UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

J. THOMAS LUCK; ROSALIE LUCK,
Plaintiffs-Appellants,

v.

GSSW LIMITED PARTNERSHIP;
B.G.F.R.T.S., LC; SUMMIT
MANAGEMENT COMPANY; GSSW-REO
BRITTANY OAKS, LP, a limited
partnership; GSSW-REO OWNERSHIP
CORPORATION, a Texas corporation;
SUMMIT PROPERTIES, INCORPORATED,
                                                                No. 97-1578
d/b/a Summit Properties Real
Estate, Incorporated, a Maryland
corporation; GWEN MACY; DON
ALDER; EDDIE ALDER; CLINTON
BULLOCK; NANCY FREEMAN,
Defendants-Appellees,

and

SPENCER MITCHUM,
Defendant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., District Judge.
(CA-95-779-6)

Argued: October 2, 1997

Decided: December 8, 1997

Before MICHAEL, Circuit Judge, BUTZNER,
Senior Circuit Judge, and MAGILL, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion. Senior Judge Butzner
wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Tyrus Vance Dahl, Jr., WOMBLE, CARLYLE, SAND-
RIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for
Appellants. Walter Kirk Burton, BURTON & SUE, L.L.P., Greens-
boro, North Carolina, for Appellees. ON BRIEF: Kimberly C. Ste-
vens, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,
Winston-Salem, North Carolina, for Appellants. Gary K. Sue, James
D. Secor, III, BURTON & SUE, L.L.P., Greensboro, North Carolina;
Joseph T. Carruthers, BELL, DAVIS & PITT, Winston-Salem, North
Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The plaintiffs-appellants, Dr. Thomas Luck and his wife, brought
this suit after he suffered extremely serious injuries from falling on
an icy staircase in an apartment complex owned and managed by the
defendants. The district court granted summary judgment for the
defendants, concluding (1) that North Carolina law would define Dr.
Luck as a licensee to the defendants and (2) that the Lucks did not
forecast sufficient evidence to establish that Dr. Luck's injuries were
the result of willful or wanton conduct by the defendants. We affirm.

I.

We consider the facts in this case in the light most favorable to the
Lucks, who were the nonmovants. See Anderson v. Liberty Lobby,

                    2
Inc., 477 U.S. 242, 255 (1986). Dr. Luck, a physician from Virginia,
attended a conference on March 3, 1995, in Winston-Salem, North
Carolina. After the conference ended for the day, Dr. Luck spent the
evening and night with his daughter, Laura, at the Hill Top Ridge
apartment complex, also in Winston-Salem. The defendants all have
some connection to the apartment complex. It is owned by GSSW
Limited Partnership of Texas and managed by Summit Properties,
Inc., a Maryland corporation. Nancy Freeman was the regional prop-
erty manager for Summit Properties, and the other defendants were
employees at Hill Top Ridge.

Sometime in the middle of the night of March 3-4, 1995, it began
to snow. One of Laura Luck's roommates, Jessica Roberts, was mov-
ing out, and she was packing her car throughout the evening and early
morning hours. She used an external staircase that was the only way
to enter and exit the building containing Ms. Luck's apartment. At
about three o'clock on Saturday morning, March 4, Ms. Roberts
noticed that frozen precipitation had made the staircase slick, and
soon she was forced to stop packing because ice had formed on the
steps. She did not inform management about the slippery condition of
the stairs.

Clinton Bullock was the on site grounds keeper for Hill Top Ridge.
Bullock was required to monitor the weather during the week as well
as on weekends, and he was responsible for putting Ice Melt on the
staircases and other common areas exposed to the elements. Manage-
ment had no written policy on ice removal, and it did not pay over-
time for weekend work by its maintenance personnel. Furthermore,
three tenants maintained that management did not respond promptly
to complaints by tenants about ice and snow accumulation.

On the evening of March 3 Bullock observed some light snow.
Concerned about the weather, he awoke earlier than usual (before six-
thirty a.m.) the next morning to check conditions outside. From his
apartment balcony Bullock saw only slush on his own steps, and he
noticed that it had stopped snowing. He believed there would be no
ice or snow to clear from the property, so he returned to his apart-
ment.

