An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Proced ure.

NO. COA02-1179


Filed: 5 August 2003



v .                         Durham County
                            No. 01 CVS 02537


    Appeal by plaintiff from order entered 16 May 2002 by Judge Abraham Penn Jones in Durham County Superior Court. Heard in the Court of Appeals 21 May 2003.

    RANDALL & HILL, by John C. Randall, for plaintiff appellant.

    CRANFILL, SUMNER & HARTZOG, L.L.P., by Kari R. Johnson, for defendant appellees.


    Willie Mae Dukes (“Dukes”) appeals an order of summary judgment granted by the trial court in favor of Lee Ray Bergman (“Bergman”), Southern Repair Service, Inc. (“Southern Repair”), and Wayne Baker, Jr., (hereinafter collectively, “defendants”) on claims of negligence. For reasons stated herein, we reverse the trial court.
    An examination of the pleadings, exhibits, and depositions filed in response to defendants' summary judgment motion,considered in the light most favorable to Dukes, tends to show the following: Dukes is the fiancee of James Sowell (“Sowell”). Bergman is the President of Southern Repair, and Southern Repair is the owner of an apartment building located at 1700 Hillcrest Avenue in Durham, North Carolina. Wayne Barker, Jr. is employed by Southern Repair to perform maintenance on units located in the apartment building.
    On 4 January 1999, Sowell assumed the lease of Joey Maple for an apartment unit located at 1700-G Hillcrest Avenue (“the apartment”). Sowell testified that his sole purpose for renting the apartment was to provide living accommodations for his employees while working in North Carolina.
    Dukes testified that on 26 April 1999, she went to the apartment with her son, Ronald Dukes (“Ronald”), in order exterminate for insects and inspect the apartment for damage after a recent burglary. Upon entering the apartment, Dukes proceeded to the bathroom. While in the bathroom, Dukes' foot “went down and got pinned between the wall and the commode.” Thereafter, Ronald went into the bathroom, and placed pressure on the floor in order to free Dukes' leg. Ronald then transported Dukes to Durham Regional Hospital were she was treated for her injuries. As a result of the accident, Dukes suffered a tear in her right knee and later underwent arthroscopy surgery for the injury.
    On 29 May 2001, Dukes filed a complaint alleging that defendants were negligent in renting the apartment and that defendants were negligent in making repairs. Dukes claimed thatdefendants' negligence caused the floor in the apartment to collapse, therefore causing injury to her right knee. Ronald Bivins (“Bivins”), a building inspector, conducted an inspection on the apartment. Bivins opined that the floor in the apartment collapsed due to prior faulty repairs or repeated exposure to water.
    On 7 March 2002, defendants filed a motion for summary judgment. On 16 May 2002, the trial court issued an order granting summary judgment in favor of defendants which read in pertinent part:
        . . . the Court having reviewed the pleadings, affidavits, depositions and other discovery on file, and having heard and reviewed the arguments of counsel, does conclude that there is no genuine issue as to any material fact and that the defendants are entitled as a matter of law based on the precedent of Conley v. Emerald Isle Realty, Inc., 350 N.C. 293, 513 S.E.2d 556 (1999). This Court finds that the Residential Rental Agreements Act, N.C.G.S. § 42-38 et. seq., as codified on the date of the plaintiff's injury, April 26, 1999, does not apply to the facts of this case. In reaching this decision, this Court expressly declines to rule upon the remaining issues raised by the defendants in support of their Motion for Summary Judgment, or in the alternative, Partial Summary Judgment.
            THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the defendants' motion for summary judgment pursuant to North Carolina Rules of Civil Procedure 56 is hereby ALLOWED.
Upon Dukes' appeal, defendants cross-assigned error.


    The dispositive issue before this Court is whether a lawful visitor to property, who is injured, may properly maintain a commonlaw action for negligence against the landlord and others for negligence. For the reasons stated herein, we reverse the order of the trial court.
    Summary judgment is appropriate 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). The party moving for summary judgment must “clearly demonstrate the lack of any triable issue of fact and entitlement to judgment as a matter of law.” Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP, 350 N.C. 214, 220, 513 S.E.2d 320, 324 (1999). In reviewing a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing the motion. Id.
    While Dukes' complaint maintained specific allegations that defendants were negligent in renting the apartment in violation of the North Carolina Residential Rental Agreements Act (“the Act”), codified at Chapter 42, Article 5 of the North Carolina General Statutes, the complaint also contained general allegations of negligence. In the instant case, Sowell became a party to the lease on 4 January 1999 and Dukes suffered her injuries on 26 April 1999. The trial court correctly noted that the Act does not apply to the facts in this case.   (See footnote 1)      We hold that Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998) is controlling. In Nelson, the Court determined that the common law liability of landlords would not depend on the status of the person injured, and adopted a standard of reasonable care to all persons lawfully upon the premises. Id. at 631, 507 S.E.2d at 892.
    In the instant case, Dukes was not a tenant, but instead was a lawful visitor on the property. Her claims against the property owner defendants and their agents are controlled by the Supreme Court's decision in Nelson. In Nelson, the Court greatly simplified the law of premises liability when it abolished the distinction between licensees and invitees, and established a clear rule applying to all property owners. In so holding, the Court stated that “we do not intend for owners and occupiers of land to undergo unwarranted burdens in maintaining their premises. Rather, we impose upon them only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.” Id. at 632, 507 S.E.2d at 892. The Court applied this rule to landowners across the board, and gave it both prospective and retroactive effect. Here, Dukes was a lawful visitor to the property, and no reason appears that this straightforward duty should not apply to these defendants.
    In Conley v. Emerald Isle Realty, Inc., 350 N.C. 293, 513 S.E.2d 556 (1999), by contrast, the plaintiffs were short-termtenants of the defendant, and the Court specifically noted that, “[s]ince the [North Carolina Residential Rental Agreements] Act specifically does not apply . . . here, North Carolina's common law rules concerning the landlord-tenant relationship control.” Id. at 296, 513 S.E.2d at 558. A careful review of the record reveals that Dukes was not a tenant or renter of the premises, and had no landlord-tenant relationship with the owner of the building or its agents. Sowell, the renter of the premises at issue here, is not a party to this lawsuit. Thus, neither the common law rules governing the landlord-tenant relationship, nor the Conley case, have any application in this matter. Therefore, we reverse the dismissal and remand for trial, in which, as in Nelson, the central issue is whether the landowner and others fulfilled the duty of reasonable care. Accordingly, the order of the trial court is hereby
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1
     We note that Session Laws 1999-420, s.2, became effective 1 January 2000, and applies to rental agreements entered into on or after that date. The amendment deleted “who are using thedwelling unit as their primary residence” from the end of subdivision (2).

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