Worthy v. Ivy Community Center, Inc.

• Decision Date: 04 August 2009
• Docket Number: No. COA08-458.,COA08-458.
• Citation: 679 S.E.2d 885
• Court: North Carolina Court of Appeals
• Parties: Angela WORTHY, Individually, and Shanalda McLean, a Minor Child, by and through her Guardian Ad Litem, Angela Worthy, Plaintiffs, v. The IVY COMMUNITY CENTER, INC; Cecilia Watson Blackwell, Executrix of The Estate of Gordon L. Blackwell, Deceased; Transom Development, Inc., f/k/a Regency Development Associates, Inc., The Ivy Commons Limited Partnership, d/b/a Ivy Commons Apartments; The City of Durham; Jackie Marrow; and Interstate Management Consultants, Inc., Defendants.

679 S.E.2d 885

Angela WORTHY, Individually, and Shanalda McLean, a Minor Child, by and through her Guardian Ad Litem, Angela Worthy, Plaintiffs, v. The IVY COMMUNITY CENTER, INC; Cecilia Watson Blackwell, Executrix of The Estate of Gordon L. Blackwell, Deceased; Transom Development, Inc., f/k/a Regency Development Associates, Inc., The Ivy Commons Limited Partnership, d/b/a Ivy Commons Apartments; The City of Durham; Jackie Marrow; and Interstate Management Consultants, Inc., Defendants.

No. COA08-458.

Court of Appeals of North Carolina.

August 4, 2009.

Appeal by plaintiffs from order entered 12 September 2007 by Judge J.B. Allen, Jr. in Durham County Superior Court. Heard in the Court of Appeals 19 November 2008.

Perry, Perry & Perry, P.A., by Robert T. Perry, Durham, for plaintiffs-appellants.

Hoof & Hughes, PLLC, by J. Bruce Hoof, Durham, for defendants-appellees.

GEER, Judge.

Plaintiffs Shanalda McLean and her legal guardian and guardian ad litem Angela Worthy appeal from the trial court's order granting summary judgment to defendants on plaintiffs' negligence claim.¹ We agree with plaintiffs' contention that summary judgment was improper as plaintiffs' forecast of evidence raised triable issues of fact regarding Shanalda's legal status on the property and as to the cause of the fire resulting in her burns. Accordingly, we reverse.

Facts

Delwyn Powell entered into a lease to rent apartment B-6 in the Ivy Commons Apartment complex in Durham, North Carolina. He lived there with Sharon McLean and her children until he moved out in July 2004. Although Ms. McLean's sister Angela Worthy is the guardian of Ms. McLean's daughter Shanalda McLean, Shanalda regularly stayed at the apartment with her mother and her siblings.

After moving into the apartment, Ms. McLean made several complaints to Ivy Commons' manager, Jackie Marrow, about exposed wires over the stove, "naked wires" hanging from the air conditioning unit, and a faulty electrical socket in the children's room. Although Ms. Marrow said that someone would take care of the problems, they were never fixed. Concerned about the wires dangling over the stove, Ms. McLean called the fire department and the operator told her to turn off all the power in the apartment and then to push the wires back up into the hood of the stove. She did this regularly because the wires would often fall down when the hood was being wiped down or when the light or fan on the hood was turned on.

On the night of 5 September 2004, two of Ms. McLean's children, Shanalda and David Barnhill, were asleep on the living room floor after a birthday party. David got up around 2:30 a.m. and wanted to make french fries. His mother helped him put some oil in a pot and turned on the burner for him. When the oil got hot, David put some french fries in the pot. According to David, "a couple of seconds later," he looked up and saw "some sparks coming from the little hood part" over the stove. The sparks were coming from wires "looping down" from the hood. The oil in the pot ignited from the sparks, and "flames started coming out." David jumped back and yelled "[f]ire," and Ms. McLean rushed into the kitchen. She saw flames coming up from the pot and wires hanging from the hood of the stove, which she had not seen previously when she was helping David make the fries.

Ms. McLean shouted for everyone to "[g]o outside" while she tried to put out the fire. She grabbed the pot and began to take it outside, but when she got to the door, she ran into Shanalda, who was coming back into the apartment to make sure that all of the children had gotten out and spilled the hot oil on both of them. They were taken to UNC Hospital and kept overnight to treat their burns. Shanalda suffered severe burns on her face, neck, back, hand, and legs.

On 10 October 2005, plaintiffs filed a complaint against The Ivy Commons Limited Partnership and the partnership's general partners—The Ivy Community Center, Inc., Transom Development, Inc., and Gordon L. Blackwell—alleging negligence in maintaining the premises. The complaint also asserted a claim against the City of Durham for negligent inspection. Plaintiffs amended the complaint on 4 December 2006 to add a claim against Interstate Management Consultants, Inc. and its employee, Jackie Marrow, who managed Ivy Commons Apartments, alleging that they were negligent in leasing an apartment that they knew or should have known was in an unfit or uninhabitable condition.

