An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                 NO. COA13-1448

                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 1 July 2014


RUTH McKINNEY, individually and as
Administratrix for the Estate of
QUINTON McKINNEY, and the Estate
of QUINTON McKINNEY,
     Plaintiffs,

      v.                                    Mecklenburg County
                                            No. 13 CVS 2506
GREATER GETHSEMANE AFRICAN
METHODIST EPISCOPAL ZION CHURCH OF
CHARLOTTE, N.C., INC.,
     Defendant.


      Appeal by plaintiffs from order entered 23 September 2013

by Judge Richard D. Boner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 7 May 2014.


      Gray & Johnson, LLP, by Mark V.L. Gray and Nekia Pridgen,
      for plaintiff-appellants.

      Dean Gibson Hofer &          Nance,    PLLC,   by   Rodney    Dean,    for
      defendant-appellee.


      BRYANT, Judge.
                                            -2-
      Where the evidence indicates that the decedent was clearly

contributorily     negligent,         the    granting         of   defendant      church’s

motion for summary judgment was appropriate.

      Plaintiffs         Ruth         McKinney,          individually            and       as

Administratrix     for     the    Estate      of    Quinton        McKinney,      and    the

Estate   of   Quinton      McKinney      (“plaintiffs”),           filed    a    complaint

against several defendants including Greater Gethsemane African

Methodist     Episcopal        Zion    Church       of    Charlotte,        N.C.,        Inc.

(defendant “church”).            Plaintiffs alleged that on 23 February

2011, Quinton McKinney died while performing maintenance work

for   defendant    church.        Specifically,          plaintiffs        alleged       that

defendant     church      solicited      McKinney,        a    member      of    defendant

church, to remove a tree limb hanging over the church parking

lot and that while doing so McKinney fell from a ladder and

died.

      McKinney’s fall was not witnessed.                      Clinton Clinkscales, a

member of defendant church who                    had a “job partnership” with

McKinney doing yard maintenance and home repairs, stated that he

went with McKinney to the church that day to perform various

maintenance       tasks     as        volunteers         for       defendant       church.

Clinkscales    said     that     while      changing     light      bulbs       inside    the

church, he received a call from McKinney that McKinney was ready
                                      -3-
to cut down the tree limb; Clinkscales asked McKinney to wait

until he could come outside and help.               Clinkscales stated that

when he walked outside of the church a few minutes later, he saw

McKinney lying on the ground.            An A-frame ladder, a chainsaw,

and a tree limb were all near McKinney.               McKinney was declared

dead at the hospital.         Although medical evidence suggested that

McKinney had a “cardiac episode” which may have caused him to

fall    off   the   ladder,    the   medical   examiner     determined   that

McKinney’s ultimate cause of death was a spinal cord injury

caused by his fall.

       Defendants filed a motion for summary judgment on 4 June

2013.    On 23 July 2013, the trial court issued an order granting

defendants’    motion   to     dismiss   as    to   the   insurance   company

defendants1 and reserving ruling as to defendant church.

       On 23 September 2013, the trial court granted defendant

church’s motion for summary judgment.           Plaintiffs appeal.

                              _______________________

       On appeal, plaintiffs raise several issues regarding the

trial court’s award of summary judgment for defendant church.



1
   On 15 March 2013, defendants filed a motion to dismiss
insurance company defendants Philadelphia Insurance Companies;
Philadelphia Consolidated Holding, Corp.; Tokio Marine Group;
Tokio Marine Holdings, Inc.; and Tokio Marine and Nichido Fire
Insurance Co.
                                        -4-
     "Our standard of review of an appeal from summary judgment

is   de   novo;   such   judgment         is   appropriate    only    when   the

record shows 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."     Blackwell v. Hatley, 202 N.C. App. 208, 211, 688 S.E.2d

742, 745 (2010) (citations omitted).              "The showing required for

summary judgment may be accomplished by proving an essential

element of the opposing party's claim does not exist, cannot be

proven    at   trial,    or     would     be    barred   by   an     affirmative

defense[.]"    Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829,

835 (2000) (citation          omitted).        In considering a motion for

summary judgment, "[a]ll facts asserted by the [nonmoving] party

are taken as true and their inferences must be viewed in the

light most favorable to that party." Nationwide Prop. & Cas.

