Link to original WordPerfect file
How to access the above link?
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
KENNETH EASON, Plaintiff, v. UNION COUNTY, Defendant, and UNION
COUNTY, Third Party Plaintiff, v. JOHN PERRY CONSTRUCTION and
JOHN PERRY, JOHN SMETHURST and ALLEN TATE REALTY COMPANY, INC.,
Third Party Defendants
Filed: 16 September 2003
1. Counties_negligent inspection of house_public duty doctrine
The public duty doctrine does not bar a claim against a county for negligent inspection of
a private residence.
2. Counties_negligent inspection of house_reliance on certificate of occupancy not
Summary judgment was properly granted for defendant county on a claim for negligent
inspection of a house purchased by plaintiff where plaintiff failed to show any reliance on the
certificate of occupancy in purchasing the house.
3. Counties_negligent inspection_contributory negligence
The trial court correctly granted summary judgment for defendant county on a claim for
negligent inspection where plaintiff's own negligence contributed to his damages. Plaintiff relied
on the promises of a realtor and a builder rather than the certificate of occupancy, he failed to
have the house reinspected or to obtain the warranty prior to purchase, and he took title with
knowledge of the uncompleted and needed repairs.
Appeal by plaintiff from judgment entered 11 June 2002 by
Judge Susan C. Taylor in Union County Superior Court. Heard in the
Court of Appeals 18 August 2003.
Weaver, Bennett & Bland, P.A., by Benjamin L. Worley, for
Lovejoy & Bolster, P.A., by Jeffrey S. Bolster, for defendant-
No brief filed for John Perry Construction, John Perry, John
Smethurst, or Allen Tate Realty Company, Inc.
Kenneth Eason (plaintiff) appeals from 11 June 2002 order
granting summary judgment in favor of Union County (defendant).
In the Fall of 1998, plaintiff sought to purchase a home in
the Waxhaw area of Union County, North Carolina. Plaintiff
inquired about a house located at 6611 Providence Road South (the
house). He contacted the listing real estate agent, John
Smethurst (Smethurst) of the Allen Tate Realty Company, Inc.
John Perry (Perry) and his construction company, John Perry
Construction, Inc. (Perry Construction) were the builder and
seller of the house.
Plaintiff made an initial low offer of $200,000, which Perry
Construction accepted. This offer was contingent upon: (1) the
house passing an independent inspection, (2) the resolution of any
flooding problems on the property, and (3) the purchase of a 2/10
home warranty for plaintiff by Perry Construction. Smethurst
recommended and plaintiff hired Estep's Home Service (Estep), who
performed the independent inspection on 28 September 1998.
Estep's report noted elevated moisture content in the floor
joists and girders and the need for additional piers under thegirders to provide adequate foundation support. Prior to closing,
Smethurst informed plaintiff that the moisture problem was resolved
by putting another polyvapor barrier on the beams. Estep's report
indicated that water and electrical services were disconnected
during the inspection, and noted that the heating, air
conditioning, plumbing, septic system and electrical service had
not been tested. Estep recommended that all fixtures and systems
be inspected after the water and electrical services were
connected. In his deposition, plaintiff acknowledged that he
visited the house three times prior to closing. Each time he
visited, the electricity and plumbing were turned on and appeared
to function properly. Estep's report also noted cracking in the
driveway. Funds were deposited in escrow prior to closing to
address this defect.
Prior to closing, Perry Construction provided a Seller's
Disclosure of Property form, which plaintiff signed on 21
September 1998. The structural component section of this form
disclosed the house had foundation defects, but did not set out
The original closing date was scheduled for 16 October 1998.
Plaintiff postponed the closing after discovering the repairs noted
in Estep's report were not complete. Smethurst knew that plaintiff
was reluctant to close before the repairs were completed. On 21October 1998, Smethurst strongly urged plaintiff to close on the
house or that someone else would quickly buy the house at the
contract price. Smethurst verbally assured plaintiff that Perry
would finish the remaining repairs within the following week.
Perry did not attend the closing. He called two and a half
hours after the scheduled closing time and the closing attorney
acted on his behalf. Plaintiff closed on the house without
reinspecting the premises, relying on the advice and assurances of
Smethurst and Perry. Immediately after moving into the house,
plaintiff realized the repairs had not been completed. Plaintiff
also discovered additional defects, which did not appear on the
Perry failed to complete the house or make the promised
repairs. On 21 September 1999, plaintiff filed action against
Perry and Perry Construction for Unfair and Deceptive Trade
Practices and Breach of Warranty. During that lawsuit, plaintiff
obtained plans for the house and a building permit, issued by
defendant, for construction of a 1804 square foot one-story six-
room house. Perry Construction built a 2945 square foot two-story
ten-room house. Plaintiff also obtained the Certificate of
Occupancy for the house issued by defendant's Department of
Inspection on 18 December 1997. Plaintiff did not bring action
against Smethurst, Allen Tate Realty Company, Inc., or Estep. Plaintiff seeks recovery against defendant based on negligent
inspection. Defendant moved for summary judgment based on: (1)
contributory negligence and (2) the public duty doctrine. Judge
Taylor granted defendant's motion for summary judgment and
Plaintiff assigns as error the trial court's finding that:
(1) no genuine issues of material fact existed regarding
plaintiff's claim of negligent inspection, and (2) plaintiff was
contributorily negligent as a matter of law.
III. Standard of Review for Summary Judgment
Summary judgment is appropriate when the moving party
establishes that the opposing party cannot produce evidence to
support an essential element of the claim or an essential element
of the opposing party's claim does not exist. Collingwood v. G.E.
Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427
(1989). By moving for summary judgment, a defendant may force a
plaintiff to produce evidence showing the ability to make out a
prima facie case. Id. All inferences of fact are construed in
favor of the nonmoving party. Id.
Rule 56 of the North Carolina Rules of Civil Procedure states
that summary judgment will be granted: [i]f 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. § 1A-1, Rule 56(c) (2000). Determining what
constitutes a genuine issue of material fact requires consideration
of whether an issue is supported by substantial evidence. Dewitt
v. Eveready Battery Co., Inc., 355 N.C. 672, 681, 565 S.E.2d 140,
146 (2002). An issue is material if the facts alleged would
constitute a legal defense, or would affect the result of the
action, or if its resolution would prevent the party against whom
it is resolved from prevailing in the action. Id., quoting Koontz
v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901
(1972). Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
Thompson v. Wake County Bd. of Educ., 292 N.C. 406, 414, 233 S.E.2d
538, 544 (1977), quoting State ex. rel. Comm'r of Ins. v. N.C. Fire
Ins. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977).
Substantial evidence requires more than a scintilla or a
permissible inference. Dewitt, 355 N.C. at 681, 565 S.E.2d at
146, quoting Utilities Comm'n v. Great S. Trucking Co., 223 N.C.
687, 690, 28 S.E.2d 201, 203 (1943).
 Defendant's motion for summary judgment asserted that the
public duty doctrine barred plaintiff's claim. We reiterate our
Supreme Court's decision in Thompson v. Waters that the public duty
doctrine does not bar a claim against the county for negligent
inspection of a private residence. 351 N.C. 462, 465, 526 S.E.2d
650, 652 (2000).
IV. Negligent Inspection
 To determine whether summary judgment was properly
granted, we first consider whether plaintiff produced evidence
tending to show each element of negligent inspection. Plaintiff
must establish that: (1) defendant owed a legal duty to
plaintiff, (2) defendant breached that duty, and (3) defendant's
breach proximately caused plaintiff's injury. Martishius v.
Carolco Studios, Inc., 355 N.C. 465, 473, 562 S.E.2d 887, 892
Our Courts define proximate cause as a cause which in natural
and continuous sequence, unbroken by any new and independent cause,
produced the plaintiff's injuries, and without which the injuries
would not have occurred. Adams v. Mills, 312 N.C. 181, 192, 322
S.E.2d 164, 172 (1984). Proximate cause is an inference of fact to
be drawn from all the facts and circumstances. Id. at 193, 322
S.E.2d at 172. The court will declare whether or not an act wasthe proximate cause of an injury only if all the facts indicate
only one inference may be drawn. Id.
Viewed in the light most favorable to the nonmoving party,
plaintiff failed to forecast substantial evidence showing
defendant's negligence proximately caused his damages. During his
deposition, plaintiff admitted he did not review or have any
discussions with anyone regarding defendant's Certificate of
Occupancy prior to the closing. Plaintiff only attempted to
contact defendant, regarding the Certificate of Occupancy, after he
purchased the house. Plaintiff now asserts he would not have
purchased the house but for the Certificate of Occupancy issued by
defendant. This assertion alone is insufficient evidence to allow
a reasonable mind to conclude the defendant's Certificate of
Occupancy proximately caused plaintiff's damages.
Plaintiff failed to show any reliance on the Certificate of
Occupancy in purchasing the house. Defendant's issuance of the
Certificate of Occupancy was not the proximate cause of plaintiff's
damages. Plaintiff failed to show evidence of an essential element
of his claim. This assignment of error is overruled.
V. Contributory Negligence
 In the alternative, we also conclude the trial court
properly granted summary judgment because plaintiff's own
negligence contributed to his damages. When a defendant moves forsummary judgment alleging contributory negligence, the trial court
must consider any evidence tending to establish plaintiff's
contributory negligence in the light most favorable to the
defendant, and if diverse inferences can be drawn from it, the
issue must be submitted to the jury. Cobo v. Raba, 347 N.C. 541,
545, 495 S.E.2d 362, 365 (1998). Contributory negligence is
appropriate for summary judgment only where the evidence
establishes a plaintiff's negligence so clearly that no other
reasonable conclusion may be reached. Martishius, 355 N.C. at
479, 562 S.E.2d at 896.
Plaintiff admits he was the victim of misrepresentations and
other deceptions on the part of John Perry Construction, John
Smethurst, and/or Estep Home Services. Plaintiff argues he acted
reasonably by hiring an independent inspector and attempting to
purchase a warranty. The inspection report indicated several
defects and clearly stated that a reinspection was needed after
utilities were connected. Plaintiff visited the house on three
occasions prior to closing while the utilities were connected.
Plaintiff purchased the house with full knowledge that certain
defects had not been repaired. Plaintiff never received a written
copy or verification of the 2/10 warranty he paid for. He relied
on Smethurst's representations that the warranty was on its way.
Plaintiff's precautionary, but unsuccessful, measures do notexcuse his negligence and make defendant liable. He relied on
Smethurst's and Perry's promises, not the Certificate of Occupancy
issued by defendant. Plaintiff's failure to have the house
reinspected, obtain the warranty prior to purchase, and taking of
title with knowledge of the uncompleted and needed repairs, all
contributed to and proximately caused his damages. This assignment
of error is overruled.
Summary judgment to defendant is affirmed.
Chief Judge EAGLES and Judge MCGEE concur.
*** Converted from WordPerfect ***