McKinney v. Greater Gethsemane African Methodist Episcopal Zion Church of Charlotte, N.C., Inc.

• Court: Court of Appeals of North Carolina
• Decided: July 1, 2014
• Docket: 13-1448
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .

NO. COA13-1448

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

RUTH McKINNEY, individually and as Administratrix for the Estate of QUINTON McKINNEY, and the Estate of QUINTON McKINNEY, Plaintiffs,

v. Mecklenburg County No. 13 CVS 2506 GREATER GETHSEMANE AFRICAN METHODIST EPISCOPAL ZION CHURCH OF CHARLOTTE, N.C., INC., Defendant.

Appeal by plaintiffs from order entered 23 September 2013

by Judge Richard D. Boner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 7 May 2014.

Gray & Johnson, LLP, by Mark V.L. Gray and Nekia Pridgen, for plaintiff-appellants.

Dean Gibson Hofer & Nance, PLLC, by Rodney Dean, for defendant-appellee.

BRYANT, Judge. -2- Where the evidence indicates that the decedent was clearly

contributorily negligent, the granting of defendant church’s

motion for summary judgment was appropriate.

Plaintiffs Ruth McKinney, individually and as

Administratrix for the Estate of Quinton McKinney, and the

Estate of Quinton McKinney (“plaintiffs”), filed a complaint

against several defendants including Greater Gethsemane African

Methodist Episcopal Zion Church of Charlotte, N.C., Inc.

(defendant “church”). Plaintiffs alleged that on 23 February

2011, Quinton McKinney died while performing maintenance work

for defendant church. Specifically, plaintiffs alleged that

defendant church solicited McKinney, a member of defendant

church, to remove a tree limb hanging over the church parking

lot and that while doing so McKinney fell from a ladder and

died.

McKinney’s fall was not witnessed. Clinton Clinkscales, a

member of defendant church who had a “job partnership” with

McKinney doing yard maintenance and home repairs, stated that he

went with McKinney to the church that day to perform various

maintenance tasks as volunteers for defendant church.

Clinkscales said that while changing light bulbs inside the

church, he received a call from McKinney that McKinney was ready -3- to cut down the tree limb; Clinkscales asked McKinney to wait

until he could come outside and help. Clinkscales stated that

when he walked outside of the church a few minutes later, he saw

McKinney lying on the ground. An A-frame ladder, a chainsaw,

and a tree limb were all near McKinney. McKinney was declared

dead at the hospital. Although medical evidence suggested that

McKinney had a “cardiac episode” which may have caused him to

fall off the ladder, the medical examiner determined that

McKinney’s ultimate cause of death was a spinal cord injury

caused by his fall.

Defendants filed a motion for summary judgment on 4 June

2013. On 23 July 2013, the trial court issued an order granting

defendants’ motion to dismiss as to the insurance company

defendants1 and reserving ruling as to defendant church.

On 23 September 2013, the trial court granted defendant

church’s motion for summary judgment. Plaintiffs appeal.

_______________________

On appeal, plaintiffs raise several issues regarding the

trial court’s award of summary judgment for defendant church.

1 On 15 March 2013, defendants filed a motion to dismiss insurance company defendants Philadelphia Insurance Companies; Philadelphia Consolidated Holding, Corp.; Tokio Marine Group; Tokio Marine Holdings, Inc.; and Tokio Marine and Nichido Fire Insurance Co. -4- "Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the

record shows 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." Blackwell v. Hatley, 202 N.C. App. 208, 211, 688 S.E.2d

742, 745 (2010) (citations omitted). "The showing required for

summary judgment may be accomplished by proving an essential

element of the opposing party's claim does not exist, cannot be

proven at trial, or would be barred by an affirmative

defense[.]" Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829,

835 (2000) (citation omitted). In considering a motion for

summary judgment, "[a]ll facts asserted by the [nonmoving] party

are taken as true and their inferences must be viewed in the

light most favorable to that party." Nationwide Prop. & Cas.

Ins. Co. v. Martinson, 208 N.C. App. 104, 109, 701 S.E.2d 390,

393 (2010) (citation omitted).

Plaintiffs argue the trial court erred by granting summary

judgment in favor of defendant church. Specifically, plaintiffs

contend the trial court erred by failing to conclude that tree

cutting is an inherently dangerous activity, and that genuine

issues of material fact exist as to whether defendant church was

negligent in soliciting, training, and supervising McKinney in -5- cutting down the tree limb; whether defendant church’s actions

were willful and wanton; whether McKinney was contributorily

negligent; and whether McKinney was a third-party beneficiary of

insurance company defendants. Because plaintiffs’ arguments are

closely related, yet offer limited legal authority in support

thereof, we address them together.

In general, one who accepts the services of a volunteer is

not liable for the volunteer’s acts. See N.C. Gen. Stat. § 1-

539.10(b) (2013) (qualified immunity is waived where an

organization secures liability insurance).

However, if the work to be performed . . . is either (1) ultrahazardous or (2) inherently dangerous, and the [party accepting the work] either knows or should have known that the work is of that type, liability may attach despite the [volunteer’s] status. This is because, in those two areas, the [party accepting the work] has a non-delegable duty for the safety of others.

Kinsey v. Spann, 139 N.C. App. 370, 374, 533 S.E.2d 487, 491

(2000) (citations omitted). An "inherently dangerous activity"

is defined

as work to be done from which mischievous consequences will arise unless preventative measures are adopted, and that which has a recognizable and substantial danger inherent in the work, as distinguished from a danger collaterally created by the independent negligence of the [worker], which later -6- might take place on a job itself involving no inherent danger.

O'Carroll v. Roberts Indus. Contractors, Inc., 119 N.C. App.

