Page v. Sloan, 190 S.E.2d 189, 281 N.C. 697 (N.C., 1972)
190 S.E.2d 189
281 N.C. 697
Catherine D. PAGE, Administratrix C.T.A. of the Estate of
Channing Nelson Page, Deceased
George SLOAN and his wife, Rea Sloan, Copartners, trading
and doing businessas Ocean Isle Motel.
Supreme Court of North Carolina.
July 31, 1972.
[281 N.C. 702] Anderson, Nimocks & Broadfoot, by Henry L. Anderson, Fayetteville, for defendant appellants.
W. D. Sabiston, Jr., Carthage, and Tharrington & Smith, by J. Harold Tharrington and Roger W. Smith, Raleigh, for plaintiff appellee.
Did the Court of Appeals err in reversing summary judgment entered by the trial court in favor of defendant? Answer depends upon whether defendants, in light of an innkeeper’s duty to a guest, have borne the burden which the law places upon a movant for summary judgment.
What standard of care is required of innkeepers with respect to their guests?
An innkeeper is not an insurer of the personal safety of his guests. He is required to exercise due care to keep his premises in a reasonably safe condition and to warn his guests of any hidden peril. Barnes v. Hotel O. Henry Corp., 229 N.C. 730, 51 S.E.2d 180 (1949). The duties thus imposed upon an innkeeper for the protection of his guests ‘are nondelegable, and liability cannot be avoided on the ground that their performance was entrusted to an independent contractor.’ 40 Am.Jur.2d, Hotels, Motels and Restaurants § 81. Compare the English rule, Chapman, Liability for the Negligence of Independent Contractors, 50 L.Q.Rev. 71 (1934). See Prosser on Torts (4th ed. 1971), § 71 at p. 470.
The rule of nondelegability is grounded on the premise that an innkeeper’s duty to use due care for the safety of his guests is a responsibility so important to the public that he should not be permitted to transfer it to another. The Restatement of the Law of Torts expresses and illustrates the rule as follows: ‘One who employs an independent contractor to maintain in safe condition land which he holds open to the entry of the public as his place of business, or a chattel which he supplies for others to use for his business purposes or which he leases for immediate use, is subject to the same liability for physical harm caused by the contractor’s negligent failure to maintain the land or chattel in reasonably safe condition, as though he had retained its maintenance in his own hands.’ Restatement of Torts 2d, § 425. The second illustration following this section is especially pertinent: ‘2. A operates a hotel. He employs B as a [281 N.C. 703] plumber to install a shower bath. B negligently transposes the handles so that the hot water pipe is labeled cold. C, a guest, deceived by the label, turns on the hot water and is scalded. A is subject to liability to C.’
The rule of nondelegability has been applied where plaintiff was injured by the negligent operation or maintenance of an elevator located in defendant’s premises. Stott v. Churchill, 15 Misc. 80, 36 N.Y.S. 476 (1895), aff’d 157 N.Y. 692, 51 N.E. 1094; Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 143 P.2d 929 (1943). Even where the company which manufactured and installed the elevator had by contract assumed responsibility for the inspection, repair and maintenance of the elevator, the rule was applied and defendant owner of the premises was held liable. Otis Elevator Co. v. Bond, 373 S.W.2d 518 (Tex.Civ.App.1963). A like result is
reached in Blackhawk Hotels Co. v. Bonfoey, 227 F.2d 232 (C.A.8th 1955). Accord, Friedman v. Schindler’s Prairie House, 224 App.Div. 232, 230 N.Y.S. 44, aff’d, 250 N.Y. 574, 166 N.E. 329 (1929).
Thus, depending on the evidence offered at the trial, defendants in this case could be liable on any of the following bases:
(1) Failure to use due care for the safety of their guests by employing a plumber instead of an electrician to repair the electrical heating element on the water heater, thereby failing ‘to exercise reasonable care to employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons.’ Restatement of Torts 2d, § 411. While making repairs to the heating element of an electric water heater is not ‘inherently’ or ‘intrinsically’ dangerous work, it involves work which will likely cause injury if proper safety precautions are not observed. Compare Evans v. Rockingham Homes, Inc., 220 N.C. 253, 17 S.E.2d 125 (1941). If defendants knew, or in the exercise of due care should have known, that a plumber was not competent to do such work and if the plumber’s negligence was a proximate cause of the explosion and ensuing death of plaintiff’s testate, defendants would be liable.
