Forte v. Dillard Paper Co. of Raleigh, Inc.

241 S.E.2d 394 (1978)

35 N.C. App. 340

Douglas Wade FORTE, a minor, by his guardian ad litem, Claudia Ruth Forte, and Claudia Ruth Forte, Individually v. DILLARD PAPER COMPANY OF RALEIGH, INC. and J. M. Thompson Company.

No. 7710SC173.

Court of Appeals of North Carolina.

February 21, 1978.

*395 Dawkins, Toms & Beebe by Frederic E. Toms, Cary, for plaintiffs-appellants.

Smith, Anderson, Blount & Mitchell by Samuel G. Thompson, Raleigh, for defendant, Dillard Paper Company, appellee.

Teague, Johnson, Patterson, Dilthey & Clay by Robert W. Sumner, Raleigh, for defendant, J. M. Thompson Company, appellee.

ERWIN, Judge.

The plaintiffs urge this Court to hold that there are sufficient, genuine issues of material facts in this case to reverse the trial court's holding that the defendants are entitled to a judgment as a matter of the law. We conclude that the summary judgment entered below is improper.

In Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970), this Court stated at p. 638, 177 S.E. at p. 427:

"While neither the federal rules nor the North Carolina rule excludes the use of the procedure in negligence actions, it is generally conceded that summary judgment will not usually be as feasible in negligence cases where the standard of the prudent man must be applied. Barron *396 and Holtzoff, Federal Practice and Procedure (Wright Ed.) Vol. 3, § 1232.1; Gordon, The New Summary Judgment Rule in North Carolina, supra. But summary judgment is proper where it appears that even if the facts as claimed by the plaintiff are proved, there can be no recovery, Barron and Holtzoff, Federal Practice and Procedure, supra, thus providing a device for identifying the factually groundless claim or defense."

In Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972), Justice Huskins, speaking for the Supreme Court, stated at p. 704, 190 S.E.2d p. 193 as follows:

"Our Rule 56 and its federal counterpart are practically the same. Authoritative decisions both state and federal, interpreting and applying Rule 56, hold that the party moving for summary judgment has the burden of `clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.' 6 Moore's Federal Practice (2d ed. 1971) § 56.15[8], at 2439; Singleton v. Stewart, supra, [280 N.C. 460, 186 S.E.2d 400 (1972)]. Rendition of summary judgment is, by the rule itself, conditioned upon a showing by the movant (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. G.S. 1A-1, Rule 56(b); Kessing v. Mortgage Corp., supra [278 N.C. 523, 180 S.E.2d 823 (1971)]."

In order for the plaintiffs to recover at all, they must present evidence at the time of trial to show that this case comes within the so-called attractive nuisance doctrine which represents an exception to the general rule regarding liability of landowners for injuries sustained on the premises by trespassers.

Judge Morris, writing for this Court in Lanier v. Highway Comm., 31 N.C.App. 304, 229 S.E.2d 321 (1976), stated at pp. 310 and 311, 229 S.E.2d at p. 324:

"`Generally, the attractive nuisance doctrine is applicable when, and only when, the following elements are present: (1) The instrumentality or condition must be dangerous in itself, that is, it must be an agency which is likely to, or probably will, result in injury to those attracted by, and coming into contact with, it. (2) It must be attractive and alluring, or enticing, to young children. (3) The children must have been incapable, by reason of their youth, of comprehending the danger involved. (4) The instrumentality or condition must have been left unguarded and exposed at a place where children of tender years are accustomed to resort, or where it is reasonably to be expected that they will resort for play or amusement, or for the gratification of youthful curiosity. (5) It must have been reasonably practicable and feasible either to prevent access to the instrumentality or condition, or else to render it innocuous, without obstructing any reasonable purpose or use for which it was intended.' McCombs v. City of Asheboro, 6 N.C.App. 234, 242-43, 170 S.E.2d 169 (1969), citing 65 C.J.S. Negligence § 63(76), p. 815."

Thompson's workmen had observed some children behind the building, and they were warned by the workmen to stay away from the area; the same crew left the fence down at the end of the day. Thereafter, the minor plaintiff went upon the building. Whether or not the defendants could foresee injury to the minor plaintiff is an issue to be resolved by application of the prudent man standard.

While it is frequently stated that even a child of very tender years should be held to appreciate the danger of falling from a height, this case does not permit such an easy resolution. Given the unusual construction of this building, with the easy access and allurement to the roof provided by the sloping terrain and removal of the fence, we cannot conclude as a matter of law that the plaintiffs will be unable to bring themselves within the so-called attractive *397 nuisance doctrine. This five year old plaintiff, who wished to satisfy his childish curiosity and attracted by this roof a mere three feet from ground level, climbed onto it to play with the plastic skylights, could not know that the floor was 25 feet below, and therefore, was unable to appreciate the danger. To us, a genuine issue of fact exists with reference to the dangerous condition presented to the minor plaintiff as he played on top of a plastic skylight on the roof of this building, as well as with reference to the other factors which have led us to conclude that the plaintiffs are entitled to try to establish themselves within the doctrine at a trial on the merits.

We have given full consideration to the comprehensive brief filed by the defendant appellants. We are mindful that there are several cases on the doctrine, some tending to support the plaintiffs' position and some tending to support the defendants' position, which are difficult to reconcile, because the facts are so vitally important in each case in this area.

Summary judgment is a drastic remedy, and there must be a cautious observance of its requirements to assure that no party is deprived of a trial when there are genuine issues of material fact.

The defendants have failed to establish as a matter of law that they were entitled to summary judgment.

Reversed and remanded.

BROCK, C. J., and VAUGHN, J., concur.