Williams v. 100 BLOCK ASSOCIATES

• Decision Date: 06 April 1999
• Docket Number: No. COA98-374.,COA98-374.
• Citation: 513 S.E.2d 582,132 NC App. 655
• Court: North Carolina Court of Appeals
• Parties: Jesse WILLIAMS, Plaintiff-Appellant, v. 100 BLOCK ASSOCIATES, LTD. PARTNERSHIP and Otis Elevator Company, Defendant-Appellees.

513 S.E.2d 582

132 NC App. 655

Jesse WILLIAMS, Plaintiff-Appellant, v. 100 BLOCK ASSOCIATES, LTD. PARTNERSHIP and Otis Elevator Company, Defendant-Appellees.

No. COA98-374.

Court of Appeals of North Carolina.

April 6, 1999.

Hinton, Hewett & Wood, P.A., by Alan B. Hewett and J. Franklin Wood, Jr., Smithfield, for plaintiff-appellant.

Yates, McLamb & Weyher, L.L.P., by O. Craig Tierney, Jr. and Beth Y. Smoot, Raleigh, for defendant-appellee 100 Block Associates, Ltd. Partnership.

Maupin, Taylor & Ellis, P.A., by Thomas W.H. Alexander and Kevin W. Benedict, Raleigh, for defendant-appellee Otis Elevator Company.

McGEE, Judge.

Plaintiff filed a complaint for personal injury on 25 June 1996 alleging negligent maintenance of an automatic elevator. Plaintiff was employed by United Cleaning Specialist Corporation, which provided cleaning services to the First Union Capital Center in Raleigh, North Carolina. Defendant 100 Block Associates, Ltd. Partnership (100 Block) owned the First Union Capital Center. Defendant Otis Elevator Company (Otis Elevator) had a contract with 100 Block to service and maintain the automatic elevators in the First Union Capital Center.

Plaintiff alleged in his complaint that he was a passenger on elevator number five in the First Union Capital Center at about 9:00 p.m. on 2 December 1994. Plaintiff stated that "the elevator started moving back and forth from the 24th to 25th floors, stopping suddenly on each floor, making a loud banging noise ... causing the defendant [sic] to be suddenly hurled in a hard manner to the floor of the elevator several times causing him to injure his knee."

Plaintiff sought damages for past and future medical expenses, pain and suffering, and lost wages. Defendant 100 Block filed a motion for summary judgment on 27 June 1997. Defendant Otis Elevator filed a motion for summary judgment on 31 July 1997. The trial court granted defendants' motions for summary judgment in an order entered 12 November 1997. Plaintiff appeals.

I. 100 BLOCK

Plaintiff argues the trial court erred in granting defendants' motions for summary judgment, contending that "[i]n the present case ... there are genuine issues of material fact."

"Summary judgment is proper `if 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 judgment as a matter of law.'" Snipes v. Jackson, 69 N.C.App. 64, 71-72, 316 S.E.2d 657, 661 (1984); N.C. Gen. Stat. § 1A-1, Rule 56(c). "In ruling on [a motion for summary judgment] the court must consider the evidence in the light most favorable to the nonmovant, and the slightest doubt as to the facts entitles him to a trial." Snipes at 72, 316 S.E.2d at 661 (citation omitted).

Plaintiff argues that "[t]here exist genuine issues of material fact as to the existence of a duty owed to plaintiff by defendant 100 Block Associates and the breach of that duty, where plaintiff [was] an invitee of defendant[.]" We disagree. Our Supreme Court recently articulated a "new approach to premises liability in North Carolina" in Nelson v. Freeland, 349 N.C. 615, 631, 507 S.E.2d 882, 892 (1998). The Court summarized North Carolina law concerning premises liability, stating:

[T]he standard of care a landowner owes to persons entering upon his land depends upon the entrant's status, that is, whether the entrant is a licensee, invitee, or trespasser. An invitee is one who goes onto another's premises in response to an express or implied invitation and does so for the mutual benefit of both the owner and himself.... A licensee, on the other hand, "is one who enters onto another's premises with the possessor's permission, express or implied, solely for his own purposes rather than the possessor's benefit." The classic example of a licensee is a social guest. Lastly, a trespasser is one who enters another's premises without permission or other right.

Nelson at 617, 507 S.E.2d at 883-84 (footnote omitted) (citations omitted).

Our Supreme Court said in Nelson that a landowner specifically owed an invitee the duty "to use ordinary care to keep his property reasonably safe and to warn of hidden perils or unsafe conditions that could be discovered by reasonable inspection and supervision." Nelson at 618, 507 S.E.2d at 884 (citation omitted). As to licensees, a landowner's duty has been "to refrain from doing the licensee willful injury and from wantonly and recklessly exposing him to danger." Id. With regard to trespassers, "a landowner need only refrain from the willful or wanton infliction of injury." Id.

