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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.
COASTAL PLAINS UTILITIES, INC., Plaintiff, v. NEW HANOVER COUNTY,
NEW HANOVER COUNTY BOARD OF COMMISSIONERS, in their official
capacities; THE TOWN OF CAROLINA BEACH, a North Carolina
Municipal Corporation; THE TOWN OF KURE BEACH, a North Carolina
Municipal Corporation; T.A. LOVING, INC.; and ATLANTIC
Filed: 21 September 2004
1. Appeal and Error_appealability--partial summary judgment_substantial right
affected_potential for inconsistent verdicts
A partial summary judgment arising from the construction of a water and sewer system
was interlocutory but affected a substantial right and was appealable because there was a
potential for inconsistent verdicts.
2. Easements_water system_no wrongful interference
The location of a water and sewer system built by a county alongside an older, private
system did not wrongfully interfere with the private company's nonexclusive easements and
summary judgment was correctly granted for defendants.
3. Utilities_UDPA_construction of new water system
There was no basis for holding municipal defendants liable under the Underground
Damage Prevention Act (which requires that utility owners be notified before excavations begin)
in an action by the owner of an existing private water and sewer system arising from the
construction of a new public system. The companies doing the excavating were notified of the
names of underground utility owners in the area and plaintiff was informed of the construction
and asked to mark its lines.
4. Agency_utilities contractors _design of public water system--evidence of agency
Summary judgment for defendants was proper on a claim that New Hanover County was
liable for damages to plaintiff's private water system caused by the design of a new public
system. The County produced evidence that the work was done by independent contractors and
defendant did not produce evidence of agency.
5. Negligence_utilities contractors_liability of county--respondeat superior_evidence
Summary judgment for defendants was proper on plaintiff's claims that New Hanover
County was liable through respondeat superior for damages to plaintiff's private water system by
contractors during construction of a new public system. Plaintiff did not offer evidence that the
contractors were agents of the County.
6. Negligence_construction of new water system_not inherently dangerous
Summary judgment was correctly granted against plaintiff on its claim that the
construction of a new public water system near plaintiff's private system was an inherentlydangerous activity for which the County had a nondelegable duty of care. Plaintiff's injuries did
not flow from the risk of contamination.
7. Trespass_construction of new water system_liability of county for contractor
Summary judgment was properly granted against a private water company on its trespass
claim against the County resulting from construction of a new public water system.
8. Counties_liability for contractors_notice of statutory violation
The theory that a county could be held liable for the acts of contractors if it had notice
that the contractors were violating a statute was not available under the circumstances of this
case. The Court of Appeals declined reasoning that would impose additional duties not
specified in the Underground Damage Prevention Act.
9. Cities and Towns_construction of new water system_agency_evidence insufficient
Summary judgment was granted correctly for municipalities on claims for damage to a
private water system during construction of a new system where the new system was built by
contractors for the county. Plaintiff contended that the municipalities were liable as
beneficiaries but failed to cite supporting authority, and argued liability under respondeat
superior but failed to offer sufficient evidence of agency. Participation by the towns in meetings
with the contractors about problems arising from the construction was precisely the watchfulness
required of a town when a major construction project impacts the town and does not give rise to
a principle-agent relationship.
10. Nuisance_construction of public water system_ownership interest in private
system_issue of fact
The trial court should not have granted summary judgment for Carolina Beach on a
nuisance claim by the owner of a private water system arising from the construction of a new
public system. Carolina Beach's argument for summary judgment was that plaintiff's pleading
and evidence did not show the necessary property interest, but, viewed in the light most
favorable to plaintiff, there was evidence sufficient to raise an issue of material fact.
11. Appeal and Error_absence of argument or authority_judgment not set aside
The Court of Appeals declined to set aside a summary judgment in the absence of any
argument or authority.
Appeal by plaintiff from orders and judgment entered 2
December 2002 by Judge W. Allen Cobb, Jr. in New Hanover County
Superior Court. Heard in the Court of Appeals 17 March 2004.
Hunton & Williams, by Edward S. Finley, Jr., for plaintiff-
Womble Carlyle Sandridge & Rice, P.L.L.C., by Mark A. Davis,
Douglas W. Hanna and Matthew S. Healey, for
defendants-appellees New Hanover County and New Hanover County
Board of Commissioners.
J. Albert Clyburn, P.L.L.C., by J. Albert Clyburn, for
defendant-appellee The Town of Carolina Beach.
Andrew A. Canoutas, for defendant-appellee The Town of Kure
Taylor, Penry, Rash & Riemann, PLLC, by Neil A. Riemann, for
defendant-appellee T.A. Loving, Inc.
No brief filed on behalf of defendant-appellee Atlantic
This appeal arises from the construction of a new water and
sewer system in Carolina Beach and Kure Beach alongside existing
water lines owned by plaintiff Coastal Plains Utilities, Inc.
