{
  "id": 8551874,
  "name": "GEORGE EDWARD KELLY and RUFUS HAMILTON KELLY v. MARY LEE BRILES and RUTH ADDISON BRILES, Individually and as Executors of the Estate of BERTIE WALLACE BRILES",
  "name_abbreviation": "Kelly v. Briles",
  "decision_date": "1978-04-04",
  "docket_number": "No. 7718SC237",
  "first_page": "714",
  "last_page": "719",
  "citations": [
    {
      "type": "official",
      "cite": "35 N.C. App. 714"
    }
  ],
  "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": "9 S.E. 2d 408",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1940,
      "opinion_index": 0
    },
    {
      "cite": "217 N.C. 730",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8617005
      ],
      "year": 1940,
      "pin_cites": [
        {
          "page": "737"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/217/0730-01"
      ]
    },
    {
      "cite": "55 A.L.R. 2d 525",
      "category": "reporters:specialty",
      "reporter": "A.L.R. 2d",
      "year": 1957,
      "opinion_index": 0
    },
    {
      "cite": "21 N.E. 369",
      "category": "reporters:state_regional",
      "reporter": "N.E.",
      "year": 1889,
      "opinion_index": 0
    },
    {
      "cite": "149 Mass. 267",
      "category": "reporters:state",
      "reporter": "Mass.",
      "case_ids": [
        778392
      ],
      "year": 1889,
      "opinion_index": 0,
      "case_paths": [
        "/mass/149/0267-01"
      ]
    },
    {
      "cite": "159 S.W. 682",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1913,
      "opinion_index": 0
    },
    {
      "cite": "155 Ky. 130",
      "category": "reporters:state",
      "reporter": "Ky.",
      "case_ids": [
        4420185
      ],
      "year": 1913,
      "opinion_index": 0,
      "case_paths": [
        "/ky/155/0130-01"
      ]
    },
    {
      "cite": "209 S.E. 2d 901",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "opinion_index": 0
    },
    {
      "cite": "215 Va. 325",
      "category": "reporters:state",
      "reporter": "Va.",
      "case_ids": [
        2123287
      ],
      "year": 1974,
      "opinion_index": 0,
      "case_paths": [
        "/va/215/0325-01"
      ]
    },
    {
      "cite": "71 N.W. 2d 863",
      "category": "reporters:state_regional",
      "reporter": "N.W.2d",
      "year": 1955,
      "opinion_index": 0
    },
    {
      "cite": "245 Minn. 130",
      "category": "reporters:state",
      "reporter": "Minn.",
      "case_ids": [
        1762189
      ],
      "year": 1955,
      "opinion_index": 0,
      "case_paths": [
        "/minn/245/0130-01"
      ]
    },
    {
      "cite": "191 Atl. 233",
      "category": "reporters:state_regional",
      "reporter": "A.",
      "year": 1937,
      "opinion_index": 0
    },
    {
      "cite": "172 Md. 309",
      "category": "reporters:state",
      "reporter": "Md.",
      "case_ids": [
        2259444
      ],
      "year": 1937,
      "opinion_index": 0,
      "case_paths": [
        "/md/172/0309-01"
      ]
    },
    {
      "cite": "193 S.E. 2d 62",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
    },
    {
      "cite": "127 Ga. App. 235",
      "category": "reporters:state",
      "reporter": "Ga. App.",
      "case_ids": [
        739669
      ],
      "year": 1972,
      "opinion_index": 0,
      "case_paths": [
        "/ga-app/127/0235-01"
      ]
    },
    {
      "cite": "312 U.S. 383",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        359113
      ],
      "weight": 3,
      "year": 1941,
      "opinion_index": 0,
      "case_paths": [
        "/us/312/0383-01"
      ]
    },
    {
      "cite": "113 F. 2d 105",
      "category": "reporters:federal",
      "reporter": "F.2d",
      "case_ids": [
        1023104
      ],
      "year": 1940,
      "opinion_index": 0,
      "case_paths": [
        "/f2d/113/0105-01"
      ]
    },
    {
      "cite": "130 F. 2d 544",
      "category": "reporters:federal",
      "reporter": "F.2d",
      "case_ids": [
        1154463
      ],
      "year": 1942,
      "opinion_index": 0,
      "case_paths": [
        "/f2d/130/0544-01"
      ]
    },
    {
      "cite": "279 N.C. 393",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8568177,
        8568082,
        8568215,
        8568120,
        8568153,
        8568254
      ],
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/nc/279/0393-04",
        "/nc/279/0393-01",
        "/nc/279/0393-05",