140, 146, 457 S.E.2d 752, 756 (1995) (citation and quotation

omitted). To be successful, a claim for an inherently dangerous

activity requires a showing of four elements: (1) the activity

must be inherently dangerous; (2) at the time of injury, the

[defendant] either knew, or should have known, that the activity

was inherently dangerous; (3) the [defendant] failed to take the

necessary precautions to control the attendant risks; and, (4)

the failure by the [defendant] proximately caused injury to

plaintiff. Kinsey, 139 N.C. App. at 375, 533 S.E.2d at 492.

Plaintiffs contend the trial court erred in granting

summary judgment to defendant church because tree cutting is an

inherently dangerous activity. In determining whether an

activity is inherently dangerous, this Court has held that “the

area where the activity is to be performed is significant.” Id.

at 376, 533 S.E.2d at 492. As such, our Courts have found that

although tree felling in a rural, forested area is not

inherently dangerous, Young v. Fosburg Lumber Co., 147 N.C. 26,

34—35, 60 S.E. 654, 657—58 (1908), tree felling in a populated

urban area is inherently dangerous. Kinsey, 139 N.C. App. at

376, 533 S.E.2d at 492. -7-

Cutting and removing a tree in the midst of a forest would probably not rank as [] hazardous work. But the cutting and removal of a large tree in close proximity to dwellings and in an area traversed by many people, would probably be sufficiently hazardous as to require precautions with which we are all familiar.

Evans v. Elliot, 220 N.C. 253, 260, 17 S.E.2d 125, 129—30 (1941)

(citation omitted).

Here, McKinney attempted to remove a limb from a tree that

stood next to defendant church’s parking lot. Although evidence

suggested defendant church was concerned about the tree limb

possibly falling and damaging parishioners’ cars, there is

nothing indicating the limb posed an imminent danger to life or

property, was located in a populated urban area, or that the

entire tree needed to be cut down. Moreover, the statements of

Clinkscales indicated McKinney was experienced in tree

maintenance, including the use of ladders and chainsaws, to

remove tree limbs. As such, the facts of the instant case do

not support plaintiffs’ contention that McKinney was engaged in

an inherently dangerous activity.

In fact, as noted herein, the facts were found to be

insufficient to sustain a negligence claim against defendant

church based on any theory of negligence. Nevertheless, -8- assuming arguendo a negligence claim had been shown, the

evidence indicates McKinney was contributorily negligent.

In answering the "pivotal question" whether the evidence supports a finding of contributory negligence, a plaintiff's conduct must be judged in the light of the general principle that the law does not require a person to shape his behavior by circumstances of which he is justifiably ignorant, and the resultant particular rule that a plaintiff cannot be guilty of contributory negligence unless he acts or fails to act with knowledge and appreciation, either actual or constructive, of the danger of injury which his conduct involves.

Shelton v. Steelcase, Inc., 197 N.C. App. 404, 424, 677 S.E.2d

485, 499 (2009) (citations and quotation omitted). Although the

issue of contributory negligence is “rarely appropriate for

summary judgment,” summary judgment is appropriate “where the

evidence establishes a plaintiff’s negligence so clearly that no

other reasonable conclusion may be reached.” Martishius v.

Carolco Studios, Inc., 355 N.C. 465, 479, 562 S.E.2d 887, 896

(2002) (citation omitted).

The trial court noted during its hearing on defendant

church’s motion for summary judgment that: based on the

respective heights of McKinney, the ladder, and the tree limb,

to reach the tree limb McKinney had to have stood on the top

rung of the ladder; the ladder used by McKinney was clearly -9- marked with safety instructions and warnings, including a

warning notifying users not to stand on the top rung of the

ladder; the ladder was placed on soft ground which would have

made it very unstable, even though the tree limb could have been

removed if the ladder had been placed several feet over onto the

paved parking lot; Clinkscales told McKinney to wait so he could

help McKinney, but McKinney did not wait; and McKinney was

experienced in tree maintenance and, thus, was aware of the

safety risks involved in cutting and removing tree limbs in the

manner as indicted by these facts. The trial court also found

that while no one witnessed McKinney’s accident, medical

evidence suggested McKinney may have had a heart attack while

cutting down the tree limb which led to him falling off the

ladder and sustaining a fatal spinal cord injury. The trial

court further noted there was no evidence indicating defendant

church demanded or required McKinney to remove the tree limb or

that defendant church was aware of the danger involved in

removing the tree limb; that Clinkscales stated both he and

McKinney were aware that if they felt they could not remove the

tree limb safely, defendant church would hire a professional

tree service to handle it; and that defendant church had

discussed the tree limb generally with McKinney and Clinkscales -10- because defendant church knew McKinney and Clinkscales were

experienced with such tasks.

In granting defendant church’s motion for summary judgment,

the trial court told plaintiffs that:

This case is shot through with so many holes that even giving you every benefit of the doubt and every inference, if we were trying to [go] to the jury, it wouldn’t go to the jury.

You’ve got problems with how the accident happened. We don’t know why [McKinney] fell. They’d have to – the jury would have to speculate as to why that happened. Was it truly – was this an unfortunate accident or whether, you know, what happened.

You’ve got problems with the fact that there’s – the evidence is that nobody from [defendant] church specifically said, “You’ve got to go up there and do it,” or, “We need you to do it.” There’s no evidence as required by the Spann case that [defendant] church knew or should have known before making the request that this was an ultra-hazardous activity. I mean, you don’t have any of that.

As the trial court notes, every factual inference points

toward McKinney being contributorily negligent. Accordingly, the

trial court’s granting of defendant church’s motion for summary

judgment was appropriate.

Affirmed.

Judges CALABRIA and GEER concur. -11- Report per Rule 30(e).