[281 N.C. 704] (2) Since the duties imposed upon an innkeeper for the protection of his guests are nondelegable and liability cannot be avoided on the ground that their performance was entrusted to an independent contractor, defendants would be subject to the same liability for an injury or death caused by the plumber’s negligent failure properly to repair the electrical heating element on the water heater as if they had made the repairs themselves.
(3) Application of the doctrine of Res ipsa loquitur.
We now turn to the propriety of summary judgment for the defendants.
Guiding principles applicable to summary judgment under Rule 56 are detailed in Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971), and have since been applied in various cases by this Court, including Harrison Associates v. State Ports Authority, 280 N.C. 251, 185 S.E.2d 793 (1972); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972); Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972); Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972); Schoolfield v. Collins, 281 N.C. 604, 189 S.E.2d 208 (1972).
Our Rule 56 and its federal counterpart are practically the same. Authoritative decisions both state and federal, interpreting and applying Rule 56, hold that the party moving for summary judgment has the burden of ‘clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.’ 6 Moore’s Federal Practice (2d ed. 1971) § 56.15(8), at 2439; Singleton v. Stewart, supra. Rendition of summary judgment is, by the rule itself, conditioned upon a showing by the movant (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. G.S. § 1A–1, Rule 56(b); Kessing v. National Mortgage Corp., supra.
Have defendants carried the burden of proof so as to entitle them to summary judgment? We first note that plaintiff filed no counteraffidavits. Rule 56(e) provides, Inter alia: ‘When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the [281 N.C. 705] mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary
judgment, if appropriate, shall be entered against him.’ Thus plaintiff cannot rely on her verified complaint to defeat defendants’ motion, accompanied, as it is, by competent affidavits and depositions.
A verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein. Rule 56(e); Williams v. Kolb, 79 U.S.App.D.C. 253, 145 F.2d 344 (1944); Fletcher v. Norfolk Newspapers, Inc., 239 F.2d 169 (C.A.4th 1956). Plaintiff’s complaint here meets neither the first nor the third requirements of the rule for affidavits and therefore may not be considered.
Even so, defendants still have the burden of showing that there is no triable issue of fact and that they are entitled to judgment as a matter of law. Hence plaintiff may yet succeed in defending against the motion for summary judgment if the evidence produced by the movant and considered by the court is insufficient to satisfy the burden. Walling v. Fairmont Creamery Co., 139 F.2d 318 (C.C.A.8th 1943); Griffith v. William Penn Broadcasting Co., 4 F.R.D. 475 (E.D.Pa.1945). ‘Where by the nature of things, the moving papers themselves demonstrate that there is inherent in the problem a factual controversy then, while it is certainly the part of prudence for the advocate to file one, a categorical counter-affidavit is not essential.’ Inglett & Company v. Everglades Fertilizer Co., 255 F.2d 342 (C.A.5th 1958). To the same effect but stated somewhat differently: ‘Where the moving papers affirmatively disclose that the nature of the controversy presents good faith, actual, as distinguished from formal, dispute on one or more material issues, summary judgment cannot be used.’ Murphy v. Light, 257 F.2d 323 (C.A.5th 1958).
Thus we consider only the supporting documents presented by defendants together with the stipulations of the parties contained in the Order on Final Pre-trial Conference, filed 28 January 1971. The stipulations of fact contained therein will be considered as admissions. 6 Moore’s Federal Practice (1971 [281 N.C. 706] Supp.) § 56.11 (1.–5) at 100; Stubblefield v. Johnson-Fagg, Inc., 379 F.2d 270 (C.A.10th 1967).
Due consideration of the supporting documents and materials presented by defendants leads us to the conclusion that the granting of summary judgment by the trial court was erroneous. We hold that defendants have failed to carry the movant’s burden of proof.
While our Rule 56, like its federal counterpart, is available in all types of litigation to both plaintiff and defendant, ‘we start with the general proposition that issues of negligence . . . are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner.’ 6 Moore’s Federal Practice (2d ed. 1971) § 56.17(42) at 2583; 3 Barron and Holtzoff, Federal Practice and Procedure (Wright ed. 1958) § 1232.1, at 106. It is only in exceptional negligence cases that summary judgment is appropriate. Rogers v. Peabody Coal Co., 342 F.2d 749 (C.A.6th 1965); Stace v. Watson, 316 F.2d 715 (C.A.5th 1963). This is so because the rule of the prudent man (or other applicable standard of care) must be applied, and ordinarily the jury should apply it under appropriate instructions from the court. Gordon, The New Summary Judgment Rule in North Carolina, 5 Wake Forest Intra.L.Rev. 87 (1969).
