Mazzacco v. Purcell

279 S.E.2d 583 (1981)

Robert MAZZACCO v. Harvey PURCELL and Rosemary Purcell.

No. 128.

Supreme Court of North Carolina.

July 8, 1981.

*586 Craighill, Rendleman, Clarkson, Ingle & Blythe, P. A. by John R. Ingle, Charlotte, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter and James M. Stanley, Jr., Winston-Salem, for defendants-appellees.

HUSKINS, Justice:

The determinative question on this appeal is whether the Court of Appeals erred in upholding directed verdict for defendants. This requires two decisions: first, whether defendants were negligent in any respect whatsoever; and second, whether plaintiff was contributorily negligent as a matter of law so as to bar any claim for relief.

Taking the evidence in a light most favorable to plaintiff and giving plaintiff the benefit of every reasonable inference to be drawn therefrom, we conclude it was error to grant directed verdict for the male defendant Harvey Purcell. However, a directed verdict in favor of the female defendant Rosemary Purcell was properly granted.

The standard of care owed to plaintiff depends upon whether plaintiff was a licensee or invitee. The distinction between an invitee and a licensee is determined by the nature of the business bringing a person to the premises. A licensee is one who enters on the premises with the possessor's permission, express or implied, solely for his own purposes rather than the *587 possessor's benefit. An invitee is a person who goes upon the premises in response to an express or implied invitation by the landowner for the mutual benefit of the landowner and himself. Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979); Hood v. Coach Co., 249 N.C. 534, 107 S.E.2d 154 (1959).

Plaintiff in this case was an invitee of defendants. He was there by express invitation. He entered the rental property of defendants to cut trees. This service was of direct and substantial benefit to defendants in maintaining and improving their rental property. Contrast Thompson v. De Vonde, 235 N.C. 520, 70 S.E.2d 424 (1952), with Murrell v. Handley, 245 N.C. 559, 96 S.E.2d 717 (1957).

Defendants owed plaintiff as an invitee a duty of ordinary care to maintain the premises in a safe condition and to warn of hidden dangers that had been or could have been discovered by reasonable inspection. Husketh v. Convenient Systems, 295 N.C. 459, 245 S.E.2d 507 (1978). Plaintiff contends defendants were negligent in failing to warn him of the hidden danger created by attaching one end of the rope to the tree section being felled, then passing the rope over a high limb on a second tree and tying the other end to the trunk of a third tree, knowing the rope, thus arranged, was too short to allow the severed portion of the tree to fall all the way to the ground. We agree that the jury could find the male defendant negligently failed to warn plaintiff of the hidden danger in the rigging of the rope. We find no such breach of duty on the part of the female defendant.

Plaintiff has made no showing that Rosemary Purcell was aware of the dangerous condition on her property. She was with plaintiff at the hospital when the dangerous condition was created. There is no evidence that she was aware, or should have been aware upon reasonable inspection, of the danger.

The jury could find that the male defendant should have warned plaintiff of the hidden peril or unsafe condition in the rigging of the rope. Since defendant changed the condition of the premises while plaintiff was at the hospital, a jury could reasonably conclude that this change created a dangerous condition on the property of which defendant failed to warn plaintiff upon his return from the hospital. The jury could further find that plaintiff did not know the rope, a part of which was slack and lying on the ground, was tied to a third tree in such a manner that his body would be catapulted skyward when the falling section took up the slack.

Defendants argue this condition was obvious and that there was no duty on the part of the owner to warn of such an obvious condition. See Long v. Methodist Home, 281 N.C. 137, 187 S.E.2d 718 (1972); Jones v. Pinehurst, Inc., 261 N.C. 575, 135 S.E.2d 580 (1964). However, we cannot say that the condition was equally obvious to the male defendant and plaintiff. Plaintiff's testimony is that he was not aware of the condition at the time and indeed was not made aware of it until almost a month later when the male defendant explained to him how the rope was rigged and that defendant was aware the rope was too short to let the tree section fall to the ground and thought the rope would probably break. The jury could further find that plaintiff was not made aware of the understanding between Harvey Purcell and his son to let go of the rope once the severed tree started leaning in the proper direction.

Finally, it is for the jury to weigh the evidence and find as facts whether plaintiff was experienced in cutting trees and whether the attachment of the rope to a third tree was visible and determine whether plaintiff's actions were reasonable and prudent under the circumstances or whether his actions constitute contributory negligence. The evidence offered does not establish contributory negligence as a matter of law. While permitting an inference that plaintiff was negligent, the evidence does not conclusively establish it.

For the reasons stated, the decision of the Court of Appeals affirming directed verdict in favor of Harvey Purcell is reversed. The *588 case against Harvey Purcell is remanded to that court for further remand to Forsyth Superior Court for further proceedings consistent with this opinion. The decision of the Court of Appeals affirming directed verdict in favor of Rosemary Purcell is affirmed.

As to Rosemary Purcell Affirmed.

As to Harvey Purcell Reversed and Remanded.