At about seven o'clock that same morning, Dr. Luck left his daugh-
ter's apartment carrying a small bag in his left hand and another one

                    3
over his shoulder. He was wearing rubber-soled shoes. The lighting
was dim and there was a light fog. When Dr. Luck reached the second
step from the top of the exposed stairway, he hit ice and slipped. He
grabbed at the slick, ice-coated handrails but to no avail. Dr. Luck fell
down the staircase until he landed on the ground, suffering permanent
injuries.

Dr. Luck sued the defendants in the Middle District of North Caro-
lina, alleging that their negligence caused him to be permanently par-
alyzed, lose his medical practice, and suffer damages greatly in excess
of $50,000. His wife, Rosalie Luck, joined in the complaint, alleging
loss of consortium. After the defendants moved for summary judg-
ment, the magistrate judge recommended that the motion be denied.
The district judge rejected the magistrate judge's recommendation
and granted summary judgment to the defendants. Dr. and Mrs. Luck
appeal.

II.

This case is in federal court under diversity jurisdiction, as Dr.
Luck is a citizen of Virginia and the defendants are citizens of Texas,
Maryland, and North Carolina. See 28 U.S.C.§ 1332. In diversity
cases it is the duty of a federal court to apply governing state law, as
interpreted by the relevant state's highest court. If the law is not
entirely clear, the federal court must rule as it appears the state court
would rule. In trying to determine how the highest state court would
decide, the federal court "should not create or expand that State's
public policy." St. Paul Fire & Marine Ins. Co. v. Jacobson, 48 F.3d
778, 783 (4th Cir. 1995).

A.

North Carolina law divides visitors to an owners' property into sta-
tus categories for purposes of determining liability. Only two of these
categories, invitee and licensee, are implicated here. According to the
North Carolina Supreme Court, an invitee is one who, by express
invitation, renders a service of direct and substantial benefit to his
host. A customer in a store is a prime example of an invitee. See
Mazzacco v. Purcell, 279 S.E.2d 583, 587 (N.C. 1981). A social
guest, by contrast, is merely a licensee of the owner or possessor. See

                     4
Murrell v. Handley, 96 S.E.2d 717, 719-20 (N.C. 1957). There is no
question that if Dr. Luck had been injured as a social guest in a pri-
vate home, he would have been a licensee to the owner. See id. (hold-
ing that guest who slipped on wax floor in defendant's house was a
licensee).

The North Carolina Supreme Court has never decided directly
whether a social guest of a tenant, injured on the common grounds of
the landlord's property, is categorized as an invitee or a licensee as
to the landlord. On that subject the court has produced conflicting
dicta in two cases separated by three decades. Nevertheless, we must
look first at these two North Carolina Supreme Court cases to see if
there is some indication of how that court would rule if presented with
this case.*

In Jones v. Kinston Housing Authority, 138 S.E.2d 235 (N.C.
1964), the plaintiff was injured when she walked through a dark and
unfamiliar portion of the defendant landlord's property as she went to
visit her daughter, a tenant of the defendant. The North Carolina
Supreme Court affirmed summary judgment for the landlord, noting
that the plaintiff had used an unfamiliar path that was not the ordinary
and customary place of entrance to the property."[I]f [plaintiff]
adopts some other way he becomes a mere licensee, and cannot
recover for defects outside and not substantially adjacent to the regu-
lar way." Id. at 237. By negative implication, this sentence seems to
suggest that the plaintiff, a social guest of the tenant, would not have
been a licensee had she used the ordinary and customary means of
entrance to the property.

On the other hand, the two cases relied upon in Jones do not offer
any support for the proposition that a tenant's social guest is the
invitee of the landlord. Those cases concerned plaintiffs who easily
fit the classic definition of an invitee: they were injured while
engaged in some occupational or commercial endeavor on the defen-
dant's property. See Wilson v. Dowtin, 2 S.E.2d 576 (N.C. 1939)
_________________________________________________________________
*We would no doubt certify the state law question presented here to
the North Carolina Supreme Court if there was a procedure available to
do that. Because there is not, we must proceed by ourselves to ascertain
and apply North Carolina law.

