Turpin v. Our Lady of Mercy Catholic Church

202 S.E.2d 351 (1974)

20 N.C. App. 580

Larry TURPIN v. OUR LADY OF MERCY CATHOLIC CHURCH.

No. 7421SC89.

Court of Appeals of North Carolina.

February 6, 1974.

*352 Wilson & Morrow by John F. Morrow, Winston-Salem, for plaintiff-appellant.

Hudson, Petree, Stockton, Stockton & Robinson by R. M. Stockton, Jr. and James H. Kelly, Jr., Winston-Salem, for defendant-appellee.

PARKER, Judge.

Under facts shown as to which there was no genuine issue, plaintiff was a licensee and not an invitee on defendant's premises. "To constitute one an invitee of the other there must be some mutuality of interest." Pafford v. Construction Co., 217 N.C. 730, 9 S.E.2d 408. Here there was none. That one member of a team in the league in which plaintiff played was also a member of defendant church who on occasion gave of his time assisting in coaching a church school team, merely explains how permission for use of the basketball court was obtained. It falls short of furnishing any basis for finding mutual benefit to plaintiff and defendant from plaintiff's presence on defendant's premises. Although invitation does not in itself establish the status of invitee, as witness the cases holding a social guest is a mere licensee, it is essential to it. "An invitation differs from mere permission in this: an *353 invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so." Restatement (Second), Torts, § 332, Comment b. Here, all facts show that plaintiff was on defendant's premises by defendant's permission but not by its invitation.

In Pafford v. Construction Co., supra, Barnhill, J. (later C. J.), speaking for the Court, said:

"A license involves the idea of permission on the one sideits acceptance on the other. A licensee is rightfully on the property but this right depends on the licensor's consentconsent that may be revoked at any time. He is doing what without such consent would be unlawful. The consent carries with it no more than the right to use the property in the condition in which it is found. No greater obligation is implied. A mere consent means no more. [Citation omitted.] * * * * * "The owner or person in possession of property is ordinarily under no duty to make or keep property in a safe condition for the use of a licensee or to protect mere licensees from injury due to the condition of the property, or from damages incident to the ordinary uses to which the premises are subject. There is no duty to provide safeguards for licensees even though there are dangerous holes, pitfalls, obstructions or other conditions near to the part of the premises to which the permissive use extends. Neither is the owner or person in charge ordinarily under any duty to give licensees warning of concealed perils, although he might, by the exercise of reasonable care, have discovered the defect or danger which caused the injury. It follows that, as a general rule, the owner or person in charge of property, is not liable for injuries to licensees due to the condition of the property, or as it has been expressed, due to passive negligence or acts of omission. [Citations omitted.] The duty imposed is to refrain from doing the licensee willful injury and from wantonly and recklessly exposing him to danger. [Citations omitted.] The licensee who enters on premises by permission only goes there at his own risk and enjoys the license subject to its concomitant perils."

Under all material facts shown, plaintiff's injuries were not caused by any willful, wanton or reckless act on the part of defendant. Summary judgment being justified on that ground, it is unnecessary for us to consider whether it would also be justified because the admitted facts establish plaintiff's contributory negligence as a matter of law. See Clary v. Board of Education, 19 N.C.App. 637, 199 S.E.2d 738.

The judgment appealed from is

Affirmed.

BRITT and VAUGHN, JJ., concur.