# Newton v. New Hanover County Board of Education

> Court of Appeals of North Carolina · May 17, 1994 · 114 N.C. App. 719

URL: https://www.frixlaw.com/law-library/cases/9585541

## Case

- **Full name:** STEWART B. NEWTON, Appellant v. NEW HANOVER COUNTY BOARD OF EDUCATION, Appellee
- **Court:** Court of Appeals of North Carolina
- **Decided:** May 17, 1994
- **Citations:** 114 N.C. App. 719; 443 S.E.2d 347; 1994 N.C. App. LEXIS 504
- **Precedential status:** Published
- **Opinion:** Dissent by Johnson
- **Judges:** Wells, Johnson, John
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9585541

## Opinion text

Judge JOHNSON
dissenting.
I respectfully dissent in this case of first impression. As a police officer entering defendant’s property in response to a silent alarm, plaintiff’s status fits neither the definition of an invitee or a licensee.
Our Courts have stated:
The distinction between an invitee and a licensee is determined by the nature of the business bringing a person to the premises. A licensee is one who enters on the premises with the possessor’s permission, express or implied, solely for his own purposes rather than the possessor’s benefit. An invitee is a person who goes upon the premises in response to an express or implied invitation by the landowner for the mutual benefit of the landowner and himself.
*726 Martin v. City of Asheville, 87 N.C. App. 272, 274-75 , 360 S.E.2d 467, 469 (1987) (emphasis retained), quoting Mazzacco v. Purcell, 303 N.C. 493 , 279 S.E.2d 583 (1981).
The police officer herein does not neatly fit the status of a licensee, “one who enters on the premises with the possessor’s permission, express or implied, solely for his own purposes rather than the possessor’s benefit,” because the police officer is not entering the premises solely for his own purposes, rather than the school’s benefit. The police officer clearly is not an invitee, “a person who goes upon the premises in response to an express or implied invitation by the landowner for the mutual benefit of the landowner and himself,” because the police officer does not intend to benefit himself by going onto the school’s premises; rather, the police officer intends to benefit the landowner and the public. I believe that the predominant “nature of the business bringing [the police officer] to the premises” herein is the officer’s duty, as a law enforcement officer, to carry out the responsibilities of his job. A police officer is one who enters the premises of a property owner under the authority of law. On the facts herein, the police officer is entering the school property for the benefit of the public, to maintain civil order and to promote the public welfare.
Therefore, in determining the duty the property owner owes to the police officer, I believe plaintiff’s status more closely resembles that of a licensee. As a “quasi-licensee,” defendant’s duty to plaintiff was to refrain from wilful and wanton conduct, as enumerated in Wagoner v. R.R., 238 N.C. 162 , 77 S.E.2d 701 (1953).
I note the following persuasive reasoning in Burroughs Add. Mach. Co. v. Fryar, 132 Tenn. 612 , 179 S.W. 127 (1915), where a police officer was injured while investigating an open door in an establishment. The Court opined;
[T]he officer is a mere licensee[.] . . . Under such circumstances, a policeman . . . goes on the premises by permission of the law. In the discharge of his duty to the public he may enter upon the premises in disregard of the owner’s wishes. He is not an invitee. He may enter whether the property owner is willing or unwilling, and his right to enter does not depend on the property owner’s invitation, express or implied, but his entry is licensed by the public interest[.]
*727 179 S.W. at 128. Several other jurisdictions have similarly held that police officers entering premises in the discharge of their duties have the status of licensees. See Louisville & N. R. Co. v. Griswold, 241 Ala. 104 , 1 So.2d 393 (1941); Hall v. Holton, 330 So.2d 81 (Fla. 1976), cert. denied, 348 So.2d 948 (1977); London Iron & Metal Co., Inc. v. Abney, 245 Ga. 759 , 267 S.E.2d 214 (1980); Pincock v. McCoy, 48 Idaho 227 , 281 P. 371 (1929); Sherman v. Suburban Trust Co., 282 Md. 238 , 384 A.2d 76 (1978); Nared v. School Dist. of Omaha in Douglas County, 191 Neb. 376 , 215 N.W.2d 115 (1974); Davy v. Greenlaw, 101 N.H. 134 , 135 A.2d 900 (1957); Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163 , 192 N.E.2d 38 (1963); Kithcart v. Feldman, 89 Okla. 276 , 215 P. 419 (1923); Cook v. Demetrakas, 108 R.I. 397 , 275 A.2d 919 (1971); Walters v. Southern S.S. Co., 113 S.W.2d 320 (Tex. 1938).
I would affirm the decision of the trial court.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9585541. Public record. Not legal advice.