Lamb v. Wedgewood South Corp.

286 S.E.2d 876 (1982) Gwendolyn Hoffman LAMB, Executrix of the Estate of Thomas Wade Lamb v. WEDGEWOOD SOUTH CORPORATION, Statler Hilton, Inc., Hilton Inns, Inc., W. H. Weaver, W. H. Weaver Construction Company, Inc., Harry R. Dudley, Jr., Individually, Louis Rightmier, Individually, Thomas H. B. Morrisette, Individually, Dudley Rightmier, Morrisette and Associates, a Professional Association, Daryl Teague, W. E. Griffin and Ted Craddock. No. 8115SC234. Court of Appeals of North Carolina. February 16, 1982. *879 Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by James G. Billings, Raleigh, for plaintiff-appellant. Spears, Barnes, Baker & Hoof by Alexander H. Barnes, Durham, for defendants-appellants Wedgewood South Corp., Statler *880 Hilton, Inc., Hilton Inns, Inc. and Ted Craddock. Emanuel & Thompson by Robert L. Emanuel, Raleigh, for defendants-appellants Harry R. Dudley, Jr., Louis Rightmier, Thomas H. B. Morrisette and Dudley, Rightmier and Morrisette Associates. WEBB, Judge. At the outset we note that this action involves multiple parties. Judge Cornelius, in his order allowing the architects' motion for summary judgment as to the plaintiff and denying it as to Hilton Inns, Inc., found there was no just reason for delay in entering the order. The judgment as to the architects is appealable pursuant to G.S. 1A-1, Rule 54(b). See Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979). In our discretion we shall consider the other appeals. TED CRADDOCK'S APPEAL We consider first the appeal of Ted Craddock. The pleadings, affidavits, and depositions filed in support and opposition to the motions for summary judgment show that Mr. Craddock was on duty as night manager of the Hilton Inn on 25 August 1977. In response to a call he went to the sixth floor to check on a disturbance. As he got off the elevator, a struggle was in progress between Mr. Teague and Dr. Lamb. Mr. Craddock stopped this fight. Mr. Teague and Dr. Lamb resumed the fight and Mr. Craddock separated them again. The fight was started for the third time and Dr. Lamb was killed. There is no forecast of evidence which shows Ted Craddock was doing what a reasonably prudent man should not have done under the circumstances or that he did not do what a reasonably prudent man should have done under the circumstances. See 9 Strong's N.C. Index 3d, Negligence § 1 (1977) for a definition of negligence. Mr. Craddock's motion for summary judgment should have been granted. See Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). WEDGEWOOD SOUTH CORPORATION'S APPEAL Wedgewood South Corporation, relying on Jones v. Bland, 182 N.C. 70, 108 S.E. 344 (1921) and 62 Am.Jur.2d, Premises Liability § 54 (1972) argues first that when Dr. Lamb, who had a room on the seventh floor, went to the sixth floor and engaged in an altercation, he lost his status as an invitee and became a trespasser. For that reason Wedgewood South argues it owed no duty to Dr. Lamb except not to injure willfully or wantonly him and there being no evidence of willful or wanton negligence, its motion for summary judgment should have been allowed. In the instant case whatever Dr. Lamb's status may have been when he was attempting to enter the room all the evidence shows he was not attempting to enter the room when he went through the window. He was an invitee when he was in the hall on the sixth floor of the Hilton Inn. Wedgewood South also argues that all the evidence shows that Dr. Lamb's own willful and wanton negligence was a proximate cause of his death. It contends that the evidence shows Dr. Lamb, by his own action in engaging in a fight, caused his own death. We do not believe this is the only conclusion the jury could make from the evidence. The evidence shows the fight was not continuous as the participants moved down the hall. If the jury should believe the version as stated by Mr. Livingston and Mr. Berry, they could find that Dr. Lamb's conduct was not a proximate cause of his death. We agree with Wedgewood South that any negligence of Darrel Teague may not be imputed to it. All the evidence shows that Mr. Teague had left the Underground Lounge and would not return until the next working day. If he was employed by Wedgewood South Corporation he was not engaged in any duty for it at the time of Dr. Lamb's death. He was attending a party given by some members of The Spiral Staircase at the time the altercation began. He testified in his deposition that in his job *881 he felt some responsibility to protect members of the band. We do not believe this duty extended to a party on the sixth floor of the motel after Mr. Teague had left his work in the Underground Lounge. Wedgewood South also contends the evidence negates a finding that it maintained the window in such a manner that it would not withstand the force of a person falling against it. The plaintiff filed affidavits by Joseph T. Pentecost, Director of the School of Ceramic Engineering at the Georgia Institute of Technology; Dale A. Blosser, an architect; and Ronald E. Kirk, a licensed professional engineer. Each of them stated that if the jury should find the window