Daniel v. City of Morganton

479 S.E.2d 263, 125 N.C. App. 47, 1997 N.C. App. LEXIS 18
CourtCourt of Appeals of North Carolina
DecidedJanuary 7, 1997
DocketCOA96-267
StatusPublished
Cited by18 cases

This text of 479 S.E.2d 263 (Daniel v. City of Morganton) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daniel v. City of Morganton, 479 S.E.2d 263, 125 N.C. App. 47, 1997 N.C. App. LEXIS 18 (N.C. Ct. App. 1997).

Opinion

SMITH, Judge.

On 19 March 1990 plaintiff was participating in softball practice with the Freedom High School girl’s varsity softball team. The softball field on which practice was being held was located on a portion of land owned by defendant, Burke County Board of Education (Board) and leased and maintained by defendant, City of Morganton (City). The softball field was in the course of being constructed by the City and the surface of the playing field was rough. Grass was in intermittent spots and there were a number of bare patches and numerous rocks in the outfield. The City recreation department was in charge of getting the softball fields ready for school teams use.. The recreation department was not aware that Freedom High School was using the particular field. City personnel thought the high school was using another field, the Ralph Edwards Nursery Field for practices.

Defendant Gober was employed by defendant Board as a mathematics teacher and received compensation for being the assistant coach to the girl’s softball team. On 19 March 1990, Coach Gober had the outfield players, including plaintiff, engaged in a drill to practice fielding “grounders.” During the drill, Gober stood at the edge of the infield approximately 70 feet from the players and hit hard grounders into the roughly surfaced outfield to be fielded by the players. Defendant Gober hit a ground ball towards plaintiff’s position. The ball hit either a clump of grass or a rock and took an erratic hop and hit plaintiff in the face. The force of the ball knocked out one of plaintiff’s teeth and loosened another. Plaintiff’s injuries will require her to undergo future dental treatment.

In her deposition plaintiff stated that other players had been struck by balls taking erratic hops on the field. Plaintiff also stated that in the past other players had complained to the coach about the dangerousness of the field. The record also indicates that some of the parents of the players may have complained to the principal and to the head coach about the field. When asked if she considered the field to be unsafe before she was hurt, plaintiff responded “yes.” Additionally, plaintiff asserted that defendant Gober had remarked that practicing grounders on the rough field gave the players an advantage over other teams during games, because others would not be as familiar with balls taking erratic hops.

*51 Through discovery, defendants Board and Gober produced a liability policy which provided coverage to defendants for certain accidents and injuries occurring on school grounds or at school sponsored events. The insurance policy contains an exclusion entitled “Athletic or Sports Participants.” The exclusion states, “This insurance does not apply to . . . ‘Bodily injury’ to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.”

Also produced during discovery was a lease agreement between defendant/lessor Board and defendant/lessee City. The lease contains a mutual indemnification provision, whereby the Board and the City agree to indemnify each other. The lease also has a provision requiring the Board and City to each obtain liability insurance and for each to have the other designated as a named insured in their respective policies. The lease provided that the City could use the property for park purposes while the Board could use the same for school activities. Because none of the parties have argued or relied on the lease provisions regarding insurance as a basis for recovery, we need not address the effect of these provisions.

On 19 May 1995 defendant Board and defendant Gober moved for summary judgment. Defendant City moved for summary judgment on 26 October 1995. Both motions were heard on 13 November 1995 and were granted for all defendants. From these judgments plaintiff appeals.

Plaintiff first argues that the trial court erred in granting summary judgment in favor of all defendants as to plaintiffs claims of negligence. Plaintiffs second assignment of error is that all defendants waived governmental immunity. We will address the assignments of error together as to each defendant.

Summary judgment should be granted when “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) (1990). “ ‘[I]ts purpose is to eliminate formal trials where only questions of law are involved.’ ” Medlin v. Bass, 327 N.C. 587, 590, 398 S.E.2d 460, 462 (1990) (quoting Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971)). In ruling on a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party, who is entitled to the benefit of all favorable inferences that *52 may reasonably be drawn from the facts proffered. Averitt v. Rozier, 119 N.C. App. 216, 218, 458 S.E.2d 26, 28 (1995).

In order for plaintiff to recover from defendants for her injuries, plaintiff must show that defendants breached the standard of care owed to her and that the governmental entities waived their immunity. The standard of care of defendants depends upon the status of plaintiff, whether she was an invitee, a licensee or a trespasser. See Hoots v. Pryor, 106 N.C. App. 397, 406, 417 S.E.2d 269, 275, disc. review denied, 332 N.C. 345, 421 S.E.2d 148 (1992).

I. The Burke County Board of Education

First, it has already been established that a plaintiff, while participating in team practice is an invitee as to a defendant school board. Clary v. Alexander Bd. of Education, 19 N.C. App. 637, 638, 199 S.E.2d 738, 739 (1973), aff’d, 285 N.C. 188, 203 S.E.2d 820 (1974), opinion withdrawn and reversed on other grounds, 286 N.C. 525, 212 S.E.2d 160 (1975). “An owner of premises owes to an invitee the duty to exercise ordinary care to keep the premises in a reasonably safe condition and to warn the invitee of hidden perils or unsafe conditions that can be ascertained by reasonable inspection and supervision.” Byrd v. Arrowood, 118 N.C. App. 418, 421, 455 S.E.2d 672, 674 (1995) (citing Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342 (1992)). However, “a premises owner does not have to warn an invitee of apparent hazards or circumstances of which the invitee has equal or superior knowledge. A reasonable person should be observant to avoid injury from a known and obvious danger.” Farrelly v. Hamilton Square, 119 N.C. App.

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Bluebook (online)
479 S.E.2d 263, 125 N.C. App. 47, 1997 N.C. App. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniel-v-city-of-morganton-ncctapp-1997.