Appeal by plaintiffs from judgment entered 30
September 1999 by Judge Jack Thompson in Scotland County Superior Court.
Heard in the Court of Appeals 5 December 2001.
Evans & Co., by Robert G. McIver,
attorney for plaintiffs- appellants.
Anderson, Johnson, Lawrence, Butler &
Bock, L.L.P, by John H. Anderson, attorney for defendant-appellee.
THOMAS, Judge.
Plaintiff, Allstate Insurance Company, appeals
the trial court's grant of summary judgment in a subrogation claim for
damages against defendant Charles F. Oxendine (Oxendine). A home of
plaintiff's insured, William A. Cooper (Cooper), burned when a fire
originating on Oxendine's land got out of control. Based on the
reasoning herein, we affirm.
The facts are as follows: Oxendine owns land
adjacent to Cooper's. He and his wife live there in one residence while
defendant Jamie F. Locklear (Locklear) and Oxendine's daughter live
together in a separate residence on the property. Oxendine's daughter
financed the home and the couple pays no land rent.
In January, 1995, Oxendine utilized three
fifty-five gallon drums for burning trash between his trips to a
landfill. In adeposition, Oxendine stated that he never left the area
around the drums when a fire was still burning and kept a water hose
within reach. He further said Locklear and his daughter were given the
privilege of using the drums “any time they wanted to.” Locklear and
Oxendine's daughter had resided there for several years prior to 1995,
and by the time of the lawsuit in 1998, were married with children.
On the morning of 21 January 1995, Locklear
burned a bag full of trash in one of the drums while Oxendine was
asleep. In a deposition, Locklear said that he stayed with the fire
until it was “just smoking a little bit,” and then did yard work and
washed two cars. He returned to his residence only after being outside
for several hours. During the afternoon, however, while Oxendine was at
work, the fire escaped the drum, spread to the ground, and raced toward
Cooper's property. It eventually engulfed part of his home.
Plaintiff paid Cooper $47,304.72 under his
homeowner's policy for the damage and then proceeded against Oxendine
and Locklear. In the complaint, plaintiff alleged joint negligence and
charged defendants with failing to keep a proper lookout, failing to
take adequate precautions to protect against the spread of fire, and
failing to ensure that the fire was extinguished after their trash
burning activities concluded.
Oxendine moved for summary judgment as to the
claim against him, which was allowed. Plaintiff appealed to this Court
in Allstate Ins. Co. v. Oxendine, 134 N.C. App. 376, 526 S.E.2d
217 (1999), but the appeal was ruled interlocutory and dismissed.
Plaintiff then successfully moved for summary judgment against Locklear.
In its order, the trial court found that Locklear was negligent in
failing to keep a proper lookout and awarded plaintiff $47,554.74, which
included a $250.00 deductible, plus interest and costs.
Plaintiff again appeals the earlier grant of
summary judgment in favor of Oxendine. His sole assignment of error is
that the trial court erred in granting summary judgment.
Summary judgment is proper 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)
(1999). The record is reviewed in the light most favorable to the non-movant,
and all inferences will be drawn against the movant. Caldwell v.
Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975).
In general, summary judgment is not appropriate
where issues of negligence are involved. Sink v. Andrews, 81 N.C.
App. 594, 596, 344 S.E.2d 831, 832 (1986). “However, if the
evidentiary forecasts establish either a lack of any conduct on the part
of the movant which could constitute negligence, or the existence, as a
matter of law, of a complete defense to the claim, summary judgment may
be properly allowed.” Id. Thus, summary judgment is
proper in negligence actions where there can be no recovery even if the
facts as claimed by plaintiff are true. Kiser v. Snyder, 17 N.C.
App. 445, 450, 194 S.E.2d 638, 641, cert. denied, 283 N.C. 257,
195S.E.2d 689 (1973).
As a general rule, a landowner is not liable for
injury caused by the acts of a licensee, unless such acts constitute a
nuisance which the owner knowingly suffers to remain. Benton v.
