Appeal by Plaintiff from order dated 17 August 2005 and order
entered 30 August 2005 by Judge Timothy L. Patti in Superior Court,
Catawba County. Heard in the Court of Appeals 16 August 2006.
John J. Korzen; and Lyndon R. Helton, PLLC, by Lyndon R.
Helton, for Plaintiff-Appellant.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by L. Kristin
King and Heather T. Twiddy, for Defendant-Appellee.
Lucille Griggs (Plaintiff) filed a complaint against Shamrock
Building Services, Inc. (Defendant) on 5 August 2004 alleging that
employees of Defendant, a cleaning service, negligently left a
slick residue on the floor at RPM Wood Finishes Group, Inc. (RPM),
where Plaintiff worked, causing Plaintiff to slip, fall, and
sustain injuries. Plaintiff alleged the fall occurred on 8 August
Defendant answered and denied that Defendant's employees left
a slick residue on RPM's floor. Defendant also moved to dismiss
the complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) andalleged Plaintiff was contributorily negligent and RPM was
negligent. Defendant later voluntarily dismissed without prejudice
its defense regarding negligence by RPM. Plaintiff filed a first
amended complaint on 8 July 2005, changing the date of Plaintiff's
alleged injury from 8 August 2001 to 10 August 2001. Defendant
filed an answer to Plaintiff's first amended complaint, again
denying that its employees left a slick residue on the floor at
RPM. Defendant again moved to dismiss Plaintiff's first amended
complaint and alleged contributory negligence.
Defendant filed a motion for summary judgment dated 14 July
2005. The trial court conducted a hearing on Defendant's motion on
25 July 2005. Evidence introduced at the hearing tended to show
the following. Plaintiff testified at her deposition that in
August 2001, she was employed as an administrative assistant at
RPM. She testified that while at work at RPM on 10 August 2001,
she was called to the lobby to meet someone. Plaintiff walked from
her cubicle work area to the lobby through a two-door elevator.
The elevator opened on each side with one door opening onto the
cubicle work area and one door opening onto the lobby. Plaintiff
stepped into the elevator from the cubicle work area side, and
immediately stepped out of the elevator on the lobby side. As
Plaintiff stepped out of the elevator, she slipped and fell,
hitting the wooden floor outside the elevator. Plaintiff further
testified as follows:
Q. Okay. What did you see?
A. I just . . . saw where my foot had just
slid across the floor.
Q. Specifically, what did you see?
A. It was just like kind of a skid mark. It
was like kind of a film on the floor, but I
didn't know what it was. It was just
something on the floor. I don't know what it
Q. Could you see any type of puddle of fluid
on the floor?
A. No. It wasn't that kind of a -- it was
just like ice, maybe, on asphalt, like black
ice kind of thing, and then you could just see
where my shoe went just through it.
Belia Conner (Conner) testified at her deposition that she had
been employed by RPM as a corporate receptionist since November
2000. Conner testified that she worked in RPM's lobby and saw
Plaintiff fall on 10 August 2001. Conner said that her boss,
Brenda Taylor, told her to type a statement regarding the events
Conner observed on 10 August 2001. Conner typed and signed the
following statement, which was introduced at her deposition:
Right before lunchtime on August 10, 2001. I
observed [Plaintiff] slip and fall coming out
of the elevator into the lobby at RPM Wood
Finishes Group. After helping [Plaintiff] to
a chair, I went over to the elevator and
examined the area where [Plaintiff] fell.
There seemed to be an oily substance around
the doors and the floor around the elevator.
Immediately I called Andy Frye from [Defendant
cleaning service] and notified him of the
incident. He came over to our facility in a
matter of minutes and inspected the area in
and around the elevator. Mr. Frye
acknowledged that his cleaning crew must have
over sprayed the stainless steel doors and
walls when cleaning the inside and outside of
the elevator. After this, Brenda Taylor
Senior Employee Relations Manager instructed
[Plaintiff] to go to the Hart Industrial
Clinic to be examined.