Our Supreme Court further stated that past premises liability decisions have

caused confusion amongst our citizens and the judiciary—a confusion exaggerated by the numerous exceptions and subclassifications engrafted into it. Lastly, the trichotomy is unjust and unfair because it usurps the jury's function either by allowing the judge to dismiss or decide the case or by forcing the jury to apply mechanical rules instead of focusing upon the pertinent issue of whether the landowner acted reasonably under the circumstances.

Nelson at 631, 507 S.E.2d at 892.

Thus, the Court eliminated "the distinction between licensees and invitees" and established "a standard of reasonable care toward all lawful visitors." Id.

Adoption of a true negligence standard eliminates the complex, confusing, and unpredictable state of premises-liability law and replaces it with a rule which focuses the jury's attention upon the pertinent issue of whether the landowner acted as a reasonable person would under the circumstances.

In so holding, we note that we do not hold that owners and occupiers of land are now insurers of their premises. Moreover, we do not intend for owners and occupiers of land to undergo unwarranted burdens in maintaining their premises. Rather, we impose on them only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.

Nelson at 631-32, 507 S.E.2d at 892.

The Supreme Court did not find "compelling reasons to apply this rule prospectively only and therefore [gave] it both prospective and retrospective application." Nelson at 633, 507 S.E.2d at 893.

In the case before us, plaintiff was present in the First Union Capital Center because of his duty to his employer, United Cleaning Specialist Corporation. As such, plaintiff was a "lawful visitor[ ]" and entered 100 Block's building "under color of right." Id. at 631-32, 507 S.E.2d at 892. The question, as framed by Nelson, is "whether the landowner acted as a reasonable person would under the circumstances." Id. at 632, 507 S.E.2d at 892.

Defendant 100 Block submitted the affidavit of Melony Girton, the property manager for 100 Block at the time of plaintiff's accident. Girton stated: "I am familiar with the injury reported by the plaintiff and I recall that I had no knowledge of any problem with any of the elevators at the First Union building prior to the incident complained of by the plaintiff." (Emphasis added.) Plaintiff also submitted the affidavit of Tim Hunter, a security guard with Barton Protective Services, Inc., who was stationed at the First Union Capital Center. In his affidavit, Hunter stated: "I am familiar with the injury reported by the plaintiff and I recall that I had knowledge of problems with the elevators at the First Union building prior to the incident complained of by the plaintiff." In this affidavit, unlike Girton, Hunter acknowledged that he had notice of prior problems with the elevators.

Plaintiff cites Roberts v. William N. and Kate B. Reynolds Memorial Park, 281 N.C. 48, 187 S.E.2d 721 (1972), for the proposition that "[a] principal is chargeable with and bound by the knowledge of or notice to his agent, received while the agent is acting as such within the scope of his authority and in reference to which his authority extends." Id. at 60, 187 S.E.2d at 728 (citation omitted). Plaintiff argues that Hunter is an agent of 100 Block, and that his notice should be imputed to 100 Block. We disagree.

In Roberts, a principal-agent relationship was found because "[t]he allegations in the complaint and the admissions in the answer established the relationship of principal and agent between defendant ... and the corporate defendant at the times plaintiff complained of." Roberts at 60, 187 S.E.2d at 728.

In the present case, plaintiff alleged in his complaint that "the defendants, their agents, servants, and/or employees were ... negligent"; however, plaintiff did not specifically allege the existence of a principal-agent relationship between Hunter and 100 Block, nor did 100 Block refer to such a relationship in its answer.

"There are two essential ingredients in the principal-agent relationship: (1) Authority, either express or implied, of the agent to act for the principal, and (2) the principal's control over the agent." Vaughn v. North Carolina Dept. of Human Resources, 37 N.C.App. 86, 91, 245 S.E.2d 892, 895 (1978) (citations omitted), aff'd, 296 N.C. 683, 252 S.E.2d 792 (1979).

In Simms v. Stores, Inc., 285 N.C. 145, 203 S.E.2d 769 (1974), plaintiff attempted to serve a summons on defendant, a retail department store, by delivering the summons to the store's security guard. Our Supreme Court held that the summons was not properly served because the security officer was not employed by defendant store, but rather was employed by an independent contractor who was rendering services to defendant store. The Court agreed with the trial court's findings of fact that:

[The security guard] was not an employee or agent of defendant. She neither received nor handled any money for defendant. She exercised no control whatever over any of defendant's employees; nor was she under the supervision, direction or control of any officer or employee of defendant. [The security guard] was employed as

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