        "/nc/279/0393-02",
        "/nc/279/0393-03",
        "/nc/279/0393-06"
      ]
    },
    {
      "cite": "181 S.E. 2d 787",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "pin_cites": [
        {
          "page": "791"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "11 N.C. App. 454",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8555690
      ],
      "year": 1971,
      "pin_cites": [
        {
          "page": "460"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/11/0454-01"
      ]
    },
    {
      "cite": "49 A.L.R., 773",
      "category": "reporters:specialty",
      "reporter": "A.L.R.",
      "year": 1971,
      "opinion_index": 0
    },
    {
      "cite": "192 N.C., 791",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8626994
      ],
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/nc/192/0791-01"
      ]
    },
    {
      "cite": "195 S.E. 364",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
    },
    {
      "cite": "213 N.C. 172",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8627064
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/213/0172-01"
      ]
    },
    {
      "cite": "174 S.E. 2d 50",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1970,
      "opinion_index": 0
    },
    {
      "cite": "8 N.C. App. 243",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8550462
      ],
      "year": 1970,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/8/0243-01"
      ]
    },
    {
      "cite": "48 S.E. 893",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "year": 1923,
      "opinion_index": 0
    },
    {
      "cite": "186 N.C. 120",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8652960
      ],
      "year": 1923,
      "opinion_index": 0,
      "case_paths": [
        "/nc/186/0120-01"
      ]
    },
    {
      "cite": "153 S.E. 637",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "year": 1930,
      "opinion_index": 0
    },
    {
      "cite": "199 N.C. 1",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8594736
      ],
      "year": 1930,
      "opinion_index": 0,
      "case_paths": [
        "/nc/199/0001-01"
      ]
    },
    {
      "cite": "77 S.E. 2d 701",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1953,
      "opinion_index": 0
    },
    {
      "cite": "238 N.C. 162",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8601861
      ],
      "year": 1953,
      "opinion_index": 0,
      "case_paths": [
        "/nc/238/0162-01"
      ]
    },
    {
      "cite": "107 S.E. 2d 154",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1959,
      "opinion_index": 0
    },
    {
      "cite": "249 N.C. 534",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8618798
      ],
      "year": 1959,
      "opinion_index": 0,
      "case_paths": [
        "/nc/249/0534-01"
      ]
    },
    {
      "cite": "125 S.E. 2d 377",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1962,
      "opinion_index": 0
    },
    {
      "cite": "257 N.C. 143",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8566218
      ],
      "year": 1962,
      "opinion_index": 0,
      "case_paths": [
        "/nc/257/0143-01"
      ]
    },
    {
      "cite": "156 S.E. 2d 711",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1967,
      "opinion_index": 0
    },
    {
      "cite": "271 N.C. 396",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8564179
      ],
      "year": 1967,
      "opinion_index": 0,
      "case_paths": [
        "/nc/271/0396-01"
      ]
    },
    {
      "cite": "176 S.E. 2d 161",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1970,
      "pin_cites": [
        {
          "page": "166"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "277 N.C. 94",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8561932
      ],
      "year": 1970,
      "pin_cites": [
        {
          "page": "103"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/277/0094-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 711,
    "char_count": 11914,
    "ocr_confidence": 0.815,
    "pagerank": {
      "raw": 8.809691169799156e-08,
      "percentile": 0.4968364951006796
    },
    "sha256": "90ebdbb6c0ee513c468af08b7d957a34157267fb5e0b9d49cbd4cbd67dcbd9c3",
    "simhash": "1:437f3d3321a3577e",
    "word_count": 1992
  },
  "last_updated": "2023-07-14T19:24:32.681632+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Clark and Mitchell concur."