Andrew Frye (Frye) testified at his deposition that he hadworked for Defendant as a sales manager for approximately twelve
years. Frye testified that in August 2001, RPM was a client of
Defendant and every weeknight from 5:30 p.m. to 7:30 p.m., two of
Defendant's employees cleaned RPM's premises. Frye visited RPM on
a monthly basis to make sure everything was going well with the
Frye testified that Conner called him on 10 August 2001 to
tell Frye that someone had fallen at RPM and asked Frye "to come
over and just look around." Frye drove to RPM and waited for
Brenda Taylor at the reception desk. Frye testified he had no
memory of any discussion with Conner regarding cleaning. Frye
inspected the area where Plaintiff had fallen and testified "there
was nothing evident on that floor. It was as dry as the top of
At the summary judgment hearing, Defendant argued it was
entitled to summary judgment because Defendant had completed, and
RPM had accepted, Defendant's cleaning work prior to Plaintiff's
fall. Therefore, even if Defendant had been negligent in the
performance of the contract, Defendant no longer owed a duty to
Plaintiff under the completed and accepted rule. Defendant argued
that RPM had accepted Defendant's work either when Defendant's
employees finished cleaning the premises on 9 August 2001 or when
RPM opened for business on 10 August 2001. Defendant also argued
it was entitled to summary judgment because Plaintiff had failed to
produce any evidence of negligence on the part of Defendant.
The trial court entered an order dated 17 August 2005 grantingDefendant's motion for summary judgment. In its order, the trial
court stated that "the work of [Defendant] had been completed and
had been accepted by [RPM] at the time of the incident complained
of in the pleadings, that there was no imminently dangerous work
exception, and thus . . . [D]efendant is not subject to liability
for . . . [P]laintiff's claim as a matter of law[.]"
Plaintiff filed a motion pursuant to N.C. Gen. Stat. § 1A-1,
Rules 59 and 60 on 4 August 2005. The trial court denied
Plaintiff's motion on 30 August 2005. Plaintiff appeals.
Plaintiff argues the trial court erred by granting summary
judgment for Defendant on the basis of the completed and accepted
rule. Specifically, Plaintiff argues the trial court erred by
extending the completed and accepted rule beyond the context of
contracts for construction or repair to a contract for cleaning
services. We agree.
"[T]he standard of review on appeal from summary judgment is
whether there is any genuine issue of material fact and whether the
moving party is entitled to a judgment as a matter of law."
Bruce-Terminix Co. v. Zurich Ins. Co.
, 130 N.C. App. 729, 733, 504
S.E.2d 574, 577 (1998). Summary judgment is appropriate "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. Gen. Stat. §
1A-1, Rule 56(c) (2005). The party who moves for summary judgmenthas the burden of "establishing the lack of any triable issue of
fact." Pembee Mfg. Corp. v. Cape Fear Constr. Co.
, 313 N.C. 488,
491, 329 S.E.2d 350, 353 (1985). This burden may be met 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[.]" Collingwood v. G.E. Real Estate Equities
, 324 N.C.
63, 66, 376 S.E.2d 425, 427 (1989). On appeal from summary
judgment, we review the evidence in the light most favorable to the
nonmoving party. Bruce-Terminix Co.
, 130 N.C. App. at 733, 504
S.E.2d at 577.
Only three cases dealing with the completed and accepted rule
have been decided by our appellate courts since 1946. In Price v.
, 226 N.C. 758, 40 S.E.2d 344 (1946), the defendant, an
independent contractor, contracted with the owner of a tobacco barn
to construct a platform to hold a kerosene tank. Id.
at 758, 40
S.E.2d at 344. Pursuant to the contract, the defendant "installed
a 250-gallon [kerosene] tank on a platform constructed of 2x4
scantling and braced by 1x4's[.]" Id.
The plaintiff, an employee
of an oil dealer, was injured when the platform gave way as the
plaintiff was standing on the platform to fill the tank. Id.
plaintiff filed a complaint, alleging that the defendant
"carelessly and negligently built the scaffold for the support of
said kerosene tank out of timbers which were insufficient to hold
the weight of the tank when filled with kerosene and the weight of
a man while filling said tank." Id
. The defendant demurred to the plaintiff's complaint on the
ground that prior to the plaintiff's injury, the work had been
completed by the defendant and accepted by the owner. Id.
40 S.E.2d at 344. The trial court sustained the demurrer and our
Supreme Court affirmed, recognizing that "[i]t is the general rule
that an independent contractor is not liable for injuries to third
parties occurring after the contractor has completed the work and
it has been accepted by the owner." Id.
Our Supreme Court further
recognized that "[w]here work has been completed and accepted by
the owner, and the defect in construction, if any, is not hidden
but readily observable upon reasonable inspection, the contractor
is not liable." Id.
at 760, 40 S.E.2d at 345. The Court held that
because the defendant had completed the work and the owner had
accepted it, and the plaintiff did not allege there were any hidden
defects in the construction, the defendant was not liable for the
plaintiff's injuries. Id
In the next case to discuss the completed and accepted rule,
Thrift v. Food Lion
, 111 N.C. App. 758, 433 S.E.2d 481 (1993)
(Greene, J., dissenting), rev'd per curiam for reasons stated in
, 336 N.C. 309, 442 S.E.2d 504 (1994), the dissent
adopted by the Supreme Court refused to extend the application of
the rule beyond the context of contracts for construction and
, 111 N.C. App. at 765-66, 433 S.E.2d at 486. In
, an employee of the defendant Triangle Ice Co. (Triangle
Ice) delivered bags of ice to a store operated by the defendant
Food Lion (Food Lion). Id.
at 760, 433 S.E.2d at 483. A Food Lionemployee supervised the delivery and counted off the bags as the
Triangle Ice employee loaded the ice into a bin located inside the
Food Lion store, near the entrance. Id.
