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  "name": "TERRY VARES, Individually, and as Guardian Ad Litem for JUSTICE VARES, Plaintiff v. GREGORY VARES, BERT L. BENNETT, JR., JOHN BENNETT, SEAN McPARTLAND, and ANN BENNETT PHILLIPS, Defendants",
  "name_abbreviation": "Vares v. Vares",
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    "judges": [
      "Judges GREENE and HUNTER concur."
    ],
    "parties": [
      "TERRY VARES, Individually, and as Guardian Ad Litem for JUSTICE VARES, Plaintiff v. GREGORY VARES, BERT L. BENNETT, JR., JOHN BENNETT, SEAN McPARTLAND, and ANN BENNETT PHILLIPS, Defendants"
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        "text": "TIMMONS-GOODSON, Judge.\nTerry Vares (\u201cplaintiff\u2019), mother and guardian ad litem to her minor son, Justice Vares (\u201cJustice\u201d), appeals from judgments by the trial court granting summary judgment in favor of her father, Bert L. Bennett, Jr. (\u201cBennett\u201d), and her sister, Ann Bennett Phillips (\u201cPhillips\u201d) (collectively, \u201cdefendants\u201d). Plaintiff also appeals from an order of the trial court setting aside entry of default against Phillips. For the reasons stated herein, we affirm the order and judgments of the trial court.\nThe pertinent facts of this appeal are as follows: On 6 April 1999, plaintiff filed a complaint in Chatham County Superior Court on behalf of her son, Justice, seeking recovery for severe and permanent injuries he suffered when a falling tree struck his head. The complaint filed by plaintiff alleged that Bennett was negligent in allowing inherently dangerous activity to occur on his property without taking adequate precautions to ensure Justice\u2019s safety. On 17 October 2000, plaintiff filed an amended complaint, adding Phillips as a defendant to the suit. On 6 December 2000, plaintiff obtained an entry of default against Phillips, but the trial court set the entry of default aside by order entered 5 February 2001. Phillips filed her answer to the complaint the same day. Defendants thereafter filed motions for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, which motions came before the trial court on 30 April 2001.\nThe evidence before the trial court tended to show the following: On 6 April 1996, six-year-old Justice accompanied his parents to the home of his grandfather, defendant Bennett, for a family gathering that the Bennett family members referred to as \u201cFarm Day.\u201d On each \u201cFarm Day,\u201d Bennett family members typically performed various tasks related to the general maintenance of the fifty-acre property.\nOn the \u201cFarm Day\u201d at issue (\u201c1996 Farm Day\u201d), Justice\u2019s father, Gregory Vares (\u201cVares\u201d), assisted two other men in trimming and cutting down trees on the property with a chain saw. Justice was present and assisted his father by pulling \u201cbrush from around the tree.\u201d Before he began cutting a certain tree, Vares instructed his son to stand in a particular area, some distance away from the tree. While cutting the tree, Vares noticed that Justice had moved from his original location to an area closer to the tree being felled. Vares then stopped cutting the tree and ordered Justice to return to his original location. Justice obeyed, and Vares continued cutting the tree. As the tree began to fall, Justice inexplicably darted into its path. The falling tree then struck Justice on the head, severely injuring him.\nThe evidence further tended to show that Bennett\u2019s daughter, defendant Ann Bennett Phillips, was responsible for planning and assigning to family members the activities for the 1996 Farm Day. Plaintiff alleged that Phillips negligently assigned the task of cutting trees to Vares and the other men without first ascertaining their training or expertise to perform such activities. Moreover, plaintiff alleged that Phillips failed to adequately ensure Justice\u2019s safety.\nAfter considering all of the evidence and arguments by counsel, the trial court concluded that both defendants were entitled to summary judgment as a matter of law and accordingly entered such judgments. Plaintiff appeals.\nThe issues on appeal are whether the trial court erred in (1) granting summary judgment to Bennett; (2) setting aside the entry of default against Phillips; (3) granting summary judgment to Phillips; and (4) declining plaintiffs request to introduce certain depositions in the record on appeal. We address these issues in turn.