("Coastal"). Coastal appeals from orders granting summary judgment
on all claims to defendants New Hanover County and the New Hanover
County Board of Commissioners ("the County"), Kure Beach, and
Carolina Beach and granting partial summary judgment to defendant
T.A. Loving, Inc. ("Loving") on its claims for wrongful
interference with easement and nuisance. We hold that the evidence
failed to establish a genuine issue of material fact regarding the
municipal defendants' direct liability for plaintiff Coastal's
damages and failed to demonstrate that the contractors involved in
the project were agents of the municipal defendants so as to
support liability based on respondeat superior. Coastal also
failed to present sufficient evidence to warrant reversing the
grant of partial summary judgment to Loving. With respect,
however, to Coastal's claim of nuisance asserted against Carolina
Beach, we hold that the trial court erred in granting partial
The evidence, viewed in the light most favorable to Coastal,
tended to show the following. Since 1966, Coastal has provided
water service to customers in the Wilmington Beach and Hanby Beach
communities, using a system that was originally constructed in the
1950s. In 2000, the Wilmington Beach area was annexed by the
neighboring town of Carolina Beach and the Hanby Beach area was
annexed by the neighboring town of Kure Beach.
In 1997, New Hanover County entered into an agreement with the
towns of Carolina Beach and Kure Beach, under which the County
agreed to fund and construct a new sewer system for the towns.
agreement was amended in 1999 to include a water distribution
system to be installed at the same time. Upon completion of the
construction, the towns would operate and maintain the water and
sewer system, charging a usage fee to repay the debt incurred by
the County to fund the project. After the debt was satisfied, the
County would convey the system to the towns.
Development of the new water and sewer system began in October
2000. The County contracted with Engineering Systems, P.A. to
design the system and develop specifications and construction
documents for the project. Once the plans were complete, the
County contracted with
Loving to construct the portion of the
system serving Carolina Beach
and with Atlantic Construction
("Atlantic") to construct the portion of the system serving Kure
Actual construction of the system began in late 2000.
plans and specifications prepared by Engineering Services requiredthe contractors to use the "open trench" method of construction,
which involves digging an open trench in which the utility lines
are installed. During construction of the new system, the
contractors inflicted numerous cuts to Coastal's lines. The damage
to the lines disrupted service to Coastal customers. In some
instances, the contractors repaired the broken steel lines with
plastic PVC pipe, which according to Coastal, undermined the
mechanical integrity of its lines.
In addition, Carolina Beach had previously begun using two
wells close to Coastal's existing wells. During the same period as
the construction, Coastal began to suspect that Carolina Beach's
wells were adversely affecting its wells. According to Coastal's
expert witness, as a result of the Carolina Beach wells, Coastal
was able to draw less water from its wells, resulting in water
pressure problems for Coastal's customers.
Responding to complaints from Coastal's customers, the North
Carolina Utilities Commission began monitoring Coastal's system in
2000. On 13 July 2001, the Utilities Commission issued an order
finding that Coastal had "abandoned its system" and that an
emergency existed with respect to Coastal's water system. On 16
July 2001, Superior Court Judge Benjamin Alford appointed Carolina
Beach and Kure Beach as emergency operators of Coastal's water
system and ordered Coastal to deliver all billing information for
its customers to the towns. According to the record before this
Court, Coastal has not operated its system since.
On 2 July 2001, Coastal filed a complaint asserting claims for
wrongful interference with easement, trespass to chattels, andnegligence against the County, Carolina Beach, Kure Beach, Loving,
(See footnote 1)
In addition to damages, Coastal sought a temporary
restraining order, a preliminary injunction, and a permanent
injunction preventing defendants from proceeding with the
construction. Also on 2 July 2001, Coastal's request for a
temporary restraining order and preliminary injunction was granted
with the proviso that construction could continue if defendants
complied with certain orders of the court
. On 4 January 2002,
Coastal filed an amended complaint alleging an additional claim
against Carolina Beach for nuisance and an injunction preventing
Carolina Beach from operating its wells in an unreasonable manner.
All parties filed motions for summary judgment. The matter
was heard during the 4 November 2002 civil session of New Hanover
County Superior Court. On 2 December 2002, the trial court granted
summary judgment in favor of the County
, Kure Beach, and Carolina
Beach on all claims and entered partial summary judgment in favor
of Loving and Atlantic on the claims of wrongful interference with
easement and nuisance. The trial court denied Coastal's motion for
partial summary judgment on its claim of wrongful interference with
easement. From those orders, Coastal filed notice of appeal to
this Court on 7 December 2002. Coastal has since settled its
claims against Atlantic. At the time of this appeal, Coastal'sclaims against Loving for trespass to chattels and negligence are
Motions to Dismiss the Appeal
 At the outset, we must address the motions to dismiss this
appeal as interlocutory filed by the County, Carolina Beach, and
Kure Beach (collectively, "the municipal defendants"). We agree
that the appeal is interlocutory, but hold that the appeal involves
a substantial right and is, therefore, properly before us.
