Page v. Sloan

• Decision Date: 31 July 1972
• Docket Number: No. 10,10
• Court: North Carolina Supreme Court
• Parties: Catherine D. PAGE, Administratrix C.T.A. of the Estate of Channing Nelson Page, Deceased v. George SLOAN and his wife, Rea Sloan, Copartners, trading and doing businessas Ocean Isle Motel.

Page 189

190 S.E.2d 189

281 N.C. 697

Catherine D. PAGE, Administratrix C.T.A. of the Estate of Channing Nelson Page, Deceased v. George SLOAN and his wife, Rea Sloan, Copartners, trading and doing businessas Ocean Isle Motel.

No. 10.

Supreme Court of North Carolina.

July 31, 1972.

Anderson, Nimocks & Broadfoot, by Henry L. Anderson, Fayetteville, for defendant appellants.

W. D. Sabiston, Jr., Carthage, and Tharrington & Smith, by J. Harold Tharrington and Roger W. Smith, Raleigh, for plaintiff appellee.

HUSKINS, Justice:

Did the Court of Appeals err in reversing summary judgment entered by the trial court in favor of defendant? Answer depends upon whether defendants, in light of an innkeeper's duty to a guest, have borne the burden which the law places upon a movant for summary judgment.

What standard of care is required of innkeepers with respect to their guests?

An innkeeper is not an insurer of the personal safety of his guests. He is required to exercise due care to keep his premises in a reasonably safe condition and to warn his guests of any hidden peril. Barnes v. Hotel O. Henry Corp., 229 N.C. 730, 51 S.E.2d 180 (1949). The duties thus imposed upon an innkeeper for the protection of his guests 'are nondelegable, and liability cannot be avoided on the ground that their performance was entrusted to an independent contractor.' 40 Am.Jur.2d, Hotels, Motels and Restaurants § 81. Compare the English rule, Chapman, Liability for the Negligence of Independent Contractors, 50 L.Q.Rev. 71 (1934). See Prosser on Torts (4th ed. 1971), § 71 at p. 470.

The rule of nondelegability is grounded on the premise that an innkeeper's duty to use due care for the safety of his guests is a responsibility so important to the public that he should not be permitted to transfer it to another. The Restatement of the Law of Torts expresses and illustrates the rule as follows: 'One who employs an independent contractor to maintain in safe condition land which he holds open to the entry of the public as his place of business, or a chattel which he supplies for others to use for his business purposes or which he leases for immediate use, is subject to the same liability for physical harm caused by the contractor's negligent failure to maintain the land or chattel in reasonably safe condition, as though he had retained its maintenance in his own hands.' Restatement of Torts 2d, § 425. The second illustration following this section is especially pertinent: '2. A operates a hotel. He employs B as a plumber to install a shower bath. B negligently transposes the handles so that the hot water pipe is labeled cold. C, a guest, deceived by the label, turns on the hot water and is scalded. A is subject to liability to C.'

The rule of nondelegability has been applied where plaintiff was injured by the negligent operation or maintenance of an elevator located in defendant's premises. Stott v. Churchill, 15 Misc. 80, 36 N.Y.S. 476 (1895), aff'd 157 N.Y. 692, 51 N.E. 1094; Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 143 P.2d 929 (1943). Even where the company which manufactured and installed the elevator had by contract assumed responsibility for the inspection, repair and maintenance of the elevator, the rule was applied and defendant owner of the premises was held liable. Otis Elevator Co. v. Bond, 373 S.W.2d 518 (Tex.Civ.App.1963). A like result is reached in Blackhawk Hotels Co. v. Bonfoey, 227 F.2d 232 (C.A.8th 1955). Accord, Friedman v. Schindler's Prairie House, 224 App.Div. 232, 230 N.Y.S. 44, aff'd, 250 N.Y. 574, 166 N.E. 329 (1929).