    ],
    "parties": [
      "GEORGE EDWARD KELLY and RUFUS HAMILTON KELLY v. MARY LEE BRILES and RUTH ADDISON BRILES, Individually and as Executors of the Estate of BERTIE WALLACE BRILES"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nPlaintiffs\u2019 complaint should be dismissed under Rule 12(b)(6) only if \u201cit appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.\u201d (Emphasis deleted.) Sutton v. Duke, 277 N.C. 94, 103, 176 S.E. 2d 161, 166 (1970), quoting 2A Moore\u2019s Federal Practice (2d ed. 1968), \u00a7 12.08. We now review the complaint in this action in light of the requirements of Sutton v. Duke to determine whether it states a cause of action under G.S. 74-13 (now repealed) and, if not, whether it states a cause of action on the basis of negligence.\nPlaintiff has relied in part upon former G.S. 74-4 and G.S. 74-13 to state a claim. G.S. 74-4 was a statute enacted to protect the public health and safety. It provided that \u201c[a]ll underground entrances to any place not in actual course of working or extension shall be properly fenced across the whole width of such entrance so as to prevent persons from inadvertently entering the same.\u201d G.S. 74-4. A subsequent section of the act imposes criminal penalties for a violation of the statute. G.S. 74-13, furthermore, created a cause of action for a person injured by a mineowner\u2019s willful failure to comply with G.S. 74-4. These statutes, although now repealed, were in effect at the time of the occurrence alleged in the complaint.\nG.S. 74-4 requires that the openings of mines \u201cbe properly-fenced ... to prevent persons from inadvertently entering the same.\u201d (Emphasis added.) Plaintiffs\u2019 complaint alleges that plaintiff \u201cdecided to explore one of the mines\u201d (emphasis added), and \u201cwas climbing in one of the mines\u201d (emphasis added) when he was injured. Sound statutory construction requires that the plain meaning of the word \u201cinadvertently\u201d be used. Webster\u2019s Third New International Dictionary (1968) in its definition of \u201cinadvertent\u201d suggests four synonyms: heedless, negligent, inattentive, and unintentional. When the plain meaning of \u201cinadvertently\u201d is used, it becomes obvious that the purpose of the requirement of G.S. 74-4 was to prevent persons from accidentally falling into abandoned mines. In this case, the plaintiff intentionally climbed into the mine.\nThere was no statutory duty to fence or barricade the mines so securely that even an intentional entry would be impossible. The statute only imposed the duty to fence or barricade \u201cso as to prevent persons from inadvertently entering the same.\u201d Because the cause of action purportedly stated in plaintiffs\u2019 complaint necessitates a duty to fence so as to prevent intentional entry, plaintiff cannot rely upon G.S. 74-4 and 13.\nIn addition, the North Carolina Courts have repeatedly said that even though violation of a health or safety statute is negligence, there will be liability only if the violation is the proximate cause or one of the proximate causes of the injury. See, e.g., Bell v. Page, 271 N.C. 396, 156 S.E. 2d 711 (1967); Smith v. Metal Co., 257 N.C. 143, 125 S.E. 2d 377 (1962). It seems apparent that under no state of facts could the failure to fence so as to prevent inadvertent entry be the proximate cause of an injury resulting from an intentional entry. We are of the opinion that plaintiffs\u2019 cause of action, if any, does not come within the purview of the statutes upon which they rely.\nWe now determine whether plaintiffs\u2019 complaint states a claim under a negligence theory. The complaint alleges that persons frequently visited the mines and that defendants were well aware of that use, but the complaint alleges no benefit to the defendants from the visits. Under these facts, the plaintiff clearly was not an invitee when he entered the mine but would occupy the status of a licensee when he entered the mine since the open use by the public implies an invitation. See generally Hood v. Coach Co., 249 N.C. 534, 107 S.E. 2d 154 (1959).