When an order resolves some, but not all, of the claims in a
lawsuit, any appeal from that order is interlocutory. Mitsubishi
Elec. & Elecs. USA, Inc. v. Duke Power Co., 155 N.C. App. 555, 559,
573 S.E.2d 742, 745 (2002). Because claims against Loving are
still pending, this appeal is interlocutory. An interlocutory
appeal is permissible only if (1) the trial court certified the
order under Rule 54 of the Rules of Civil Procedure, or (2) the
order affects a substantial right that would be lost without
immediate review. Embler v. Embler, 143 N.C. App. 162, 164-65, 545
S.E.2d 259, 261 (2001). Since the orders at issue in this appeal
do not contain a Rule 54 certification, we must determine whether
the orders affect a substantial right of plaintiff that cannot be
preserved in the absence of an interlocutory appeal.
Our Supreme Court has observed that "'the right to avoid the
possibility of two trials on the same issues can be . . . a
substantial right.'" Green v. Duke Power Co., 305 N.C. 603, 608,
290 S.E.2d 593, 596 (1982) (quoting Survey of Developments in N.C.
Law, 1978, 57 N.C.L. Rev. 827, 908 (1979)). See also Bernick v.Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982) ("[B]ecause
of the possibility of inconsistent verdicts in separate trials, the
order allowing summary judgment for fewer than all the defendants
in the case before us affects a substantial right."). The Court
explained further in Green that "[o]rdinarily the possibility of
undergoing a second trial affects a substantial right only when the
same issues are present in both trials, creating the possibility
that a party will be prejudiced by different juries in separate
trials rendering inconsistent verdicts on the same factual issue."
Green, 305 N.C. at 608, 290 S.E.2d at 596. This Court has
interpreted the language of Green as creating a two-part test
"requiring a party to show that (1) the same factual issues would
be present in both trials and (2) the possibility of inconsistent
verdicts on those issues exists." North Carolina Dep't of Transp.
v. Page, 119 N.C. App. 730, 735-36, 460 S.E.2d 332, 335 (1995).
The municipal defendants argue that there is no danger of
inconsistent verdicts here because the Coastal and Loving trial
would not involve the same factual issues as any subsequent trial
against the municipal defendants. They cite Jarrell v. Coastal
Emergency Servs. of the Carolinas, Inc., 121 N.C. App. 198, 464
S.E.2d 720 (1995), in which this Court held that because the first
trial would be on liability, while the sole issue for the second
trial would be whether a master-servant relationship existed such
that the defendant could be held liable under a respondeat superior
theory, the plaintiff's claims did not present identical factual
issues that created the possibility of inconsistent verdicts. Id.
at 200, 464 S.E.2d at 722-23. Here, however, because Coastal asserts claims based on direct
liability as well as respondeat superior, subsequent trials would
not be limited to the issue whether a master-servant or principal-
agent relationship existed. Moreover, even as to the respondeat
superior claims, defendants have acknowledged that they would seek
to retry the issues of causation and damages, thus creating a risk
of inconsistent verdicts on those issues. For example, in the
trial against Loving, a jury could find that Coastal's damages
resulted from the new construction or the Carolina Beach wells,
while the jury in a second trial could find that the damages arose
out of unrelated deterioration to the Coastal system. In addition,
Loving would argue at its trial that any damage was the result of
the design of the system and was not due to any negligence of
Loving. The municipal defendants would, however, likely argue in
any subsequent trial that the damage was caused by Loving.
Accordingly, we hold that because there is a potential for
inconsistent verdicts, the orders appealed from affect a
substantial right and are immediately appealable.
Standard of Review
The North Carolina Rules of Civil Procedure provide that
summary judgment shall be granted "if 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.R. Civ. P. 56(c). In deciding the motion,
"'all inferences of fact . . . must be drawn against the movant and
in favor of the party opposing the motion.'" Caldwell v. Deese,288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (quoting 6 James W.
Moore et al., Moore's Federal Practice § 56-15, at 2337 (2d ed
The party moving for summary judgment has the burden of
establishing the lack of any triable issue. Collingwood v. General
Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425,
427 (1989). Once the moving party meets its burden, then the
non-moving party must "produce a forecast of evidence demonstrating
that the plaintiff will be able to make out at least a prima facie
case at trial." Id. In opposing a motion for summary judgment,
the non-moving party "may not rest upon the mere allegations or
denials of his pleading, but his response, by affidavits or as
otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial." N.C.R. Civ. P.
On appeal, this Court's task is to determine, on the basis of
the materials presented to the trial court, whether there is a
genuine issue as to any material fact and whether the moving party
is entitled to judgment as a matter of law. Oliver v. Roberts, 49
N.C. App. 311, 314, 271 S.E.2d 399, 401 (1980), cert. denied, 276
S.E.2d 283 (1981). A trial court's ruling on a motion for summary
judgment is reviewed de novo as the trial court rules only on
questions of law. Virginia Elec. & Power Co. v. Tillett, 80 N.C.
