 (1940). The general rule is that a landowner is not liable for injuries to a licensee due to the condition of the property or due to passive negligence or acts of omission. DeHaven, 95 N.C.App. at 400, 382 S.E.2d at 858. A licensee enters the premises by permission but goes there at her own risk to enjoy the license subject to its accompanying perils. Pafford, 217 N.C. at 737, 9 S.E.2d at 412.

The record in this case reveals that Lake Montonia Club, Inc., consists of a group of...