had been maintained from the time the building was constructed in its original condition with plate glass rather than tempered glass and without any guardrail or other safety devices that in his opinion this would not be in accordance with acceptable construction design criteria for such a window. We hold that the jury could find from this testimony that a reasonable and prudent man would have known that this window was hazardous and Wedgewood South Corporation's failure to replace the glass or construct a protective device was a proximate cause of Dr. Lamb's death. HILTON INNS, INC. APPEAL Hilton Inns, Inc. contends its motion for summary judgment should have been allowed because its only connection with the Hilton Inn in Greensboro was through an agreement under the terms of which it gave Wedgewood South a franchise to operate the motel in Greensboro as a Hilton Inn. We can find no cases in North Carolina dealing with the tort liability of a franchisor to a third person. There have been cases in other jurisdictions dealing with this subject. See Comment, Liability of a Franchisor for the Acts of the Franchisee, 41 So.Cal.L.Rev. 143 (1967) and Stuart, A Franchisor's Liability for the Torts of His Franchisee, 5 Univ. of San Francisco L.Rev. 118 (1970). The franchise agreement states specifically that Wedgewood South is not an agent of Hilton Inns, Inc. However, we do not believe this is determinative. Under the agreement, Wedgewood South agreed to operate the Inn in accordance with Hilton's operating manual and Hilton Inns, Inc. had the right to inspect the premises of the Inn to see that it was so operated. The operating manual sets out "the policies, practices, and standards of the System for hotel and motel operation." Wedgewood South's duties under the agreement required it to "operate, furnish, maintain and equip the Hotel and related facilities ... in accordance with the provisions ... of the Operating Manual." We believe from this evidence a jury could find that either Hilton Inns, Inc. had such a right to direct Wedgewood South Corporation in the operation of the motel that Wedgewood South was an agent of Hilton Inns, Inc. at the time of the accident, or that Hilton Inns, Inc. had enough control over the maintenance of the Inn that it was negligent in not seeing that the proper type of windows were in place. HARRY R. DUDLEY, JR., LOUIS A. RIGHTMIER, THOMAS H. B. MORRISETTE, AND DUDLEY, RIGHTMIER, MORRISETTE AND ASSOCIATES, A PROFESSIONAL CORPORATION, APPEAL The duties of the architects in the construction of the building were completed more than 11 years prior to 25 August 1977. This motion for summary judgment was granted as to the plaintiff's claim against them on the ground it was barred by the statute of limitations. G.S. 1-50(5). The motion was denied as to the claim of Hilton Inns, Inc. against them for contribution. At the time this action was instituted, G.S. 1-50(5) provided in part: "No action to recover damages for ... wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction *882 of such improvement to real property, more than six (6) years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury for which it is proposed to bring an action." The plaintiff contends she should not be barred by this statute from proceeding against the architects. She argues that it violates the equal protection clause of the Fourteenth Amendment to the United States Constitution as well as Article I, Sections 18, 19, and 32 of the Constitution of North Carolina. We can find no North Carolina cases applying the due process clause of the Fourteenth Amendment or the law of the land clause of Article I, Section 19 of the Constitution of North Carolina to G.S. 1-50(5). There have been many cases from other jurisdictions applying the Fourteenth Amendment to statutes similar to G.S. 1-50(5). See Kallas Mill Work Corp. v. Square D Co., 66 Wis.2d 382, 225 N.W.2d 454 (1975); Yakima Fruit and Cold Storage Co. v. Central Heating and Plumbing Co., 81 Wash.2d 528, 503 P.2d 108 (1973); Fujioka v. Kam, 55 Hawaii 7, 514 P.2d 568 (1973); Rosenburg v. Town of North Bergen, 61 N.J. 190, 293 A.2d 662 (1972); Josephs v. Burns, 260 Or. 493, 491 P.2d 203 (1971); Skinner v. Anderson, 38 Ill.2d 455, 231 N.E.2d 588 (1967). The plaintiff contends that by allowing contractors and architects to be subject to this six year statute of limitations while not including manufacturers, materialmen, and suppliers in the class, the General Assembly has created a class with no rational basis. The plaintiff argues that there is also no rational basis for excluding from the class persons in possession and control of the property. The plaintiff concedes that architects perform different functions in the construction industry than manufacturers, materialmen, and suppliers and the proof of the violation of a reasonable standard of care is different for each of these professions and trades. Plaintiff argues this is a distinction without a difference. We believe that in determining whether a class has a rational basis that if there is a substantial difference between those who are to be classified, the legislature may create