App. 383, 384-85, 343 S.E.2d 188, 191, cert. denied, 317 N.C. 715,
347 S.E.2d 457 (1986).
Wrongful Interference with Easement
 Coastal first argues that the present location of the
County's water and sewer system wrongfully interferes with
Coastal's recorded easements by interfering with Coastal's access
to its own system for purposes of repair and maintenance and by
risking contamination of Coastal's water or more damage to
Coastal's system in the future.
(See footnote 2)
Coastal attempts to hold each of
the defendants liable for the wrongful interference.
Coastal has acknowledged that its easements were nonexclusive.
When an easement is nonexclusive, the grantor may later grant
similar easements to others, including the general public.
Commercial Fin. Corp. v. Langston
, 24 N.C. App. 706, 712, 212
S.E.2d 176, 180, cert. denied,
287 N.C. 258, 214 S.E.2d 429 (1975).
In that case, to make out a claim for wrongful interference with
easement, a party must show "an interference inconsistent with
plaintiff's easement." Carolina Power & Light Co. v. Bowman
N.C. 682, 686, 51 S.E.2d 191, 194 (1949). The mere invasion or
entry onto an easement is insufficient to prove interference.
Instead, the use must "materially impair or unreasonably interfere
with the exercise of the rights granted in the easement." Carolina
Cent. Gas Co. v. Hyder
, 241 N.C. 639, 642, 86 S.E.2d 458, 460
(1955). In addition, "once an interference with an easement has
been shown, in order to make out a cause of action a plaintiff
bears the burden of proving that the interference injured his
interests in some way." Century Communications, Inc. v. TheHousing Authority of the City of Wilson
, 313 N.C. 143, 148-49, 326
S.E.2d 261, 265 (1985).
The undisputed evidence indicates Coastal has not operated its
system since July 2001 when Carolina Beach and Kure Beach were
appointed as emergency operators
of the system.
On 7 August 2001,
the Utilities Commission entered an order providing that "the
appointment of the emergency operators shall remain effective until
further order of the Commission." The record contains no order of
the Commission relieving the emergency operators. On 6 May 2002,
Ralph B. Harper, Environmental Engineer with the Public Water
Supply Section of the Division of Environmental Health, notified
Coastal that Coastal's wells had been "deleted from [the
Division's] inventory as sources of water because they had not been
used since July of 2001" and, at that time, had failed state
inspections. Coastal's President Allie Moore testified in August
2002 that Coastal had been "relieved of that water works[,]" he was
"out of business[,]" and "[t]he system is destroyed."
In sum, Coastal has presented no evidence that (1) it is still
operating its system and using its easements, (2) that prior to the
emergency operator order the location (as opposed to the
construction) of the new water and sewer system actually interfered
with Coastal's easement, or (3) that it will be operating its
system in the future. Coastal has offered no explanation and we
fail to see how there can be a material interference with Coastal's
easements causing any injury to Coastal if Coastal is no longer
operating its water system. Therefore, summary judgment was
properly granted as to this claim.
Liability Under the Underground Damage Prevention Act
 Coastal argues that the municipal defendants failed to
comply with the Underground Damage Prevention Act ("the UDPA"),
N.C. Gen. Stat. §§ 87-100 (2003) et seq. With respect to the
County, Coastal argues: "[The County] also is liable under Article
8 of Chapter 87 of the General Statutes because it planned the
excavation and failed to comply with its responsibilities under
that Article. [The County] owns the encroaching facilities." As
for Kure Beach and Carolina Beach, Coastal claims that they
breached their duties under N.C. Gen. Stat. § 87-105, as "person[s]
financially responsible" for the excavation. Under the statute,
"'[p]erson financially responsible' means that person who
ultimately receives the benefits of any completed excavation
activities . . . ." N.C. Gen. Stat. § 87-101(7).
This Court has held that the UDPA establishes a duty of care
owed by persons engaged in excavation to owners of underground
utilities. Continental Tel. Co. of N.C. v. Gunter, 99 N.C. App.
741, 743-44, 394 S.E.2d 228, 230, disc. review denied, 237 N.C.
633, 399 S.E.2d 325 (1990). The UDPA provides in N.C. Gen. Stat.
§ 87-102(a) (emphasis added) that "before commencing any
excavations . . . in private easements of a utility owner, a person
planning to excavate shall notify each utility owner having
underground utilities located in the proposed area to be excavated,
either orally or in writing, not less than two nor more than 10
working days prior to starting, of his intent to excavate." The
statute further requires the "person financially responsible" for
the excavation to provide to "the person responsible for doing theexcavating" the names of all underground utility owners in the area
of the proposed excavation. N.C. Gen. Stat. § 87-105. Another
section places additional duties on "each person excavating." N.C.
Gen. Stat. § 87-104.
The County concedes it was the "person financially
responsible" for the excavation and that its duty as such was to
provide "the person responsible for doing the excavating" with the
names of utility owners in the area being excavated. Coastal has
argued no basis for any claim that the municipal defendants were
the "person[s] excavating" and subject to N.C. Gen. Stat. § 87-104.
