Gray v. Small

Court of Appeals of North Carolina

Gray v. Small

408 S.E.2d 538, 104 N.C. App. 222, 1991 N.C. App. LEXIS 1001

CourtCourt of Appeals of North Carolina

DecidedOctober 1, 1991

Docket901SC1287

StatusPublished

Cited by6 cases

This text of 408 S.E.2d 538 (Gray v. Small) 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

Gray v. Small, 408 S.E.2d 538, 104 N.C. App. 222, 1991 N.C. App. LEXIS 1001 (N.C. Ct. App. 1991).

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Opinions

HEDRICK, Chief Judge.

Plaintiffs’ sole argument on appeal is that the trial court erred in granting defendants’ motion for summary judgment.

Summary judgment is proper when the pleadings, depositions and admissions on file, together with any affidavits 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. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610 (1980). N.C. R. Civ. P. 56. In determining whether summary judgment is proper, the court must view the evidence in the light most favorable to the non-moving party, giving to it the benefit of all reasonable inferences and resolving all inconsistencies in its favor. Freeman v. Sturdivant Dev. Co., 25 N.C. App. 56, 212 S.E.2d 190 (1975).

The record shows that plaintiffs were social guests in defendants’ home and therefore, held the status of licensees. “The duty of care owed to a licensee by an owner or possessor of land ordinarily is to ‘refrain from doing the licensee willful injury and from wantonly and recklessly exposing [her] to danger.’ ” DeHaven v. Hoskins, 95 N.C. App. 397, 400, 382 S.E.2d 856, 858, cert. denied, 325 N.C. 705, 388 S.E.2d 452 (1989) (quoting McCurry v. Wilson, 90 N.C. App. 642, 369 S.E.2d 389 (1988)). “It follows that, as a general rule, the owner ... is not liable for injuries to licensees due to the condition of the property, or ... due to passive negligence or acts of omission. ” Id. at 400, 382 S.E.2d 858 (quoting, Pafford v. J. A. Jones Constr. Co., 217 N.C. 730, 9 S.E.2d 408 (1940)) (emphasis in original).

The record in this case affirmatively establishes that plaintiffs were social guests, licensees, in the home of defendants when the female plaintiff slipped and fell as she and her husband exited defendants’ premises. Thus, summary judgment for defendants would be improper if the evidentiary matter offered in support of or in opposition to the motions for summary judgment raised genuine issues of material fact with respect to defendants’ gross negligence [224]*224or willful or wanton conduct causing the injuries of which plaintiffs’ complained.

The forecast of evidence in this record raises at most issues as to defendants’ ordinary or passive negligence. No issue is raised as to defendants’ gross negligence. Thus, summary judgment for defendants was proper.

Affirmed.

Judge Arnold concurs. Judge Phillips dissents.

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HEDRICK, Chief Judge.

Plaintiffs’ sole argument on appeal is that the trial court erred in granting defendants’ motion for summary judgment.

Summary judgment is proper when the pleadings, depositions and admissions on file, together with any affidavits 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. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610 (1980). N.C. R. Civ. P. 56. In determining whether summary judgment is proper, the court must view the evidence in the light most favorable to the non-moving party, giving to it the benefit of all reasonable inferences and resolving all inconsistencies in its favor. Freeman v. Sturdivant Dev. Co., 25 N.C. App. 56, 212 S.E.2d 190 (1975).

The record shows that plaintiffs were social guests in defendants’ home and therefore, held the status of licensees. “The duty of care owed to a licensee by an owner or possessor of land ordinarily is to ‘refrain from doing the licensee willful injury and from wantonly and recklessly exposing [her] to danger.’ ” DeHaven v. Hoskins, 95 N.C. App. 397, 400, 382 S.E.2d 856, 858, cert. denied, 325 N.C. 705, 388 S.E.2d 452 (1989) (quoting McCurry v. Wilson, 90 N.C. App. 642, 369 S.E.2d 389 (1988)). “It follows that, as a general rule, the owner ... is not liable for injuries to licensees due to the condition of the property, or ... due to passive negligence or acts of omission. ” Id. at 400, 382 S.E.2d 858 (quoting, Pafford v. J. A. Jones Constr. Co., 217 N.C. 730, 9 S.E.2d 408 (1940)) (emphasis in original).

The record in this case affirmatively establishes that plaintiffs were social guests, licensees, in the home of defendants when the female plaintiff slipped and fell as she and her husband exited defendants’ premises. Thus, summary judgment for defendants would be improper if the evidentiary matter offered in support of or in opposition to the motions for summary judgment raised genuine issues of material fact with respect to defendants’ gross negligence [224]*224or willful or wanton conduct causing the injuries of which plaintiffs’ complained.

The forecast of evidence in this record raises at most issues as to defendants’ ordinary or passive negligence. No issue is raised as to defendants’ gross negligence. Thus, summary judgment for defendants was proper.

Affirmed.

Judge Arnold concurs. Judge Phillips dissents.

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408 S.E.2d 538, 104 N.C. App. 222, 1991 N.C. App. LEXIS 1001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-small-ncctapp-1991.

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