NO. COA05-1141

NORTH CAROLINA COURT OF APPEALS

Filed: 18 July 2006

    Appeal by plaintiffs from judgment entered 5 May 2005 by Judge Kimberly S. Taylor in Iredell County Superior Court. Heard in the Court of Appeals 11 April 2006.

    Mauriello Law Offices, by Christopher D. Mauriello, for plaintiff-appellants.

    Womble Carlyle Sandridge & Rice, by Clayton M. Custer and Julie B. Bradburn, for defendant-appellees.

    LEVINSON, Judge.

    Debra and Rex Henderson (plaintiffs) appeal from a summary judgment order entered in favor of defendant APAC-Atlantic, Inc. We affirm.
    In 2001 Debra Henderson (plaintiff) was working for Iredell County-Statesville school system as a counselor at MulberryAlternative School. During the summer of 2001 the school system contracted with defendant APAC-Atlantic, Inc. (defendant) for a construction project on school property that adjoined Mulberry school; defendant sub-contracted certain work to co-defendant Old South Contracting, Inc. (“Old South”). In September 2001, an area between the school parking lot and Mulberry Academy was muddy, so the school system's maintenance department put down a plywood boardwalk. This consisted of several four by eight foot sheets of plywood laid across the area in front of the school, and screwed together to form a continuous boardwalk. On 5 October 2001 plaintiff fell while walking on this boardwalk and was injured. She applied for and received workers' compensation benefits for her injuries.
    On 14 May 2004 plaintiffs filed suit against defendant seeking damages for negligence, negligence per se, and loss of consortium. Defendant filed a motion for summary judgment, and on 5 May 2005 the trial court entered summary judgment in favor of defendant on all of plaintiffs' claims. Plaintiffs appeal from this order.

Standard of Review

    Summary judgment is properly 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 ajudgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). “In ruling on the motion, the court must consider the evidence in the light most favorable to the nonmovant, who is entitled to the benefit of all favorable inferences which may reasonably be drawn from the facts proffered.” Averitt v. Rozier, 119 N.C. App. 216, 218, 458 S.E.2d 26, 28 (1995). “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.” Bolick v. Bon Worth, Inc., 150 N.C. App. 428, 429, 562 S.E.2d 602, 603 (2002) (citation omitted). “'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.'” Id. (quoting Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)) .
    “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)).
    In the instant case, it is undisputed that the school system owned the school yard and constructed the boardwalk on which plaintiff fell. The “owners and occupiers of land . . . [have] the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.” Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998). However, because defendant “[neither] owned nor operated the [school] in which plaintiff's injury occurred” and the plaintiff “failed to allege in her complaint that [defendants] were agents of [the school system]” the defendant has “no duty to plaintiff and . . . may not be held liable under a theory of premises liability.” Freeman v. Food Lion, LLC, __ N.C. App. __, __, 617 S.E.2d 698, 701 (2005).
    Nor have plaintiffs articulated any legal theory, or produced any evidence, upon which defendant might be liable for the actions of its subcontractor Old South. “As a matter of law, [defendant] cannot be held liable for the negligence of an employee of its subcontractor [Old South,] if there is no evidence of [defendant's] control of [Old South's] operations. . . . Since [plaintiff] did not come forward with evidence tending to prove that [defendant] controlled [Old South] and its employees, the negligence of [OldSouth] or its employees could not be imputed to [defendant].” Britt v. American Hoist and Derrick Co., 97 N.C. App. 442, 446, 388 S.E.2d 613, 616 (1990) (citing Rivenbark v. Atlantic States Const. Co., 14 N.C. App. 609, 188 S.E.2d 747 (1972)).
     Because there is no evidence that defendant was either the landowner of the school grounds, or the employer of the subcontractor, defendant's liability, if any, must be based on evidence of acts or omissions by defendant. Plaintiffs' theory is that defendant drove construction equipment or other vehicles over the wood boardwalk, and that this created a “dangerous condition.” We conclude that plaintiffs failed to produce any admissible evidence to support this contention.
    Plaintiffs produced no competent evidence that defendant ever drove a vehicle over the walkway. Plaintiff testified to seeing defendant's vehicles in the general area of the construction, but produced no testimony or other evidence that defendant's vehicles drove over the walkway. Plaintiffs cite a memo by Dr. Miller, maintenance director for the school system, as evidence that construction vehicles had driven over the boardwalk. However, Miller testified that (1) he had no personal knowledge about the condition of the boardwalk at the time of plaintiff's accident, or about whether vehicles had driven over the walkway; and (2) to prepare the memo, Miller simply wrote down what others told him. Therefore, this memo is not competent evidence in a summary judgment proceeding. See N.C. Gen. Stat. § 1A-1, Rule 56(e) (2005). (“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”); Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 467, 597 S.E.2d 674, 692 (2004) (“In a motion for summary judgment, the evidence presented to the trial court must be admissible at trial.”).
    Because plaintiffs produced no evidence that defendant drove vehicles over the walkway, we do not need to address the question of whether driving over four by eight foot plywood boards would create a “dangerous condition.”
    We conclude that plaintiffs failed to produce evidence of a prima facie case of negligence against defendants, and that the trial court's summary judgment order should be affirmed.
    Affirmed.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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