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Allstate Insurance Co. v. Oxendine3/19/2002
PUBLISHED
Appeal by plaintiffs from judgment entered 30 September 1999 by Judge Jack Thompson in Scotland County Superior Court. Heard in the Court of Appeals 5 December 2001.
Plaintiff, Allstate Insurance Company, appeals the trial court's grant of summary judgment in a subrogation claim for damages against defendant Charles F. Oxendine (Oxendine). A home of plaintiff's insured, William A. Cooper (Cooper), burned when a fire originating on Oxendine's land got out of control. Based on the reasoning herein, we affirm.
The facts are as follows: Oxendine owns land adjacent to Cooper's. He and his wife live there in one residence while defendant Jamie F. Locklear (Locklear) and Oxendine's daughter live together in a separate residence on the property. Oxendine's daughter financed the home and the couple pays no land rent.
In January, 1995, Oxendine utilized three fifty-five gallon drums for burning trash between his trips to a landfill. In a deposition, Oxendine stated that he never left the area around the drums when a fire was still burning and kept a water hose within reach. He further said Locklear and his daughter were given the privilege of using the drums "any time they wanted to." Locklear and Oxendine's daughter had resided there for several years prior to 1995, and by the time of the lawsuit in 1998, were married with children.
On the morning of 21 January 1995, Locklear burned a bag full of trash in one of the drums while Oxendine was asleep. In a deposition, Locklear said that he stayed with the fire until it was "just smoking a little bit," and then did yard work and washed two cars. He returned to his residence only after being outside for several hours. During the afternoon, however, while Oxendine was at work, the fire escaped the drum, spread to the ground, and raced toward Cooper's property. It eventually engulfed part of his home.
Plaintiff paid Cooper $47,304.72 under his homeowner's policy for the damage and then proceeded against Oxendine and Locklear. In the complaint, plaintiff alleged joint negligence and charged defendants with failing to keep a proper lookout, failing to take adequate precautions to protect against the spread of fire, and failing to ensure that the fire was extinguished after their trash burning activities concluded.
Oxendine moved for summary judgment as to the claim against him, which was allowed. Plaintiff appealed to this Court in Allstate Ins. Co. v. Oxendine, 134 N.C. App. 376, 526 S.E.2d 217 (1999), but the appeal was ruled interlocutory and dismissed. Plaintiff then successfully moved for summary judgment against Locklear. In its order, the trial court found that Locklear was negligent in failing to keep a proper lookout and awarded plaintiff $47,554.74, which included a $250.00 deductible, plus interest and costs.
Plaintiff again appeals the earlier grant of summary judgment in favor of Oxendine. His sole assignment of error is that the trial court erred in granting summary judgment.
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. ยง 1A-1, Rule 56(c) (1999). The record is reviewed in the light most favorable to the non-movant, and all inferences will be drawn against the movant. Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975).
In general, summary judgment is not appropriate where issues of negligence are involved. Sink v. Andrews, 81 N.C. App. 594, 596, 344 S.E.2d 831, 832 (1
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