An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 June 2006
BARRY HULON HYDE,
v. Cabarrus County
No. 03 CVS 2520
ROBERT E. ANDERSON, Individually,
LANCASTER AVIATION, INC., a North
Carolina Corporation, GREEN
VALLEY AVIATION GROUP, INC., a
North Carolina Corporation,
LEONARD LANCASTER, Individually,
the CITY OF CONCORD, and the
CONCORD REGIONAL AIRPORT,
Appeal by plaintiff from order entered 17 May 2005 by Judge W.
Erwin Spainhour in Cabarrus County Superior Court. Heard in the
Court of Appeals 11 May 2006.
Robert A. Mineo, for plaintiff-appellant.
Robert D. Potter, Jr. and Lord, Bissell & Brook, LLP, by J.
David Hopkins, Atlanta, Georgia, pro hac vice, for defendants-
appellees the City of Concord and the Concord Regional
No brief filed for defendants-appellees Robert E. Anderson,
Lancaster Aviation, Inc., Green Valley Aviation Group, Inc.,
and Leonard Lancaster.
Barry Hulon Hyde (plaintiff) appeals from order entered
granting summary judgment to the City of Concord and the Concord
Regional Airport (collectively, defendants). We affirm.
Defendant Lancaster Aviation, Inc. (LAI) has operated a
flight school at the Concord Regional Airport since 1994.
Plaintiff, an experienced flight instructor, had worked at LAI
since 1996. Plaintiff had attained between 1,550 and 1,800 flight
hours and held Federal Aviation Administration flight instructor
ratings in both single and multi-engine airplanes. Plaintiff was
also qualified to give flight instructions in a Comanche aircraft,
which held approximately ninety gallons of fuel divided between
On 28 May 1998, Defendant Robert E. Anderson (Anderson) was
a licensed pilot but had not flown an aircraft for more than one
year. Anderson held private and commercial single and multi-engine
airplane and instrument ratings and had accumulated nearly 800
hours of flight time. He rented a twin-engine Comanche to fly to
his home in West Virginia.
Anderson attended training at LAI to become qualified to fly
a Comanche. Plaintiff trained Anderson to fly a Comanche on 28,
29, and 31 May 1998. Unlike plaintiff, Anderson had not attained
ten flight hours in a Comanche as required for solo renters by the
LAI insurance policy. Prior to accumulating the required number of
hours, pilots may carry another pilot onboard who has qualified to
fly the aircraft. Plaintiff agreed to fly with Anderson to his
home in West Virginia on 1 June 1998.
Pre-light procedure for a Comanche requires the pilot to
remove the caps from each tank, visually observe the level of fuel,
and to verify the fuel gauge indications correspond to the actualfuel quantity. Plaintiff admitted the proper procedure would have
been for [Anderson] to have checked the [fuel tanks] personally.
Plaintiff claimed he did not check the fuel in the tanks on 1 June
1998 because Anderson had already started the aircraft's engines
when plaintiff arrived. Anderson told plaintiff the Comanche was
full of fuel.
Plaintiff and Anderson took off from the airport between 3:30
and 4:00 p.m. and flew toward Lewisburg County, West Virginia.
Plaintiff sat in the front right seat in front of the fuel gauges
and one set of the dual controls. Plaintiff admitted flying the
plane, operating the radios, and preparing to file a flight plan.
Approximately forty minutes after take off, the right main
fuel tank ran dry, and the right engine stopped. The flight
controller asked for the crew's intentions. Plaintiff advised they
would fly the plane to Roanoke, Virginia. Ten minutes later, the
left main fuel tank also ran dry and the left engine stopped. The
Comanche crashed near Floyd, Virginia, approximately ninety-two
nautical miles from Concord and approximately fifty-eight nautical
miles from Lewisburg County, West Virginia. Both pilots survived
the crash, but plaintiff suffered head injuries in the crash, which
resulted in blindness in both of his eyes.
Crash investigators found twenty gallons of fuel in the
Comanche's auxiliary tanks following the crash and determined the
fuel was sufficient for the Comanche to fly 200 additional miles.
