An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1395


Filed: 18 October 2005


v .                                     Richmond County
                                        No. 03 CVS 1018

    Appeal by plaintiff from an order entered 10 August 2004 by Judge Christopher M. Collier in Richmond County Superior Court. Heard in the Court of Appeals 7 June 2005.

    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.
    Judges McGEE and LEVINSON concur.
    Report per Rule 30(e).

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