{ "id": 12167811, "name": "J. D. STREET, Individually and JASON DONT STREET, by and through his Guardian Ad Litem, J. D. STREET v. GLENN MOFFITT and wife, OLA MAE MOFFITT", "name_abbreviation": "Street ex rel. Street v. Moffitt", "decision_date": "1987-01-20", "docket_number": "No. 8624SC841", "first_page": "138", "last_page": "141", "citations": [ { "type": "official", "cite": "84 N.C. App. 138" } ], "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": "202 S.E. 2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "589", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "284 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564881 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0723-01" ] }, { "cite": "239 S.E. 2d 630", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "34 N.C. App. 706", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551672 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0706-01" ] }, { "cite": "96 S.E. 2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "245 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614544 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/245/0559-01" ] }, { "cite": "174 S.E. 2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "parenthetical": "citing Murrell v. Handley, 245 N.C. 559, 96 S.E. 2d 717 (1957)" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 243", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550462 ], "year": 1970, "pin_cites": [ { "parenthetical": "citing Murrell v. Handley, 245 N.C. 559, 96 S.E. 2d 717 (1957)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0243-01" ] }, { "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": "256 S.E. 2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570953, 8570927, 8570804, 8570876, 8570845 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0452-05", "/nc/297/0452-04", "/nc/297/0452-01", "/nc/297/0452-03", "/nc/297/0452-02" ] }, { "cite": "252 S.E. 2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 202", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549364 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0202-01" ] }, { "cite": "190 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576386 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0697-01" ] }, { "cite": "266 S.E. 2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561020 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0247-01" ] }, { "cite": "191 S.E. 2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562635 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0044-01" ] } ], "analysis": { "cardinality": 437, "char_count": 7145, "ocr_confidence": 0.88, "pagerank": { "raw": 7.031324996443159e-08, "percentile": 0.42429848226672673 }, "sha256": "a53c64dafc453c8178efa3cd9be83724fe00fda53dbdac036bb95fb36bbeca92", "simhash": "1:42d5556004279200", "word_count": 1238 }, "last_updated": "2023-07-14T23:00:23.119892+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Eagles concur." ], "parties": [ "J. D. STREET, Individually and JASON DONT STREET, by and through his Guardian Ad Litem, J. D. STREET v. GLENN MOFFITT and wife, OLA MAE MOFFITT" ], "opinions": [ { "text": "JOHNSON, Judge.\nThe only issue we must address is whether there was a material issue of fact presented by the parties\u2019 pleadings and affidavits such that it constituted reversible error for the trial court to conclude that defendants were entitled to a judgment as a matter of law. We conclude that the forecast of evidence submitted by the parties does not present a material triable issue of fact and accordingly we affirm the trial court\u2019s judgment.\nWe are advertent to the well known principle that summary judgment is a drastic remedy. First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 282 N.C. 44, 191 S.E. 2d 683 (1972). The granting of summary judgment is appropriate when the forecast of the evidence discloses that there is no genuine issue as to any material fact and that a party is entitled to a judgment as a matter of law. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E. 2d 610 (1980). Ordinarily summary judgment is not appropriate in negligence cases. Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189 (1972). However, summary judgment is appropriate if it is established that the alleged negligence of a defendant was not the proximate cause of a plaintiffs injury. Hale v. Duke Power Co., 40 N.C. App. 202, 252 S.E. 2d 265, cert. denied, 297 N.C. 452, 256 S.E. 2d 805 (1979).\nIn order to determine the liability, if any, of defendants for the minor plaintiffs injuries we must first determine the nature of defendants\u2019 duty to the minor plaintiff. Any such duty owed by a landlord is determined by the visitor\u2019s status. See Hood v. Coach Co., 249 N.C. 534, 107 S.E. 2d 154 (1959). In the case at bar the minor plaintiff was a social guest of defendants\u2019 tenants, Terry and Jane Byrd. On that basis the minor plaintiffs status may be established as a licensee as to the tenant. See Haddock v. Lassiter, 8 N.C. App. 243, 174 S.E. 2d 50 (1970) (citing Murrell v. Handley, 245 N.C. 559, 96 S.E. 2d 717 (1957)). Moreover, even though the minor plaintiff may have been injured in a common area his status is that of a licensee. See generally Andrews v. Taylor, 34 N.C. App. 706, 239 S.E. 2d 630 (1977) (a visitor who drowned in a swimming pool while visiting a tenant was a licensee and the only duty owed by the owner to that licensee was the duty to refrain from injuring him willfully or through wanton negligence and from doing any act which increases the hazard to the licensee while he is on the premises). In the case sub judice, we find no evidence of any willful or wanton negligence. There is nothing in the record on appeal to indicate that defendants increased any hazard to the minor plaintiff. Thus, we are unable to find any evidence that defendants breached a duty to the minor plaintiff.