Link to original WordPerfect file
Link to PDF 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.
MARVIN ANDERSON, et al., Plaintiffs, v. HOUSING AUTHORITY OF THE
CITY OF RALEIGH, Defendant
Filed: 15 March 2005
Negligence--carbon monoxide poisoning--causation--mere speculation or conjecture
The trial court did not err in a negligence action arising out of the release of carbon
monoxide from gas boilers installed at a public housing development where plaintiffs were
residents by granting summary judgment in favor of defendant Housing Authority, because: (1)
plaintiffs' counsel acknowledges that the evidence was insufficient to support a prima facie case
of negligence for 10 of the 21 plaintiffs; (2) plaintiffs did not present any argument in support of
their assignments of error regarding 2 other plaintiffs; and (3) in regard to the remaining 9
plaintiffs, none pointed to affirmative evidence to forecast a showing of causation beyond mere
speculation or conjecture.
Appeal by plaintiffs from judgment entered 6 August 2003 by
Judge Donald W. Stephens in Wake County Superior Court. Heard in
the Court of Appeals 13 October 2004.
Thigpen, Blue, Stephens & Fellers, by T. Byron Smith, and
Gary, Williams, Parenti, Finney, Lewis, McManus, Watson, &
Sperando, by Michael Lewis, for plaintiffs-appellants.
Cranfill, Sumner & Hartzog, L.L.P., by Dan M. Hartzog and
Donna R. Rascoe, for defendant-appellee.
Plaintiffs are twenty-one former residents of the Walnut
Terrace public housing development (Walnut Terrace) in Raleigh.
The Housing Authority of Raleigh (defendant), pursuant to its
authority as a landlord of Walnut Terrace, installed gas boilers on
the property and began operating them in January 1987. On 2
October 1995 plaintiffs, as part of a larger group of former
residents, filed a negligence action against defendant, allegingthat the release of carbon monoxide from these gas boilers caused
plaintiffs' injuries. Plaintiffs allege that the problems with the
gas-fired heating system occurred between January 1987 and October
1992. On 8 April 2003 defendant filed a motion for summary
judgment seeking to dismiss the claims of 28 of the plaintiffs.
The trial court entered its order on 6 August 2003 allowing
defendant's motion with respect to 23 of the 28 plaintiffs. The
court found that there were no genuine issues of material fact;
that defendant was entitled to judgment as a matter of law; and
that the plaintiffs failed to show any causal connection between
their exposure to carbon monoxide and the injuries alleged. Of the
23 plaintiffs whose claims were dismissed by the court's order, 21
filed notice of appeal to this Court.
Plaintiffs contend that the trial court erred in granting
summary judgment on their negligence claims. However, plaintiffs'
counsel acknowledges that the evidence is insufficient to support
a prima facie
case of negligence for 10 of the 21 plaintiffs.
(See footnote 1)
addition, plaintiffs do not present any argument in support of
their assignments of error regarding two other plaintiffs, Edna
Holder and Barry Ruffin. Accordingly, we deem plaintiffs'
assignments of error with respect to these 12 plaintiffs abandoned.
N.C.R. App. P. 28(b)(6) (2004) (Assignments of error not set
out in the appellant's brief, or in support of which no reason orargument is stated or authority cited, will be taken as
abandoned.). We briefly recite the causation evidence from the
record in support of the negligence claims of the remaining 9
plaintiffs to this appeal:
Dr. Cyril Allen, a physician specializing in internal
medicine, examined plaintiffs in July and August 1997. The reports
written by Dr. Allen following each examination were included as an
exhibit in the deposition testimony submitted to the trial court at
summary judgment. However, Dr. Allen did not provide a medical
opinion on the matter of causation.
Ms. Hinton lived in Walnut Terrace from 1987 through 1992.
She testified that she went to see a physician at Wake Medical
Center in 1993, Dr. Haywood, and that he diagnosed her with
migraine headaches. Ms. Hinton stopped seeing Dr. Haywood in 1995.