\nStandard of Review for Summary Judgment\nSummary judgment is properly granted where \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2001); Bostic Packaging, Inc. v. City of Monroe, 149 N.C. App. 825, 830, 562 S.E.2d 75, 79, disc. review denied, 355 N.C. 747, 565 S.E.2d 192 (2002). Where the movant establishes that no claim for relief exists, or that the claimant cannot overcome an affirmative defense or legal bar to the claim, the movant is entitled to summary judgment. See Wilder v. Hobson, 101 N.C. App. 199, 201, 398 S.E.2d 625, 627 (1990). In determining the grounds for summary judgment, the trial court must view the evidence in the light most favorable to the non-movant. See Bostic Packaging, Inc., 149 N.C. App. at 830, 562 S.E.2d at 79.\nIn a negligence claim, summary judgment is appropriate where the plaintiffs forecast of evidence is insufficient to support an essential element of negligence. See Patterson v. Pierce, 115 N.C. App. 142, 143, 443 S.E.2d 770, 771, disc. review denied, 337 N.C. 803, 449 S.E.2d 749 (1994). In order to establish a prima facie case for negligence, the plaintiff must show the following essential elements: (1) the defendant owed the plaintiff a duty of care; (2) the defendant\u2019s conduct breached that duty; (3) the breach was the actual and proximate cause of the plaintiff\u2019s injury; and (4) plaintiff suffered damages as a result of the injury. See id. at 144, 443 S.E.2d at 772.\nDefendant Bert L. Bennett, Jr.\nPlaintiff argues that there are genuine issues of material fact precluding summary judgment in favor of defendant Bennett, and that the trial court therefore erred in granting such judgment. Plaintiff contends that there was evidence that defendant Phillips acted pursuant to authority granted by Bennett to Phillips as his agent. Plaintiff also asserts that Vares acted as an agent for Phillips, and that any negligence by Vares or Phillips is therefore imputed to Bennett. Plaintiff further asserts that the felling of trees with a chain saw is an inherently dangerous activity, and that Bennett had a non-delegable duty as a landowner to take adequate precautions to protect all lawful visitors to the property. We examine these arguments in turn.\nA. Agency\nAn agent is \u201cone who acts for or in the place of another by authority from the other.\u201d American Tours, Inc. v. Liberty Mutual Ins. Co., 315 N.C. 341, 349, 338 S.E.2d 92, 97 (1986). Although the question of agency is a factual one and therefore generally a matter for the jury, \u201c [i]f only one inference can be drawn from the facts then it is a question of law for the trial court.\u201d Hylton v. Koontz, 138 N.C. App. 629, 635, 532 S.E.2d 252, 257 (2000), disc. review denied, 353 N.C. 373, 546 S.E.2d 603 (2001). Thus, we must examine the evidence to determine whether genuine issues of material fact exist as to whether Phillips acted pursuant to authority granted to her by Bennett.\nAlthough plaintiff cites to disputed testimony regarding Bennett\u2019s general knowledge of the activities that would take place during the 1996 Farm Day, there is no evidence in the record that Phillips was acting on Bennett\u2019s behalf or at his request. All of the parties agree that Phillips organized the 1996 Farm Day, assigning the chores to be done and generally coordinating the events. Bennett\u2019s uncontradicted testimony was that Farm Day occurred each year \u201cby and large for my children who wanted to be a part of keeping the place up,\u201d adding that it was \u201cnot at my insistence.\u201d There was no evidence that Bennett either requested the 1996 Farm Day to be held or asked for Phillips\u2019 assistance in arranging such an event.\nMoreover, there was no evidence that Phillips\u2019 actions in organizing the 1996 Farm Day and assigning tasks were subject to Bennett\u2019s control. See Outer Banks Contractors v. Daniels & Daniels Construction, 111 N.C. App. 725, 730, 433 S.E.2d 759, 762 (1993) (stating that agency exists where the actions by the agent are subject to the principal\u2019s control). Phillips testified that she coordinated all of the activities, including assigning chores to various family members. Although there was some evidence that Phillips consulted her father before deciding what type of general maintenance should be performed that year, there was no evidence that Bennett reviewed the chore list created by Phillips or the particular assignments, or was present when the activities were performed. There was a similar lack of evidence that Vares acted as Bennett\u2019s agent. Because there was no evidence that Phillips or Vares acted as Bennett\u2019s agents, we reject this ground as a basis for liability on Bennett\u2019s part.