\nPlaintiffs rely upon Anderson v. Butler, 284 N.C. 723, 202 S.E. 2d 585 (1974), for their assertion that a higher measure of care is required when young children are involved. However, the Court in Anderson, supra, stated that \u201c[i]f the owner, while the licensee is on the premises exercising due care for his own safety, is actively negligent in the management of his property or business, as a result of which the licensee is subjected to increased danger, the owner will be liable for injuries sustained as a result of such active or affirmative negligence.\u201d Anderson, supra, at 729, 202 S.E. 2d at 589 (emphasis supplied). As defendants in their brief are quick to point out, there is nothing in the record on appeal to indicate that they knew the minor plaintiff was on their property. It is undisputed that Jane Byrd was the only person who knew that the children were on the premises and in spite of that fact decided to mow the lawn with a lawn mower that she knew was defective.\nFor reasons stated hereinabove, the judgment is\nAffirmed.\nJudges Arnold and Eagles concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "G. D. Bailey and J. Todd Bailey, for plaintiff appellants.", "Moore, Willardson & Lipscomb, by William F. Lipscomb, for defendant appellees." ], "corrections": "", "head_matter": "J. D. STREET, Individually and JASON DONT STREET, by and through his Guardian Ad Litem, J. D. STREET v. GLENN MOFFITT and wife, OLA MAE MOFFITT\nNo. 8624SC841\n(Filed 20 January 1987)\nNegligence \u00a7 59.3\u2014 child as licensee of defendants\u2019 tenants \u2014injury from lawn mower\u2014duty of landowner\nIn an action to recover for personal injuries sustained by the minor plaintiff when he was struck by a lawn mower operated by defendants' tenant, the trial court properly entered summary judgment for defendants where the child was a licensee of defendants\u2019 tenant; there was no evidence of any willful or wanton negligence in that defendants did not increase any hazard to the child; and the higher measure of care required when young children are involved was inapplicable where there was nothing in the record to indicate that defendants knew the minor plaintiff was on their property.\nAppeal by plaintiffs from Lamm, Judge. Judgment entered 26 June 1986 in Superior Court, Mitchell County. Heard in the Court of Appeals 30 October 1986.\nThis is a civil action instituted with the filing of a complaint on 5 August 1985 by J. D. Street, individually and as guardian ad litem for the minor plaintiff, Jason Dont Street. Glenn Moffitt and his wife, Ola Mae Moffitt were named as defendants.\nPlaintiffs\u2019 complaint alleged, inter alia, that defendants owned a farm; that Terry Byrd and his wife, Jane Byrd resided on the premises of that farm in a garage apartment; that defendants owned a power lawn mower with a completely exposed rotary blade; that on 2 July 1984 defendants furnished said lawn mower to Jane Byrd to cut the grass on defendants\u2019 premises; and that while the minor plaintiff was visiting the Byrds, and while Jane Byrd was operating the lawn mower, the minor plaintiff while riding a three wheel bicycle, slid into the grass so as to come into contact with the exposed blade which cut off one of his toes and severely injured his right foot, ankle, and leg. Plaintiffs claimed that \u201c[sjolely by reason of said negligence [providing a defective and dangerous lawn mower] of defendants, plaintiffs have been damaged in the sum of more than $25,000.00 for personal injuries.\u201d\nOn 8 October 1985, defendants filed a motion to dismiss plaintiffs\u2019 complaint for failure to state a claim upon which relief may be granted, and an answer to plaintiffs\u2019 complaint. Defendants asserted that even if they were negligent, their negligence was not the proximate cause of plaintiffs\u2019 injuries. Defendants averred that it was Jane Byrd who was negligent in using a power mower while children were playing on the property, and in her failure to properly supervise the children. Defendants also asserted as a defense the negligence of the minor plaintiffs parents \u201cin that they left Jason with Jane Byrd when they knew or should have known that Jane Byrd would be using the lawn mower in question, failed to warn or caution Jason not to play around said lawn mower and failed to warn or caution Jane Byrd not to use said lawn mower near the children.\u201d\nOn 27 May 1986, defendants filed a motion for summary judgment. On 9 July 1986, the court granted defendants\u2019 motion for summary judgment. Plaintiffs appeal.\nG. D. Bailey and J. Todd Bailey, for plaintiff appellants.\nMoore, Willardson & Lipscomb, by William F. Lipscomb, for defendant appellees." }, "file_name": "0138-01", "first_page_order": 166, "last_page_order": 169 }