The only medical documentation provided for Ms. Hinton is a report
by Dr. Cyril Allen of a physical examination conducted on 3 August
1997. Dr. Allen stated in the report that Ms. Hinton had no
history of recurrent headaches or blurring of vision.
Ms. Vessel testified that she lived in Walnut Terrace from
June 1992 through December 1993. She stated that she suffered from
headaches and consulted a physician at Wake Medical Center about
this problem in December 1992. She testified that she was examined
for lead and carbon monoxide exposure and thought that the results
came up negative. Ms. Vessel's daughter began having nosebleeds inDecember 1992, and she was examined during the same visit. Ms.
Vessel testified that the results for her daughter's lead test came
out positive but that she could not recall the results of the
carbon monoxide test. Dr. Allen conducted a physical examination
of Ms. Vessel on 16 August 1997 and prepared a report noting his
impression that the exam was normal.
Mr. Turner, who was 53 years old at the time of his deposition
in June 2000, testified that he lived in the Walnut Terrace housing
units for approximately 17 years. When asked about his medical
problems, he stated that he was diagnosed with sleep apnea and that
he experiences sharp pains running through his heart, for which he
takes aspirin. Also, he testified that he sometimes feels nauseous
in the mornings and thinks that his nausea could have been caused
by carbon monoxide exposure.
Mr. Nettles testified that he was under 10 years of age when
he lived at Walnut Terrace. He described his ailments as vomiting,
migraine-like headaches, dizziness, and problems with his heart
beating funny. Mr. Nettles testified that he took pain reliever to
treat his migraines, but he did not take any medications for the
other symptoms. Dr. Allen's report noted that the overall physical
examination of Mr. Nettles was normal.
Ms. Hartsfield resided at Walnut Terrace from about 1989, when
she was 8 years old, through 2000. She testified that she hadmigraines and that her mother gave her Tylenol to help her sleep.
She also testified that some mornings she would wake up with a
nosebleed because the air was so humid in her room.
Mr. Evans testified that he has never resided at Walnut
Terrace, but that his parents lived there for about 35 years. He
stated that he visited his parents on weekends and that in total
he spent about two months per year at Walnut Terrace. He has
suffered from nausea symptoms since 1990. Mr. Evans also
experienced headaches since before 1990 and shortness of breath
beginning around 1996. Mr. Evans testified that he was diagnosed
with hypertension in 1997, but that his doctor did not indicate how
long the hypertension had existed. He stated that he has never
informed a physician about potential exposure to carbon monoxide as
the cause of his symptoms. Dr. Allen noted that the overall
examination of Mr. Evans was normal.
Ms. Jones testified that she lived in Walnut Terrace from 1990
through 1995. She experienced a groggy-like feeling on and off for
several months after moving to Walnut Terrace. Ms. Jones stated
that she took Tylenol for headaches, and that she thought the
grogginess and headaches were caused by carbon monoxide exposure.
However, she testified that she has never been tested for carbon
Joshua was born in 1986 and recalls living at Walnut Terrace
when he was eight years old. He testified that he woke up one
night with a nosebleed while living there. Dr. Allen examined
Joshua on 19 July 1997 and noted that a limited neurological exam
was within normal limits and that there were no significant
abnormalities detected. Defendant's expert, Dr. William Meggs,
reviewed the report by Dr. Allen documenting Joshua's examination
and concluded that nothing in the report suggested anything but a
Ms. Nettles testified that she suffered from irregular
heartbeat, blurred vision, and nausea. She stated that she thinks
these symptoms were caused by exposure to carbon monoxide during
the time when she lived at Walnut Terrace, between the ages of
eight and eleven. Dr. Allen conducted a physical examination of
Ms. Nettles on 27 July 1997 and noted in his report that she did
not have a history of disease of the head, eyes, ears, or throat.
Summary judgment is proper when 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 judgment as a
matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003).
party moving for summary judgment has the burden of proving that
there is no triable issue of material fact. Collingwood v. G.E.
