Appeal by plaintiff from order entered 24 August 2001 by Judge
Peter M. McHugh in Superior Court, Guilford County. Heard in the
Court of Appeals 12 June 2002.
Morgan, Herring, Morgan, Green, Rosenblutt & Gill, PLLC, by
James F. Morgan and John Haworth, for plaintiff-appellant.
Pinto Coates Kyre & Brown, PLLC, by David L. Brown, for
defendants-appellees.
McGEE, Judge.
Brian Scott Lescrinier (plaintiff) filed a complaint on 14
December 2000 to recover for personal injuries he alleged were
caused by the negligence of North Point Partners, II, L.L.C. (North
Point), Willard-Stewart, Inc. (Willard-Stewart), Cunningham Brick
Co., Inc. (Cunningham), and Jose A. Martinez (Martinez). North
Point filed an answer on 10 January 2001 denying negligence on its
part and alleging that plaintiff was contributorily negligent.
North Point, Willard-Stewart, Cunningham and Martinez filed
separate motions for summary judgment along with supportingaffidavits. The trial court granted Cunningham's and Martinez's
motions for summary judgment and denied Willard-Stewart's motion
for summary judgment. Plaintiff has not appealed the orders
granting the motions of Cunningham and Martinez for summary
judgment, nor has Willard-Stewart appealed the order denying its
motion for summary judgment.
The trial court held a hearing on defendant's motion for
summary judgment during the 20 August 2001 term of Superior Court,
Guilford County. The evidence before the trial court tended to
show the following. Plaintiff testified in a deposition that on 6
October 1995 he went to visit friends at Ambassador Court
Apartments (apartment complex) in High Point. Around 11:30 p.m.
that night, plaintiff and his friends went to a second apartment in
the complex to visit a young man named Steve. Plaintiff had been
to the apartment complex before but had not previously noticed
construction work going on there. However, plaintiff testified
that on the night of 6 October, he did observe construction work in
the apartment complex. Plaintiff said he had three to four beers
to drink that night.
While at Steve's apartment, plaintiff noticed that Steve had
gone out to the patio because he was not feeling well and was
throwing up. Plaintiff went to the patio to see if Steve was all
right. Plaintiff stated there were no patio lights on, and so that
Steve "wouldn't make a mess on [plaintiff's] shoes [plaintiff]
stepped around [Steve], and that's when [plaintiff] fell off into
[a] hole." Plaintiff explained that he tripped over somethingwhich caused him to fall into the hole and land on a cinder block
located within the hole. After falling, plaintiff went back inside
Steve's apartment where he noticed blood on his clothes. Plaintiff
testified he was diagnosed with a ruptured urethra when he went to
the emergency room the next day.
Glenn Hedgecock (Hedgecock), director of new construction at
Willard-Stewart, submitted an affidavit on behalf of Willard-
Stewart stating that Willard-Stewart was hired by North Point as
general contractor for a construction project at the apartment
complex. Hedgecock stated in the affidavit that
[t]he "hole" complained of by plaintiff . . .
is a shallow foundation trench . . . which is
commonly dug around buildings in order to
permit renovations to the exterior. The
foundation trench for the [apartment complex]
was dug around certain portions of the
buildings as part of the installation of the
brick on the apartments' exterior.
He further stated that "[t]he foundation trench was not dug in
areas near walkways or where pedestrian traffic was expected."
William B. Millis (Millis), a North Point owner, submitted an
affidavit stating that North Point hired Willard-Stewart as an
"independent general contractor" to perform renovations and
additions at the apartment complex. Millis further stated that
Willard-Stewart was not under North Point's direct control and that
North Point did not instruct anyone affiliated with Willard-Stewart
on the particulars of how to renovate or construct the apartment
building. Millis stated that North Point "had no knowledge of any
dangerous or unreasonable condition on the premises of [the
apartment complex] prior to the incident complained of by thePlaintiff in this action."
