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Taylor v. Lutz-Yelton Heating & Air Conditioning Corp.

Filed: October 2, 1979.

RUBY L. TAYLOR
v.
LUTZ-YELTON HEATING & AIR CONDITIONING CORP.



Appeal by plaintiff from Kirby, Judge. Judgment entered 14 September 1978 in Superior Court, Cleveland County. Heard in the Court of Appeals on 30 August 1979.

Hedrick, Judge. Judges Vaughn and Arnold concur.

Hedrick

The sole question presented on this appeal is whether the court erred in entering summary judgment for defendant. We hold that it did.

The plaintiff alleged and, through her deposition and affidavit, offered evidence tending to prove that she and her husband entered into a contract with the Lutz-Yelton Company in July 1974 whereby Lutz-Yelton was to replace the plaintiff's "old type furnace" with a forced-air central heating system. The work involved removing the old furnace from underneath the house and installing a "larger, more horizontal furnace", which, in turn, required the workmen to go down through an opening in plaintiff's hallway. The opening measured two feet by three feet and was normally covered by a grille. Wall registers through which the heated air would be released were to be installed in each room, but "[t]he same grille was going to be used for the new furnace as a cold air return as it had been used earlier as a place where the heat came out." The living room, bathroom, and two bedrooms opened into the hallway.

On 26 August 1974 three of defendant's employees, including Bill Wray and Leroy Melton, arrived at plaintiff's house to begin the work. Plaintiff said that she "was sewing and doing my work in other rooms of our house and had no occasion to go into either the central hall or bathroom" that morning. By noon, the old furnace had been removed, and one of the workmen had begun digging under the house to enlarge the space for the new furnace. At that time, all three workmen took an hour's break for lunch, during which time plaintiff went to the bathroom and observed that "[t]he floor grille was in place in the hall as usual."

The workmen returned from lunch and resumed work about one o'clock. Plaintiff was in the kitchen with her sister "fixing and eating lunch." Sometime between 3:00 and 3:30 p.m., Wray came to the kitchen door and called her. Plaintiff described the ensuing events as follows:

Mr. Wray asked me to come and show him where I wanted the register put in the bathroom. He did not say anything about the grille being off the floor opening in the central hall. I got up to walk from the kitchen to the bathroom, following Mr. Wray. It was necessary to go through a door into the living room, and then turn left through a door leading into the central hall. From the kitchen one cannot see into the central hall and bathroom even with doors open.

[W]hen I turned into the hallway, [Wray] spoke to me and said, "Right here is where we had planned to put the register." When he spoke to me he got my full attention, and the next thing I knew I was standing . . . under the floor -- up to my breasts was where I was standing. . . . I don't even remember walking in no hole. I was in there before I knew it. I was looking him in the face the last thing I remember before I found myself in the hole.

Plaintiff further alleged that the hall light was not on and that [t]he doors leading into the bedrooms from either side of the small hall were closed and without the electric light being on, the hall area is fairly dark." The evidence showed that Wray was standing just inside the bathroom door, "pointing to the spot

where we were going to put the register at the bottom of the wall where it joins the floor."

Summary judgment is recognized as a "drastic remedy" whose use must be accompanied by due regard for its purposes and cautious attention to its requirements so that no one shall be deprived of a trial on a genuine issue of material fact. Haddock v. Smithson, 30 N.C. App. 228, 226 S.E.2d 411, cert. denied, 290 N.C. 776, 229 S.E.2d 32 (1976); Miller v. Snipes, 12 N.C. App. 342, 183 S.E.2d 270, cert. denied, 279 N.C. 619, 184 S.E.2d 883 (1971). When passing on the motion, the pleadings, depositions, and affidavits of the moving party are to be strictly scrutinized, while those of the opposing party are indulgently regarded. Emanuel v. Colonial Life and Accident Insurance Co., 35 N.C. App. 435, 242 S.E.2d 381 (1978); Miller v. Snipes, supra. Only when the papers supporting the movant demonstrate beyond doubt that no triable ...


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