Vares v. Vares

• Decision Date: 19 November 2002
• Docket Number: No. COA01-1411.,COA01-1411.
• Citation: 154 NC App. 83,571 S.E.2d 612
• Court: North Carolina Court of Appeals
• Parties: Terry VARES, Individually, and as Guardian Ad Litem for Justice Vares, Plaintiff, v. Gregory VARES, Bert L. Bennett, Jr., John Bennett, Sean McPartland, and Ann Bennett Phillips, Defendants.

571 S.E.2d 612

154 NC App. 83

Terry VARES, Individually, and as Guardian Ad Litem for Justice Vares, Plaintiff, v. Gregory VARES, Bert L. Bennett, Jr., John Bennett, Sean McPartland, and Ann Bennett Phillips, Defendants.

No. COA01-1411.

Court of Appeals of North Carolina.

November 19, 2002.

Katherine E. Jean, Raleigh, and Edwards & Atwater, Silver City, by W. Ben Atwater, Jr., for plaintiff appellant.

Ragsdale Liggett PLLC, by George R. Ragsdale and Andrew C. Buckner, Raleigh, for defendant appellee Bert L. Bennett, Jr. Broughton Wilkins Sugg Hall & Thompson, PLLC, by R. Palmer Sugg, for defendant appellee Ann Bennett Phillips.

TIMMONS-GOODSON, Judge.

Terry Vares ("plaintiff"), mother and guardian ad litem to her minor son, Justice Vares ("Justice"), appeals from judgments by the trial court granting summary judgment in favor of her father, Bert L. Bennett, Jr. ("Bennett"), and her sister, Ann Bennett Phillips ("Phillips") (collectively, "defendants"). Plaintiff also appeals from an order of the trial court setting aside entry of default against Phillips. For the reasons stated herein, we affirm the order and judgments of the trial court.

The pertinent facts of this appeal are as follows: On 6 April 1999, plaintiff filed a complaint in Chatham County Superior Court on behalf of her son, Justice, seeking recovery for severe and permanent injuries he suffered when a falling tree struck his head. The complaint filed by plaintiff alleged that Bennett was negligent in allowing inherently dangerous activity to occur on his property without taking adequate precautions to ensure Justice's safety. On 17 October 2000, plaintiff filed an amended complaint, adding Phillips as a defendant to the suit. On 6 December 2000, plaintiff obtained an entry of default against Phillips, but the trial court set the entry of default aside by order entered 5 February 2001. Phillips filed her answer to the complaint the same day. Defendants thereafter filed motions for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, which motions came before the trial court on 30 April 2001.

The evidence before the trial court tended to show the following: On 6 April 1996, six-year-old Justice accompanied his parents to the home of his grandfather, defendant Bennett, for a family gathering that the Bennett family members referred to as "Farm Day." On each "Farm Day," Bennett family members typically performed various tasks related to the general maintenance of the fifty-acre property.

On the "Farm Day" at issue ("1996 Farm Day"), Justice's father, Gregory Vares ("Vares"), assisted two other men in trimming and cutting down trees on the property with a chain saw. Justice was present and assisted his father by pulling "brush from around the tree." Before he began cutting a certain tree, Vares instructed his son to stand in a particular area, some distance away from the tree. While cutting the tree, Vares noticed that Justice had moved from his original location to an area closer to the tree being felled. Vares then stopped cutting the tree and ordered Justice to return to his original location. Justice obeyed, and Vares continued cutting the tree. As the tree began to fall, Justice inexplicably darted into its path. The falling tree then struck Justice on the head, severely injuring him.

The evidence further tended to show that Bennett's daughter, defendant Ann Bennett Phillips, was responsible for planning and assigning to family members the activities for the 1996 Farm Day. Plaintiff alleged that Phillips negligently assigned the task of cutting trees to Vares and the other men without first ascertaining their training or expertise to perform such activities. Moreover, plaintiff alleged that Phillips failed to adequately ensure Justice's safety.

After considering all of the evidence and arguments by counsel, the trial court concluded that both defendants were entitled to summary judgment as a matter of law and accordingly entered such judgments. Plaintiff appeals.

The issues on appeal are whether the trial court erred in (1) granting summary judgment to Bennett; (2) setting aside the entry of default against Phillips; (3) granting summary judgment to Phillips; and (4) declining plaintiff's request to introduce certain depositions in the record on appeal. We address these issues in turn.

