Appeal by plaintiff from an order entered 6 February 2003 by
Judge David Q. LaBarre in Granville County Superior Court. Heard
in the Court of Appeals 24 May 2004.
Currin & Dutra, L.L.P., by Lori A. Dutra and Amy R. Edge, for
plaintiff-appellant.
Ragsdale Liggett, P.L.L.C., by John M. Nunnally, Andrew C.
Buckner and George R. Ragsdale, for defendant-appellee Tri-Arc
Food Systems, Inc.
HUNTER, Judge.
Shirley Evans Harris (“plaintiff”) appeals from an order filed
6 February 2003 granting summary judgment in favor of Tri-Arc Food
Systems, Inc. (“defendant”).
(See footnote 1)
We conclude (1) there was no genuineissue of material fact raised by the evidence as to whether
defendant was negligent, and (2) the doctrine of res ipsa loquitur
does not apply to the case sub judice. Accordingly, summary
judgment was properly granted and we affirm the order of the trial
court.
The evidence contained in the record on appeal shows that on
12 April 1999, plaintiff was a customer in a Bojangles restaurant
owned by defendant in Creedmoor, North Carolina. As plaintiff sat
down inside the restaurant to eat her lunch, a portion of the
restaurant's ceiling collapsed, falling on to plaintiff and causing
serious injury to her head, neck, and shoulders. As a result of
these injuries plaintiff incurred medical expenses of over
$8,000.00 and lost wages in excess of $9,000.00. In addition,
plaintiff continues to have chronic neck and shoulder pain, as well
as limited use of her left arm, and anticipates needing future
medical treatment and incurring future loss of earnings and
decreased earning capacity.
According to defendant's responses to interrogatories, the
last time the restaurant's ceiling would have been inspected was by
the building inspector who inspected and approved the building for
occupancy and it was not a part of defendant's procedures to
regularly inspect the ceiling. In addition, defendant was not
aware of any defect or condition existent in the construction of
the ceiling. An investigation conducted by defendant's insurance
carrier concluded that:
The dining room has a tray ceiling and the
facade is on the front left and right walls of
the ceiling area. . . . The facade was
fastened to a 2 x 4 plate with trim nailsapproximately 2' - 2 ½' feet apart, and with a
small amount of construction adhesive. These
fasteners held up two 1 x 9 oak boards, oak
shoe molds, and fluorescent lights which ran
inside the facade. Also the weight of the
acoustic ceiling and light fixtures were
placed on the horizontal oak board as
described. The ceiling tiles/grid and light
fixtures were supported on the left and right
wall areas by metal straps fastened to the
roof joists. This appeared to have
effectively relieved the weight of these items
from the horizontal board. The grid tiles, 5
chandeliers, and duct work on the front
elevation of the tray ceiling did not have any
metal supports. Essentially, the horizontal
oak board was supporting all this weight,
which was fastened only with trim nails and
very little construction adhesive.
Consequently, the entire facade collapsed when
the front portion let loose. The front
portion of the facade is tied into the right
and left portions by the oak shoe mold, wiring
for the fluorescent fixtures, and the L-
channel for the ceiling tile.
Kurt Hendrickson (“Hendrickson”) was the president of
Prostruction, the general contractor for the construction of the
Bojangles restaurant. Hendrickson testified in a deposition that
the trim work on the ceiling was performed by Scott Brothers, a
subcontractor. After the incident, Hendrickson contacted Scott
Brothers and was told that the only way the trim would have fallen
was if someone had pulled away, or ripped down, the molding. Gary
Thiede, who performed the repairs for defendant, told Hendrickson
that he did not know what caused the collapse. Hendrickson also
testified that based on his knowledge and experience in the
construction industry, the construction on the ceiling conformed to
industry standard practices.
The issues presented on appeal are whether (I) there is a
genuine issue of material fact as to whether defendant failed tomaintain ordinary care in protecting its customers from the unsafe
condition, and (II) the doctrine of res ipsa loquitur is applicable
to this case.
I.
[1] Plaintiff first contends that summary judgment was
improperly granted for defendant in this case because there was a
genuine issue of material fact as to whether defendant breached its
duty of care to plaintiff either by creating the dangerous
condition with the ceiling or by failing to properly inspect the
ceiling.
“Summary judgment is appropriate when all the evidentiary
materials before the court '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.'”
Bolick v. Bon Worth, Inc., 150 N.C. App.