                    5
(plaintiff injured at defendant's store while attempting to resolve a
commercial dispute between the defendant and another party); Cupita
v. Carmel Country Club, Inc., 113 S.E.2d 712 (N.C. 1960) (plaintiff
injured while performing in orchestra at defendant's club building).
The Jones opinion therefore did not cite any authority or offer any
reasoning to support the expansion of the classic definition of an
invitee. We therefore believe that the Jones dictum is of little help to
us.

Balanced against the older dictum in Jones is the more recent case
of Cassell v. Collins, 472 S.E.2d 770 (N.C. 1996). There the plaintiff
was stabbed while visiting a tenant in an apartment complex. The
North Carolina Supreme Court noted that "[n]either party in the pres-
ent case disputes the fact that as a social guest of a tenant of [the
defendant,] plaintiff was a licensee." Id. at 772. However, the suit in
Cassell was not against the landlord but against a company engaged
to provide security for the apartment complex. As a result, the plain-
tiff's classification was not determinative, and the court's statement
about the plaintiff's status was again dictum.

While these two cases leave ambiguity as to how the North Caro-
lina Supreme Court would rule, the most recent statement in Cassell
gives some indication that a social guest of a tenant would likely be
considered a licensee of the landlord. On balance, we would give last
year's dictum more weight than that of thirty years ago in trying to
predict the likely ruling of the North Carolina Supreme Court.

B.

North Carolina also has an intermediate appellate court, the Court
of Appeals. The rulings of a state's intermediate appellate court are
"not to be disregarded by a federal court unless it is convinced by
other persuasive data that the highest court of the state would decide
otherwise." See United States v. Little, 52 F.3d 495, 498 (4th Cir.
1995), quoting West v. American Telephone & Telegraph Company,
311 U.S. 223, 237 (1940). The North Carolina Court of Appeals has
held that "any . . . duty owed by a landlord is determined by a visi-
tor's status." Street v. Moffitt, 351 S.E.2d 821, 823 (N.C. Ct. App.
1987). And three cases from that court provide convincing support for

                    6
the proposition that a social guest of a tenant is categorized as a
licensee with respect to the landlord.

The earliest of these cases is Andrews v. Taylor , 239 S.E.2d 630
(N.C. Ct. App. 1977). The plaintiff's intestate, the social guest of a
tenant, had drowned after diving into a swimming pool located in the
common area of the apartment building owned by the defendant land-
lord. The court analyzed the case in light of the status categories of
invitee and licensee. In so doing, the court found that the decedent
"enter[ed] upon the premises of another solely and exclusively in pur-
suit of his own pleasure," therefore making him a licensee. Id. at 632
(citations omitted).

Along the same lines, in Street the plaintiff, a social guest of a ten-
ant, was injured by a power lawn mower operated by the tenant.
When the plaintiff sued the landlord, the court concluded that the
plaintiff was a social guest of the tenant and therefore a licensee to
the landlord. See Street, 351 S.E.2d at 823. In addition, the court
noted that the plaintiff's status as a licensee did not change merely
because he had been injured while using the common area. See id.

Most recently, the Court of Appeals considered a suit by a social
guest of a tenant against a security guard firm after the plaintiff was
stabbed in a common area of an apartment complex. The court held
that "[a]s a social guest at the apartment complex, the plaintiff held
the status of licensee." Cassell v. Collins , 465 S.E.2d 782, 783 (N.C.
App. 1995), rev'd on other grounds, 472 S.E.2d 770 (N.C. 1996).
While the Court of Appeals was ultimately reversed on other grounds
by the Supreme Court, the latter court (as noted in part II.A., above)
indicated in dictum that a social guest of a tenant would be a licensee.
See Cassell v. Collins, 472 S.E.2d at 772.

These North Carolina Court of Appeals cases are authority for the
proposition that a social guest of a tenant is merely a licensee to the
landlord. This authority, together with the recent dictum of the North
Carolina Supreme Court, convinces us that under North Carolina law
Dr. Luck was a licensee of the defendants.

C.