\nB. Premises Liability\nPlaintiff further argues that Bennett is liable as the landowner of the property where Justice was injured. As a landowner, plaintiff asserts that Bennett had a non-delegable duty to take necessary precautions to protect Justice from inherently dangerous activity occurring on the property.\nA landowner ordinarily owes a duty \u201cto exercise ordinary care for the protection of one of tender years, after his presence in a dangerous situation is or should have been known.\u201d Freeze v. Congleton, 276 N.C. 178, 182, 171 S.E.2d 424, 426 (1970). This duty of care does not apply, however, where the minor child is being actively supervised by a parent who has full knowledge of the condition of the premises and appreciation of the danger thereby presented. See id; see also Watson v. Nichols, 270 N.C. 733, 736, 155 S.E.2d 154, 157 (1967) (stating that, \u201cwhen parents are present, in charge of their children of tender years, responsibility for their care and safety falls on the parents\u201d); compare Mitchell v. K.W.D.S., Inc., 26 N.C. App. 409, 413, 216 S.E.2d 408, 412 (holding that, where a minor child is injured because of a dangerous condition on the premises, the fact that a parent or guardian is \u201csomewhere on the premises\u201d but not actually present at the time of injury \u201cdoes not absolve the proprietor of liability for injuries to the child caused by the proprietor\u2019s negligent failure to maintain the premises in a reasonably safe condition\u201d), cert. denied, 288 N.C. 242, 217 S.E.2d 665 (1975), and Foster v. Weitzel, 17 N.C. App. 90, 92, 193 S.E.2d 329, 330-31 (1972) (holding that the proprietor of a laundromat could be held liable for injuries suffered by the minor plaintiff in the presence of her mother where the mother had no knowledge of the dangerous condition on the premises), cert. denied, 282 N.C. 672, 194 S.E.2d 152 (1973). Similarly, in the context of attractive nuisance cases, it is incumbent upon parents to warn and guard their children against \u201c \u2018common dangers, existing in the order of nature\u2019 \u201d and where they fail to do so, \u201c \u2018they should not expect to hold others responsible for their own want of care.\u2019 \u201d Fitch v. Selwyn Village, 234 N.C. 632, 635, 68 S.E.2d 255, 257 (1951) (quoting Peters v. Bowman, 115 Cal. 345, 356, 47 P. 598, 599 (1897)).\nIn contrast to Mitchell and Foster, the evidence in the instant case shows that Vares was actively supervising his son when the injury occurred, and that he was actually performing the task that plaintiff asserts was inherently dangerous. Vares testified that he fully appreciated the potential hazards associated with felling trees, and that he should not have permitted his son to be present while such activity was taking place. Vares stated that he was \u201cagainst [taking Justice to Farm Day] to begin with,\u201d and that when he was asked to bring a chain saw, he \u201crealized that [he] wouldn\u2019t be able to watch the children as well as run a chain saw safely.\u201d The evidence further shows that there were other adults present on the property who could have supervised Justice.\nWhen Vares initially began cutting the tree, he noticed that Justice had moved from the safe location where Vares had instructed him to remain. Vares ordered Justice to return to the original position, and Justice obeyed. At that point, the evidence shows that, although Vares (1) understood the hazardous nature of the work; (2) knew that his supervision of Justice while performing such work was inadequate; and (3) had actual notice of the potential for Justice to abandon his position of relative safety, Vares nevertheless allowed Justice to remain in the vicinity of the work site and proceeded to fell the tree that injured his son.\nBecause the evidence establishes that Justice was injured while being actively supervised by his father, who was actually performing the activity that plaintiff asserts was inherently dangerous, the duty of care to protect Justice belonged to Vares and not to Bennett. We therefore hold that the trial court properly granted summary judgment to defendant Bennett.