Moreover, the movant is held by most courts to a strict standard in all cases; and ‘all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion.’ 6 Moore’s Federal Practice (2d ed. 1971) § 56.15(3), at 2337; United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
Application of these rules to the evidentiary material demonstrates the impropriety of summary judgment in this case.
The material offered by defendants in support of their motion for summary judgment contains the following sworn statements by Olaf Thorsen, the plumber selected by defendants to repair the electric water heater:
‘I don’t know what the wattage was on the old element I removed or on the new element I purchased from Shallotte Hardware. . . . I did not know up to the time of the [281 N.C. 707] explosion I had installed a 4500 watt element. . . . I have had some education and can read. . . . I didn’t pay enough attention to this particular one to notice the wattage stamped on the side of it.’
The material offered by defendants in support of their motion includes the deposition of Alton Millikan, a duly licensed plumber And electrician. The following sworn statements appear in his deposition:
‘When your wattage goes up, your current goes up, and so does the arc that the thermostat draws. Each time it breaks it makes a bigger arc, and I never had any trouble with water heaters under 4500 watts. All the trouble we have encountered had 4500 watts on it. The function of a 4500 watt heating element would be to just heat the water quicker. The thermostat is rated 6,000 watts which should normally interrupt this current, but on all problems I ever encountered in heaters, it had 4500 watt. . . . If the thermostat is designed to and has operated with 3,000 watt element or 2500 watt element, and a 4500 watt element is thrown in and used, the thermostat could or might have trouble in cutting off that current because of it being additional wattage. . . . The current that gets to the element has to go through the thermostat, and by having increased the wattage, that is a larger arc of electricity. That extra arc could or might have damaged the points on the thermostat. It will tend to weld them quicker than a smaller load. When I say weld them, that means that the arc or current softens materials on the contact, and sticks together. That could or might cause the points to stick and hang. If that occurs the thermostat would freeze so that it would no longer control the temperature. . . . After an element is installed with increased wattage up to 4500 watts, it could or might operate for some period of time before it is damaged to the point of sticking. . . . That damage is simply the increased current damaging the metal points. . . . Any time you alter whatever was shipped with the unit, you should add additional safety devices. . . . Other factors that would cause the thermostat to become inoperative is lightning, but mostly lightning is pressure, and it tends to blow out rather than melt the thing together.’
[281 N.C. 708] In our opinion reasonable men could reach different conclusions on the evidentiary material offered by defendants to support their motion for summary judgment. Were defendants negligent in selecting a plumber instead of an electrician to repair an electrical element on the water heater? See Restatement of Torts 2d, § 425 at 412, Appendix, § 425 at 71; Prosser on Torts (4th ed. 1971) pp. 470 et seq. Was the plumber negligent in making the repairs? Was his negligence a proximate cause of the explosion and ensuing injury? The evidentiary material offered by defendants would permit a jury to answer all these questions in the affirmative as well as the negative. These are material issues of fact and demonstrate that the movants have failed to satisfy the burden of ‘clearly establishing the lack of any triable issue of fact by the record properly before the court.’
Moreover, defendants have not shown that they are entitled to a judgment as a matter of law. The evidentiary materials of record do not clearly establish the inapplicability of the doctrine of Res ipsa loquitur because these materials tend to show that the water heater in question was under the exclusive control and management of the defendants; and explosion of a water heater is something which, in the ordinary course of events, does not happen if those who have the management of it use proper care. Under those circumstances the explosion itself would be some evidence of negligence on the part of those in control and would tend to establish a Prima facie case requiring its submission to the jury. Evidence tending to explain the cause of the explosion merely accentuates the jury’s role in this controversy and the unwisdom of summary judgment.
Whether Res ipsa loquitur applies and whether this case should be submitted to the jury under the doctrine or under some other theory of law, or dismissed, are questions for determination by the trial judge at the close of the evidence. It would be inappropriate at this juncture, upon affidavits, to determine any of those matters. Our comments are intended merely to demonstrate defendants’ failure to carry the burden of showing they are entitled to judgment as a matter of law.
‘If there is to be error at the trial level it should be in denying summary judgment and in favor of a full live trial. And the problem of overcrowded calendars is not to be solved by summary disposition of issues of fact fairly presented in an [281 N.C. 709] action.’ 6 Moore’s Federal Practice (2d ed. 1971) § 56.15(1.–12), at 2316.
For the reasons stated the decision of the Court of Appeals reversing the entry of summary judgment in favor of defendants is