{ "id": 8353690, "name": "TIMOTHY EARL WALLEN, Plaintiff v. RIVERSIDE SPORTS CENTER, a General Partnership, JOHN M. ROSE, JR. and SOL C. ROSE, Defendants", "name_abbreviation": "Wallen v. Riverside Sports Center", "decision_date": "2005-09-20", "docket_number": "No. COA03-1679", "first_page": "408", "last_page": "415", "citations": [ { "type": "official", "cite": "173 N.C. App. 408" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "599 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631459 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/599/0409-01" ] }, { "cite": "358 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631458, 12631459, 12631448, 12631450, 12631451, 12631453, 12631454, 12631455 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/599/0408-01", "/se2d/599/0409-01", "/se2d/599/0400-01", "/se2d/599/0404-01", "/se2d/599/0405-01", "/se2d/599/0406-01", "/se2d/599/0406-02", "/se2d/599/0407-02" ] }, { "cite": "446 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "124" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "115 N.C. 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App.", "case_ids": [ 8915771 ], "year": 2004, "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0149-01" ] } ], "analysis": { "cardinality": 905, "char_count": 16850, "ocr_confidence": 0.724, "pagerank": { "raw": 2.453660191790612e-07, "percentile": 0.8042986289934279 }, "sha256": "1a97885dc114d85311ecc508d5d59af61a1ae47e9700fed3eda1e8efbe555b6b", "simhash": "1:2e09d21c404a2c41", "word_count": 2771 }, "last_updated": "2023-07-14T20:45:28.578783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ELMORE concur." ], "parties": [ "TIMOTHY EARL WALLEN, Plaintiff v. RIVERSIDE SPORTS CENTER, a General Partnership, JOHN M. ROSE, JR. and SOL C. ROSE, Defendants" ], "opinions": [ { "text": "STEELMAN, Judge.\nPlaintiff, Timothy Earl Wallen, appeals the superior court\u2019s order granting defendants\u2019 motion for summary judgment and dismissing plaintiff\u2019s action with prejudice. For the reasons discussed herein, we reverse.\nSince 1977, brothers John and Sol Rose have operated Riverside Sports Center. Defendants lease twenty-five acres of largely undeveloped land fronting the Cape Fear River off of Person Street in Fayetteville, North Carolina. On a portion of the leased property, defendants operate a small bait and tackle shop and a Quonset hut for boat repairs. Incident to this business, defendant\u2019s obtained a permit from the Army Corps of Engineers to construct a boat ramp, providing access to the Cape Fear River. As part of the construction of the boat ramp, defendants also installed wooden \u201cpylons\u201d in the river. These pylons, also called \u201cfender piles,\u201d were placed both upstream and downstream from the boat ramp to prevent logs floating downstream from harming the boat dock or ramp. Defendants\u2019 customers frequently tied their boats to the pylons while waiting to use the ramp to remove their boats from the river.\nOn 31 August 2001, plaintiff met Rick George and his son at Riverside to go fishing. At approximately 4:00 p.m., George paid the access fee and launched his pontoon boat into the river using Riverside\u2019s ramp. After the party had fished for a while, the wind picked up and dark clouds rolled in. They decided to get off of the river until the storm passed. By the time plaintiff and George got back to the Riverside boating facility, it was raining and there were four boats ahead of them waiting to use the ramp to get off the river. George tied his boat to one of the downstream pylons. Plaintiff and George began putting a tarp over the boat to keep it dry. George said he heard a loud noise, like an artillery round, and felt something hit the boat. When he turned, he saw plaintiff lying on his back, unconscious. George was able to revive plaintiff using CPR. While waiting for an ambulance to arrive, he noticed a large log broken in half, lying on the bow of his boat. A Boxelder tree had fallen and struck plaintiff, leaving him with a horseshoe-shaped gash on the back of his head, extending from ear to ear. As a result of his injuries, plaintiff was rendered a paraplegic.\nPlaintiff brought suit against defendants, alleging he was injured by defendants\u2019 negligence. Plaintiff asserted that defendants failed to exercise reasonable care to keep their premises in reasonably safe condition, and more specifically, that defendants failed to properly inspect their property and remove any dead trees around the pylons, and as a result of their negligence, plaintiff was injured. On 28 August 2003, defendants filed a motion for summary judgment, contending plaintiff: (a) failed to show defendants owed any duty to plaintiff; (b) failed to show defendants were negligent; and (c) failed to show that his injury was reasonably foreseeable to defendants. On 9 October 2003, the trial court granted defendants\u2019s motion for summary judgment. Plaintiff appeals.\nSummary Judgment\nIn plaintiff\u2019s only assignment of error, he contends the trial court erred in granting defendants\u2019 motion for summary judgment because there existed genuine issues of material fact. We agree.\nWe review the trial court\u2019s grant of summary judgment de novo. Stafford v. County of Bladen, 163 N.C. App. 149, 151, 592 S.E.2d 711, 713, disc. review denied, 358 N.C. 545, 599 S.E.2d 409 (2004). Summary judgment is proper when the pleadings, together with depositions, interrogatories, admissions on file, and supporting affidavits show that no genuine issue of material fact exists between the parties with respect to the controversy being litigated and the moving party is entitled to judgment as a matter of law. N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2004). In considering such a motion, the court must view the evidence in the light most favorable to the non-movant. DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002). The party moving for summary judgment bears the burden of establishing the lack of any triable issue of fact. Id. at 681, 565 S.E.2d at 146. This burden may be met \u201c \u2018by proving that an essential element of the opposing party\u2019s claim is non-existent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim ....\u2019\u201d Id. (citations omitted).\nSummary judgment is seldom appropriate in a negligence action. Bostic Packaging, Inc. v. City of Monroe, 149 N.C. App. 825, 830, 562 S.E.2d 75, 79 (2002). A trial court should only grant such a motion where the plaintiffs forecast of evidence fails to support an essential element of the claim. Id. In order to establish a prima facie case of negligence against the defendant, a plaintiff must show: \u201c(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.\u201d Vares v. Vares, 154 N.C. App. 83, 87, 571 S.E.2d 612, 615 (2002), disc. review denied, 357 N.C. 67, 579 S.E.2d 576 (2003).\nDuty\nHistorically, the law pertaining to a landowner\u2019s responsibility for natural conditions occurring on his or her real property has been:\n\u00a7 363 Natural Conditions\n(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.\n(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.\nRestatement (Second) of Torts \u00a7 363 (1965). Many of the older cases dealing with this issue rigidly applied an urban-rural distinction to hold that a rural landowner had no duty under circumstances where a duty would exist for an urban landowner. This state and country have changed greatly since these principles were first enunciated. At that time, there existed stark differences between urban and rural settings. Today, these distinctions are not so clear. There are many areas that share both traditional urban and rural characteristics. Defendants\u2019 property is an example of this. It has many urban characteristics: it is zoned industrial; it is located within the corporate limits of Fayetteville; it is located upon a major thoroughfare; and it adjoins a railroad track. It also has many rural characteristics: it adjoins the Cape Fear River; it is heavily wooded at the river; and its primary use is recreational.\nIncreasingly, the courts of various states have moved away from the rigid urban-rural analysis towards imposing a duty of reasonable care upon a landowner based on the attendant circumstances. See e.g., Meyers v. Delaney, 529 N.W.2d 288, 290 (Iowa 1995); Ivancic v. Olmstead, 488 N.E.2d 72, 73 (N.Y. 1985); Sprecher v. Adamson Cos., 636 P.2d 1121, 1128-29 (Cal. 1981); Miles v. Christensen, 724 N.E.2d 643, 646 (Ind. App. 2000); Willis v. Maloof, 361 S.E.2d 512, 513 (Ga. App. 1987); Burke v. Briggs, 571 A.2d 296, 299-300 (N.J. Super. App. Div. 1990); Dudley v. Meadowbrook, Inc., 166 A.2d 743, 744 (D.C. 1961).\nIn Gibson v. Hunsberger, this Court adopted this approach in a case involving a tree falling on a highway, in what was clearly a rural setting. 109 N.C. App. 671, 428 S.E.2d 489, disc. review denied, 334 N.C. 433, 433 S.E.2d 177 (1993). After reciting section 363 of the Restatement of Torts, this Court stated:\nWe adopt the foregoing analysis and hold that a landowner has a duty to exercise reasonable care regarding natural conditions on his land which lies adjacent to a public highway in order to prevent harm to travelers using the highway. A landowner is subject to liability only if he had actual or constructive notice of a dangerous natural condition.\nTo impose a liability upon defendant landowners, plaintiffs had to prove not only that the tree constituted a dangerous condition to the travelers of the adjacent public road, but that the landowners had actual or constructive notice of the dangerous condition.\nId. at 675, 428 S.E.2d at 492. This statement of the law is consistent with our Supreme Court\u2019s holding in Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998). In Nelson, the Supreme Court abolished the trichotomy of trespasser-licensee-invitee for purposes of premises liability law and instead imposed the \u201cduty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors\u201d upon owners and occupiers of the land. Id. at 632, 507 S.E.2d at 892.\nWe hold that defendants in the instant case had a duty to exercise reasonable care with respect to natural conditions on their land, which was adjacent to a public highway. Provided, however, defendants are subject to liability only if they had actual or constructive notice of a dangerous natural condition existing upon their land.\nCane Fear River Is a \u201cPublic Highway\u201d\nAt the time plaintiff was injured he was on a \u201cpublic highway,\u201d since \u201c[njavigable waters constitute a public highway.\u201d Cromartie v. Stone, 194 N.C. 663, 668, 140 S.E. 612, 615 (1927) (holding the Cape Fear River was a public highway). State v. Glen, 52 N.C. 321, 325 (1859) (holding all rivers with sufficient depth for floatage are \u201cpublic highways by water\u201d).\nConstructive Notice\nThis case is devoid of any evidence that defendants had any actual notice of the decayed condition of the Boxelder tree. Thus, our analysis turns on whether plaintiff presented sufficient evidence that defendants had constructive notice of the tree\u2019s condition to withstand defendants\u2019 motion for summary judgment. Each party offered affidavits from expert arborists expressing opinions about the condition of the Boxelder tree.