\nDefendant Ann Bennett Phillips\nPlaintiff contends that the trial court erred in setting aside the entry of default against Phillips. Plaintiff further asserts that genuine issues of material fact exist which preclude summary judgment in favor of Phillips. Specifically, plaintiff argues that Phillips was negligent in assigning Vares and the other men the task of cutting trees, and in failing to provide supervision for Justice. Plaintiff further argues that Vares and the other men cutting trees acted as agents for Phillips, and that any negligence on their part is imputed to her.\nA. Entry of Default\nPlaintiff asserts that the trial court improperly granted Phillips\u2019 motion to set aside the entry of default against her. A judge may set aside an entry of default \u201c[f]or good cause shown.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 55(d) (2001). \u201cA trial court\u2019s determination of \u2018good cause\u2019 to set aside an entry of default will not be disturbed on appeal absent an abuse of discretion.\u201d Brown v. Lifford, 136 N.C. App. 379, 382, 524 S.E.2d 587, 589 (2000). Whether or not \u201cgood cause\u201d exists depends on the circumstances in a particular case, and, where merited, \u201can inadvertence which is not strictly excusable may constitute good cause, particularly \u2018where the plaintiff can suffer no harm from the short delay involved in the default and grave injustice may be done to the defendant.\u2019 \u201d Peebles v. Moore, 48 N.C. App. 497, 504, 269 S.E.2d 694, 698 (1980) (quoting Whaley v. Rhodes, 10 N.C. App. 109, 112, 177 S.E.2d 735, 737 (1970)), affirmed as modified, 302 N.C. 351, 275 S.E.2d 833 (1981). Entry of default is generally disfavored, and thus any doubts concerning such entry \u201cshould be resolved in favor of setting aside an entry of default so that the case may be decided on its merits.\u201d Id. at 504-05, 269 S.E.2d at 698.\nIn the instant case, the evidence presented to the trial court at the hearing for Phillips\u2019 motion to set aside the entry of default tended to show the following: Plaintiff added Phillips as a defendant to the instant lawsuit after Phillips gave a deposition at which she was unrepresented by counsel. Plaintiff served Phillips with a copy of the amended complaint on 28 October 2000. Phillips took the documents to her insurance representative on 30 October 2000, and followed up thereafter with the representative on 22 November 2000. On 6 December 2000, entry of default was entered against Phillips. On 18 December 2000, Phillips\u2019 insurance company retained counsel for the case, who immediately contacted counsel for plaintiff and requested that the entry of default be voluntarily set aside. Counsel for plaintiff declined to agree to set aside the entry of default, although other defendants to the suit had not yet filed their answers.\nUnder the circumstances, we conclude that the trial court did not abuse its discretion in setting aside the entry of default. The evidence showed that the delay in answering plaintiff\u2019s complaint was primarily due to negligence by Phillips\u2019 insurance company rather than negligence by Phillips. See Whaley, 10 N.C. App. at 112, 177 S.E.2d at 737 (affirming the trial court\u2019s order setting aside entry of default where it was shown that the defendant justifiably relied upon his insurance company to handle the complaint served against him). Moreover, the delay presented by setting aside the entry of default was relatively short and caused no prejudice to plaintiff. We therefore overrule this assignment of error. We now examine whether the trial court properly granted summary judgment in favor of Phillips.\nB. Summary Judgment\nAs noted supra, in order to prevail on a negligence claim, plaintiff must demonstrate that the defendant owed plaintiff a duty of reasonable care, and that the defendant\u2019s breach of that duty proximately resulted in injury to plaintiff. See Pulley v. Rex Hospital, 326 N.C. 701, 704-05, 392 S.E.2d 380, 383 (1990). Plaintiff presented no evidence that Phillips owed any particular duty to Justice, or that her actions resulted in the injury to Justice. There was no evidence that Phillips agreed to directly supervise Justice or assumed such duty at any point in time. Although Phillips informed Justice\u2019s mother that there would be adults on the premises who would supervise Justice, the evidence also shows that Justice was in fact being supervised by his father at the time of the injury.