The trial court granted North Point's motion for summary
judgment in an order entered 24 August 2001. Plaintiff appeals
from this order.
I.
We must first determine whether plaintiff's appeal is properly
before our Court. An interlocutory order is one which does not
dispose of the case as to all parties and issues and is therefore
not a final order.
Veazey v. City of Durham, 231 N.C. 357, 361-62,
57 S.E.2d 377, 381 (1950). Because plaintiff's action against
Willard-Stewart is still pending in the trial court, the trial
court's order granting summary judgment for North Point is an
interlocutory order.
Generally, there is no right of immediate appeal from an
interlocutory order. N.C. Gen. Stat. § 1A-1, Rule 54(b) (2001);
Veazey, 231 N.C. at 362, 57 S.E.2d at 381. The reason for this
rule is "to prevent fragmentary, premature and unnecessary appeals"
by permitting the trial court to bring the case to final judgment
before it is presented to the appellate courts.
Waters v.
Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978).
However, an appeal from an interlocutory order may be taken in two
circumstances: (1) if the order is final as to one or more of the
claims or parties, and the trial court certifies that there is no
just reason to delay the appeal; or (2) the order deprives the
appellant of a substantial right that would be lost absent
immediate review.
Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000).
See also N.C. Gen. Stat. §§ 1-
277(a) (2001) and 7A-27(d) (2001). Plaintiff argues that the trial
court's order granting North Point's motion for summary judgment
affects his substantial right to have all issues of liability
determined by the same jury.
"The 'substantial right' test for appealability is more easily
stated than applied."
Bailey v. Gooding, 301 N.C. 205, 210, 270
S.E.2d 431, 434 (1980).
See also Waters, 294 N.C. 200, 240 S.E.2d
338. Whether or not a substantial right will be affected by delay
in hearing an interlocutory appeal is to be decided on a case-by-
case basis.
Waters, 294 N.C. at 208, 240 S.E.2d at 343. "A
substantial right is 'one which will clearly be lost or
irremediably adversely affected if the order is not reviewable
before final judgment.'"
Turner, 137 N.C. App. at 142, 526 S.E.2d
at 670 (quoting
Blackwelder v. Dept. of Human Resources, 60 N.C.
App. 331, 335, 299 S.E.2d 777, 780 (1983)). A substantial right is
likely to be affected where a possibility of inconsistent verdicts
exists if the case proceeds to trial.
Green v. Duke Power Co., 305
N.C. 603, 608, 290 S.E.2d 593, 596 (1982).
In the case before us, we find that "plaintiff['s] appeal is
reviewable under the substantial right exception because a
dismissal now would raise the possibility of inconsistent verdicts
in later proceedings."
Hoots v. Pryor, 106 N.C. App. 397, 402, 417
S.E.2d 269, 273,
disc. review denied, 332 N.C. 345, 421 S.E.2d 148
(1992). North Point alleges in its answer that plaintiff's actions
at the apartment complex constitute contributory negligence. It ispossible that in a proceeding against Willard-Stewart alone, a jury
could find plaintiff contributorily negligent. If, in an appeal of
that verdict, plaintiff renews his appeal of the trial court's
order allowing North Point's motion for summary judgment, and our
Court finds that said order was in error, then a second trial would
be required as to the claim against North Point. It is possible
that in this second trial, a jury could determine plaintiff was not
contributorily negligent. Thus, if plaintiff's case were to be
tried in two separate proceedings, the possibility of inconsistent
verdicts arises. We find that plaintiff's appeal, though
interlocutory, should not be dismissed in that it affects a
substantial right.
II.
We next consider plaintiff's argument that the trial court
erred in granting North Point's motion for 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) (2001). As
the moving party, North Point has the initial burden of showing
either that an essential element of plaintiff's claim does not
exist as a matter of law or that plaintiff cannot produce evidence
to support an essential element of his claim.