Real Estate Equities
, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). This burden may be met by proving that an essential element of the
opposing party's claim is non-existent, or by showing through
discovery that the opposing party cannot produce evidence to
support an essential element of his claim . . . . Id.
defendant meets this burden, then the plaintiff 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.
to survive a motion for summary judgment, a plaintiff must offer
evidence of each essential element of negligence beyond mere
speculation or conjecture. Roumillat v. Simplistic Enterprises,
., 331 N.C. 57, 68, 414 S.E.2d 339, 345 (1992).
Here, the deposition testimony of Dr. William Meggs
established that the symptoms of carbon monoxide exposure include
persistent headaches, nausea, and neuropsychiatric disabilities.
assert that the symptoms described by each of the
plaintiffs in their depositions are consistent with the symptoms
described by this expert witness. For example, plaintiffs point
out that the deposition testimony of Wanda Jones tends to establish
that prior to moving to Walnut Terrace, she did not experience any
symptoms consistent with carbon monoxide poisoning and that the
symptoms of headaches and groggy-like feelings began after she
moved there. Thus, plaintiffs argue, it is reasonable to infer
that her condition was caused by carbon monoxide exposure.
However, Ms. Jones presented no affirmative evidence, in the form
of physician or laboratory reports or otherwise, connecting the
injuries complained of to carbon monoxide exposure. The report byDr. Allen does not suggest anything other than a normal
examination. Likewise, plaintiffs Yolanda Hinton, Angela Vessel,
Eddie Turner, Timothy Nettles, Latonya Hartsfied, Leroy Evans,
Joshua Rhodes, and Manda Nettles point to no affirmative evidence
to forecast a showing of causation sufficient to defeat a motion
for summary judgment.
In contrast to plaintiffs' assertions that their forecast of
causation evidence was sufficient, Dr. Laura Jozewicz testified
that after reviewing plaintiffs' medical documents provided to her
by Dr. Cyril Allen, she lacked the information about the time frame
of exposure to carbon monoxide and any test results sufficient to
form an opinion to a reasonable degree of medical certainty about
causation. Dr. Allen testified that he referred plaintiffs to Dr.
Jozewicz, a neurologist, and that he did not have any additional
information which was not passed on with the referral. In each
plaintiff's case, the testimony by Dr. Jozewicz and the report of
physical examination by Dr. Allen refute plaintiffs' allegations.
In sum, plaintiffs have not forecast evidence of
beyond conjecture. In particular, plaintiffs do not set forth any
specific facts to controvert the testimony by Dr. Jozewicz that
there is insufficient information from which to form an opinion as
to whether the release of carbon monoxide caused plaintiffs'
symptoms. No expert for plaintiffs testified that plaintiffs'
symptoms could or might have been caused by the gas boilers at
Walnut Terrace. Where a layperson can do no more than speculate as
to the cause of a physical condition, the medical opinion of anexpert is required to show causation. Miller v. Lucas
, 267 N.C. 1,
14-15, 147 S.E.2d 537, 547 (1966). Therefore, even when viewed in
the light most favorable to plaintiffs, the evidence fails to
establish an essential element of plaintiffs' negligence claims
beyond mere speculation or conjecture. See Roumillat
331 N.C. at
68, 414 S.E.2d at 345; Johnson v. Scott
, 137 N.C. App. 534, 537,
528 S.E.2d 402, 404 (2000) (plaintiff must come forward with
specific facts, not mere speculation, that controvert the facts set
forth in moving party's evidentiary forecast)
After reviewing the record and briefs, we hold that there is
no genuine issue of material fact as to causation, and that the
trial court correctly granted summary judgment in favor of
Judges McGEE and McCULLOUGH concur.
Plaintiffs' counsel identified the following plaintiffs,
noting that these plaintiffs or their parents denied any
injuries: Seneca Jones, Shanta Jones, Alisa Rhodes, Shanita
Rhodes, Louis Porter, Cecilia Anderson, Logan Anderson, Zola
Anderson, Tyler Johnson, and De Thabon Nettles.
*** Converted from WordPerfect ***