After the Triangle Ice
employee completed the delivery and left, the Food Lion employee
noticed a puddle on the floor and sent another Food Lion employee
to get a cloth and dry the floor. Id.
However, before the
employee could dry the floor, the plaintiff walked into the area to
get a shopping cart, slipped on the water and fell, sustaining
The plaintiff sued Food Lion and Triangle Ice, and the trial
court granted summary judgment for Triangle Ice. Id.
panel of our Court affirmed the trial court on the ground that the
completed and accepted rule applied in the context of a contract
for the delivery of goods. Id.
at 765, 433 S.E.2d at 486. The
majority held that "[o]ne who delivers goods or materials and then
leaves the delivery site should be afforded at least the same
protection as a contractor who actively participates in the
production of a structure or the repair of a building or fixture."
The dissent in Thrift
stated that "North Carolina courts have
applied the 'completed and accepted' rule only in the context of
contracts for construction or repair, . . . and there is no
justification for extending its application to the delivery of
at 765-66, 433 S.E.2d at 486 (citations omitted). The
dissent further stated that "[t]he proper test of the liability of
Triangle Ice requires application of general principles ofnegligence, that is, all persons are held to a standard of
reasonable care for the protection of third parties who may
foreseeably be endangered by a negligent act." Id.
at 766, 433
S.E.2d at 486. In a footnote, the dissent noted that
[m]any courts have completely abandoned the
"completed and accepted" rule, even in the
context of construction contracts. See, e.g.
Kapalczynski v. Globe Constr. Co.
, 172 N.W.2d
852 (Mich. App. 1969); W. Page Keeton et al.,
Prosser and Keeton on Torts
§ 104A, at 723
(5th ed. 1984) ("It is now the almost
universal rule that the contractor is liable
to all those who may foreseeably be injured by
the structure, not only when he fails to
disclose [dangerous] conditions known [to]
him, but also when the work is negligently
at 766 n. 1., 433 S.E.2d at 486 n. 1. Adopting the dissent,
the Supreme Court reversed the decision of our Court. Thrift
N.C. at 309, 442 S.E.2d at 505.
In Nifong v. C.C. Mangum, Inc.
, 121 N.C. App. 767, 468 S.E.2d
463, aff'd per curiam
, 344 N.C. 730, 477 S.E.2d 150 (1996), our
Court again addressed the completed and accepted rule. In Nifong
the plaintiff was driving in the rain on Miami Boulevard in Durham
when water "came up all over [her] windshield" and obscured her
, 121 N.C. App. at 767, 468 S.E.2d at 464. As a
result, the plaintiff's car slid, hit the curb and ran into trees,
causing her to sustain serious injuries. Id.
the defendant contractor who had constructed the road for negligent
construction, and the
trial court granted summary judgment for the
at 767-68, 468 S.E.2d at 464.
In support of summary judgment, the defendant presenteddeposition testimony from several engineers who testified that the
defendant had constructed Miami Boulevard in accordance with DOT
plans and that DOT would not have accepted the defendant's work if
DOT had not been satisfied with the work. Id.
at 769, 468 S.E.2d
[The] defendant presented deposition testimony
to show that before a contractor begins
working on a road project, DOT engineers drive
stakes in the ground with written instructions
on them and also write instructions on the
edge of the roadway to show the contractor
exactly where to build the pavement. The
contractor follows the guidelines set by the
DOT and DOT engineers inspect the work as it
progresses. It is ultimately up to the DOT to
insure that the road is constructed properly.
at 769-70, 468 S.E.2d at 465-66. One of the engineers
testified that there was no hydroplaning hazard at the location of
the plaintiff's accident and "a reasonable person would not have
noticed any change in the curve as constructed from the original
at 770, 468 S.E.2d at 466.
The plaintiff presented deposition testimony that the road
construction deviated from DOT plans and "create[d] a hazardous
hydroplaning condition." Id.
at 769, 468 S.E.2d at 465. The
plaintiff also presented deposition testimony that it "should have
been obvious" that the curve was not constructed as designed by
The plaintiff also presented affidavits of three people
who stated that several vehicles had hydroplaned in the area of the
plaintiff's accident and that water collected at that location when
it rained. Id.