\nThe duties of a landowner to a licensee are substantially the same as to a trespasser. Wagoner v. R.R., 238 N.C. 162, 77 S.E. 2d 701 (1953). However, even though one is only a licensee, the landowner cannot, while the licensee is on the premises, increase the hazard through active and affirmative negligence in the operation or management of his property. Wagoner v. R.R., supra; Jones v. R.R., 199 N.C. 1, 153 S.E. 637 (1930); Batts v. Telephone Co., 186 N.C. 120, 48 S.E. 893 (1923). Furthermore, a landowner will be liable to a licensee for injury caused by willful or wanton conduct. Haddock v. Lassiter, 8 N.C. App. 243, 174 S.E. 2d 50 (1970).\n\u201cThe duty an owner owes a licensee is described in detail in Dunn v. Bomberger, 213 N.C. 172, 195 S.E. 364:\n\u2018As plaintiff\u2019s intestate was a licensee, defendant did not owe him the duty to keep his premises in a reasonably safe condition. The only duty resting upon the defendant was to refrain from willful or wanton negligence and from the commission of any act which would increase the hazard. The owner of land is not required to keep his premises in a suitable or safe condition for those who come there solely as licensees and who are not either expressly invited to enter or induced to come upon them for the purpose for which the premises are appropriated and occupied. In authoritative decisions of this and other jurisdictions the degree of care to be exercised by the owner of premises toward a person coming upon the premises as a bare or permissive licensee for his own convenience is to refrain from willful or wanton negligence and from doing any act which increases the hazard to the licensee while he is upon the premises. The owner is not liable for injuries resulting to a licensee from defects, obstacles or pitfalls upon the premises unless the owner is affirmatively and actively negligent in respect to such defect, obstacle or pitfall while the licensee is upon his premises, resulting in increased hazard and danger to the licensee. Brigman v. Construction Co., 192 N.C., 791, and cases there cited. The Brigman case is reported and annotated in 49 A.L.R., 773.\u2019 \u201d Clarke v. Kerchner, 11 N.C. App. 454, 460, 181 S.E. 2d 787, 791 (1971), cert. den. 279 N.C. 393 (1971).\nMost jurisdictions now impose a duty upon the landowner to warn licensees of hidden dangers known to the landowner. See, e.g., Holcombe v. Buckland, 130 F. 2d 544 (4th Cir. 1942); The Friendship II, 113 F. 2d 105 (5th Cir. 1940), rev\u2019d on other grounds 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941); Haag v. Stone, 127 Ga. App. 235, 193 S.E. 2d 62 (1972); Recreation Centre Corporation v. Zimmerman, 172 Md. 309, 191 Atl. 233 (1937); Malmquist v. Leeds, 245 Minn. 130, 71 N.W. 2d 863 (1955); Reagan v. Perez, 215 Va. 325, 209 S.E. 2d 901 (1974). But see, e.g., Louisville & Nashville Railroad Company v. Hobbs, 155 Ky. 130, 159 S.W. 682 (1913); Reardon v. Thompson, 149 Mass. 267, 21 N.E. 369 (1889). See also Restatement (Second) of Torts, \u00a7\u00a7 335 and 342 (1964); Annot., 55 A.L.R. 2d 525 (1957). The requirements of the Restatement (Second) of Torts impose an even more stringent duty upon the landowner to inspect the premises for potential danger to licensees. North Carolina, however, retains the rule that \u201cthe licensee who enters on premises by permission only goes there at his own risk and enjoys the license subject to its concomitant perils,\u201d Pafford v. Construction Co., 217 N.C. 730, 737, 9 S.E. 2d 408 (1940), with the landowner being assessed for liability only for willful or wanton negligence, and the commission of any act which would increase the hazard to the licensee while he is upon the premises. Clarke v. Kerchner, supra. It is not within our province to apply a different rule.\nThe complaint in this action does not allege willful and wanton negligence, nor do the plaintiffs seriously contend that it does.\nFor the reasons stated herein, the judgment of the trial tribunal must be\nAffirmed.\nJudges Clark and Mitchell concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Schoch, Schoch and Schoch, by Arch Schoch, Jr., for plaintiff appellants.",
