The opinion of the court was delivered by: John, Judge.
Appeal by plaintiff from order filed 11 October 1996 by Judge Howard R. Greeson, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 10 September 1997.
In this negligence action, plaintiff Kimberly D. Croker appeals the trial court's grant of summary judgment in favor of defendant Yadkin, Inc. We affirm the ruling of the trial court.
Pertinent factual and procedural information includes the following: Defendant is the successor corporation to Carolina Aluminum Company. In 1958, the latter received a fifty-year license (the license) from the Federal Energy Regulatory Commission (FERC) to operate a hydroelectric dam as part of the Narrows Development on the Yadkin River. The dam created an impoundment commonly known as Badin Lake (the Lake).
While plaintiff was at the Lake on 2 July 1992, Eddie Trogdon (Trogdon) offered to take her parasailing, an activity which involves being pulled behind a boat in a modified parachute. Accepting Trogdon's invitation, plaintiff and some friends traveled by boat to the Dixie Shores access area, a private location designated for the use of members and guests of the Dixie Shores Homeowners Association.
Trogdon demonstrated parasailing to the group. He explained that the modified parachute is laid out on the ground, with the participant strapped into a harness. The parachute is connected to a boat by a line which becomes taut as the boat accelerates. At the same time, the parasailer runs behind the boat on land, the parasail fills with air, and the parasailer is lifted into the air.
Trogdon strapped plaintiff into the harness, instructed her on how to release from the parasail, and warned her not to touch the risers. Plaintiff remembers nothing following her run prior to take-off. According to Trogdon, plaintiff stumbled when preparing to take-off. When plaintiff was tree-level, the parasail turned right towards a pier. Trogdon and his wife Pat, who was operating the boat, attributed plaintiff's change in direction to her having pulled on the risers on the right side of the parasail.
As the parasail listed to the right, plaintiff hit the top deck of a two-story pier. She impacted the side railing of the pier with her leg, slid across the top of the pier, hit the pier's front railing and fell into the water. Plaintiff consequently suffered serious injuries, including multiple bone fractures and serious facial injuries, and was transported by helicopter to Chapel Hill for medical treatment.
The pier was part of a waterfront residence in the Dixie Shores subdivision owned by Edward L. Clayton, Jr. (Clayton). Pursuant to authority granted by the license, defendant had sanctioned and licensed the renovation and expansion by Clayton of a previously existing pier and continued to license the pier on a yearly basis.
Plaintiff instituted the instant action on 30 June 1995, alleging defendant "was negligent and ha[d] breached the duties imposed upon it by its FERC . . . license." According to plaintiff's complaint, defendant "knew, or through the exercise of reasonable care should have known" the area "was frequently and routinely used by parasailers for take off," and was negligent in four main ways: (1) by approving the design of and allowing a two-story dock to be erected and remain erected adjacent to such area, (2) by failing to warn recreational users and parasailers of the hazardous nature of the area, (3) by failing to prohibit parasailing in the area adjacent to the pier and (4) by failing "to adequately inspect its lands and licensed waters for the purposes of discovering and correcting hazards to the recreational users of its impoundment."
Defendant's motion to dismiss under N.C.R. Civ. P. 12(b)(6) was denied in an order entered 1 November 1995. However, defendant's summary judgment motion was granted 11 October 1996, whereupon plaintiff filed timely notice of appeal. Defendant cross appealed, assigning error to the denial of its motion to dismiss.
Summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. N.C.R. Civ. P. 56; Davis v. Town of Southern Pines, 116 N.C. App. 663, 665, 449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995). Plaintiff correctly interjects that negligence actions are rarely susceptible to summary judgment. See Lamb v. Wedgewood South Corp., 308 N.C. 419, 425, 302 S.E.2d 868, 871 (1983). However, if it is shown the defendant had no duty of care to the plaintiff, summary judgment is appropriate. See Newsom v. Byrnes, 114 N.C. App. 787, 790, 443 S.E.2d 365, 368 (1994)(summary judgment appropriate where defendant "was not bound to warn plaintiff of an obvious danger").
Before this Court, plaintiff focuses almost exclusively upon Chapter 390 of the 1955 Session Laws entitled "An Act to Regulate the Operation of Motorboats and Other Craft on the Waters of the Yadkin and Pee Dee Rivers in Montgomery and Stanley Counties" (Chapter 390). The section provides
no claim, right or demand of any kind whatsoever shall be asserted against the owner or owners of said hydroelectric power development or of said lakes by reason of said use or enjoyment, irrespective of the length of time.
Plaintiff argues the foregoing section is violative of the North Carolina Constitution in that it: (1) attempts to confer exclusive and separate emoluments and privileges, (2) is a prohibited special and local act and (3) is unconstitutionally vague and ambiguous. Plaintiff further maintains defendant waived its rights under Chapter 390 when it accepted the license and amendments thereto. However, because "it does not affirmatively appear in the record that the constitutional issue was both raised and passed upon in the trial court," Nelson v. Battle Forest Friends Meeting, 108 N.C. App. 641, 646, 425 S.E.2d 4, 7, rev'd on ...