\nPlaintiff has also presented insufficient evidence of any agency relationship between Phillips and Vares and the other men cutting the tree. Although Phillips organized and coordinated the 1996 Farm Day, it is clear from the evidence that Farm Day was a voluntary family event that took place each year for the benefit of the entire extended Bennett family, rather than for the benefit of Phillips herself. As such, there was no evidence that Vares or the other family members acted on Phillips\u2019 behalf in performing their work, or that they were obligated to perform the specific tasks assigned to them. We hold therefore that the trial court properly granted summary judgment in favor of Phillips, and we overrule this assignment of error.\nDepositions\nPlaintiff further assigns error to the trial court\u2019s alleged refusal to admit into evidence certain depositions. The transcript of the summary judgment hearing reveals that, after the judge granted defendants\u2019 motions for summary judgment, the following colloquy took place:\n[Counsel for Plaintiff]: I want to make sure that all the depositions and interrogatories are in evidence.\nThe Court: Which ones are you talking about?\nThe Court: I have given her everything that was handed up to me, and that includes the depositions of the parties that were \u2014 that were handed up and the notebook that was handed up by [counsel for Bennett] that includes several depositions. But everything I looked at should be made a part of this record.\n[Counsel for Plaintiff]: They\u2019re not originals, so I don\u2019t guess you have a problem with that.\nThe Court: I don\u2019t have any problem with that. If y\u2019all want to put the originals in evidence right now, fine. Or between now and Wednesday. Everything I looked at should be made a part of the evidence. Does everybody agree on that?\n[Counsel for Bennett]: I agree.\n[Counsel for Phillips]: I do, Your Honor. I believe that the \u2014 the deposition of Sean McPartland was never referenced and you did not look at it. I believe that is the only deposition that you did not have access to.\nThe Court: Well, do you want that put in as part of the record?\n[Counsel for Plaintiff]: I would like all of them put in.\n[Counsel for Bennett]: I never \u2014 I did not refer to it, so I would not want it put in.\nThe Court: Well, just what I looked at.\n[Counsel for Bennett]: I didn\u2019t refer to it.\nThe Court: Whatever is there is what I looked at and what y\u2019all handed up to me.\n[Counsel for Plaintiff]: I think you looked at Greg\u2014\n[Counsel for Phillips]: Greg, Bert, Terry.\n[Counsel for Bennett]: Greg, Bert, and Terry.\nNo further statements were made regarding the depositions. Plaintiff now contends that the trial court \u201cerred in refusing to admit into evidence the depositions of John Bennett, Sean McPartland and Bryan Wagner.\u201d We disagree.\nThere is no evidence that counsel for plaintiff ever offered the depositions into evidence by physically conveying them to the judge or otherwise submitting them to the court\u2019s review. Trial counsel made no arguments at the hearing based on the depositions at issue or otherwise referred to the depositions until after the trial court ruled on the summary judgment motion. Counsel for plaintiff made no objection to the trial court\u2019s alleged \u201crefusal\u201d to consider the depositions. As the depositions were never introduced into evidence, and as the trial court therefore did not rely on the depositions in ruling on the motions, the trial court did not err in excluding this evidence from the record on appeal after ruling on the motions for summary judgment.\nWe moreover note that, according to plaintiff, the depositions at issue concern two eyewitness accounts of the accident, as well as expert testimony concerning the allegedly dangerous nature of cutting trees with a chain saw. Further, the affidavit submitted by plaintiff\u2019s expert witness, Bryan Wagner, regarding his opinion as to the inherently dangerous nature of cutting trees with a chain saw was submitted into evidence and before the court. Given our conclusion that neither Bennett nor Phillips owed a legal duty to Justice, the exclusion of evidence regarding the events of the accident or additional evidence concerning the nature of the activity causing the accident could not have prejudiced plaintiff. We overrule this assignment of error.\nIn conclusion, we hold that the trial court properly granted summary judgment in favor of defendants. We also hold that the trial court did not abuse its discretion in setting aside the entry of default. The order and judgments of the trial court are hereby\nAffirmed.\nJudges GREENE and HUNTER concur.",
        "type": "majority",
        "author": "TIMMONS-GOODSON, Judge."