We need not decide whether Kure Beach and Carolina Beach were
"person[s] financially responsible" because the undisputed evidence
shows that the people doing the excavation _ Loving and Atlantic _
received the notification required by N.C. Gen. Stat. § 87-105. In
addition, consistent with N.C. Gen. Stat. § 87-102, the record
shows that there was a meeting between the County, the contractors,
and Coastal and that Coastal was advised of the construction and
was asked to mark the lines where its pipes lay. The record
contains no basis for holding the municipal defendants liable under
Claims Against the County Based on Damage to Coastal's System
Coastal contends that the County is directly liable for the
damage to Coastal's water system because the County designed the
project in a way that necessarily resulted in damage to Coastal's
system. Coastal also contends that the County is liable for damage
resulting from tortious conduct of the contractors Loving and
Atlantic during the construction of the new system based onrespondeat superior and because any duty was nondelegable. We will
address each of these claims individually.
A. Liability Based on Design of the System
 According to Coastal, it "has stated a claim against [the
County] because [the County] designed the new systems so as to
interfere with [Coastal's]. The specifications, drawings and
contracts were issued in [the County's] name." The undisputed
evidence shows, however, that the County did not design the system
itself, but rather contracted with an engineering firm, Engineering
Services, P.A., to design the system. Wyatt Blanchard, the County
Engineer, explained in his unrefuted affidavit that "[the County]
does not have the staff to design and construct the proposed sewer
system for the Wilmington/Hanby Beach area. Therefore, the role of
[the County] was to fund the project and contract with companies to
perform the necessary work. . . . On April 15, 1998, [the County]
entered into a contract with Engineering Services, P.A. to design,
develop specifications and construction documents for the project
intended to provide public sewer to the areas known as Carolina
Beach and Kure Beach."
In discussing the County's insurance policy and its exclusion
of claims arising out of the activities of professionals, including
architects and engineers, Coastal asserts in its brief that
"[Coastal] makes no claim against any such professional on [the
County's] staff. [Coastal's] claims are against [the County] as
owner of the project and as employer of the agents that injured
[Coastal's] property." This assertion appears to disclaim any
contention that the County's staff improperly designed the system. We assume, although Coastal's brief is not clear on this
point, that Coastal is contending that the County is liable for the
acts of Engineering Services in designing the system. The general
rule is that a company is not liable for the torts of an
independent contractor committed in the performance of the
contracted work. Page v. Sloan, 12 N.C. App. 433, 439, 183 S.E.2d
813, 817 (1971), aff'd, 281 N.C. 697, 190 S.E.2d 189 (1972). The
issue before this Court is, therefore, whether Coastal submitted
sufficient evidence to give rise to a genuine issue of material
fact on the question whether Engineering Services was an agent of
the County or an independent contractor.
As this Court has previously stated, "[t]here are two
essential ingredients in the principal-agent relationship: (1)
Authority, either express or implied, of the agent to act for the
principal, and (2) the principal's control over the agent." Vaughn
v. N.C. Dep't of Human Resources, 37 N.C. App. 86, 91, 245 S.E.2d
892, 895 (1978), aff'd, 296 N.C. 683, 252 S.E.2d 792 (1979). More
recently, this Court has confirmed that "'[t]he critical element of
an agency relationship is the right of control . . . .'" Wyatt v.
Walt Disney World, Co., 151 N.C. App. 158, 166, 565 S.E.2d 705, 710
(2002) (quoting Williamson v. Petrosakh Joint Stock Co., 952 F.
Supp. 495, 498 (S.D. Tex. 1997)). Specifically, "'the principal
must have the right to control both the means and the details of
the process by which the agent is to accomplish his task in order
for an agency relationship to exist.'" Id. (quoting Williamson,
952 F. Supp. at 498; emphasis added). See also Hylton v. Koontz,
138 N.C. App. 629, 636, 532 S.E.2d 252, 257 (2000) (internalquotation marks omitted) (whether or not a party has retained the
right of control "as to details" is the "vital test" in determining
whether an agency relationship exists), disc. review denied, 353
N.C. 373, 546 S.E.2d 603 (2001); Hoffman v. Moore Regional Hosp.,
114 N.C. App. 248, 251, 441 S.E.2d 567, 569 (the principal must
have "control and supervision over the details of the [agent's]
work"), disc. review denied, 336 N.C. 605, 447 S.E.2d 391 (1994).
An independent contractor, by contrast, is one who "'exercises an
independent employment and contracts to do certain work according
to his own judgment and method, without being subject to his
employer except as to the result of his work.'" McCown v. Hines,
353 N.C. 683, 686, 549 S.E.2d 175, 177 (2001) (quoting Youngblood
v. North State Ford Truck Sales, 321 N.C. 380, 384, 364 S.E.2d 433,
The contract between Engineering Services and the County
provided that Engineering Services was an independent contractor.
