Appeal by plaintiff and defendants Wedgewood South Corporation; Statler Hilton, Inc.; Hilton Inns, Inc.; Harry R. Dudley, Jr., Individually; Louis Rightmier, Individually; Thomas H. B. Morrisette, Individually; Dudley, Rightmier, Morrisette and Associates, a Professional Association; and Ted Craddock from Cornelius, Judge. Judgment entered 3 November 1980 in Superior Court, Orange County. Heard in the Court of Appeals 14 October 1981.
Webb, Judge. Judge Martin (Robert M.) concurs. Judge Wells dissents in part and concurs in part.
At the outset we note that this action involves multiple parties. Judge Cornelius, in his order allowing the architects' motion for summary judgment as to the plaintiff and denying it as to Hilton Inns, Inc., found there was no just reason for delay in entering the order. The judgment as to the architects is appealable pursuant to G.S. 1A-1, Rule 54(b). See Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979). In our discretion we shall consider the other appeals.
We consider first the appeal of Ted Craddock. The pleadings, affidavits, and depositions filed in support and opposition to the motions for summary judgment show that Mr. Craddock was on duty as night manager of the Hilton Inn on 25 August 1977. In response to a call he went to the sixth floor to check on a disturbance. As he got off the elevator, a struggle was in progress between Mr. Teague and Dr. Lamb. Mr. Craddock stopped this fight. Mr. Teague and Dr. Lamb resumed the fight and Mr. Craddock separated them again. The fight was started for the third time and Dr. Lamb was killed. There is no forecast of evidence which shows Ted Craddock was doing what a reasonably prudent man should not have done under the circumstances or that he did not do what a reasonably prudent man should have done under
the circumstances. See 9 Strong's N.C. Index 3d, Negligence § 1 (1977) for a definition of negligence. Mr. Craddock's motion for summary judgment should have been granted. See Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979).
Wedgewood South Corporation's Appeal
Wedgewood South Corporation, relying on Jones v. Bland, 182 N.C. 70, 108 S.E. 344 (1921) and 62 Am. Jur. 2d, Premises Liability § 54 (1972) argues first that when Dr. Lamb, who had a room on the seventh floor, went to the sixth floor and engaged in an altercation, he lost his status as an invitee and became a trespasser. For that reason Wedgewood South argues it owed no duty to Dr. Lamb except not to injure him willfully or wantonly and there being no evidence of willful or wanton negligence, its motion for summary judgment should have been allowed. In the instant case whatever Dr. Lamb's status may have been when he was attempting to enter the room all the evidence shows he was not attempting to enter the room when he went through the window. He was an invitee when he was in the hall on the sixth floor of the Hilton Inn.
Wedgewood South also argues that all the evidence shows that Dr. Lamb's own willful and wanton negligence was a proximate cause of his death. It contends that the evidence shows Dr. Lamb, by his own action in engaging in a fight, caused his own death. We do not believe this is the only conclusion the jury could make from the evidence. The evidence shows the fight was not continuous as the participants moved down the hall. If the jury should believe the version as stated by Mr. Livingston and Mr. Berry, they could find that Dr. Lamb's conduct was not a proximate cause of his death.
We agree with Wedgewood South that any negligence of Darrel Teague may not be imputed to it. All the evidence shows that Mr. Teague had left the Underground Lounge and would not return until the next working day. If he was employed by Wedgewood South Corporation he was not engaged in any duty for it at the time of Dr. Lamb's death. He was attending a party given by some members of The Spiral Staircase at the time the altercation began. He testified in his deposition that in his job he felt some responsibility to protect members of the band. We do
not believe this duty extended to a party on the sixth floor of the motel after Mr. Teague had left his ...