Appeal by plaintiffs from Seay, Judge. Judgment entered 15 January 1979 in Superior Court, Randolph County. Heard in the Court of Appeals 27 September 1979.
Martin (Harry C.), Judge. Judges Hedrick and Arnold concur.
In allowing summary judgment, the court made this finding:
[T]he Court is of the opinion, and so rules, as a matter of law, that the plaintiffs were "licensees" in the home of their son, David Harold Briles, at the time they sustained injuries on July 1, 1975, and that their injuries were not as a result of any willful or wanton negligence on the part of the defendant, David Harold Briles;
Plaintiffs argue the court erred in holding they were "licensees" at the time in question. In order for a licensee to recover, he must prove defendant's negligence was wilful or wanton or that the owner of the premises is affirmatively and actively negligent in the management of his property, as a result of which the licensee is subjected to increased danger causing injury to him. Hood v. Coach Co., 249 N.C. 534, 107 S.E.2d 154 (1959). As
a general rule the owner of property is not liable for injuries to licensees due to the condition of the property, or as it has been expressed, due to passive negligence or acts of omission. Brigman v. Construction Co., 192 N.C. 791, 136 S.E. 125 (1926). The duty imposed is to refrain from doing the licensee wilful injury and from wantonly and recklessly exposing him to danger. Jones v. R.R., 199 N.C. 1, 153 S.E. 637 (1930). A careful review of the record on appeal fails to disclose any evidence that defendant Briles was wilfully or wantonly negligent, or that he was affirmatively and actively negligent thereby increasing the danger to plaintiffs. Plaintiffs do not so allege. Therefore, the summary judgments must be sustained if the court was correct in determining plaintiffs were licensees.
Bearing in mind that this appeal is from the entry of summary judgments, has defendant Briles shown there are no genuine issues of material fact arising upon the materials before the court and that he is entitled to judgment as a matter of law? Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).
To constitute one an invitee there must be some mutuality of interest. Usually an invitation will be inferred where the reason for the visit is of mutual advantage to the parties. To be an invitee, the purpose of the visit must be of interest or advantage to the invitor. Pafford v. Construction Co., 217 N.C. 730, 9 S.E.2d 408 (1940).
In Thompson v. DeVonde, 235 N.C. 520, 70 S.E.2d 424 (1952), the Court held where plaintiff started down the basement steps of the boarding house on a mission for the defendant, he was at least an invitee. Although it can be inferred from the facts in Thompson that plaintiff was a paying guest at the boarding house, the opinion does not expressly so state.
An invitee is one who goes upon the property of another by the express or implied invitation of the owner. An invitation implies solicitation, desire or request. Jones v. R.R., supra.
The defendant Briles expressly requested plaintiffs to come to his house during his absence to check on the property, especially to see if it had been broken into and if the electricity had been interrupted causing damage to his frozen vegetables. Plaintiffs ...