All defendants moved for summary judgment on 31 August 2007, and, in an order entered on 12 September 2007, the trial court entered summary judgment in favor of defendants. Plaintiffs timely appealed to this Court.

Discussion

The standard of review for an order granting summary judgment requires a determination whether (1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law. Von Viczay v. Thoms, 140 N.C.App. 737, 738, 538 S.E.2d 629, 630 (2000), aff'd per curiam, 353 N.C. 445, 545 S.E.2d 210 (2001); N.C.R. Civ. P. 56(c). The trial court may not resolve issues of fact and necessarily must deny the motion if there is a genuine issue as to any material fact. Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007). Further, the evidence is viewed in the light most favorable to the non-moving party. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003).

I

Plaintiffs and defendants vigorously dispute Ms. McLean's and Shanalda's legal status on the Ivy Commons property. Defendants contend that the mother and daughter were not legally residing in the apartment, and, therefore, they were trespassers. "[A] trespasser is one who enters another's premises without permission or other right." Nelson v. Freeland, 349 N.C. 615, 617, 507 S.E.2d 882, 884 (1998). If the mother and daughter were trespassers, then they would have "no basis for claiming protection [from the landowner] beyond refraining from willful injury." Id. at 632, 507 S.E.2d at 892. Consequently, a landowner is not liable to a trespasser for mere negligence. Holcomb v. Colonial Assocs., L.L.C., 358 N.C. 501, 510, 597 S.E.2d 710, 716 (2004). In contrast, "[a] lawful visitor is one who is on the premises with the landowner's permission or by legal right." Id. The permission granted by a landowner may be express or implied from the circumstances. Id.

Defendants maintain that "[t]he material facts to McLean's, and consequently to Shanalda's, legal status in the subject Ivy Commons apartment at the time of the fire, are established by the terms of the lease." The lease agreement produced by defendants was signed only by Mr. Powell, listed Mr. Powell as the only tenant in apartment B-6, expressly prohibited any other persons from residing in the apartment without being listed, and prohibited subleasing or assignment of the lease. Based on the terms of this lease, defendants contend "neither McLean nor Shanalda were lawful residents in the subject apartment."

Plaintiffs counter that their evidence shows that Ivy Commons' management knew that Ms. McLean was living in apartment B-6, that it knew she was responsible for paying the rent, and that management took no action to evict her, thus indicating that the management impliedly permitted her and Shanalda to reside in the apartment. In addition, in his deposition, Mr. Powell testified that he remembered signing a lease that listed Ms. McLean and Shanalda as tenants, that Ms. McLean was present when this lease was signed, and that they discussed with Ivy Commons' management the fact that Ms. McLean and her children would be living in the apartment.

Defendants contend that Mr. Powell's testimony is insufficient to survive summary judgment because plaintiffs failed to produce a copy of the "`phantom' lease" that listed Ms. McLean and the children as tenants. We need not decide, however, whether Mr. Powell's testimony regarding the lease would be sufficient by itself to defeat summary judgment because plaintiffs submitted additional evidence of Ms. McLean's and Shanalda's lawful presence on the premises.

Samantha Lincoln, a maintenance worker at Ivy Commons, stated in an affidavit that Ivy Commons' management, including Ms. Marrow, "knew Sharon McLean and her children, including Shanalda McLean[,] were tenants at apartment B-6 of Ivy Commons Apartments[.]" Ms. Lincoln further stated that "[a]fter the fire of September 4, 2004 [sic], with knowledge of management, Sharon McLean and her children continued to live in the said unit." In addition, Manuel Rodriguez, another maintenance worker at Ivy Commons, testified in his deposition that he knew that Ms. McLean and Shanalda were living in apartment B-6 prior to the fire as he would see them when he went into the apartment to perform his maintenance duties. Further, Mr. Powell reported in his deposition that Ms. McLean delivered all the rent payments to the Ivy Commons office while he was living there.

Ms. McLean testified in her deposition about making complaints about the apartment to Ms. Marrow. In addition, after Mr. Powell moved out, she asked Ms. Marrow what she needed to do to continue living in the apartment. Ms. Marrow told her "don't worry about that" and said that Ms. McLean could stay in the apartment as long as she paid her bills. Finally, plaintiffs presented evidence from various other witnesses indicating that Ivy Commons management knew that Ms. McLean continued to live in the apartment after the fire occurred even though Mr. Powell was no longer residing there.

This evidence is sufficient to raise an issue of fact regarding whether Ms. McLean and Shanalda were trespassers or whether they were on the premises with the consent of Ivy Commons management. See McIntosh v. Carefree Carolina Communities, Inc., 328 N.C. 87, 399 S.E.2d 114 (1991), ...