DOC PREVIEW
NCSU ARE 306 - CASE - WALLEN vs. RIVERSIDE SPORTS CENTER

This preview shows page 1-2 out of 6 pages.

Save
View full document
View full document
Premium Document
Do you want full access? Go Premium and unlock all 6 pages.
Access to all documents
Download any document
Ad free experience
View full document
Premium Document
Do you want full access? Go Premium and unlock all 6 pages.
Access to all documents
Download any document
Ad free experience
Premium Document
Do you want full access? Go Premium and unlock all 6 pages.
Access to all documents
Download any document
Ad free experience

Unformatted text preview:

TIMOTHY EARL WALLEN, Plaintiff, v. RIVERSIDE SPORTS CENTER, a GeneralPartnership, JOHN M. ROSE, JR. and SOL C. ROSE, Defendants.NO. COA03-1679 COURT OF APPEALS OF NORTH CAROLINA 618 S.E.2d 858 September 2, 2004, Heard in the Court of Appeals September 20, 2005, FiledPRIOR HISTORY: Cumberland County. No. 03 CVS 366.DISPOSITION: REVERSED AND REMANDED.COUNSEL: Twiggs, Beskind, Strickland & Rabenau, P.A., by Jerome P. Trehy, Jr., for plaintiff-appellant. Horton and Gsteiger, P.L.L.C., by Urs R. Gsteiger, for defendant-appellants.JUDGES: STEELMAN, Judge. Judges CALABRIA and ELMORE concur.OPINIONBY: STEELMANOPINION: Appeal by plaintiff from judgment entered 9 October 2003 by Judge Steve A. Balog in Cumberland County Superior Court. Heard in the Court of Appeals 2 September 2004. STEELMAN, Judge.Plaintiff, Timothy Earl Wallen, appeals the superior court's order granting defendants' motion for summary judgment and dismissing plaintiff's action with prejudice. For the reasons discussed herein, we reverse.Since 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's 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 "pylons" in the river. These pylons, also called "fender piles," were placed both upstream and downstream from the boat ramp to prevent logs floating downstream from harming the boat dock or ramp. Defendants' customers frequently tied their boats to the pylons while waiting to usethe ramp to remove their boats from the river.On 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's 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-shapedgash on the back of his head, extending from ear to ear. As a result of his injuries, plaintiff was rendered a paraplegic.Plaintiff brought suit against defendants, alleging he was injured by defendants' 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's motion for summary judgment. Plaintiff appeals.Summary JudgmentIn plaintiff's only assignment of error, he contends the trial court erred in granting defendants' motion for summary judgment because there existed genuine issues of material fact. We agree.We review the trial court's 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. § 1A-1, Rule 56(c) (2004). In considering such a motion, the court must view the evidence in the light most favorable to the nonmovant. 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 "'by proving that an essential element of the opposing party's claim is non-existent, or by showing through discovery that the opposingparty cannot produce evidence to support an essential element of his claim . . . .'" Id.(citations omitted).Summary 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 shouldonly grant such a motion where the plaintiff's 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: "(1) the defendant owed the plaintiff a duty of care; (2) the defendant's conduct breached that duty; (3) the breach was the actual and proximate cause of the plaintiff's injury; and (4) plaintiff suffered damages as a result of the injury." 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). DutyHistorically, the law pertaining to a landowner's responsibility for natural conditions occurring on his or her real property has been: § 363 Natural Conditions (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. (2) A possessor of land in an urban area is subject to liability to persons using a public highway for


View Full Document

NCSU ARE 306 - CASE - WALLEN vs. RIVERSIDE SPORTS CENTER

Documents in this Course
SYLLABUS

SYLLABUS

14 pages

CASE

CASE

19 pages

CASE

CASE

11 pages

CASE

CASE

4 pages

CASE

CASE

5 pages

CASE

CASE

9 pages

CASE

CASE

10 pages

CASE

CASE

19 pages

Load more
Download CASE - WALLEN vs. RIVERSIDE SPORTS CENTER
Our administrator received your request to download this document. We will send you the file to your email shortly.
Loading Unlocking...
Login

Join to view CASE - WALLEN vs. RIVERSIDE SPORTS CENTER and access 3M+ class-specific study document.

or
We will never post anything without your permission.
Don't have an account?
Sign Up

Join to view CASE - WALLEN vs. RIVERSIDE SPORTS CENTER 2 2 and access 3M+ class-specific study document.

or

By creating an account you agree to our Privacy Policy and Terms Of Use

Already a member?