      "Douglas, Ravenel, Hardy, Crihfield & Bullock, by Frank W. Bullock, Jr., for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "GEORGE EDWARD KELLY and RUFUS HAMILTON KELLY v. MARY LEE BRILES and RUTH ADDISON BRILES, Individually and as Executors of the Estate of BERTIE WALLACE BRILES\nNo. 7718SC237\n(Filed 4 April 1978)\n1. Mines and Minerals \u00a7 2\u2014 failure to fence mine openings \u2014 intentional entry \u2014 no recovery for injury\nPlaintiffs\u2019 complaint failed to state a cause of action based on G.S. 74-4 and G.S. 74-13 making it a criminal offense to fail to fence the opening of mines to prevent inadvertent entrance into them, since plaintiffs\u2019 complaint demonstrated that the minor plaintiff\u2019s entry into defendants\u2019 mine was intentional rather than inadvertent: there was no statutory duty placed upon defendants to fence the mines so securely that even an intentional entry would be impossible; and, even if violation of the safety statute was negligence, plaintiffs could not recover because they could not show that failure to fence so as to prevent inadvertent entry was the proximate cause of an injury resulting from an intentional entry.\n2. Mines and Minerals \u00a7 2; Negligence \u00a7 59.2\u2014 licensee in mine \u2014 duty to refrain from wilful and wanton negligence \u2014 complaint insufficient to state claim\nWhere plaintiffs\u2019 complaint alleged that people frequently visited mines on defendants\u2019 property and that defendants were aware of such use, but there was no evidence that defendants derived any benefits from such visits, the minor plaintiff who entered one of defendants\u2019 mines was a licensee to whom defendants owed only the duty to refrain from wilful and wanton negligence and from the commission of any act which would increase the hazard. Plaintiffs\u2019 complaint was insufficient to state a claim for negligence where there was no allegation of wilful and wanton negligence.\nAPPEAL by plaintiffs from Walker, Judge. Order granting motion to dismiss issued 18 January 1977 in Superior Court, GUILFORD County. Heard in the Court of Appeals 19 January 1978.\nPlaintiffs filed the complaint in this action 11 October 1976. Service upon the defendants was effected 13 October 1976. Plaintiffs\u2019 complaint included the allegations set out below which must be taken as true in ruling on a Rule 12(b)(6) motion.\nOn 12 October 1973, defendants owned certain property in Randolph County known as the Hoover Hill Gold Mining Land. Located on this property are abandoned gold mines. There are no barricades or fences blocking the entrance to the mines. The mines and mine shafts were in such condition that they could collapse at any time. Defendants had actual or constructive notice that the mines were \u201cultra hazardous\u201d and in that dangerous condition. For many years, the mines had been a place of interest frequented by persons of all ages. Visitors explored the property and mines as if the land were a public park or tourist attraction. These persons frequenting the mines were unaware of the dangerous condition. Defendants were aware that the mines were being so used. Defendants were also aware that these persons were unaware of the dangerous condition of the mines. As plaintiff George Edward Kelly was entering one of the mines to explore it, a portion of the wall collapsed, and he was permanently injured.\nPlaintiff, George Edward Kelly, joined by his father, Rufus Hamilton Kelly, filed suit against the defendants (landowners) seeking to recover both compensatory and punitive damages. Pursuant to Rule 12(b)(6) of the Rules of Civil Procedure, defendants moved for a dismissal for failure to state a claim upon which relief can be granted. Defendants argued that plaintiffs\u2019 complaint in no manner alleged any possible legal duty and that the complaint revealed, as to plaintiff George Edward Kelly, contributory negligence as a matter of law. Considering the complaint only, the trial court granted defendants\u2019 motion and entered an order dismissing the action. Plaintiffs appealed from that order of dismissal.\nSchoch, Schoch and Schoch, by Arch Schoch, Jr., for plaintiff appellants.\nDouglas, Ravenel, Hardy, Crihfield & Bullock, by Frank W. Bullock, Jr., for defendant appellees."
  },
  "file_name": "0714-01",
  "first_page_order": 742,
  "last_page_order": 747
}
