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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
TIMOTHY EARL WALLEN, Plaintiff, v. RIVERSIDE SPORTS CENTER, a
General Partnership, JOHN M. ROSE, JR. and SOL C. ROSE,
Filed: 20 September 2005
Premises Liability_natural hazard on real property_liability of owner_constructive
notice_foreseeability_issues of fact
Defendants had a duty on these facts to exercise reasonable care regarding natural
conditions on their lands lying adjacent to a public highway (a navigable river), provided that
they had notice of a dangerous condition. The trial court erred by granting summary judgment
for defendants on a negligence claim for injuries suffered when a decayed tree fell on plaintiff
while he his boat was tied to a pylon at defendants' boat ramp. The urban-rural distinction in
older cases is no longer clear.
Appeal by plaintiff from judgment entered 9 October 2003 by
Judge Steve A. Balog in Cumberland County Superior Court. Heard in
the Court of Appeals 2 September 2004.
Twiggs, Beskind, Strickland & Rabenau, P.A., by Jerome P.
Trehy, Jr., for plaintiff-appellant.
Horton and Gsteiger, P.L.L.C., by Urs R. Gsteiger, for
Plaintiff, Timothy Earl Wallen, appeals the superior court's
order granting defendants' motion for summary judgment and
dismissing plaintiff's action with prejudice. For the reasons
discussed herein, we reverse.
Since 1977, brothers John and Sol Rose have operated Riverside
Sports Center. Defendants lease twenty-five acres of largely
undeveloped land fronting the Cape Fear River off of Person Street
in Fayetteville, North Carolina. On a portion of the leased
property, defendants operate a small bait and tackle shop and aQuonset hut for boat repairs. Incident to this business,
defendant's obtained a permit from the Army Corps of Engineers to
construct a boat ramp, providing access to the Cape Fear River. As
part of the construction of the boat ramp, defendants also
installed wooden pylons in the river. These pylons, also called
fender piles, were placed both upstream and downstream from the
boat ramp to prevent logs floating downstream from harming the boat
dock or ramp. Defendants' customers frequently tied their boats to
the pylons while waiting to use the ramp to remove their boats from
On 31 August 2001, plaintiff met Rick George and his son at
Riverside to go fishing. At approximately 4:00 p.m., George paid
the access fee and launched his pontoon boat into the river using
Riverside's ramp. After the party had fished for a while, the wind
picked up and dark clouds rolled in. They decided to get off of
the river until the storm passed. By the time plaintiff and George
got back to the Riverside boating facility, it was raining and
there were four boats ahead of them waiting to use the ramp to get
off the river. George tied his boat to one of the downstream
pylons. Plaintiff and George began putting a tarp over the boat to
keep it dry. George said he heard a loud noise, like an artillery
round, and felt something hit the boat. When he turned, he saw
plaintiff lying on his back, unconscious. George was able to
revive plaintiff using CPR. While waiting for an ambulance to
arrive, he noticed a large log broken in half, lying on the bow of
his boat. A Boxelder tree had fallen and struck plaintiff, leavinghim with a horseshoe-shaped gash on the back of his head, extending
from ear to ear. As a result of his injuries, plaintiff was
rendered a paraplegic.
Plaintiff brought suit against defendants, alleging he was
injured by defendants' negligence. Plaintiff asserted that
defendants failed to exercise reasonable care to keep their
premises in reasonably safe condition, and more specifically, that
defendants failed to properly inspect their property and remove any
dead trees around the pylons, and as a result of their negligence,
plaintiff was injured. On 28 August 2003, defendants filed a
motion for summary judgment, contending plaintiff: (a) failed to
show defendants owed any duty to plaintiff; (b) failed to show
defendants were negligent; and (c) failed to show that his injury
was reasonably foreseeable to defendants. On 9 October 2003, the
trial court granted defendants's motion for summary judgment.
In plaintiff's only assignment of error, he contends the trial
court erred in granting defendants' motion for summary judgment
because there existed genuine issues of material fact. We agree.
We review the trial court's grant of summary judgment de novo
Stafford v. County of Bladen
, 163 N.C. App. 149, 151, 592 S.E.2d
713, disc. review denied
, 358 N.C. 545, 599 S.E.2d 409 (2004).
Summary judgment is proper when the pleadings, together with
depositions, interrogatories, admissions on file, and supporting
affidavits show that no genuine issue of material fact existsbetween the parties with respect to the controversy being litigated
and the moving party is entitled to judgment as a matter of law.
N.C. Gen. Stat. § 1A-1, Rule 56(c) (2004). In considering such a
motion, the court must view the evidence in the light most
favorable to the nonmovant. DeWitt v. Eveready Battery Co.
N.C. 672, 681, 565 S.E.2d 140, 146 (2002).
The party moving for
summary judgment bears the burden of establishing the lack of any
triable issue of fact. Id
. at 681, 565 S.E.2d at 146. This burden
may be met 'by proving that an essential element of the opposing
party's claim is non-existent, or by showing through discovery that
the opposing party cannot produce evidence to support an essential
element of his claim . . . .' Id
. (citations omitted).