Ins. Co. v. Martinson, 208 N.C. App. 104, 109, 701 S.E.2d 390,

393 (2010) (citation omitted).

     Plaintiffs argue the trial court erred by granting summary

judgment in favor of defendant church.              Specifically, plaintiffs

contend the trial court erred by failing to conclude that tree

cutting is an inherently dangerous activity, and that genuine

issues of material fact exist as to whether defendant church was

negligent in soliciting, training, and supervising McKinney in
                                    -5-
cutting down the tree limb; whether defendant church’s actions

were   willful   and   wanton;   whether   McKinney   was   contributorily

negligent; and whether McKinney was a third-party beneficiary of

insurance company defendants.        Because plaintiffs’ arguments are

closely related, yet offer limited legal authority in support

thereof, we address them together.

       In general, one who accepts the services of a volunteer is

not liable for the volunteer’s acts.          See N.C. Gen. Stat. § 1-

539.10(b)    (2013)    (qualified     immunity   is   waived    where   an

organization secures liability insurance).

            However, if the work to be performed . . .
            is   either   (1)   ultrahazardous    or    (2)
            inherently   dangerous,     and   the    [party
            accepting the work] either knows or should
            have known that the work is of that type,
            liability    may     attach     despite     the
            [volunteer’s] status.    This is because, in
            those two areas, the [party accepting the
            work] has a non-delegable duty for the
            safety of others.

Kinsey v. Spann, 139 N.C. App. 370, 374, 533 S.E.2d 487, 491

(2000) (citations omitted).         An "inherently dangerous activity"

is defined

            as work to be done from which mischievous
            consequences will arise unless preventative
            measures are adopted, and that which has a
            recognizable and substantial danger inherent
            in the work, as distinguished from a danger
            collaterally created by the independent
            negligence of the [worker], which later
                                          -6-
           might take place on a job itself involving
           no inherent danger.

O'Carroll v. Roberts Indus. Contractors, Inc., 119 N.C. App.

140, 146, 457 S.E.2d 752, 756 (1995) (citation and quotation

omitted). To be successful, a claim for an inherently dangerous

activity requires a showing of four elements: (1) the activity

must be inherently dangerous; (2) at the time of injury, the

[defendant] either knew, or should have known, that the activity

was inherently dangerous; (3) the [defendant] failed to take the

necessary precautions to control the attendant risks; and, (4)

the   failure    by   the   [defendant]         proximately   caused       injury    to

plaintiff.      Kinsey, 139 N.C. App. at 375, 533 S.E.2d at 492.

      Plaintiffs      contend   the       trial    court    erred     in    granting

summary judgment to defendant church because tree cutting is an

inherently      dangerous    activity.            In    determining    whether       an

activity is inherently dangerous, this Court has held that “the

area where the activity is to be performed is significant.”                         Id.

at 376, 533 S.E.2d at 492.           As such, our Courts have found that

although     tree     felling   in    a     rural,      forested    area     is     not

inherently dangerous, Young v. Fosburg Lumber Co., 147 N.C. 26,

34—35, 60 S.E. 654, 657—58 (1908), tree felling in a populated

urban area is inherently dangerous.                    Kinsey, 139 N.C. App. at

376, 533 S.E.2d at 492.
                                            -7-


            Cutting and removing a tree in the midst of
            a forest would probably not rank as []
            hazardous work. But the cutting and removal
            of a large tree in close proximity to
            dwellings and in an area traversed by many
            people,   would  probably  be   sufficiently
            hazardous as to require precautions with
            which we are all familiar.


Evans v. Elliot, 220 N.C. 253, 260, 17 S.E.2d 125, 129—30 (1941)

(citation omitted).

    Here, McKinney attempted to remove a limb from a tree that

stood next to defendant church’s parking lot.                       Although evidence

suggested defendant church was concerned about the tree limb

possibly    falling       and   damaging        parishioners’        cars,    there     is

nothing indicating the limb posed an imminent danger to life or

property, was located in a populated urban area, or that the

entire tree needed to be cut down.                    Moreover, the statements of

Clinkscales        indicated        McKinney         was     experienced      in    tree

maintenance,       including       the   use    of    ladders      and    chainsaws,    to

remove tree limbs.          As such, the facts of the instant case do

not support plaintiffs’ contention that McKinney was engaged in

an inherently dangerous activity.