428, 429, 562 S.E.2d 602, 603 (2002) (quoting N.C. Gen. Stat. §
1A-1, Rule 56(c)). “The burden is on the party moving for summary
judgment to show the absence of any genuine issue of fact and his
entitlement to judgment as a matter of law.”
Id.
“The movant may meet this burden by proving
that an essential element of the opposing
party's claim is nonexistent, or by showing
through discovery that the opposing party
cannot produce evidence to support an
essential element of his claim or cannot
surmount an affirmative defense which would
bar the claim.”
Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414
S.E.2d 339, 342 (1992) (quoting
Collingwood v. G.E. Real Estate
Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)).
In a negligence action, to survive a
motion for summary judgment, plaintiff must
establish a
prima facie case by showing: “(1)that defendant failed to exercise proper care
in the performance of a duty owed plaintiff;
(2) the negligent breach of that duty was a
proximate cause of plaintiff's injury; and (3)
a person of ordinary prudence should have
foreseen that plaintiff's injury was probable
under the circumstances.”
Bolick, 150 N.C. App. at 430, 562 S.E.2d at 603 (quoting
Lavelle v.
Schultz, 120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995)).
Under the Restatement (Second) of Torts, a possessor of land
who carefully selects an independent contractor to construct a
building on his land is subject to liability for harm caused to
invitees by the negligent acts of the contractor. Restatement
(Second) of Torts, § 422 (1965). This liability exists when the
possessor is in possession of the land during the construction
project or when the possessor resumes control after the project's
completion.
Id. In North Carolina, however, an employer is
generally not liable for the negligent acts of an independent
contractor unless the work is “(1) ultrahazardous or (2) inherently
dangerous, and the employer either knows or should have known that
the work is of that type.”
Kinsey v. Spann, 139 N.C. App. 370,
374, 533 S.E.2d 487, 491 (2000). In North Carolina only blasting
operations are considered to be “ultrahazardous,”
id., and it has
long been recognized that ordinary building construction is
generally not an inherently dangerous activity.
See Vogh v. Geer,
171 N.C. 672, 676, 88 S.E. 874, 876 (1916).
Our Supreme Court in
Nelson v. Freeland, in abolishing the
distinction between invitees and licensees in premises liability
actions emphasized that owners and occupiers are not insurers of
their premises, and that North Carolina premises liability law wasaligned “with all other aspects of tort law by basing liability
upon the pillar of modern tort theory: negligence.”
Nelson v.
Freeland, 349 N.C. 615, 632-33, 507 S.E.2d 882, 892-93 (1998).
Thus, under the negligence standard imposed by
Roumillat and
Nelson, in premises liability cases in North Carolina:
Owners and occupiers of land have a duty
to exercise reasonable care in the maintenance
of their premises for the protection of lawful
visitors. “Reasonable care” requires that the
landowner not unnecessarily expose a lawful
visitor to danger and give warning of hidden
hazards of which the landowner has express or
implied knowledge.
Bolick, 150 N.C. App. at 430, 562 S.E.2d at 604 (citations
omitted);
see also Nelson, 349 N.C. at 631-32, 507 S.E.2d at 892.
Our Supreme Court has stated the duty of a landowner in such a case
as follows:
[T]he owner of the premises has a duty to
exercise “ordinary care to keep in a
reasonably safe condition those portions of
its premises which it may expect will be used
by its customers during business hours, and to
give warning of hidden perils or unsafe
conditions insofar as they can be ascertained
by reasonable inspection and supervision.” In
order to prove that the defendant-proprietor
is negligent, plaintiff must show that the
defendant either (1) negligently created the
condition causing the injury, or (2)
negligently failed to correct the condition
after actual or constructive notice of its
existence. When the unsafe condition is
attributable to third parties or an
independent agency,
plaintiff must show that
the condition “existed for such a length of
time that defendant knew or by the exercise of
reasonable care should have known of its
existence, in time to have removed the danger
or [to have] given proper warning of its
presence.” In short, a proprietor is not the
insurer of the safety of its customers.
Roumillat, 331 N.C. at 64, 414 S.E.2d at 342-343 (citations
omitted). Consequently, under
Roumillat,
despite the clear and
undisputed fact that plaintiff suffered severe injury directly
caused by the collapse of defendant's ceiling, she nevertheless
still has the burden of showing that defendant failed to use
ordinary care in either providing a safe premises or in failing to
warn of the hazard to which she was subjected.
In the case
sub judice, defendant's evidence tends to show
that the accident causing injury to plaintiff was the result of a
latent construction defect in the restaurant's ceiling of which
defendant had no knowledge, nor any reason to discover the defect.