Our Court recognized that "[i]n North Carolina, the 'completedand accepted work' doctrine provides that 'an independent
contractor is not liable for injuries to third parties occurring
after the contractor has completed the work and it has been
accepted by the owner.'" Id.
at 768, 468 S.E.2d at 465 (quoting
, 226 N.C. at 759, 40 S.E.2d at 344). However, our Court also
recognized that as an exception to the completed and accepted rule,
a contractor remains liable where the work completed and turned
over to the owner was imminently dangerous to third persons. Id.
at 769, 468 S.E.2d at 465.
We held that the plaintiff failed to forecast evidence showing
that the defendant's work was imminently dangerous. Id.
468 S.E.2d at 466. Therefore, the defendant did not owe any legal
duty to the plaintiff under the completed and accepted rule. Id.
In the present case, Defendant contracted to clean RPM's
premises each weekday night from 5:30 p.m. to 7:30 p.m. RPM did
not contract with Defendant to provide construction or repair
services to RPM's premises. Plaintiff was injured when she slipped
on the floor outside the elevator in the lobby of RPM. It is not
disputed that Defendant's employees cleaned RPM's premises on 9
August 2001 from 5:30 p.m. to 7:30 p.m. and that RPM opened for
business the following morning. However, it is disputed whether
Defendant left a substance, which caused Plaintiff to slip and
fall, on the floor at RPM.
The present case is most analogous to Thrift
. As the dissent
, which was adopted by our Supreme Court, refused to
extend the application of the completed and accepted rule to thedelivery of goods, we also decline to extend the application of the
rule to service contracts. Defendant argues that a service
contract is more analogous to a construction or repair contract
than a contract for the sale of goods, in that service contracts
and construction contracts both involve work done to property.
Even if this may be true, our Courts have never applied the
completed and accepted rule outside the context of construction or
repair contracts. See Thrift
, 111 N.C. App. at 765-66, 433 S.E.2d
at 486. Moreover, we decline to expand the application of the rule
when the rule is being abandoned, even in the context of
construction contracts, in favor of modern rules of foreseeability.
at 766 n. 1., 433 S.E.2d at 486 n. 1; see also
Tipon, Modern Status of Rules Regarding Tort Liability of Building
or Construction Contractor for Injury or Damage to Third Person
Occurring After Completion and Acceptance of Work; "Foreseeability"
or "Modern" Rule
, 75 A.L.R.5th 413, 436-37 (2000) (noting that
"[a]s late as the 1950s, the majority of jurisdictions adhered to
the 'completed and accepted rule.' Since then, the 'completed and
accepted rule' has been severely criticized and repudiated in most
states and is now the minority rule while the 'modern rule' has
become the majority rule."). Accordingly, we hold that the trial
court erred by granting summary judgment for Defendant on the basis
of the completed and accepted rule, as it has no application to
service contracts. Defendant's liability, if any, should be
governed by general principles of negligence. See Thrift
, 111 N.C.
App. at 766, 433 S.E.2d at 486. Defendant also argues that a separate ground exists upon which
summary judgment could have been granted, and therefore, we should
uphold the grant of summary judgment for Defendant. Defendant
argues that because Plaintiff is attempting to hold Defendant
liable on a theory of premises liability and Defendant was not the
owner or operator of the premises, Defendant did not owe a duty to
Plaintiff. However, Defendant did not argue this ground before the
trial court. Rather, Defendant's second argument in favor of
summary judgment was that
there is no evidence of any negligence on the
part of [Defendant] that . . . [P]laintiff has
been able to produce . . . either. The
depositions, discovery served indicate that
there was something on the floor, may have
been something on the floor. There's no clear
evidence. There's no evidence, period, as to
what that substance was. And there's
absolutely no evidence that [Defendant] put a
substance on the floor.
We do not address arguments in favor of granting summary judgment
that were not presented to the trial court. See McDonald v. Skeen
152 N.C. App. 228, 230, 567 S.E.2d 209, 211, disc. review denied
356 N.C. 437, 571 S.E.2d 222 (2002). Therefore, because
Defendant's argument was raised for the first time on appeal, we
decline to address it.
The trial court erred by granting summary judgment for
Defendant, and because genuine issues of material fact remain, we
remand the matter to the trial court. Because we reverse and
remand, we do not reach Plaintiff's remaining assignments of error.
Reversed and remanded.
Judges BRYANT and ELMORE concur.
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