EDWARD LEE DILLON,
Plaintiff
v
.
Richmond County
No. 03 CVS 1018
BRADIE CARPENTER,
Defendant
Henry T. Drake for plaintiff-appellant.
Baucom, Claytor, Benton, Morgan & Wood, P.A., by James F.
Wood, III, for defendant-appellee.
HUNTER, Judge.
Edward Lee Dillon (“plaintiff”) appeals from an order dated 10
August 2004 granting summary judgment to Bradie Carpenter
(“defendant”). For the following reasons, we reverse the order of
the trial court.
On 1 November 2002, plaintiff was assisting defendant in
putting a tin roof on defendant's house. Defendant, sixty-nine
years old at that time, worked from the ground and handed sixteen-
foot sections of tin up to plaintiff, seventy-four years old at
that time. No ropes or other safety devices were provided.
Plaintiff fastened each sheet of tin at the apex of the roof. Plaintiff then secured a shorter, one foot section towards the
bottom of the roof, which defendant, standing on a ladder, held in
place. As plaintiff secured the final piece of tin, he began to
slip, sliding on his feet down the sheet of tin and towards the
edge of the roof. Defendant, standing on the painter's ladder at
the bottom of the roof, attempted to stop plaintiff's descent. The
force of plaintiff's momentum carried defendant off the ladder and
both men fell to the ground. Plaintiff sustained multiple injuries
from the fall, including broken bones in his legs and injury to his
pelvic region.
Prior to the filing of plaintiff's suit, defendant signed a
sworn affidavit admitting that he negligently grabbed plaintiff,
resulting in plaintiff's broken legs and injured pelvis. However,
in deposition testimony on 25 June 2003, defendant stated that
although he attempted to stop plaintiff from falling to the ground
when he saw him begin to slide from the roof, he did not pull him
from the roof.
Defendant alleged that plaintiff's contributory negligence
barred recovery, and that no issues of material fact existed.
Defendant moved for summary judgment as to all causes of action on
9 July 2004. On 10 August 2004, the trial court granted summary
judgment to defendant. Plaintiff appeals.
Plaintiff contends that the trial court erred in granting
summary judgment to defendant, as there were material issues of
fact, and as the trial court failed to consider the evidence of
plaintiff. We agree. We first note the appropriate standard of review. “'Summary
judgment is appropriate when all the evidentiary materials before
the court “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.”'” Harris v. Tri-Arc Food Sys., Inc., 165 N.C. App. 495, 498,
598 S.E.2d 644, 646 (2004) (citations omitted). “The moving party
has the burden of establishing the absence of any genuine issue of
material fact[.]” White v. Consolidated Planning, Inc., 166 N.C.
App. 283, 295-96, 603 S.E.2d 147, 157 (2004). “Where plaintiff
receives the benefit of every reasonable inference, the issues of
reasonable care and breach of that care are usually for the jury.”
Cowan v. Laughridge Construction Co., 57 N.C. App. 321, 324, 291
S.E.2d 287, 289 (1982). “[I]t is only in exceptional negligence
cases that summary judgment is appropriate, since the standard of
reasonable care should ordinarily be applied by the jury under
appropriate instructions from the court.” Ragland v. Moore, 299
N.C. 360, 363, 261 S.E.2d 666, 668 (1980).
Plaintiff first contends the trial court erred in granting
summary judgment as there was a material issue of fact as to
whether defendant breached the duty of reasonable care in failing
to provide safety equipment. We agree.
Our Supreme Court has abolished the distinction between
invitee and licensee and requires a standard of reasonable care
toward all lawful visitors. See Nelson v. Freeland, 349 N.C. 615,
631, 507 S.E.2d 882, 892 (1998). A licensee owes an invitee the
duty to use proper care in providing tools and equipment. SeeCowan, 57 N.C. App. at 324, 291 S.E.2d at 289 (holding that when
the general contractor furnished a ramp as the only means of access
to the building's roof for subcontractor's employee, the general
contractor owed the employee the duty to use proper care in the
ramp's construction). In Cowan, this Court held that evidence of
custom in the construction industry was admissible to establish the
standard of care required of reasonable men in the same
circumstances. Id. at 325, 291 S.E.2d at 290.
Here, plaintiff alleged defendant was negligent in failing to
provide safety ropes or nets. Depositions supporting the summary
judgment motion indicated that while neither defendant nor
plaintiff were professional roofers, defendant had some prior
professional roofing experience and was aware that boards were
commonly nailed to the roof to provide a place for the roofer to
stand when shingling. Although defendant admitted in his
deposition that the roof was steep, he stated that boards were not
used on the roof because they would “[g]et in your way[,]” when
installing a tin roof. Defendant's statements regarding his
knowledge of industry custom were sufficient to create a material
issue of fact as to whether failure to provide safety equipment was
a breach of the duty of reasonable care under the circumstances.
