Juarez-Garcia Estate v Sanders Constr., 163 NC App 610 (03-1102) 04/06/2004

Appeal by plaintiff from an order entered 15 April 2003 by Judge James C. Davis in Cabarrus County Superior Court. Heard in the Court of Appeals 22 March 2004.

Crumley & Associates, P.C., by Marcus E. Hayes and J. William Snyder, Jr., for plaintiff-appellant.

Cranfill, Sumner & Hartzog, L.L.P., by Patrick H. Flanagan and Steven D. Anderson, for defendants-appellees.

MARTIN, Chief Judge.

    On 29 January 2001, the decedent, Eleazar Juarez-Garcia, was employed by defendant Sanders Constructors (“Sanders”) assisting in installing a water line near Mooresville, North Carolina. While attempting to cover a pipe opening, the edges of the trench in which decedent was working collapsed and he was killed. Plaintiff filed this action on 28 January 2003 alleging claims of negligence against all defendants. Plaintiff alleged that defendant Town ofMooresville (“the Town”) was negligent in failing to provide decedent with a safe place to work, and that the work performed by the decedent, specifically digging trenches and installing water lines, was an inherently dangerous activity. The Town had hired Willis Engineers, Inc. (“Willis”) to install the water line, and Willis had hired Sanders to perform various digging procedures and install the water line. On 3 March 2003, the Town moved to dismiss pursuant to N.C.R. Civ. P. 12(b)(1) and 12(b)(6). On 15 April 2003, the trial court allowed the Town's motion pursuant to Rule 12(b)(6) and dismissed plaintiff's claims. Plaintiff appeals.
    The threshold issue to consider in this case is whether plaintiff's appeal is premature, and therefore, not properly before the Court. Plaintiff appeals from an order dismissing the claims against the Town. The plaintiff's claims against Willis and Sanders continue. This Court has stated:
        Where, as here, an order entered by the trial court does not dispose of the entire controversy between all parties, it is interlocutory. As a general rule, a party is not entitled to immediately appeal an interlocutory order. However, there are two situations in which an appeal of right lies from an order that is interlocutory. The first situation is where the order represents a "'final judgment as to one or more but fewer than all of the claims or parties' and the trial court certifies in the judgment that there is no just reason to delay the appeal." Secondly, a party may appeal an interlocutory order where delaying the appeal will irreparably impair a substantial right of the party.

Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999)(citations omitted); see also G.S. 7A-27(d)(1) (2003).
    The trial court did not certify the case for immediate appeal pursuant to N.C.R. Civ. P. 54(b). Thus, plaintiff's right to an immediate appeal, if one exists, depends on whether the order affects a substantial right. Here, the trial court's order disposed of plaintiff's claims against the Town, but the claims against Sanders and Willis remain. “'[S]imply having all claims determined in one proceeding is not a substantial right.'” Id. at 344, 511 S.E.2d at 312 (quoting J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 7, 362 S.E.2d 812, 816 (1987)). “Avoiding separate trials of different issues does not qualify as a substantial right, but preventing separate trials of the same factual issues does constitute a substantial right.” Id. The Court stated the rationale for this rule as follows:
        [W]hen common fact issues overlap the claim appealed and any remaining claims, delaying the appeal until all claims have been adjudicated creates the possibility the appellant will undergo a second trial of the same fact issues if the appeal is eventually successful. This possibility in turn "creat[es] the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue."

Id. at 345, 511 S.E.2d at 312 (citations omitted).
    Applying the above principles to the facts of this case, we conclude that the present appeal is properly before the Court on the grounds that delaying the appeal will prejudice plaintiff's substantial right to have the same factual issues tried before a single jury. If plaintiff is not permitted immediate review of theorder dismissing her claims against the Town, she may ultimately face a second trial on the issue of whether defendants were negligent, and whether the activity was inherently dangerous. Due to the possibility of inconsistent verdicts should this case be tried in two separate proceedings, plaintiff's appeal is not premature.
    Turning now to the merits of plaintiff's appeal, we consider whether the trial court properly allowed the Town's Rule 12(b)(6) motion to dismiss plaintiff's complaint. We find Cook v. Morrison, 105 N.C. App. 509, 413 S.E.2d 922 (1992) dispositive. In Cook, this Court affirmed the trial court's grant of summary judgment in favor of defendant, explaining:
            While working on the defendant's land as an employee of an independent contractor, Cook was an invitee of the defendant. The defendant therefore owed Cook the duty "to exercise ordinary care to keep the premises in a reasonably safe condition so as not to expose him unnecessarily to danger, and to give warning of hidden conditions and dangers of which . . . [he] had express or implied knowledge." The defendant had no duty, however, to warn Cook of an obvious condition on the land of which Cook had equal or superior knowledge, unless the defendant should have anticipated an unreasonable risk of harm to Cook notwithstanding the obviousness of the condition. In such cases, the particular circumstances may require the owner or occupier of the land to take precautions beyond warning the invitee of the obvious condition.

            These general rules on the tort liability of owners and occupiers of land to invitees, however, do not apply to the actual work undertaken by independent contractors and their employees. Unless the activity undertaken is inherently dangerous, an owner or occupier of land who hires an independentcontractor is not required to provide employees of the independent contractor a safe place to work nor is he required to take proper safeguards against dangers which may be incident to the work undertaken by the independent contractor. If, however, the activity is inherently dangerous and the owner or occupier of the land knows or should know of the circumstances creating the danger, then the owner or occupier of the land has the nondelegable duty to the independent contractor's employees "to exercise due care to see that . . . [these employees are] provided a safe place in which to work and proper safeguards against any dangers as might be incident to the work [are taken]."

Id. at 515-16, 413 S.E.2d at 925-26 (citations omitted)(emphasis added); see also Woodson v. Rowland, 329 N.C. 330, 357, 407 S.E.2d 222, 238 (1991) (where general contractor hired subcontractor to perform alleged inherently dangerous activity, general contractor liable for breach of nondelegable duty of care if it knew of circumstances creating danger).
    Assuming arguendo that plaintiff was engaged in an inherently dangerous activity, plaintiff failed to allege in the complaint that the Town knew or should have known of the circumstances creating danger to the plaintiff. See Cook at 517, 413 S.E.2d at 927. Thus, plaintiff's complaint failed to state a claim upon which relief could be granted, and the trial court did not err in granting the Town's motion to dismiss pursuant to Rule 12(b)(6).
    Affirmed.
    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).

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