Allen Ex Rel. Allen v. Equity & Investors Management Corp.

CLARK, Judge. The sole issue presented by this appeal is whether the trial court erred in granting defendants’ motion for summary judgment. On a motion for summary judgment, G.S. 1A-1, Rule 56, provides that the movant must show the court that there are no genuine issues of material fact to be tried in the case and that the moving party is entitled to summary judgment as a matter of law. *708 Vassey v. Burch, 301 N.C. 68, 269 S.E. 2d 137 (1980). The rule does not authorize the court to decide an issue of fact, but rather to determine whether a genuine issue of fact exists. Id. Ordinarily, issues of negligence are not susceptible to summary disposition but should be resolved by trial. Summary judgment, is appropriate only in exceptional negligence cases because the applicable standard of care must be applied; as a general rule, the jury must apply the standard of care to the facts of the case after proper instructions from the court. Id. It is undisputed that a landlord-tenant relationship existed between plaintiffs and defendants at the time of the accident. It is also undisputed that Tara’s accident occurred in an area of the leased premises which remained under the control of defendants. In two recent cases, this court discussed the landlord’s duty to keep common areas in a safe condition. O’Neal v. Kellett, 55 N.C. App. 225, 284 S.E. 2d 707 (1981); Lenz v. Ridgewood Associates, 55 N.C. App. 115, 284 S.E. 2d 702 (1981). “A residential landlord in North Carolina owes his tenant a statutory duty of exercising ordinary or reasonable care to maintain common areas of the leased premises in a safe condition. G.S. 4242(a)(3). A violation of that duty is evidence of negligence.” O’Neal v. Kellett, supra, at 228, 284 S.E. 2d at 71Q. The duty owed by a landlord is not the duty to warn of unsafe conditions, but rather the duty to correct unsafe conditions. Lenz v. Ridgewood Associates, supra. In Lenz the court held that if natural accumulations of ice constitute an unsafe condition, the landlord has a duty to correct that condition. Defendants must be charged with foreseeing that areas set aside for recreational purposes of their tenants would be used as such, and that any unsafe conditions existing in those areas must be corrected. On the issue of defendants’ negligence, the evidence shows material facts from which a jury could find that defendants allowed a four- to six-inch stump to remain in a pathway used by tenants and their children for recreational purposes; that the stump constituted an unsafe condition; that defendants knew or in the exercise of ordinary care should have known that the stump existed; that defendants failed to exercise ordinary care to correct the unsafe condition posed by the stump; and that such failure was the proximate cause of Tara’s injury. See Wheeler Terrace, Inc. v. Lynott, 234 A. 2d 311 (D.C. App. 1967). Defendants argue that a landlord is not liable for injuries from defects *709 on their premises which are open, obvious and visible. We believe that there is a question of fact whether the presence of the stump constituted an “unsafe” condition which defendants had a duty to correct. This question and that of defendants’ negligence must be passed on by a jury and were not suitable issues for summary disposition by the court. The materials before us do not show plaintiff Tara Allen to have been contributorily negligent as a matter of law. “An infant under 7 years of age is conclusively presumed to be incapable of contributory negligence, (citation omitted) An infant between the ages of 7 and 14 is presumed to be incapable of contributory negligence, but this presumption may be rebutted by evidence showing capacity. ‘The test in determining whether the child is contributorily negligent is whether it acted as a child of its age, capacity, discretion, knowledge and experience would ordinarily have acted under similar circumstances.’ (citations omitted).” Welch v. Jenkins, 271 N.C. 138, 142, 155 S.E. 2d 763, 766 (1967). Plaintiff Tara Allen was eight years old at the time of the accident and is therefore presumed incapable of contributory negligence. Defendants may offer evidence at trial to rebut the presumption and to show Tara’s capacity to exercise care for her own safety. Again, this issue is one which is properly determined not by the court but by the jury. The issues of whether defendants were negligent in failing to maintain the common area in a safe condition, and whether plaintiff Tara Allen was contributorily negligent are for a jury to decide. Therefore, the judgment of the trial court must be and is Reversed. Judges Arnold and Webb concur.