\nIn their brief, defendants argue it was within the trial court\u2019s discretion to ignore the proffered affidavit from plaintiff\u2019s expert since it was incompetent on the issue of causation. This is incorrect. The trial court\u2019s order clearly states that it denied the parties\u2019 cross-motions to strike the affidavits of the other\u2019s expert and that it considered both experts\u2019 affidavits. We further note that the affidavit of plaintiff\u2019s expert, Kenneth Knox, is directly contradicted by the affidavit of defendants\u2019 expert, David Lusk. It is not the trial court\u2019s role to resolve conflicts in the evidence presented on a motion for summary judgment. Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d 118, 124 (2002). Rather, the trial court\u2019s duty is \u201cstrictly confined to determining whether genuine issues of material fact exist[.]\u201d Id. In doing so, it must consider the evidence in the light most favorable to plaintiff, as the non-moving party. Id.\nThe evidence presented, taken in this light, tends to show the following: Riverside Sports Center has been in business since 1977. The premises includes a wooden dock located on the Cape Fear River, with a concrete boat ramp extending on both sides of the dock. Defendants placed pylons out into the river, both upstream and downstream from the dock, to protect the dock and ramps from trees and other debris floating in the river. Defendants knew that their customers routinely tied their boats to the downstream pylons to prevent their boats from drifting downstream while they waited for the ramp to clear so they could remove their boats from the river. There were trees along the bank of the river, the limbs of which hung over the river in the area of the downstream pylons. Defendants admitted they had previously trimmed the trees on both sides of the ramp. The affidavit and report of plaintiffs expert, Kenneth Knox, who specializes in hazard tree analysis, stated that \u201cthe only tree in the area of the incident that could possibly have caused the damage to [George\u2019s] boat was an 18.5\" diameter (dbh) Boxelder/Ashleaf Maple.\u201d Mr. Knox inspected the trees along the river bank at the downstream pylon on 16 September 2003. He stated the trunk of this tree snapped off approximately thirteen feet above the ground, approximately two years earlier, based on the ages of the epicormic branches that grew from the vicinity of the break. Further, a portion of the upper tree trunk had broken off six to ten years earlier, causing the tree bark to be stripped, and created a V-shaped wound on the tree, which accelerated the interior decay of the tree. The trunk of the Boxelder tree was leaning at a \u201cvery pronounced angle, from the top of the bank\u201d out over the river in the direction of the fourth pylon, where the George boat was tied. Knox opined that the tree was approximately 40'-60' feet in length and was definitely capable of striking George\u2019s boat. Knox further stated:\n[I] further believe that it was obvious that this Boxelder had been extensively decayed for many years prior to its breaking (on August 31, 2001), that it exhibited a number of conspicuous dead branches and external trunk decay, and that these obvious symptoms of decline and hazard-potential (dead branches and trunk decay), should have been observed with considerable concern by the owners of the property (particularly because of the strong lean of the tree towards the water), and that this tree should have been cut before it fell and harmed Mr. Wallen.\nWe hold that the evidence presented to the trial court, taken in the light most favorable to plaintiff, presented a genuine issue of material fact on the issue of constructive notice.\nNegligence\nDefendants had a duty to exercise reasonable care regarding natural conditions on their lands lying adjacent to a public highway. Gibson, 109 N.C. App. at 675, 428 S.E.2d at 492. In this case, the parties\u2019 use of the pylons to temporarily secure the boat was directly related to their use of defendants\u2019 boat ramp, for which they paid a fee. Defendants knew their pylons were regularly used by their customers to tie their boats while waiting to use the boat ramp. The Boxelder tree, which fell on the boat, had broken off once before the 31 August 2001 incident and exhibited signs of decay. This tree also hung out over the river and the pylon to which George had tied his boat.\nAs noted above, summary judgment is seldom appropriate in a negligence action. Further, taken in the light most favorable to plaintiff, the evidence presented to the trial court presented a genuine issue of material fact on the issue of defendants\u2019 negligence.\nWe caution that this holding is based upon the particular facts present in this case, and is not intended to place an absolute duty upon persons owning property located along a river or other public highway to inspect or trim trees adjoining that public highway.\nForeseeability\nThe final basis of defendants\u2019 motion for summary judgment was foreseeability. In order for a defendant to be liable for a negligence claim, the injury must be reasonably foreseeable. Winters v. Lee, 115 N.C. App. 692, 694, 446 S.E.2d 123, 124 (1994). Thus, a plaintiff must show that \u201c \u2018a man of ordinary prudence would have known that [plaintiff\u2019s injury] or some similar injurious result was reasonably foreseeable ....\u2019\u201d Id. (citations omitted). Given the facts as recited above in our discussion of duty, constructive notice, and negligence, we hold that the evidence taken in the light most favorable to plaintiff demonstrates there existed a genuine issue of material fact on the issue of foreseeability.\nREVERSED AND REMANDED.\nJudges CALABRIA and ELMORE concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Twiggs, Beskind, Strickland &