Starr v. Clapp

252 S.E.2d 220, 40 N.C. App. 142, 1979 N.C. App. LEXIS 2594
CourtCourt of Appeals of North Carolina
DecidedMarch 6, 1979
Docket7818SC185
StatusPublished
Cited by4 cases

This text of 252 S.E.2d 220 (Starr v. Clapp) 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
Starr v. Clapp, 252 S.E.2d 220, 40 N.C. App. 142, 1979 N.C. App. LEXIS 2594 (N.C. Ct. App. 1979).

Opinions

VAUGHN, Judge.

The minor plaintiff was awarded $12,500 for damages sustained when he drove his motorcycle into a cable gate on a private driveway on defendants’ farm. The jury found that he was injured by the “willful or wanton negligence of the defendants.” The sole question presented is whether the court erred in failing to grant defendants’ timely motions for directed verdict and for judgment notwithstanding the verdict. A majority of this panel of judges is of the opinion that the evidence fails to show that plaintiff’s injuries were sustained as a result of any willful or wanton conduct on the part of defendants.

Whether defendants’ conduct was “willful or wanton” was properly selected as the standard by which that conduct must be judged. The duty owed a person on the premises of another depends upon, among other things, whether that person is an invitee, licensee or trespasser. Hood v. Queen City Coach Co., 249 N.C. 534, 107 S.E. 2d 154 (1959). “The duty owed to trespassers is that they must not be willfully or wantonly injured.” Jessup v. High Point, Thomasville and Denton Railroad, 244 N.C. 242, 245, 93 S.E. 2d 84, 87 (1956). “As to a licensee the duties of a property owner are substantially the same as with respect to a trespasser; but an essential difference arises out of conditions which impose upon the owner or occupant of property the duty of anticipating the presence of a licensee.” Jones v. Southern Railway, 199 N.C. 1, 3, 153 S.E. 637, 638 (1930).

An act is said to be wanton “when, being needless, it manifests no rightful purpose, but a reckless indifference to the interests of others.” Wise v. Hollowell, 205 N.C. 286, 289, 171 S.E. 82, 84 (1933). “An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference [144]*144to the rights of others.” Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 36, 37-38 (1929). The term “wanton negligence” always implies more than negligence. It implies turpitude. “Ordinary negligence has as its basis that a person charged with negligent conduct should have known the probable consequences of his act. Wanton and willful negligence rests on the assumption that he knew the probable consequences, but was recklessly, wantonly or intentionally indifferent to the results.” (Emphasis added.) Wagoner v. North Carolina Railroad, 238 N.C. 162, 168, 77 S.E. 2d 701, 706 (1953).

We now review the evidence as it relates to the foregoing principles. Plaintiffs called as their first witness the defendant, John Clapp, whose testimony in material part, was as follows. In January, 1975, he and his wife purchased the 100 acre farm on which the accident occurred. It adjoins a 130 acre tract owned by his parents. Defendants did not live on the property and usually were on the premises only on weekends. At the time of the accident there was an old unoccupied dwelling on the property. It was located some distance from any public road, and defendants reached the dwelling over a private dirt and gravel driveway that ran in a northerly direction from the public road. Defendants’ agreement with Carl Pegram, the former owner, provided that Pegram could occupy the old dwelling for ninety days after the sale. Pegram experienced some delay in his plans and was allowed to remain on the property until September of 1975. After defendants purchased the property, they suffered considerable harassment from trespassing motorists. On at least two occasions, Mrs. Clapp was in the old house painting when strange male trespassers drove up in automobiles. Defendants also had problems with trespassers dumping trash, including beer cans and whiskey bottles. Clapp posted a “Private Road, Keep Out” sign at the entrance to the property. He also put up several signs along the driveway reading, “Warning, Posted Land, No Trespassing, Violators Can Be Prosecuted.” Some of the signs were black and red metal, others were of multi-colored plastic and others were of cardboard. After Pegram moved away in September, defendants decided, in late September or early October, to block the driveway with a cable gate in an effort to stop the trespassing motorists. Clapp decided that he would block the driveway at what he considered the most logical spot. An aluminum cable, [145]*145formerly used by the telephone company and three-eighths of an inch in diameter, was attached to a pine tree on the east side of the road. The cable then ran about ten or twelve feet across the road and was attached to a post defendants planted in the edge of a seven acre field. The gate was locked at the end that was affixed to the telephone post. The cable swung about three feet off the ground in the center but was slightly higher at the ends. It was located down the road from defendants’ property line so as to take advantage of an open field that was on one side of the road. The gate site was about 180 feet from where one would come out of a curve and could be seen by one coming down the road for that distance. The gate was from one eighth to one quarter of a mile from the old house. The sole purpose of installing the gate was to try to prevent people in automobiles from driving over the defendants’ property. Clapp used cable for the gate because he had the cable on hand and because of its convenience. Neither of the defendants had ever seen the minor plaintiff or any other motorcyclists, bicyclists or horseriders on their property. Clapp said that he had no reason to know that plaintiff or anyone else with a motorcycle had ever been on his property.

Plaintiff then called Dr. R. T. Copeland, a Greensboro veterinarian who, along with G. S. Patrick, went to defendants’ farm on the afternoon of 16 November 1975. The pair, with the written permission of defendants, frequently visited the farm to plant bird patches, release quail and train hunting dogs. Dr. Copeland was familiar with the bad situation that defendants faced with reference to trespassing motorists. He had seen carloads of trespassers parked on the property and had seen their discarded beer cans, wine bottles and other litter. On one occasion, he had taken his wife out to watch the dogs run, but she did not want to stay because of that situation. He was also familiar with the numerous signs that were posted warning people to stay off of the property because it was privately owned. He described the cable across the driveway as being a “shiny aluminum cable” and said that it was plainly visible to one coming down the driveway for at least 180 feet. As was their custom, they parked the truck just south of the barricade and started walking down the driveway. They then saw plaintiff lying on the ground ten or fifteen feet north of the cable and the motorcycle about fifteen feet north of plaintiff. Plaintiff was unconscious and had scrapes and [146]*146bruises on his chest and neck. An ambulance was called, and plaintiff was taken to the hospital.

The minor plaintiff took the stand in his own behalf. He knew nothing about what caused him to wreck his motorcycle. In fact, he did not remember riding it on the day that he was injured. He had, however, ridden his trail bike on the property many times before Pegram, the former owner, moved. He said, however, that the road had gotten “old” to ride on. By getting “old” he meant that he had ridden on it “so many times it was getting dull, nothing to it.” At times in the past, he had also ridden on the property in the company of other people on motorcycles. The last time he remembered riding on the property was about a month before the accident.

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Starr v. Clapp
252 S.E.2d 220 (Court of Appeals of North Carolina, 1979)

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Bluebook (online)
252 S.E.2d 220, 40 N.C. App. 142, 1979 N.C. App. LEXIS 2594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/starr-v-clapp-ncctapp-1979.