While the parties' label on their relationship is not controlling
evidence, Williams v. ARL, Inc., 133 N.C. App. 625, 629, 516 S.E.2d
187, 191 (1999), Coastal has not offered any evidence suggesting
that Engineering Services was anything but an independent
contractor. Indeed, Coastal does not address the relationship at
all other than to describe Engineering Services as the County's
"outside engineering consultant[.]" In addition, Gilbert Dubois,
the "Construction Observer" employed by Engineering Services,
stated in an unrefuted affidavit: "No agent or employee of the
County supervised me or directed my hours of operation." Since the County supported its motion for summary judgment
with evidence that Engineering Services was an independent
contractor, the burden shifted to Coastal to present evidence of
agency. It failed to do so. Without evidence of agency, the
County cannot be held liable based on the conduct of Engineering
Services. Accordingly, summary judgment was proper on Coastal's
claims to the extent they are based on the design of the new water
and sewer system.
B. Liability Based on the Construction of the System
1. Respondeat Superior
 With respect to damages arising out of Loving's and
Atlantic's construction of the system (as opposed to the design of
the system), we must determine if Coastal offered sufficient
evidence to raise an issue of fact regarding whether Loving and
Atlantic were agents of the County or independent contractors. The
County again points to the provision in the parties' contracts
stating that the relationship was one of independent contractors.
Because this label is not controlling, we look to the factors
traditionally reviewed by our courts in determining whether a
person is an independent contractor: whether the person (1) is
engaged in an independent business, calling, or occupation; (2) is
to have the independent use of his special skill, knowledge, or
training in the execution of the work; (3) is doing a specified
piece of work at a fixed price or for a lump sum or upon a
quantitative basis; (4) is not subject to discharge because he
adopts one method of doing the work rather than another; (5) is not
in the regular employ of the other contracting party; (6) is freeto use such assistants as he may think proper; (7) has full control
over such assistants; and (8) selects his own time. McCown, 353
N.C. at 687, 549 S.E.2d at 177-78. "No particular one of these
factors is controlling in itself, and all the factors are not
required. Rather, each factor must be considered along with all
other circumstances to determine whether the [person] possessed the
degree of independence necessary for classification as an
independent contractor." Id., 549 S.E.2d at 178.
Having reviewed the evidence submitted by the parties in light
of these factors, we hold that Coastal has failed to submit
sufficient evidence to give rise to an issue of fact on the
question of agency. The undisputed evidence reveals that each of
the contractors is engaged in the business of construction,
independent from the County. In constructing the systems in
accordance with Engineering Services' plans, the agents and
employees of the contractors exercised independent use of their
skill, knowledge, and training. The contractors determined their
own hours of operation and hired their own employees and the County
had no right to control how they divided up work among the
employees and subcontractors. In addition, the contracts provided
that each of the contractors would construct a specified portion of
the water/sewer system at a fixed price: Loving was paid
$3,307,537.00 to construct the system in Carolina Beach, and
Atlantic was paid $1,406,648.50 to construct the system in Kure
Coastal does not address the factors set out in McCown, but
rather argues that because the contractors were required toconstruct the system in accordance with plans and specifications
provided by the County defendants, the contractors were agents of
the County defendants. The Supreme Court has long rejected such a
contention. The Court stated in Economy Pumps, Inc. v. F. W.
Woolworth Co., 220 N.C. 499, 502, 17 S.E.2d 639, 641 (1941):
When a contractor has undertaken to do a
piece of work, according to plans and
specifications furnished, . . . , this
relation of independent contractor is not
affected or changed because the right is
reserved for the engineer, architect or agent
of the owner or proprietor to supervise the
work to the extent of seeing that the same is
done pursuant to the terms of the contract.
See also McCown, 353 N.C. at 688, 549 S.E.2d at 178 (instructions
from owner requiring certain placement of shingles were "decisions
within the control of the owner" and did not alter the independent
contractor relationship); Oldham & Worth, Inc. v. Bratton, 263 N.C.
307, 313, 139 S.E.2d 653, 658 (1965) (person was an independent
contractor when his "contractual obligation was to construct
[defendant's] residence in accordance with the Drawings and
Specifications" and defendant "was concerned only with the final
result, namely, the construction and completion of the residence in
accordance with the Drawings and Specifications"); Ramey v.
Sherwin-Williams Co., 92 N.C. App. 341, 345, 374 S.E.2d 472, 474
(1988) ("[T]he fact that a worker is supervised to the extent of
seeing that his work conforms to plans and specifications does not
change his status from independent contractor to employee.").
As this Court has observed:
"An owner, who wants to get work done without
becoming an employer, is entitled to as much
control of the details of the work as is
necessary to ensure that he gets the endresult from the contractor that he bargained
for. In other words, there may be a control of
the quality or description of the work itself,
as distinguished from control of the person
doing it, without going beyond the independent
Cook v. Morrison, 105 N.C. App. 509, 514, 413 S.E.2d 922, 925
(1992) (quoting 1C A. Larson, The Law of Workmen's Compensation §
44.21 (1991)). Thus, in Ramey, 92 N.C. App. at 345, 374 S.E.2d at
474, this Court found that the worker was an independent contractor
even though he was required to follow a blueprint and was visited
at the job site once a week by an employee of defendant to make
sure there were no problems. Similarly, in Cook, 105 N.C. App. at
514, 413 S.E.2d at 925, "[t]hat the defendant occasionally gave
instructions and made suggestions to [the worker] concerning
engineering requirements set out in the blueprints for the sewer
system [did] not create an employer-employee relationship." Here,
the fact that the contractors were required to construct the system
in accordance with Engineering Services' plans and specifications
did not transform the contractors into agents of the County.