Therefore, the trial court erred in granting summary judgment.
Plaintiff also alleges a material issue of fact exists as to
whether defendant failed to exercise reasonable care in attempting
to rescue plaintiff as he fell from defendant's roof. We agree. “'The law imposes upon every person who enters upon an act or
course of conduct the positive duty to exercise ordinary care to
protect others from harm and calls a violation of that duty
negligence.'” Klassette v. Mecklenburg County Area Mental Health,
88 N.C. App. 495, 502, 364 S.E.2d 179, 184 (1988) (citations
omitted). Even when acting as a volunteer in giving aid, a
defendant has the positive duty to use ordinary care in performing
the task. Hawkins v. Houser and Pless v. Houser and Houser v.
Hawkins, 91 N.C. App. 266, 270, 371 S.E.2d 297, 299 (1988). In
Hawkins, the defendants owned a pond in which the plaintiffs, a
twelve-year-old boy and his attempted rescuer, drowned after
crashing through the frozen ice. Hawkins, 91 N.C. App. at 268, 371
S.E.2d at 298. This Court found no negligence on the part of the
defendants in maintaining the unenclosed pond on their property,
but determined a material issue of fact existed as to the
defendants' negligence in contacting the rescue squad and
suggesting the use of a barricaded road that caused a delay in
reaching the plaintiffs, as such actions were evidence that the
defendants did not use ordinary care. Id. at 269-70, 371 S.E.2d at
299.
Here, similarly, plaintiff contends that defendant was
negligent in failing to use ordinary care in attempting to stop
plaintiff's fall from the roof. Conflicting testimony was offered
as to whether defendant's actions in attempting to halt plaintiff's
slide from the roof were reasonable under the circumstances,
including defendant's contradictory statements as to whether hisactions were negligent in a sworn affidavit and later deposition
testimony. Therefore, a material issue of fact exists as to
whether defendant exercised ordinary care in attempting to rescue
plaintiff, and summary judgment was improperly granted. See
Hawkins, 91 N.C. App. at 270, 371 S.E.2d at 299.
Defendant contends that summary judgment was properly granted
as plaintiff was contributorily negligent in slipping on the roof.
We disagree.
“'In a negligence action, summary judgment for defendant is
proper where the evidence . . . establishes contributory negligence
on the part of plaintiff[.]'” Hahne v. Hanzel, 161 N.C. App. 494,
497, 588 S.E.2d 915, 917 (2003) (emphasis omitted).
Every person having the capacity to
exercise ordinary care for his own safety
against injury is required by law to do so,
and if he fails to exercise such care, and
such failure, concurring and cooperating with
the actionable negligence of defendant,
contributes to the injury complained of, he is
guilty of contributory negligence.
Clark v. Roberts, 263 N.C. 336, 343, 139 S.E.2d 593, 597 (1965).
Our Supreme Court has held, however, that “[t]he existence of
contributory negligence is ordinarily a question for the jury; such
an issue is rarely appropriate for summary judgment, and only where
the evidence establishes a plaintiff's negligence so clearly that
no other reasonable conclusion may be reached.” Martishius v.
Carolco Studios, Inc., 355 N.C. 465, 479, 562 S.E.2d 887, 896
(2002).
Here, the evidence showed that plaintiff lost his footing
while standing on the final piece of tin roofing that had beenplaced, and began sliding on his feet towards the edge of the roof.
Reasonable men could differ as to whether plaintiff exercised
ordinary care in stepping onto the tin in the course of his
endeavors, given his age and lack of professional experience. The
fact-specific nature of whether such an action constituted
contributory negligence make such an inquiry appropriate for jury
determination. See Hazelwood v. Landmark Builders, Inc., 100 N.C.
App. 386, 389-90, 396 S.E.2d 342, 344 (1990) (holding that the
issue of the plaintiff's contributory negligence was a matter for
the jury in plaintiff's negligence action for fall from roof);
Cowan, 57 N.C. App. at 326, 291 S.E.2d at 290 (holding that
reasonable men could differ as to whether the plaintiff exercised
ordinary care in working from a ramp leading to the roof which
lacked guardrails). Therefore, as an issue of material fact exists
as to plaintiff's contributory negligence, summary judgment was
inappropriate.
As material issues of fact exist as to the reasonableness of
care by defendant under the circumstances, and as to plaintiff's
contributory negligence, the trial court erred in granting summary
judgment.
Reversed.
Judges McGEE and LEVINSON concur.
Report per Rule 30(e).
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