Summary judgment is seldom appropriate in a negligence action.
Bostic Packaging, Inc. v. City of Monroe
, 149 N.C. App. 825, 830,
562 S.E.2d 75, 79 (2002). A trial court should only grant such a
motion where the plaintiff's forecast of evidence fails to support
an essential element of the claim. Id
. In order to establish a
case of negligence against the defendant, a plaintiff
must show: (1) the defendant owed the plaintiff a duty of care;
(2) the defendant's conduct breached that duty; (3) the breach was
the actual and proximate cause of the plaintiff's injury; and (4)
plaintiff suffered damages as a result of the injury. Vares v.
, 154 N.C. App. 83, 87, 571 S.E.2d 612, 615 (2002), disc.
, 357 N.C. 67, 579 S.E.2d 576 (2003).
Historically, the law pertaining to a landowner's
responsibility for natural conditions occurring on his or her real
property has been:
§ 363 Natural Conditions
(1) Except as stated in Subsection (2),
neither a possessor of land, nor a vendor,
lessor, or other transferor, is liable for
physical harm caused to others outside of the
land by a natural condition of the land.
(2) A possessor of land in an urban area is
subject to liability to persons using a public
highway for physical harm resulting from his
failure to exercise reasonable care to prevent
an unreasonable risk of harm arising from the
condition of trees on the land near the
Restatement (Second) of Torts § 363 (1965). Many of the older
cases dealing with this issue rigidly applied an urban-rural
distinction to hold that a rural landowner had no duty under
circumstances where a duty would exist for an urban landowner.
This state and country have changed greatly since these principles
were first enunciated. At that time, there existed stark
differences between urban and rural settings. Today, these
distinctions are not so clear. There are many areas that share
both traditional urban and rural characteristics. Defendants'
property is an example of this. It has many urban characteristics:
it is zoned industrial; it is located within the corporate limits
of Fayetteville; it is located upon a major thoroughfare; and it
adjoins a railroad track. It also has many rural characteristics: it adjoins the Cape Fear River; it is heavily wooded at the river;
and its primary use is recreational.
Increasingly, the courts of various states have moved away
from the rigid urban-rural analysis towards imposing a duty of
reasonable care upon a landowner based on the attendant
circumstances. See e.g., Meyers v. Delaney, 529 N.W.2d 288, 290
(Iowa 1995); Ivancic v. Olmstead, 488 N.E.2d 72, 73 (N.Y. 1985);
Sprecher v. Adamson Cos., 636 P.2d 1121, 1128-29 (Cal. 1981); Miles
v. Christensen, 724 N.E.2d 643, 646 (Ind. App. 2000); Willis v.
Maloof, 361 S.E.2d 512, 513 (Ga. App. 1987); Burke v. Briggs, 571
A.2d 296, 299-300 (N.J. Super. App. Div. 1990); Dudley v.
Meadowbrook, Inc., 166 A.2d 743, 744 (D.C. 1961).
In Gibson v. Hunsberger, this Court adopted this approach in
a case involving a tree falling on a highway, in what was clearly
a rural setting. 109 N.C. App. 671, 428 S.E.2d 489, disc. review
denied, 334 N.C. 433, 433 S.E.2d 177 (1993). After reciting
section 363 of the Restatement of Torts, this Court stated:
We adopt the foregoing analysis and hold that
a landowner has a duty to exercise reasonable
care regarding natural conditions on his land
which lies adjacent to a public highway in
order to prevent harm to travelers using the
highway. A landowner is subject to liability
only if he had actual or constructive notice
of a dangerous natural condition.
To impose a liability upon defendant
landowners, plaintiffs had to prove not only
that the tree constituted a dangerous
condition to the travelers of the adjacent
public road, but that the landowners had
actual or constructive notice of the dangerous
Id. at 675, 428 S.E.2d at 492. This statement of the law is
consistent with our Supreme Court's holding in Nelson v. Freeland,
349 N.C. 615, 507 S.E.2d 882 (1998). In Nelson, the Supreme Court
abolished the trichotomy of trespasser-licensee-invitee for
purposes of premises liability law and instead imposed the duty to
exercise reasonable care in the maintenance of their premises for
the protection of lawful visitors upon owners and occupiers of the
land. Id. at 632, 507 S.E.2d at 892.
We hold that defendants in the instant case had a duty to
exercise reasonable care with respect to natural conditions on
their land, which was adjacent to a public highway. Provided,
however, defendants are subject to liability only if they had
actual or constructive notice of a dangerous natural condition
existing upon their land.
Cape Fear River Is a Public Highway
At the time plaintiff was injured he was on a public
highway, since [n]avigable waters constitute a public highway.
Cromartie v. Stone, 194 N.C. 663, 668, 140 S.E. 612, 615 (1927)
(holding the Cape Fear River was a public highway). State v. Glen,
52 N.C. 321, 325, ___ S.E. ___, ___ (1859) (holding all rivers with
sufficient depth for floatage are public highways by water).
This case is devoid of any evidence that defendants had any
actual notice of the decayed condition of the Boxelder tree. Thus,
our analysis turns on whether plaintiff presented sufficient
evidence that defendants had constructive notice of the tree'scondition to withstand defendants' motion for summary judgment.
