McIntosh v. Carefree Carolina Communities, Inc.

PARKER, Judge. The sole issue on appeal in this action in which plaintiff seeks to recover for personal injuries arising out of a fall on defendant’s premises is whether the trial court erred in entering summary judgment for defendant. Summary judgment should be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. McCurry v. Wilson, 90 N.C. App. 642, 643, 369 S.E.2d 389, 391 (1988). The moving party may meet this burden by showing that an essential element of the non-moving party’s claim or defense is nonexistent. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 421 (1979). In the instant case the depositions, affidavits and testimony presented at the hearing on the motion showed the following facts: Defendant Carefree Carolina Communities, Inc. (herein “Carefree”), operates a retirement community. Third party defendant R. P. Thomas contacted defendant’s agent, who agreed to allow Thomas [655] to use the clubhouse on defendant’s premises for a political rally held on 16 October 1984 in connection with Thomas’s re-election campaign. Plaintiff attended the rally in response to an advertisement run in the local newspaper by the committee to re-elect Thomas. At the event defendant had signs, literature and salespeople promoting the sale of available units in the retirement community. As plaintiff was leaving the clubhouse around 7:00 p.m., he slipped and fell on a flagstone walkway. According to plaintiff’s deposition testimony, some of the flagstones were broken and these broken flagstones created a hole one to three inches deep and eight to twelve inches wide. This hole was partially covered by fallen leaves. At the time of the accident, plaintiff was 75 years old, and he stated that he attended the function “[f]or the good of the party.” Plaintiff’s status on defendant’s premises is determinative of the duty defendant owed plaintiff with respect to the condition of the premises. If plaintiff was an invitee as plaintiff contends, defendant would have the duty to keep the premises in a reasonably safe condition and to warn of any hidden defects which defendant in the exercise of reasonable care should have discovered. Long v. Methodist Home, 281 N.C. 137, 139, 187 S.E.2d 718, 720 (1972), and Goldman v. Kossove, 253 N.C. 370, 373, 117 S.E.2d 35, 37 (1960). If, however, plaintiff was a licensee as defendant contends, defendant would have only the duty to refrain from wilfully or wantonly injuring plaintiff and from doing any act which increased the hazard to him while on the property. Andrews v. Taylor, 34 N.C. App. 706, 709, 239 S.E.2d 630, 632 (1977). Whether a person is an invitee or licensee is determined by the nature of the business that person has on the premises. As stated by our Supreme Court in Mazzacco v. Purcell, 303 N.C. 493, 279 S.E.2d 583 (1981). 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. 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). Id. at 497, 279 S.E.2d at 586-87 (emphasis in original). [656] Applying this test to the case at bar, we hold that plaintiff was a licensee. The undisputed evidence is that plaintiff went to the clubhouse in response to a paid political advertisement, not at defendant’s invitation; that he went for political reasons; and that he had no interest in defendant’s promotional efforts to sell retirement units. Hence, there is no showing of a mutual benefit between plaintiff and defendant. See Martin v. City of Asheville, 87 N.C. App. 272, 360 S.E.2d 467 (1987), and Turpin v. Church, 20 N.C. App. 580, 202 S.E.2d 351 (1974). Plaintiff argues that defendant indirectly invited him as a member of the general public and thus indirectly benefited from his presence. In support of his position, plaintiff relies on Coston v. Hotel, 231 N.C. 546, 57 S.E.2d 793 (1950). Coston, however, is distinguishable from the present case. In Coston, plaintiff was in the lobby of defendant hotel to visit a friend. The Court held that plaintiff was an invitee for the reason that she used the “facilities in the hotel that were reasonably within the invitation extended by a place of that kind for the use of the public generally.” Id. at 547, 57 S.E.2d at 795. In the present case, defendant’s clubhouse is located in a private, residential retirement community, and there is no evidence to support a finding that the clubhouse was ever open to the general public without express invitation. Plaintiff also contends that even if this Court should hold that he is as a matter of law a licensee, he is nevertheless entitled to a trial on the issue of defendant’s wilful and wanton negligence. Nothing in the record suggests, however, that defendant engaged in wilful or wanton conduct. Plaintiff’s argument that the condition had existed for some time without repair might have bearing if plaintiff were an invitee, which he is not. This Court will not impose on a property owner the same duty owed to a licensee as is owed to an invitee. As to the licensee, the property owner is liable only for wilful or wanton negligence or affirmative or active negligence which increases the hazard to the licensee on the premises. Briles v. Briles, 43 N.C. App. 575, 576, 259 S.E.2d 393, 394 (1979), disc. rev. denied, 299 N.C. 329, 265 S.E.2d 394 (1980). Based on the evidence adduced at the summary judgment hearing and applicable law, defendant was entitled to summary judgment. Accordingly, the judgment of the trial court is affirmed. [657] Affirmed. Judge EAGLES concurs. Judge Greene dissents.