Plaintiff first contends there is evidence that defendant failed to
conduct a reasonable inspection of the premises. However, the
evidence of record shows the building was inspected and approved
for occupancy by the building inspector and plaintiff has failed to
produce any evidence to support her allegation that regular
inspections of the ceiling would have been necessary or reasonable
under the circumstances.
See Lowe v. Bradford, 305 N.C. 366, 370,
289 S.E.2d 363, 366 (1982) (nonmoving party may not rest on mere
allegations).
Plaintiff also contends that there is evidence the hazardous
condition was actually caused by defendant. In support of this
allegation, plaintiff points to the deposition testimony of
Hendrickson in which he stated that the subcontractor told him the
only way the accident could have occurred was by someone ripping
down or pulling away the molding, and that in Hendrickson's opinion
this was the only way such an incident could have occurred. Despite being complete speculation unsupported by the evidence and,
with regard to the subcontractor's statement, hearsay, these
statements standing by themselves are insufficient to establish a
genuine issue of fact as to whether it was defendant who created
the unsafe condition.
See Williamson v. Food Lion, Inc., 131 N.C.
App. 365, 366, 507 S.E.2d 313, 315 (1998),
per curiam aff'd, 350
N.C. 305, 513 S.E.2d 561 (1999) (negligence not presumed from mere
fact of injury, there must be evidence to establish negligence
beyond speculation or conjecture). Thus, there was no genuine
issue of material fact to be decided as to whether defendant was
negligent in failing to either discover or in creating the
dangerous condition which resulted in plaintiff's injuries.
See
Lowe, 305 N.C. at 369, 289 S.E.2d at 366 (“issue is 'genuine' if it
can be proven by substantial evidence”).
II.
[2] Plaintiff also argues summary judgment was improperly
granted for defendant because the doctrine of
res ipsa loquitur
should be held to apply to the facts of the case at bar. We
disagree.
“The doctrine of '“
[r]es ipsa loquitur, in its distinctive
sense, permits negligence to be inferred from the physical cause of
an accident, without the aid of circumstances pointing to the
responsible human cause.”'”
Williams v. 100 Block Assoc. Ltd., 132
N.C. App. 655, 663, 513 S.E.2d 582, 587 (1999) (quoting
Kekelis v.
Machine Works, 273 N.C. 439, 443, 160 S.E.2d 320, 323 (1968)).
Thus,
res ipsa loquitur applies where there is no available proofof the cause of the injury.
Bowlin v. Duke University, 108 N.C.
App. 145, 149, 423 S.E.2d 320, 322 (1992).
“In order to invoke the doctrine of
res
ipsa loquitur plaintiff must show, '(1) that
there was an injury, (2) that the occurrence
causing the injury is one which ordinarily
doesn't happen without negligence on someone's
part, (3) that the instrumentality which
caused the injury was under the exclusive
control and management of the defendant.'”
Williams, 132 N.C. App. at 663-64, 513 S.E.2d at 587 (quoting
Johnson v. City of Winston-Salem, 75 N.C. App. 181, 182, 330 S.E.2d
222, 223 (1985)). With respect to the third element of
res ipsa
loquitur:
“'The rule of
res ipsa loquitur never
applies when the facts of the occurrence,
although indicating negligence on the part of
some person, do not point to the defendant as
the
only probable tortfeasor. In such a case,
unless
additional evidence, which eliminates
negligence on the part of all others who have
had control of the instrument causing the
plaintiff's injury is introduced, the court
must nonsuit the case.'”
Id. at 664, 513 S.E.2d at 587 (quoting
Bryan v. Elevator Co., 2
N.C. App. 593, 596, 163 S.E.2d 534, 536 (1968)).
The doctrine of
res ipsa loquitur is not applicable in this
case, because there is evidence of what caused plaintiff's injury:
a latent construction defect in the ceiling of the restaurant.
Furthermore, plaintiff has also failed to introduce any evidence
eliminating all possible tortfeasors other than defendant as there
is evidence that the defect occurred during the construction of the
building by Prostruction, and specifically during the work of the
subcontractor. Thus, plaintiff has failed to show that defendant
had exclusive control of the instrumentality that causedplaintiff's injury, namely the defect in the ceiling construction
and as such, the doctrine of
res ipsa loquitur does not apply.
Accordingly, the trial court properly granted summary judgment in
favor of defendant.
Affirmed.
Chief Judge MARTIN and Judge TIMMONS-GOODSON concur.
Footnote: 1