Each party offered affidavits from expert arborists expressing
opinions about the condition of the Boxelder tree.
In their brief, defendants argue it was within the trial
court's discretion to ignore the proffered affidavit from
plaintiff's expert since it was incompetent on the issue of
causation. This is incorrect. The trial court's order clearly
states that it denied the parties' cross-motions to strike the
affidavits of the other's expert and that it considered both
experts' affidavits. We further note that the affidavit of
plaintiff's expert, Kenneth Knox, is directly contradicted by the
affidavit of defendants' expert, David Lusk. It is not the trial
court's role to resolve conflicts in the evidence presented on a
motion for summary judgment. Liberty Mut. Ins. Co. v. Pennington,
356 N.C. 571, 579, 573 S.E.2d 118, 124 (2002). Rather, the trial
court's duty is strictly confined to determining whether genuine
issues of material fact exist[.] Id. In doing so, it must
consider the evidence in the light most favorable to plaintiff, as
the non-moving party. Id.
The evidence presented, taken in this light, tends to show the
following: Riverside Sports Center has been in business since
1977. The premises includes a wooden dock located on the Cape Fear
River, with a concrete boat ramp extending on both sides of the
dock. Defendants placed pylons out into the river, both upstream
and downstream from the dock, to protect the dock and ramps from
trees and other debris floating in the river. Defendants knew thattheir customers routinely tied their boats to the downstream pylons
to prevent their boats from drifting downstream while they waited
for the ramp to clear so they could remove their boats from the
river. There were trees along the bank of the river, the limbs of
which hung over the river in the area of the downstream pylons.
Defendants admitted they had previously trimmed the trees on both
sides of the ramp. The affidavit and report of plaintiff's expert,
Kenneth Knox, who specializes in hazard tree analysis, stated that
the only tree in the area of the incident that could possibly have
caused the damage to [George's] boat was an 18.5" diameter (dbh)
Boxelder/Ashleaf Maple. Mr. Knox inspected the trees along the
river bank at the downstream pylon on 16 September 2003. He stated
the trunk of this tree snapped off approximately thirteen feet
above the ground, approximately two years earlier, based on the
ages of the epicormic branches that grew from the vicinity of the
break. Further, a portion of the upper tree trunk had broken off
six to ten years earlier, causing the tree bark to be stripped, and
created a V-shaped wound on the tree, which accelerated the
interior decay of the tree. The trunk of the Boxelder tree was
leaning at a very pronounced angle, from the top of the bank out
over the river in the direction of the fourth pylon, where the
George boat was tied. Knox opined that the tree was approximately
40'-60' feet in length and was definitely capable of striking
George's boat. Knox further stated:
[I] further believe that it was obvious that
this Boxelder had been extensively decayed for
many years prior to its breaking (on August
31, 2001), that it exhibited a number ofconspicuous dead branches and external trunk
decay, and that these obvious symptoms of
decline and hazard-potential (dead branches
and trunk decay), should have been observed
with considerable concern by the owners of the
property (particularly because of the strong
lean of the tree towards the water), and that
this tree should have been cut before it fell
and harmed Mr. Wallen.
We hold that the evidence presented to the trial court, taken
in the light most favorable to plaintiff, presented a genuine issue
of material fact on the issue of constructive notice.
Defendants had a duty to exercise reasonable care regarding
natural conditions on their lands lying adjacent to a public
highway. Gibson, 109 N.C. App. at 675, 428 S.E.2d at 492. In this
case, the parties' use of the pylons to temporarily secure the boat
was directly related to their use of defendants' boat ramp, for
which they paid a fee. Defendants knew their pylons were regularly
used by their customers to tie their boats while waiting to use the
boat ramp. The Boxelder tree, which fell on the boat, had broken
off once before the 31 August 2001 incident and exhibited signs of
decay. This tree also hung out over the river and the pylon to
which George had tied his boat.
As noted above, summary judgment is seldom appropriate in a
negligence action. Further, taken in the light most favorable to
plaintiff, the evidence presented to the trial court presented a
genuine issue of material fact on the issue of defendants'
negligence. We caution that this holding is based upon the particular
facts present in this case, and is not intended to place an
absolute duty upon persons owning property located along a river or
other public highway to inspect or trim trees adjoining that public
The final basis of defendants' motion for summary judgment was
foreseeability. In order for a defendant to be liable for a
negligence claim, the injury must be reasonably foreseeable.
Winters v. Lee
, 115 N.C. App. 692, 694, 446 S.E.2d 123, 124 (1994).
Thus, a plaintiff must show that 'a man of ordinary prudence would
have known that [plaintiff's injury] or some similar injurious
result was reasonably foreseeable
. . . .' Id
omitted). Given the facts as recited above in our discussion of
duty, constructive notice, and negligence, we hold that the
evidence taken in the light most favorable to plaintiff
demonstrates there existed a genuine issue of material fact on the
issue of foreseeability.
REVERSED AND REMANDED.
Judges CALABRIA and ELMORE concur.
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