Thus, depending on the evidence offered at the trial, defendants in this case could be liable on any of the following bases:

(1) Failure to use due care for the safety of their guests by employing a plumber instead of an electrician to repair the electrical heating element on the water heater, thereby failing 'to exercise reasonable care to employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons.' Restatement of Torts 2d, § 411. While making repairs to the heating element of an electric water heater is not 'inherently' or 'intrinsically' dangerous work, it involves work which will likely cause injury if proper safety precautions are not observed. Compare Evans v. Rockingham Homes, Inc., 220 N.C. 253, 17 S.E.2d 125 (1941). If defendants knew, or in the exercise of due care should have known, that a plumber was not competent to do such work and if the plumber's negligence was a proximate cause of the explosion and ensuing death of plaintiff's testate, defendants would be liable.

(2) Since the duties imposed upon an innkeeper for the protection of his guests are nondelegable and liability cannot be avoided on the ground that their performance was entrusted to an independent contractor, defendants would be subject to the same liability for an injury or death caused by the plumber's negligent failure properly to repair the electrical heating element on the water heater as if they had made the repairs themselves.

(3) Application of the doctrine of Res ipsa loquitur.

We now turn to the propriety of summary judgment for the defendants.

Guiding principles applicable to summary judgment under Rule 56 are detailed in Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971), and have since been applied in various cases by this Court, including Harrison Associates v. State Ports Authority, 280 N.C. 251, 185 S.E.2d 793 (1972); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972); Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972); Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972); Schoolfield v. Collins, 281 N.C. 604, 189 S.E.2d 208 (1972).

Our Rule 56 and its federal counterpart are practically the same. Authoritative decisions both state and federal, interpreting and applying Rule 56, hold that the party moving for summary judgment has the burden of 'clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.' 6 Moore's Federal Practice (2d ed. 1971) § 56.15(8), at 2439; Singleton v. Stewart, supra. Rendition of summary judgment is, by the rule itself, conditioned upon a showing by the movant (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. G.S. § 1A--1, Rule 56(b); Kessing v. National Mortgage Corp., supra.

Have defendants carried the burden of proof so as to entitle them to summary judgment? We first note that plaintiff filed no counteraffidavits. Rule 56(e) provides, Inter alia: 'When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.' Thus plaintiff cannot rely on her verified complaint to defeat defendants' motion, accompanied, as it is, by competent affidavits and depositions.

A verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein. Rule 56(e); Williams v. Kolb, 79 U.S.App.D.C. 253, 145 F.2d 344 (1944); Fletcher v. Norfolk Newspapers, Inc., 239 F.2d 169 (C.A.4th 1956). Plaintiff's complaint here meets neither the first nor the third requirements of the rule for affidavits and therefore may not be considered.

Even so, defendants still have the burden of showing that there is no triable issue of fact and that they are entitled to judgment as a matter of law. Hence plaintiff may yet succeed in defending against the motion for summary judgment if the evidence produced by the movant and considered by the court is insufficient to satisfy the burden. Walling v. Fairmont Creamery Co., 139 F.2d 318 (C.C.A.8th 1943); Griffith v. William Penn Broadcasting Co., 4 F.R.D. 475 (E.D.Pa.1945). 'Where by the nature of things, the moving papers themselves demonstrate that there is inherent in the problem a factual controversy then, while it is certainly the part of prudence for the advocate to file one, a categorical counter-affidavit is not essential.' Inglett & Company v. Everglades Fertilizer Co., 255 F.2d 342 (C.A.5th 1958). To the same effect but stated somewhat differently: 'Where the moving papers affirmatively disclose that the nature of the controversy presents good faith, actual, as distinguished from formal, dispute on one or more material issues, summary judgment cannot be used.' Murphy v. Light, 257 F.2d 323 (C.A.5th 1958).

Thus we consider only the supporting documents presented by defendants together with the stipulations of the parties contained in the Order on Final Pre-trial Conference, filed 28 January 1971. The stipulations of fact contained therein will be considered as admissions. 6 Moore's Federal Practice (1971 Supp.) § 56.11 (1.--5) at 100; Stubblefield v. Johnson-Fagg, Inc., 379 F.2d 270 (C.A.10th 1967).

Due consideration of the supporting documents and materials presented by defendants leads us to the conclusion that the granting of summary judgment by the trial court was erroneous. We hold that defendants have failed to carry the movant's burden of proof.

While our Rule 56, like its federal counterpart, is available in all types of litigation to both plaintiff and defendant, 'we start with the general proposition that issues of...