Montague, 253 N.C. 695, 702, 117 S.E.2d 771, 776 (1961). The rule
derives from the following doctrine:
In case of work done by
a licensee, the work is done on the licensee's own account, as his own
business, and the profit of it is his. It is not a case, therefore,
where the thing which caused the accident is a thing contracted for by
the owner of the land, and for which he may be liable for that reason.
Id. (citing Brooks v. Mills Co., 182 N.C. 719, 722, 110
S.E. 96, 97 (1921) (quoting Rockport v. Granite Co., 58 N.E.
1017, 1018 (Mass. 1901)). Benton further provides a two-prong
test for imposing liability on an occupier of land for negligence in
failing to control the activities of a third person on his land:
It is not enough here,
of course, to show that the third person's conduct foreseeably and
unreasonably jeopardized plaintiff. Plaintiff must also show that the
occupier (a) had knowledge or reason to anticipate that the third person
would engage in such conduct upon the occupier's land, and (b)
thereafter had a reasonable opportunity to prevent or control such
conduct.
Benton, 253 N.C. at 703, 117 S.E.2d at 777 (quoting 2
Harper and James, The Law of Torts § 27.19, at 1526 (2d ed.
1956)). Although our Supreme Court abolished the tri-partite distinction
between invitees, licensees, and trespassers in premises liability
cases, the term “licensee,” as used in Benton, remains
relevant here. See Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d
882 (1998). Alicensee is defined as “one who enters onto another's
premises with the possessor's permission, express or implied, solely for
his own purposes rather than the possessor's benefit.” Id. at
617, 507 S.E.2d 883 (quoting Mazzacco v. Purcell, 303 N.C. 493,
497, 279 S.E.2d 583, 586-87 (1981)).
Oxendine permitted Locklear to have free and
reasonable use of the property, including the use of the drums to burn
trash. Locklear's conduct then caused plaintiff's subrogee to suffer
damages. Therefore, the law of landowner liability as set forth in Benton
applies. See Sexton v. Crescent Land & Timber Corp.,
108 N.C. App. 568, 571, 424 S.E.2d 176, 177 (applying the law set forth
in Benton in a wrongful death action against a property owner
where a person on neighboring property died from injuries inflicted by a
gunshot fired during target practice on defendant's property), disc.
review denied, 333 N.C. 464, 427 S.E.2d 624 (1993).
In the present case, as in Benton, it is
permissible to infer that the conduct of the third party, Locklear, was
a proximate cause of plaintiff's injury. In fact, the trial court
entered summary judgment against Locklear on the issue of negligence.
Among its findings, the trial court determined that, “Defendant
Locklear did not maintain a proper lookout in connection with his
burning activity, and failed to ensure that the trash fire was
extinguished before he left the scene,” and, “Locklear was the
proximate and legal cause of damages suffered by [plaintiff].”
However, at the time of the injury, Locklear's
conduct had not been sufficiently continuous and of such duration to
amount to anuisance. See Benton, 253 N.C. at 703, 117 S.E.2d at
777. Furthermore, even “if the existence of a nuisance is assumed, the
evidence is insufficient to fix defendant with knowledge and to show
that defendant knowingly suffered it to continue.” Id at 703-
04, 117 S.E.2d at 777. There was no evidence, or even forecast of
evidence, of any earlier negligent use of the drums by Locklear which
would have alerted Oxendine. Locklear stated in his deposition that he
burned trash on Oxendine's property a couple of times a month and always
made sure the bag was completely inside the drum. On 21 January 1995, he
burned the bag in a drum, watched the fire until there was only smoke,
and then did other outdoor chores. Oxendine was asleep in the morning
and at work during the afternoon when Locklear failed to keep a proper
lookout.
There is no evidence of burning activities by
Locklear of such duration or in such a manner as to amount to a
nuisance. There is no evidence that Oxendine, with knowledge of such
conduct, permitted it to continue.
Accordingly, we reject plaintiff's assignment of
error and affirm the order of the trial court.
AFFIRMED.
JUDGES WYNN and WALKER concur.