The magistrate judge pointed out that a number of other states have
abandoned the traditional common law distinction between invitees

                     7
and licensees. As a result, he predicted that North Carolina would
probably do the same if presented with the question in this case. It is
true that over the past thirty years there has been movement in certain
states away from the traditional grouping and towards a unitary stan-
dard of care to both business and social guests. Starting with Rowland
v. Christian, 443 P.2d 1561 (Cal. 1968), several state supreme courts
and legislatures have abolished the distinction between licensees and
invitees. See Heins v. Webster County, 552 N.W.2d 51, 54 (Neb.
1996) (citing cases). On the other hand, a number of states have con-
sidered and expressly rejected efforts to eliminate common law status
categories. See, e.g., Whaley v. Lawing , 352 So.2d 1090 (Ala. 1977);
Huyck v. Hecla Mining Co., 612 P.2d 142 (Idaho 1980); Astleford v.
Mildern Enters., Inc., 233 So.2d 524 (Miss. 1970); Carter v. Kinney,
896 S.W.2d 926 (Mo. 1995); Steen v. Grenz, 538 P.2d 16 (Mont.
1975); Moore v. Denune & Pipic, Inc., 269 N.E.2d 599 (Ohio 1971);
Lohrenz v. Lane, 787 P.2d 1274 (Okla. 1990); Lower Neches Valley
Authority v. Murphy, 536 S.W.2d 561 (Tex. 1976); Tjas v. Proctor,
591 P.2d 438 (Utah 1979); Younce v. Ferguson, 724 P.2d 991 (Wash.
1986).

The North Carolina Supreme Court, as one case last year demon-
strates, continues to recognize the common law categories. See
Newton v. New Hanover County Bd. of Educ., 467 S.E.2d 58, 62
(N.C. 1996) (explicitly retaining categories and reclassifying police
officers and firefighters as invitees). It would be beyond our mandate
to suggest that North Carolina would change its law to abolish the dis-
tinction between invitees and licensees when it recognized the distinc-
tion so recently. See St. Paul Fire & Marine Ins. Co. v. Jacobson, 48
F.3d 778, 783 (4th Cir. 1995).

The Lucks also suggest that the North Carolina Residential Rental
Agreement Act, which provides a statutory duty to"keep all common
areas to the premises in safe condition," alters the state common law
categories to create a duty of the landlord to social guests of tenants.
N.C. Gen. Stat. § 42-42(a)(3). Such a reading misconstrues the lan-
guage and purpose of the statute. In Lenz v. Ridgewood Associates,
284 S.E.2d 702, 705 (N.C. Ct. App. 1982), the North Carolina Court
of Appeals explicitly held that the Act governs the legal relationship
between landlord and tenant as contractual parties. For example, the
Act makes the landlord's duties expressly conditional upon the les-

                     8
see's duty to pay rent. See § 42-41 ("Mutuality of Obligations").
Therefore, the court held that the residential rental agreement extends
only to tenants. See Lenz, 284 S.E.2d at 705-06 (holding that Act
abrogated common law solely as to tenants). Furthermore, the Act
explicitly precludes use of its provisions to establish negligence per
se. See § 42-44(d). The Residential Rental Agreement Act simply
does not affect the duty of a landlord towards the guest of a tenant.

Based on the foregoing analysis, we conclude that under North
Carolina law Dr. Luck, a social guest of his daughter, was a licensee
with respect to her landlord.

D.

Because Dr. Luck was a licensee to the defendants, their standard
of care under North Carolina is clear: only "willful or wanton con-
duct" on the part of a landlord will result in liability to a licensee. See
Gray v. Small, 408 S.E.2d 538 (N.C. Ct. App. 1991), aff'd per
curiam, 415 S.E.2d 362 (N.C. 1992). In the social guest-licensee con-
text, North Carolina courts have found no actionable claim (1) when
the defendant knew about, but did not replace or warn plaintiff about,
a rotten rail on the stairway, see McCurry v. Wilson, 369 S.E.2d 389
(N.C. Ct. App. 1988); (2) when defendants negligently caused grass
to accumulate on steps, upon which plaintiff later stumbled, see Gray,
408 S.E.2d at 538; and (3) when the defendant-landlord painted over
a rotted porch railing, through which the plaintiff fell, see Clarke v.
Kerchner, 181 S.E.2d 787 (N.C. Ct. App. 1971). Only when an affir-
mative action by the defendant-landlord causes the injury have the
North Carolina courts been willing to find negligence. See, e.g.,
DeHaven v. Hoskins, 382 S.E.2d 856, 859 (N.C. Ct. App. 1989)
(denying summary judgment to plaintiff scalded by defendant hurling
a flaming pan of hot oil in her direction).