    In     fact,    as    noted     herein,         the    facts   were    found   to   be

insufficient       to    sustain    a    negligence        claim   against    defendant

church     based    on    any      theory      of    negligence.          Nevertheless,
                                        -8-
assuming     arguendo    a    negligence      claim      had   been    shown,    the

evidence indicates McKinney was contributorily negligent.

                   In answering the "pivotal question"
             whether the evidence supports a finding of
             contributory   negligence,   a   plaintiff's
             conduct must be judged in the light of the
             general principle that the law does not
             require a person to shape his behavior by
             circumstances of which he is justifiably
             ignorant, and the resultant particular rule
             that a plaintiff cannot be guilty of
             contributory negligence unless he acts or
             fails    to   act    with   knowledge    and
             appreciation, either actual or constructive,
             of the danger of injury which his conduct
             involves.

Shelton v. Steelcase, Inc., 197 N.C. App. 404, 424, 677 S.E.2d

485, 499 (2009) (citations and quotation omitted).                    Although the

issue   of   contributory      negligence      is    “rarely     appropriate     for

summary judgment,” summary judgment is appropriate “where the

evidence establishes a plaintiff’s negligence so clearly that no

other   reasonable      conclusion    may     be    reached.”      Martishius     v.

Carolco Studios, Inc., 355 N.C. 465, 479, 562 S.E.2d 887, 896

(2002) (citation omitted).

    The      trial    court   noted   during       its   hearing      on   defendant

church’s     motion     for   summary    judgment        that:     based    on   the

respective heights of McKinney, the ladder, and the tree limb,

to reach the tree limb McKinney had to have stood on the top

rung of the ladder; the ladder used by McKinney was clearly
                                          -9-
marked    with   safety        instructions       and     warnings,    including     a

warning notifying users not to stand on the top rung of the

ladder; the ladder was placed on soft ground which would have

made it very unstable, even though the tree limb could have been

removed if the ladder had been placed several feet over onto the

paved parking lot; Clinkscales told McKinney to wait so he could

help   McKinney,      but     McKinney    did     not   wait;   and    McKinney    was

experienced in        tree maintenance           and,   thus,   was aware of the

safety risks involved in cutting and removing tree limbs in the

manner as indicted by these facts.                  The trial court also found

that     while   no     one    witnessed        McKinney’s      accident,   medical

evidence suggested McKinney may have had a heart attack while

cutting down the tree limb which led to him falling off the

ladder and sustaining a fatal spinal cord injury.                         The trial

court further noted there was no evidence indicating defendant

church demanded or required McKinney to remove the tree limb or

that   defendant      church     was     aware    of    the   danger   involved    in

removing the tree limb; that               Clinkscales stated both he and

McKinney were aware that if they felt they could not remove the

tree limb safely, defendant church would hire a professional

tree   service     to    handle    it;     and     that    defendant    church     had

discussed the tree limb generally with McKinney and Clinkscales
                                 -10-
because   defendant   church   knew   McKinney   and   Clinkscales   were

experienced with such tasks.

    In granting defendant church’s motion for summary judgment,

the trial court told plaintiffs that:

                This case is shot through with so many
           holes that even giving you every benefit of
           the doubt and every inference, if we were
           trying to [go] to the jury, it wouldn’t go
           to the jury.

                You’ve   got  problems   with  how the
           accident   happened.  We    don’t  know why
           [McKinney] fell. They’d have to – the jury
           would have to speculate as to why that
           happened.    Was it truly – was this an
           unfortunate accident or whether, you know,
           what happened.

                You’ve got problems with the fact that
           there’s – the evidence is that nobody from
           [defendant]    church    specifically   said,
           “You’ve got to go up there and do it,” or,
           “We need you to do it.” There’s no evidence
           as   required   by   the   Spann   case  that
           [defendant] church knew or should have known
           before making the request that this was an
           ultra-hazardous activity. I mean, you don’t
           have any of that.

    As the trial court notes, every factual inference points

toward McKinney being contributorily negligent. Accordingly, the

trial court’s granting of defendant church’s motion for summary

judgment was appropriate.

    Affirmed.

    Judges CALABRIA and GEER concur.
                         -11-
Report per Rule 30(e).
