Martin v. City of Asheville, 8728SC145

• Decision Date: 06 October 1987
• Docket Number: No. 8728SC145,8728SC145
• Citation: 360 S.E.2d 467,87 N.C.App. 272
• Parties: Douglas Dean MARTIN v. CITY OF ASHEVILLE.
• Court: North Carolina Court of Appeals

Page 467

360 S.E.2d 467

87 N.C.App. 272

Douglas Dean MARTIN v. CITY OF ASHEVILLE.

No. 8728SC145.

Court of Appeals of North Carolina.

Oct. 6, 1987.

Gum, Hillier and McDaniels, P.A. by Howard Gum, and Carter & Kropelnicki, P.A. by Steven Kropelnicki, Jr., Asheville, for plaintiff-appellant.

Brock & Drye, P.A. by Floyd D. Brock, Asheville, for defendant-appellee.

WELLS, Judge.

The question presented is whether the trial court's order of summary judgment in favor of defendant was proper. It is elementary that summary judgment is appropriate only where the pleadings and discovery materials leave unresolved no genuine issue of material fact. Our Supreme Court has held:

A defendant is entitled to summary judgment only if he can produce a forecast of evidence which, when viewed most favorably to plaintiff, would, "if offered by plaintiff at the trial, without more, ... compel a directed verdict" in defendant's favor. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 473, 251 S.E.2d 419, 423 (1979). In other words, if the forecast of evidence available for trial, as adduced on the motion for summary judgment, demonstrates that plaintiff will not at trial be able to make out at least a prima facie case, defendant is entitled to summary judgment. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). In such cases there is no genuine issue of material fact. Moore v. Fieldcrest Mills, Inc., supra.

Mims v. Mims, 305 N.C. 41, 286 S.E.2d 779 (1982).

Plaintiff in this lawsuit was an emergency ambulance attendant in the employ of Buncombe County. At the time of plaintiff's injury, there was in effect between the City of Asheville and Buncombe County an oral agreement whereby emergency medical assistance personnel used various fire stations owned and maintained by the City as bases of operation. Medical assistance personnel were permitted to park county ambulances in city fire stations and to use fire station facilities. The County made no lease payments to the City for this accommodation.

On the day of his injury, plaintiff returned to fire station no. 3 at approximately 6:39 p.m. and waited in the lounge area until his relief crew arrived. At about the same time as the relief crew arrived, an emergency call was received. Realizing he still had the keys to the ambulance medical chest in his pocket, plaintiff exited the lounge and hastened across the bay area, empty because the fire engine was gone, towards the far east side of the station where the ambulance was parked and where the relief crew was waiting for him to bring the keys. As plaintiff crossed this empty bay area, he slipped and fell on a pool of diesel fuel located directly beneath where fire engine no. 3 had been parked earlier that day. Plaintiff claims that fire engine no. 3 had a history of fuel leak problems.

Plaintiff urges us to reverse the trial court's order for two reasons. First, he contends that there exists a genuine issue of material fact with respect to his status--whether invitee or licensee--on defendant's premises. Naturally, plaintiff insists that he was an invitee when he injured himself on city property and therefore is entitled to the concomitant heightened standard of care. We do not agree. We hold that plaintiff was a licensee as a matter of law while on defendant's premises.

Our Supreme Court has carefully elaborated the difference between licensees and invitees in Mazzacco v. Purcell, 303 N.C. 493, 279 S.E.2d 583 (1981), as follows:

The distinction between an invitee and a licensee is determined by the nature of the business bringing a person to the premises. A...