Evans v. Appert, 91
N.C. App. 362, 365, 372 S.E.2d 94, 96,
disc. review denied, 323
N.C. 623, 374 S.E.2d 584 (1988). If North Point carries thatburden, plaintiff, as the non-movant, must then offer a forecast of
evidence which shows that there is a genuine issue of material fact
for trial with respect to the issues raised by North Point.
Evans,
91 N.C. App. at 365, 372 S.E.2d at 96; N.C. Gen. Stat. § 1A-1, Rule
56(e) (2001). The trial court must consider the evidence in the
light most favorable to the non-movant.
See Nourse v. Food Lion,
Inc., 127 N.C. App. 235, 488 S.E.2d 608 (1997),
aff'd, 347 N.C.
666, 496 S.E.2d 379 (1998).
In a negligence action, to survive a motion for summary
judgment, a plaintiff must establish a
prima facie case by showing:
"(1) that defendant failed to exercise proper care in the
performance of a duty owed plaintiff; (2) the negligent breach of
that duty was a proximate cause of plaintiff's injury; and (3) a
person of ordinary prudence should have foreseen that plaintiff's
injury was probable under the circumstances."
Lavelle v. Schultz,
120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995),
disc. review
denied, 342 N.C. 656, 467 S.E.2d 715 (1996) (citations omitted).
Our Supreme Court ruled in
Nelson v. Freeland that owners and
occupiers of land have a "duty to exercise reasonable care in the
maintenance of their premises for the protection of lawful
visitors."
Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882,
892 (1998). Reasonable care requires that a landowner not
unnecessarily expose a lawful visitor to danger and give warning of
hidden hazards of which the landowner has express or implied
knowledge.
Barber v. Presbyterian Hosp., 147 N.C. App. 86, 89, 555
S.E.2d 303, 306 (2001) (citing
Norwood v. Sherwin-Williams Co., 303N.C. 462, 467, 279 S.E.2d 559, 562 (1981)). Therefore, in order to
show actionable negligence by a landowner, a plaintiff must
forecast evidence tending to "show that the defendant either (1)
negligently created the condition causing the injury, or (2)
negligently failed to correct the condition after actual or
constructive notice of its existence."
Roumillat v. Simplistic
Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342-43 (1992).
Our Supreme Court determined that
Nelson was to have
retrospective application and it therefore applies to the case
before us.
Nelson, 349 N.C. at 633, 507 S.E.2d at 893. North
Point, as owner of the apartment complex, owed plaintiff a duty of
reasonable care in the maintenance of its premises. Plaintiff
alleges in his complaint that North Point breached that duty "by
permitting the hole to exist without lighting or guarding of any
kind when it knew or in the exercise of due care should have known
of the existence of the hole."
We find that in this case, plaintiff has failed to forecast
any evidence of North Point's negligence. There is no evidence in
the record that North Point made the hole that plaintiff alleged
created a dangerous condition. There is no evidence of any
previous accidents at the apartment complex due to the alleged
dangerous condition; nor is there evidence showing any tenants or
visitors to the apartment complex complained about the existence of
the hole. The record fails to reveal how long the hole existed
before plaintiff's accident. No evidence discloses that North
Point was involved in the day-to-day construction activity in theapartment complex and Millis, a North Point owner, denied North
Point had knowledge of any dangerous or unreasonable condition on
the premises. Although plaintiff refers to invoices paid by
Willard-Stewart for the delivery of bricks and other supplies
before plaintiff's injury as evidence that North Point should have
known of the existence of the hole, we fail to discern how this
information put North Point on actual or constructive notice of a
dangerous condition.
Viewing the evidence in a light most favorable to plaintiff as
the non-movant and giving him the benefit of all inferences
therein, plaintiff has failed to produce any evidence tending to
show that North Point breached a duty owed to plaintiff. The trial
court did not err in granting North Point's motion for summary
judgment.
Affirmed.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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