Coastal also points to the purported supervision of Loving and
Atlantic by Gilbert Dubois, undisputedly an employee of Engineering
Services and not of the County. Coastal cites no authority
suggesting that a company can be converted from an independent
contractor into an agent as a result of supervision by a second
independent contractor. Moreover, Dubois' uncontradicted affidavit
states: "At no time was I authorized to control or supervise the
independent contractors, T.A. Loving and Atlantic Construction. My
involvement was limited to observation and inspection. It was not
my job to direct the contractors." Because Coastal has failed to offer evidence demonstrating
that the contractors were agents of the County, summary judgment
was also proper as to Coastal's claims to the extent they are based
on respondeat superior.
2. Nondelegable Duty
 Alternatively, Coastal argues that the County can be held
liable for the acts of Loving and Atlantic even if they are
independent contractors. Although one who employs an independent
contractor is generally not liable for the contractor's acts, our
Supreme Court has recognized an exception when the employer has
hired the independent contractor to perform an inherently dangerous
activity. Woodson v. Rowland, 329 N.C. 330, 352, 407 S.E.2d 222,
235 (1991). "One who employs an independent contractor to perform
an inherently dangerous activity may not delegate to the
independent contractor the duty to provide for the safety of
To establish a breach of the nondelegable duty, a plaintiff
must show: (1) the activity causing the injury was, at the time of
the injury, inherently dangerous, (2) the employer knew or should
have known, at the time of the injury, of the inherent
dangerousness of the activity, (3) the employer failed to take
reasonable precautions or ensure that such precautions were taken
to avoid the injury, and (4) this negligence was a proximate cause
of the plaintiff's injuries. O'Carroll v. Texasgulf, Inc., 132
N.C. App. 307, 312, 511 S.E.2d 313, 317-18, disc. review denied,
350 N.C. 834, 538 S.E.2d 198 (1999). In Woodson, our Supreme Court
held that "[i]t must be shown that because of [the circumstancessurrounding the activity], the [activity] itself presents 'a
recognizable and substantial danger inherent in the work, as
distinguished from a danger collaterally created by the independent
negligence of the contractor.'" Woodson, 329 N.C. at 356, 407
S.E.2d at 237 (quoting Evans v. Elliott, 220 N.C. 253, 259, 17
S.E.2d 125, 128 (1941)).
Coastal contends that the water and sewer project was
inherently dangerous because of the potential for contamination of
the water delivered to consumers. We need not determine whether
Loving and Atlantic were performing an inherently dangerous
activity because Coastal's injuries and damages do not arise out of
the risk of contamination. Coastal cannot demonstrate that its
damages were caused by the County's breach of any nondelegable duty
 Coastal also argues that the employer of an independent
contractor "may be liable for trespass to land or chattels if the
independent contractor's trespass was committed at the direction of
the employer, or where the work necessarily involved a trespass (41
Am. Jur. § 50) or where trespass is likely to occur. Id.;
Restatement, Torts 2d, § 427B." Coastal relies upon the design of
the new water and sewer system in arguing that the project was
likely to result in a trespass. As discussed above, however,
independent contractor Engineering Services designed the project
and not the County. Cf. Woodson, 329 N.C. at 358, 407 S.E.2d at
238 (holding that a developer is not liable for actions of
subcontractor based on a nondelegable duty when it lacks expertise
in construction and justifiably relies entirely on the expertise ofits general contractor). Coastal has not pointed to any evidence
that the project, if properly designed, would likely have caused a
trespass. Without such evidence, the County could not be held
liable under this theory. Compare Horne v. City of Charlotte, 41
N.C. App. 491, 493-94, 255 S.E.2d 290, 292 (1979) (municipality was
liable when it hired an independent contractor to remove trash and
weeds from plaintiff's property, a contract requiring a trespass).
 Finally, Coastal contends, without citing any North
Carolina authority, that the County can be held liable if it had
notice that the contractors were violating a statute, such as the
UDPA. Without deciding whether this theory applies in North
Carolina, we hold that it is unavailable under the circumstances of
this case. Our General Assembly has specified in the UDPA the
duties owed by the party financially responsible for the excavation
and by the party performing the excavation. Application of
Coastal's reasoning would impose on the party financially
responsible additional duties not specified in the statute and
would disrupt the allocation provided for in the UDPA. We decline
to do so without indication that this approach is consistent with
the intent of the General Assembly.
Claims Against Kure Beach and Carolina Beach
Based on Damage to Coastal's System
 Coastal attempts to hold Kure Beach and Carolina Beach
vicariously liable for the acts of the County and its contractors
Although Coastal argues that the towns are liable for the County's
actions because they will be the beneficiaries of the system, it
has failed to cite any supporting authority for this argument. Our
appellate rules require that arguments of appellants "containcitations of the authorities upon which the appellant relies."