a class based on this difference. A court may not hold the classification to be unconstitutional because it disagrees with the wisdom of adopting the statute. We believe the differences between architects and manufacturers, materialmen, and suppliers so far as functions in the construction industry and the proof of negligence provides a rational basis for the creation of this class. We also believe there is enough difference between those in possession and control of the property and those who are not so that there is a rational basis for excluding those in possession and control from the class. Those in possession and control are in a better position to know the condition of the property and are able to exercise a continuing control over the property than those who are not. See Sellers v. Refrigerators, Inc., 283 N.C. 79, 194 S.E.2d 817 (1973) for a case which holds the landowner plaintiff was excluded from the class created by G.S. 1-50(5). Sellers did not deal with the constitutional question. We hold the class created by G.S. 1-50(5) has a rational basis and it does not violate the Fourteenth Amendment to the United States Constitution or the law of the land clause of Article I, Section 19 of the Constitution of North Carolina. For the same reasons it does not grant an exclusive or separate emolument or privilege in contravention of Article I, Section 32 of the Constitution of North Carolina. The plaintiff also contends G.S. 1-50(5) violates Article I, Section 18 of the Constitution of North Carolina which provides: "All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay." *883 We realize another panel of this Court has held G.S. 1-50(6), which is a statute of limitations dealing with product liability and very similar to G.S. 1-50(5), to be unconstitutional under the above section. See Bolick v. American Barmag Corp., ___ N.C. App. ___, 284 S.E.2d 188 (1981). In that case the injury did not occur until more than six years after the product was sold. This Court reasoned that the above section of our constitution guaranteed a remedy for injuries. This Court said that by barring this claim before it arose the plaintiff had been denied his access to the courts in contravention of Article I, Section 18 of the Constitution of North Carolina. We do not believe our Constitution so restricts the General Assembly. We believe our Constitution guarantees access to the courts to those who have claims but it does not in all cases forbid the General Assembly from defining or abolishing claims which arise under the common law. In this case the General Assembly has barred a claim which arose more than six years after the last act of the architects against whom the claim is asserted. We hold the legislature had a right to do this. There was a dissent in Bolick and the case has now been appealed to our Supreme Court. We would be more hesitant in not following a precedent of this Court if the case had been finally determined. The court did not grant the architects' motion for summary judgment as to the claim of Hilton Inns, Inc. for contribution against the architects. We hold this was error. In excluding persons from the provisions of G.S. 1-50(5) the statute is in the conjunctive. It requires that to be excluded a party must be in "actual possession and control" of the property. We can find no evidence that Hilton Inns, Inc. was in actual possession. As we read the licensing agreement it does not give Hilton Inns, Inc. any right to possess the property. We hold that Hilton Inns, Inc. is not excluded from the coverage of G.S. 1-50(5) and is barred by this statute in its claim against the architects. We hold that the claim against Ted Craddock and the claim for contribution by Hilton Inns, Inc. against the architects should have been dismissed. We affirm the order allowing summary judgment for the architects on plaintiff's claim against them and the orders denying the motions for summary judgment by Wedgewood South Corporation and Hilton Inns, Inc. on the plaintiff's claim against them. Affirmed in part; reversed and remanded in part. ROBERT M. MARTIN, J., concurs. WELLS, J., dissents in part and concurs in part. WELLS, Judge, dissenting: I dissent from the portions of the majority opinion which (1) affirms summary judgment for defendant architects and their professional association as to plaintiff's cause against them and (2) holds that defendant Hilton Inns, Inc.'s cross-claim against them is barred by the provisions of G.S. 1-50(5). Following the reasoning of this Court in Bolick v. American Barmag Corp., 54 N.C.App. 589, 284 S.E.2d 188 (1981), dealing with a similar statute of limitations, G.S. 1-50(6), I am persuaded that the provisions of G.S. 1-50(5) violate the provisions of Article I, Section 18 of the North Carolina Constitution. I also dissent from that portion of the majority opinion which holds that defendant Craddock's motion for summary judgment should have been allowed. Under the forecast of evidence before the trial court, this issue is for the jury. See generally, Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980). I concur in all other portions of the majority opinion.