      }
    ],
    "attorneys": [
      "Katherine E. Jean and Edwards & Atwater, by W. Ben Atwater, Jr., for plaintiff appellant.",
      "Ragsdale Liggett PLLC, by George R. Ragsdale and Andrew C. Buckner, for defendant appellee Bert L. Bennett, Jr. Broughton Wilkins Sugg Hall & Thompson, PLLC, by R. Palmer Sugg, for defendant appellee Ann Bennett Phillips."
    ],
    "corrections": "",
    "head_matter": "TERRY VARES, Individually, and as Guardian Ad Litem for JUSTICE VARES, Plaintiff v. GREGORY VARES, BERT L. BENNETT, JR., JOHN BENNETT, SEAN McPARTLAND, and ANN BENNETT PHILLIPS, Defendants\nNo. COA01-1411\n(Filed 19 November 2002)\n1. Agency\u2014 injury during family farm day \u2014 activities not planned at owner\u2019s request\nDefendant Bennett had no liability based on agency where his grandson was injured by a falling tree on a day when Bennett family members performed maintenance on Bennett\u2019s farm. Bennett\u2019s daughter, defendant Phillips, planned activities for the family\u2019s \u201cFarm Day,\u201d but there was no evidence that Phillips was acting on Bennett\u2019s behalf or at his request, or that Phillips\u2019s actions were subject to Bennett\u2019s control.\n2. Premises Liability\u2014 injured child \u2014 supervision by parent\nThe trial court properly granted summary judgment to defendant Bennett on a premises liability claim where Bennett\u2019s grandson was injured while his father was cutting down trees on Bennett\u2019s land. The father was actively supervising his son and was performing the act which plaintiff asserts was inherently dangerous, and the duty of care to protect the grandson belonged to his father and not to Bennett.\n3. Judgments\u2014 entry of default \u2014 setting aside \u2014 delay caused by insurance company\nThe trial court did not abuse its discretion by setting aside an entry of default against defendant Phillips where her initial delay in answering the complaint was primarily due to negligence by the insurance company. Moreover, the delay from setting aside the entry of default was short and caused no prejudice to plaintiff.\n4. Negligence-injury to child\u2014 supervision by parent\nThe trial court did not err by granting summary judgment for defendant Phillips on a negligence claim where Justice Vares was injured during the family\u2019s \u201cFarm Day\u201d while his father performed maintenance activities scheduled by Phillips. Justice was supervised by his father; there was no evidence that Phillips assumed supervision of Justice, owed a duty to Justice, or injured Justice by her actions.\n5. Agency\u2014 coordinator of family farm maintenance \u2014 voluntary family event \u2014 no agency\nSummary judgment for defendant Phillips on an agency claim was proper where six-year-old Justice Vares was injured during the family\u2019s \u201cFarm Day\u201d while his father cut a tree. Although Phillips organized and coordinated the Farm Day, it was a voluntary family event that took place each year for the benefit of the entire extended family and there was no evidence Vares or other family members acted on Phillips\u2019s behalf or that they were obligated to perform the specific tasks assigned to them.\n6. Appeal and Error\u2014 record \u2014 failure to include depositions not submitted \u2014 no error.\nThe trial court did not err by not admitting into the record in a negligence action certain depositions where there was no evidence that plaintiff ever offered the depositions by physically conveying them to the judge or otherwise submitting them to the court\u2019s review. Moreover, the trial court did not rely on the depositions in ruling on the motions and the exclusion of the evidence from the record could not have prejudiced plaintiff.\nAppeal by plaintiff from order entered 5 February 2001 by Judge A. Leon Stanback, Jr., in Chatham County Superior Court, and from judgments entered 10 May and 11 May 2001 by Judge Richard L. Doughton in Chatham County Superior Court. Heard in the Court of Appeals 20 August 2002.\nKatherine E. Jean and Edwards & Atwater, by W. Ben Atwater, Jr., for plaintiff appellant.\nRagsdale Liggett PLLC, by George R. Ragsdale and Andrew C. Buckner, for defendant appellee Bert L. Bennett, Jr. Broughton Wilkins Sugg Hall & Thompson, PLLC, by R. Palmer Sugg, for defendant appellee Ann Bennett Phillips."
  },
  "file_name": "0083-01",
  "first_page_order": 111,
  "last_page_order": 122
}