N.C.R. App. P. 28(b)(6). Coastal has, therefore, abandoned this
argument. State v. Thompson,
110 N.C. App. 217, 222, 429 S.E.2d
590, 592 (1993).
With respect to respondeat superior
liability, as discussed
earlier, the critical element of an agency relationship "'is the
right of control.'" Wyatt,
151 N.C. App. at 166, 565 S.E.2d at 710
952 F. Supp. at 498). Coastal has failed to
offer any evidence that the towns had a "right to control" the
contractors. With respect to the contractors, neither Kure Beach
nor Carolina Beach had a contract with either Loving or Atlantic.
Coastal's brief refers repeatedly to the liability of the
"employer" of a contractor for the acts of the contractor, but
provides no evidence that either town employed the contractors.
Coastal has pointed to no evidence that the towns have any legal
right, apart from their police power, to require the contractors to
Coastal has instead relied on the towns' participation in
meetings with the contractors and expressions of concern as to
problems arising out of the construction. For example, Coastal
cites a letter from Kure Beach Public Works to the County's
engineer in which he included a "quick list of concerns that we
came up with yesterday from the Kure Beach project[,]" including
problems such as debris and sand washing into ditches and the need
to seed areas with grass. This letter, the towns' monitoring of
the construction, and the towns' participation in meetings do not
show that the towns had the right to control the means and thedetails of the construction project, but rather that the towns were
performing precisely the role required of a town in connection with
a major construction project impacting that town. As the cases
discussed in connection with the County's liability demonstrate,
this degree of watchfulness does not give rise to a principal-agent
The trial court properly granted summary judgment to the towns
based on damage arising from the design and construction of the
water and sewer system.
Claims Against Carolina Beach Based on its Wells
 Coastal has also asserted a nuisance claim against
Carolina Beach, alleging that two of Carolina Beach's wells make
"unreasonable use" of an underground stream that is also the source
for Coastal's wells. Carolina Beach's sole argument in support of
the trial court's summary judgment order as to the nuisance claim
is that Coastal failed to plead in its complaint and to produce
sufficient evidence in opposition to summary judgment that it had
the necessary property interest to assert a nuisance claim.
A party, such as Coastal, asserting a riparian right "must
show that [it] is a riparian proprietor or that in some way [it]
has acquired riparian rights in the stream." Durham v. Cotton
, 141 N.C. 615, 627, 54 S.E. 453, 457 (1906). "[A] riparian
proprietor is entitled to the natural flow of a stream running
through or along his land in its accustomed channel, undiminished
in quantity and unimpaired in quality, except as may be occasioned
by the reasonable use of the water by other like proprietors." Smith v. Town of Morganton
, 187 N.C. 801, 803, 123 S.E. 88, 89
Coastal alleged in its complaint that it owned the wells and
attached to the complaint various deeds and other documents
conveying the real property and easements making up the waterworks
that now form Coastal's water system. Although Coastal has not
submitted evidence pinpointing the location of its wells in
relation to the deeds, when the evidence is viewed in the light
most favorable to Coastal, the documents expressing an intent to
convey ownership of all of the assets of the waterworks,
specifically including the wells, are sufficient to give rise to a
genuine issue of material fact as to whether Coastal has the
necessary property interest to assert a nuisance claim.
Since the sole issue raised before this Court is Coastal's
property interest, we hold that the trial court erred in granting
summary judgment as to this claim. We express no opinion regarding
any of the other elements of the claim.
Claims Against Loving
 Although Coastal assigned error to the trial court's
grant of summary judgment to Loving with respect to the wrongful
interference with easement claim, Coastal has not argued this issue
separately as to Loving.
(See footnote 3)
We have already held that the trial
court properly granted summary judgment as to Coastal's argument
that the present location of the water and sewer system interferes
with its water system. We also note, however, that Coastal hascited no authority supporting such a claim against Loving, which
has no ongoing interest in the water and sewer system. With
respect to the damage to Coastal's water lines during Loving's
construction, Coastal has made no argument and cites no authority
why this conduct supports a claim for wrongful interference with
easement as opposed to trespass to chattels and negligence, the
claims that are still pending against Loving. In the absence of
any argument or authority, we decline to set aside the trial
court's grant of summary judgment for Loving as to the claim for
wrongful interference with easement.
Affirmed in part and reversed in part.
Judges MCCULLOUGH and HUDSON concur.
The New Hanover County Commissioners were sued solely in
their official capacity. An official capacity suit brought against
a government official is "merely another way of pleading an action
against the governmental entity." Mullis v. Sechrest,
548, 554, 495 S.E.2d 721, 725 (1998). Therefore, references to
"the County" in this opinion also encompass the County
We address below Coastal's arguments regarding damage to its
system inflicted during the construction.
Coastal has not assigned error regarding the entry of
judgment for Loving as to the nuisance claim.
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