Cassell v. Collins , 120 N.C. App. 798 ( 1995 )

GREENE, Judge.

Keith John Cassell (plaintiff) appeals from the grant of a summary judgment for American Security and Investigation Systems, Inc. (ASI).

The evidence, in the light most favorable to the plaintiff, reveals that ASI provided, pursuant to a contract with the management company, unarmed security guard service at the Pines of Wilmington, an apartment complex. On 23 May 1991, while the plaintiff was visiting a tenant of the apartment complex, plaintiff was stabbed by Samuel L. Collins (Collins). The assault occurred in the presence of one of ASI’s security guards who had earlier been asked to keep an eye on Collins and who was asked for help during the assault. The security guard provided no help to the plaintiff and instead ran from the building.

The complaint alleges that ASI was negligent in that it “made no effort to prevent the assault, despite . . . being alerted and requested to do so.”

The dispositive issue is whether ASI owed a duty of reasonable care to the plaintiff.

As a social guest at the apartment complex, the plaintiff held the status of licensee. Murrell v. Handley, 245 N.C. 559, 561-62, 96 S.E.2d 717, 719-20 (1957). Ordinarily, the duty of care owed to a licensee by the owner of land is to “refrain from doing the licensee willful injury and from wantonly and recklessly exposing him to danger.” McCurry v. Wilson, 90 N.C. App 642, 646, 369 S.E.2d 389, 392 (1988). When, however, “the licensee’s injury is caused by the owner’s active conduct or ‘affirmative negligence,’ ” a different duty arises. DeHaven v. Hoskins, 95 N.C. App. 397, 400, 382 S.E.2d 856, 858, disc. rev. denied, 325 N.C. 705, 388 S.E.2d 452 (1989); Thames v. Nello Teer Co., 267 N.C. 565, 569,148 S.E.2d 527, 530 (1966); Howard v. Jackson, 120 N.C. App. 243, 247, 461 S.E.2d 793, 796 (1995). In this latter instance, the “owner must exercise reasonable care for the protection of [the] licensee.” DeHaven, 95 N.C. App. at 400, 382 S.E.2d at 858.

In this case, the evidence, considered in the light most favorable to the plaintiff, Raritan River Steel Co. v. Cherry Bekaert & Holland, 101 N.C. App. 1, 3-4, 398 S.E.2d 889, 890-91 (1990) (standard for evaluating summary judgment motion), rev’d on other grounds, 329 N.C. 646, 407 S.E.2d 178 (1991), can support findings that (1) at the time of the assault the plaintiff was a licensee on the premises of the apartment complex; (2) ASI, who is subject to the same liability as the owner, see Restatement (Second) of Torts § 383 (1965), in providing a security guard, had assumed an affirmative duty to provide some protection to the plaintiff; and (3) applying a standard of reasonable care, ASI breached its duty. Thus, summary judgment for ASI is improper and must be reversed. See N.C.G.S. § 1A-1, Rule 56 (1990) (summary judgment appropriate only if no genuine issue of material fact and movant entitled to judgment as matter of law).

Reversed and remanded.

Judge WYNN concurs with separate opinion. Judge MARTIN, John C., dissents.