Given this very low duty of care owed to a social guest, we con-
clude that the defendants did not willfully or wantonly expose Dr.
Luck to danger. Even assuming that the building owners and manag-
ers had no explicit policy concerning ice removal, the evidence fore-
cast is not sufficient to show that their willful or wanton acts caused
Dr. Luck's injuries. We recognize, of course, that Bullock's failure to
check the exact staircase where Dr. Luck fell might be negligence.

                     9
However, because Bullock did show concern about the weather and
checked conditions outside that morning, his actions fell far short of
willful or wanton conduct.

We are bound by North Carolina state law to affirm the district
court's grant of summary judgment to the defendants.

The judgment of the district court is

AFFIRMED.

BUTZNER, Senior Circuit Judge, dissenting:

I believe that the Supreme Court of North Carolina would hold that
Dr. Luck was an invitee of the landlord for the following reasons:

In Jones v. Kinston Housing Auth., 262 N.C. 604, 138 S.E.2d 235
(1964), the Court noted that the landlord maintained adequate side-
walks for its tenants and their visitors. Nevertheless, a tenant's mother
approached the apartment building from a neighboring property over
an unlighted area of the landlord's property. The Court held that when
a visitor does not use the ordinary way to the apartment she "becomes
a mere licensee, and cannot recover for defects outside and not sub-
stantially adjacent to the regular way." (emphasis added; citations
omitted).

In Jones it was necessary for the Court to consider the factual cir-
cumstances that caused a tenant's visitor to become a licensee with
respect to the landlord. The key to the Court's reasoning is the verb
"become," which connotes a transition from an invitee to a licensee
when a visitor departs from the sidewalks the landlord provided ten-
ants and their visitors.

Conversely, if North Carolina law classifies a tenant's visitor as a
licensee, there would be no need in Jones for the Court to examine
the factual background of the case. It would have sufficed to state that
a tenant's visitor is a licensee of a landlord without reference to the
visitor's unusual approach to the apartment.

                     10
I believe that the North Carolina Supreme Court would follow
Restatement (Second) of Torts §§ 360 and 361. The Restatement,
reflecting the view of well-reasoned cases, imposes on a landlord the
duty of reasonable care that applies not only to a tenant but also to
the tenant's visitors. Clearly the law explained in the Restatement
would make Dr. Luck an invitee of the landlord.

As the magistrate judge noted, confusion has been engendered by
the fact that the guest of a tenant is the licensee of the tenant. This
sound principle of law does not make the guest of a tenant the
licensee of a landlord. In an action holding the landlord liable for fail-
ure to exercise reasonable care, the landlord's obligation runs directly
to the guest. It is not derived from the guest's relation to the tenant.
Section 360 cmt. g of the Restatement illustrates this point. A clause
in a lease may exonerate the landlord for harm done to a tenant. "Such
a clause does not, however, affect the lessor's liability to third persons
such as invitees or guests of the lessee, who are not parties to the con-
tract nor in privity with it." § 360 cmt. g.

An instance of this confusion is Cassell v. Collins, 344 N.C. 160,
472 S.E.2d 770 (1996), on which GSSW heavily relies. In Cassell the
landlord was not even a party to the suit. The injured plaintiff sued
the company that provided guard service. The parties agreed that the
plaintiff as a guest of his host was a licensee of his host. But the court
did not address the guest's status with respect to the landlord.

Economic analysis of a lease explains the rationale for classifying
guests of the tenant as invitees of the landlord:

          This obligation of the landlord extends also to all those who
          have lawful occasion to visit the tenants for social or busi-
          ness purposes; a right of ingress and egress for all such per-
          sons is essential, not merely to the enjoyment of the rented
          premises by the tenants, but also to the renting of them by
          the landlord; it is part of that for the use of which he is paid,
          and it exists for the mutual benefit of landlord and tenants
          alike.

Reardon v. Shimelman, 102 Conn. 383, 386, 128 A. 705, 706 (1925)
(citations omitted).

                     11
Without belaboring the point by citing cases from numerous juris-
dictions, I respectfully dissent from the judgment that Dr. Luck was
a mere licensee.

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