Samuel v. Simmons

273 S.E.2d 761 (1981)

Derrick Wayne SAMUEL by his Guardian ad Litem George Kelly Samuel v. Swanson SIMMONS and Bob Stevens, Individually and doing business as Snow White Laundry.

No. 8017SC550.

Court of Appeals of North Carolina.

January 20, 1981.

*762 Max D. Ballinger, Greensboro, for plaintiff-appellant.

Gardner, Gardner, Johnson & Etringer by Gus L. Donnelly, Mount Airy, for defendants-appellees.

HILL, Judge.

The sole question presented on appeal is whether the trial court properly granted the defendants' motion for a directed verdict at the close of plaintiff's evidence.

The motion by defendants for directed verdict raises the question of whether, as a matter of law, the evidence offered by the plaintiff, when presented in the light most favorable to the plaintiff is sufficient to be submitted to the jury. Roberts v. Memorial Park, 281 N.C. 48, 187 S.E.2d 721 (1972). Every reasonable inference which can be drawn from the evidence must be considered in determining whether such evidence is sufficient to withstand defendants' motion for a directed verdict. Sawyer v. Shackelford, 8 N.C.App. 631, 175 S.E.2d 305 (1970).

Plaintiff contends he brought his action under three legal theories and that the facts presented support one or more of them. The theories are:

(1) that defendants were negligent in maintaining a nuisance attractive to a minor; (2) that defendants were negligent in maintaining a condition likely to produce injury to the minor plaintiff; and (3) that defendants were negligent in failing to warn patrons of a lurking danger.

A landowner is not an absolute insurer as to the safety of his invitees. Graves v. Order of Elks, 268 N.C. 356, 358, 150 S.E.2d 522 (1966). When Derrick Samuel entered defendants' laundry with his mother, his legal status was that of an invitee by implication. Foster v. Weitzel, 17 N.C.App. 90, 91, 193 S.E.2d 329, 330 (1972), cert. denied 282 N.C. 672 (1973). A landowner is under a duty to exercise ordinary care to maintain in a reasonably safe condition that part of his premises designed for the invitee's use, Wrenn v. Convalescent Home, 270 N.C. 447, 154 S.E.2d 483 (1967); but when an invitee exceeds the scope of his invitation by going into a part of the business premises where he has no business purpose, he becomes a licensee. Wilson v. Dowtin, 215 N.C. 547, 551, 2 S.E.2d 576 (1939). As to a licensee, a landowner owes only the duty to refrain from injuring him willfully or wantonly and from increasing *763 any hazard by active and affirmative negligence. Thames v. Teer Co., 267 N.C. 565, 569, 148 S.E.2d 527 (1966).

Plaintiff's own evidence and answers to defendants' request for admissions establish that Derrick Samuel was a licensee at the time of his injury. Diane Samuel testified that she had never been into the maintenance area behind the gate, that she had no reason to go there and that she had never seen others there. Plaintiff admitted in his response to defendants' request for admissions that a business invitee would not reasonably be expected to go into the maintenance area behind the machines.

Plaintiff has not alleged or made any showing that defendants injured him willfully or wantonly or are guilty of affirmative negligence. For that reason, plaintiff cannot recover under his second and third theories.

Plaintiff has alleged, however, that the doctrine of attractive nuisance applies. Where that doctrine is applicable, a landowner has a duty of ordinary care even though the plaintiff is a licensee.

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; (2) it must be attractive and enticing to young children; (3) the children must be incapable by reason of their youth of comprehending the danger involved; (4) the instrumentality ... must be 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; (5) it must be reasonably practical either to prevent access to the instrumentality or else render it innocuous without obstructing any reasonable purpose or use for which it was intended.

9 Strong, N.C. Index 2d, Negligence, § 51, p. 466; citing Lanier v. Highway Comm., 31 N.C.App. 304, 229 S.E.2d 321 (1976). Also see McCombs v. City of Asheboro, 6 N.C. App. 234, 242-3, 170 S.E.2d 169 (1969).

To establish liability under the attractive nuisance doctrine plaintiff must show that not only were children attracted to the instrumentality or conditions which caused injury or death, but that such children had been attracted to such instrumentality or conditions to such an extent and over such a period of time that any person of ordinary prudence would have foreseen that injury or death was likely to result. Lovin v. Hamlet, 243 N.C. 399, 90 S.E.2d 760 (1956). Such evidence is absent from the record.

Plaintiff's evidence shows that the door was located within three feet of the public restroom. The evidence further shows that children played in the areas outside the maintenance area. There is no evidence, however, that plaintiff or any other customer or invitee had ever entered the maintenance area previously. Plaintiff had accompanied his mother to the laundromat almost weekly. Plaintiff's mother testified she had come to the laundromat about 300 times, but there is no evidence that plaintiff was ever previously attracted to the maintenance area. The record is void of any evidence that the maintenance area constituted an attractive nuisance.

The trial judge was correct in granting defendants' motion for a directed verdict.

Affirmed.

ARNOLD and WELLS, JJ., concur.