Martin v. City of Asheville

WELLS, Judge. The question presented is whether the trial court’s order of summary judgment in favor of defendant was proper. It is elementary that summary judgment is appropriate only where the pleadings and discovery materials leave unresolved no genuine issue of material fact. Our Supreme Court has held: A defendant is entitled to summary judgment only if he can produce a forecast of evidence which, when viewed most favorably to plaintiff, would, “if offered by plaintiff at the trial, without more, . . . compel a directed verdict” in defendant’s favor. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 473, 251 S.E. 2d 419, 423 (1979). In other words, if the forecast of evidence available for trial, as adduced on the motion for summary judgment, demonstrates that plaintiff will not at trial be able to make out at least a prima facie case, defendant is entitled to summary judgment. Dickens v. Puryear, 302 N.C. 437, 276 S.E. 2d 325 (1981). In such cases there is no gen *274 uine issue of material fact. Moore v. Fieldcrest Mills, Inc., supra. Mims v. Mims, 305 N.C. 41, 286 S.E. 2d 779 (1982). Plaintiff in this lawsuit was an emergency ambulance attendant in the employ of Buncombe County. At the time of plaintiffs injury, there was in effect between the City of Asheville and Buncombe County an oral agreement whereby emergency medical assistance personnel used various fire stations owned and maintained by the City as bases of operation. Medical assistance personnel were permitted to park county ambulances in city fire stations and to use fire station facilities. The County made no lease payments to the City for this accommodation. On the day of his injury, plaintiff returned to fire station No. 3 at approximately 6:39 p.m. and waited in the lounge area until his relief crew arrived. At about the same time as the relief crew arrived, an emergency call was received. Realizing he still had the keys to the ambulance medical chest in his pocket, plaintiff exited the lounge and hastened across the bay area, empty because the fire engine was gone, towards the far east side of the station where the ambulance was parked and where the relief crew was waiting for him to bring the keys. As plaintiff crossed this empty bay area, he slipped and fell on a pool of diesel fuel located directly beneath where fire engine No. 3 had been parked earlier that day. Plaintiff claims that fire engine No. 3 had a history of fuel leak problems. Plaintiff urges us to reverse the trial court’s order for two reasons. First, he contends that there exists a genuine issue of material fact with respect to his status — whether invitee or licensee — on defendant’s premises. Naturally, plaintiff insists that he was an invitee when he injured himself on city property and therefore is entitled to the concomitant heightened standard of care. We do not agree. We hold that plaintiff was a licensee as a matter of law while on defendant’s premises. Our Supreme Court has carefully elaborated the difference between licensees and invitees in Mazzacco v. Purcell, 303 N.C. 493, 279 S.E. 2d 583 (1981), as follows: The distinction between an invitee and a licensee is determined by the nature of the business bringing a person to the *275 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 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. [Emphasis supplied.] The distinction between licensee and invitee depends on the purpose of plaintiffs business on defendant’s property. One who enters upon the premises of another solely to advance his own interests cannot be an invitee. In the case at bar, the City of Asheville was permitting Buncombe County employees to utilize city fire stations for their own purposes and solely as a matter of accommodation. The County was paying no rent to the City for this privilege. Ambulances and emergency medical assistance personnel were the gratuitous guests of the City of Asheville, not its customers. Plaintiff secondly contends that even if the Court should hold him to have been, as a matter of law, a mere licensee, he is nevertheless entitled to a jury trial. We disagree. It is settled law in North Carolina that a licensee can recover only for negligence which is willful, wanton, and reckless. As this Court stated in Briles v. Briles, 43 N.C. App. 575, 259 S.E. 2d 393 (1979): In order for a licensee to recover, he must prove defendant’s negligence was willful or wanton or that the owner of the premises is affirmatively and actively negligent in the management of his property, as a result of which the licensee is subjected to increased danger causing injury to him. Since plaintiff candidly concedes in his brief that the City was not guilty of willful or wanton misconduct towards him, he cannot proceed. Plaintiff invites us to reconsider the position we took in Briles. We decline to do so. In summation, since plaintiff was a licensee when he fell on defendant’s premises, and since defendant’s negligence, if in fact there was any, concededly did not rise to the level of willful or wanton misconduct so as to breach any duty of care owing to a licensee, defendant was entitled to judgment as a matter of law. The judgment of the trial court must be and is *276 Affirmed. Judges Eagles and Martin concur.