Standard of Review for Summary Judgment

Summary judgment is properly granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2001); Bostic Packaging, Inc. v. City of Monroe, 149 N.C.App. 825, 830, 562 S.E.2d 75, 79,disc. review denied, 355 N.C. 747, 565 S.E.2d 192 (2002). Where the movant establishes that no claim for relief exists, or that the claimant cannot overcome an affirmative defense or legal bar to the claim, the movant is entitled to summary judgment. See Wilder v. Hobson, 101 N.C.App. 199, 201, 398 S.E.2d 625, 627 (1990). In determining the grounds for summary judgment, the trial court must view the evidence in the light most favorable to the non-movant. See Bostic Packaging, Inc.,149 N.C.App. at 830,562 S.E.2d at 79.

In a negligence claim, summary judgment is appropriate where the plaintiff's forecast of evidence is insufficient to support an essential element of negligence. See Patterson v. Pierce, 115 N.C.App. 142, 143, 443 S.E.2d 770, 771, disc. review denied, 337 N.C. 803, 449 S.E.2d 749 (1994). In order to establish a prima facie case for negligence, the plaintiff must show the following essential elements: (1) the defendant owed the plaintiff a duty of care; (2) the defendant's conduct breached that duty; (3) the breach was the actual and proximate cause of the plaintiff's injury; and (4) plaintiff suffered damages as a result of the injury. See id. at 144, 443 S.E.2d at 772.

Defendant Bert L. Bennett, Jr.

Plaintiff argues that there are genuine issues of material fact precluding summary judgment in favor of defendant Bennett, and that the trial court therefore erred in granting such judgment. Plaintiff contends that there was evidence that defendant Phillips acted pursuant to authority granted by Bennett to Phillips as his agent. Plaintiff also asserts that Vares acted as an agent for Phillips, and that any negligence by Vares or Phillips is therefore imputed to Bennett. Plaintiff further asserts that the felling of trees with a chain saw is an inherently dangerous activity, and that Bennett had a non-delegable duty as a landowner to take adequate precautions to protect all lawful visitors to the property. We examine these arguments in turn.

A. Agency

An agent is "one who acts for or in the place of another by authority from the other." American Tours, Inc. v. Liberty Mutual Ins. Co., 315 N.C. 341, 349, 338 S.E.2d 92, 97 (1986). Although the question of agency is a factual one and therefore generally a matter for the jury, "[i]f only one inference can be drawn from the facts then it is a question of law for the trial court." Hylton v. Koontz, 138 N.C.App. 629, 635, 532 S.E.2d 252, 257 (2000), disc. review denied, 353 N.C. 373, 546 S.E.2d 603 (2001). Thus, we must examine the evidence to determine whether genuine issues of material fact exist as to whether Phillips acted pursuant to authority granted to her by Bennett.

Although plaintiff cites to disputed testimony regarding Bennett's general knowledge of the activities that would take place during the 1996 Farm Day, there is no evidence in the record that Phillips was acting on Bennett's behalf or at his request. All of the parties agree that Phillips organized the 1996 Farm Day, assigning the chores to be done and generally coordinating the events. Bennett's uncontradicted testimony was that Farm Day occurred each year "by and large for my children who wanted to be a part of keeping the place up," adding that it was "not at my insistence." There was no evidence that Bennett either requested the 1996 Farm Day to be held or asked for Phillips' assistance in arranging such an event.

Moreover, there was no evidence that Phillips' actions in organizing the 1996 Farm Day and assigning tasks were subject to Bennett's control. See Outer Banks Contractors v. Daniels & Daniels Construction, 111 N.C.App. 725, 730, 433 S.E.2d 759, 762 (1993) (stating that agency exists where the actions by the agent are subject to the principal's control). Phillips testified that she coordinated all of the activities, including assigning chores to various family members. Although there was some evidence that Phillips consulted her father before deciding what type of general maintenance should be performed that year, there was no evidence that Bennett reviewed the chore list created by Phillips or the particular assignments, or was present when the activities were performed. There was a similar lack of evidence that Vares acted as Bennett's agent. Because there was no evidence that Phillips or Vares acted as Bennett's agents, we reject this ground as a basis for liability on Bennett's part.

B. Premises Liability

Plaintiff further argues that Bennett is liable as the landowner of the property where Justice was injured. As a landowner, plaintiff asserts that Bennett had a non-delegable duty to take necessary precautions to protect Justice from inherently dangerous activity occurring on the property.

A landowner ordinarily owes a duty "to exercise ordinary care for the protection of one of tender years, after his presence in a dangerous situation is or should have been known." Freeze v. Congleton, 276 N.C. 178, 182, 171 S.E.2d 424, 426 (1970). This duty of care does not apply, however, where the minor child is being actively supervised by a parent who has full knowledge of the condition of the premises and appreciation of the danger...