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Jones v. Lake Hickory R.V. Resort2/17/2004
onable person would anticipate an unreasonable risk of harm to a visitor on his property, notwithstanding the lawful visitor's knowledge of the danger or the obvious nature of the danger . . . ." Martishius v. Carolco Studios, Inc., 142 N.C. App. 216, 223, 542 S.E.2d 303, 308 (2001), aff'd, 355 N.C. 465, 562 S.E.2d 887 (2002). The landowner then "has a duty to take precautions to protect the lawful visitor." Id. In addition, this Court held in Lorinovich v. K Mart Corp., 134 N.C. App. 158, 162, 516 S.E.2d 643, 646, cert. denied, 351 N.C. 107, 541 S.E.2d 148 (1999), " hen a reasonable occupier of land should anticipate that a dangerous condition will likely cause physical harm to the lawful visitor, notwithstanding its known and obvious danger, the occupier of the land is not absolved from liability."
Here, the lit "tiki" torch was not a fixed object that could readily be avoided. Rather, Michael Morris was skating about on roller blades and, therefore, the direction that the hazard would move could not be predicted. Melton, defendant's Assistant Manager, testified as to the danger, confirming that had he known about Michael's plan in advance, he would have vetoed it because "it's dangerous. It was ridiculous, stupid. . . . To carry a lighted torch on a pair of skates, do you not think that's stupid or dangerous[?]" Given the nature of this hazardous condition, a jury could find that the Resort would satisfy its duty only through elimination of the hazard by requiring that Michael extinguish his torch.
Proximate Cause
Melton's candid testimony also disposes of defendant's argument regarding proximate cause. Michael's conduct was, in Melton's words, "stupid or dangerous" precisely because it created the risk that someone would be burned by the torch. Although the critical issue with respect to proximate cause is the foreseeability of the plaintiff's injury , the law does not require that the precise injury be foreseeable to the defendant. Martishius, 355 N.C. at 479, 562 S.E.2d at 896. Instead, the plaintiff is only required to prove that the defendant "might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected." Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 234, 311 S.E.2d 559, 565 (1984) (internal quotation marks omitted). The evidence in this case is sufficient to permit a jury to find that defendant could have foreseen or expected that an injury might occur if Michael was allowed to continue to roller-blade with the lit "tiki" torch.
Conclusion
We therefore conclude that the record contains sufficient evidence for a jury to find defendant liable for plaintiff's injuries. Because this liability may not be based on the theories that defendant failed to supervise the golf cart parade or that the Lessee Association was defendant's agent, we must remand for a new trial. Given our disposition of this case, we do not address defendant's remaining assignments of error.
New trial.
Judge TIMMONS-GOODSON concurs.
Judge BRYANT concurs in part and dissents in part in a separate opinion.
BRYANT, Judge, concurring in part and dissenting in part.
I fully concur in the majority opinion with respect to the issue of duty to supervise and liability based on notice to the Resort's assistant manager but dissent as to the majority's application of the law on agency.
The majority opinion analyzes the element of control by looking for evidence of actual control exerted by the Resort. The case law, however, including every case cited in the majority opinion, focuses on the "right to c
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