However, the fuel selector valves were set in the main tankposition, and both of those tanks were empty. Both fuel selector
valves operated properly when tested after the crash.
In order to restart a Comanche's engine with fuel from
auxiliary tanks, the pilot must switch the fuel selector switch to
a tank containing fuel. The aircraft owner's handbook states,
[i]f the engine should stop because a fuel cell is depleted of
fuel be prepared to wait a while for the engine to start after
changing to a fuel cell with fuel in it.
To save time for LAI, the Concord Regional Airport's nightly
employees would frequently top off fuel in LAI's single-engine
aircraft. LAI and the Concord Regional Airport agreed and
presented testimony that no contract to refuel the Comanche
On 10 May 2001, plaintiff filed suit in Mecklenburg County
against Anderson, the owner of the aircraft, and defendants
Defendants answered the complaint, denied plaintiff's
allegations, and cross claimed against Anderson. Both moved to
transfer the action to Cabarrus County pursuant to N.C. Gen. Stat.
§ 1-83.1(1), and in the alternative to transfer pursuant to N.C.
Gen. Stat. § 1-83.1(2) for the convenience of the parties. The
trial court denied their motion on 8 January 2002.
On 15 February 2002, a reconsideration hearing was held, and
the court denied defendants' motion for reconsideration. They
appealed the final decision to this Court on 8 March 2002. This
Court reversed the trial court's decision and remanded the case fortransfer to Cabarrus County. The North Carolina Supreme Court
denied discretionary review of this Court's decision. See Hyde v.
Anderson, 158 N.C. App. 307, 580 S.E.2d 424, disc. rev. denied, 357
N.C. 459, 585 S.E.2d 759 (2003).
The trial court granted summary judgment to defendants on 17
March 2005. Plaintiff appeals.
Plaintiff argues the trial court erred when it granted summary
judgment in favor of defendants.
III. Standard of Review
In a motion for summary judgment, the movant
has the burden of establishing that there are
no genuine issues of material fact. The
movant can meet the burden by either: 1)
Proving that an essential element of the
opposing party's claim is nonexistent; or 2)
Showing through discovery that the opposing
party cannot produce evidence sufficient to
support an essential element of his claim nor
[evidence] sufficient to surmount an
affirmative defense to his claim.
When a motion for summary judgment is made and
supported as provided in this rule, an adverse
party may not rest upon the mere allegations
or denials of his pleading, but his response,
by affidavits or as otherwise provided in this
rule, must set forth specific facts showing
that there is a genuine issue for trial. If
he does not so respond, summary judgment, if
appropriate, shall be entered against him.
Hines v. Yates, 171 N.C. App. 150, 157, 614 S.E.2d 385, 389 (2005)
(internal citations and quotations omitted). On appeal, an order
allowing summary judgment is reviewed de novo. Howerton v. Arai
Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004).
IV. Defendants' Duty
Plaintiff alleges defendants had a contractual duty to refuel
the Comanche and committed negligence when it failed to do so. It
is well established that . . . the essential elements of negligence
[are] duty, breach of duty, proximate cause, and damages. Thomas
v. Weddle, 167 N.C. App. 283, 286, 605 S.E.2d 244, 245 (2004)
(citation omitted). Here, we find a lack of any evidence of
defendants' duty to be dispositive.
Plaintiff contends, defendant's liability to the Plaintiff
Hyde is predicated upon the Defendant's breach of a contract with
Lancaster Aviation to sell fuel and actually refuel the subject
This Court has stated:
A duty of care may arise out of a contractual
relationship, the theory being that
accompanying every contract is a common-law
duty to perform with ordinary care the thing
agreed to be done, and that a negligent
performance constitutes a tort as well as a
breach of contract. The contract creates the
state of things which furnishe[s] the occasion
for the tort.
Olympic Products Co., Div. v. Roof Systems, Inc., 88 N.C. App. 315,
322, 363 S.E.2d 367, 371 (internal quotations and citations
omitted), disc. rev. denied, 321 N.C. 744, 366 S.E.2d 862 (1988).
N.C. Gen. Stat. § 160A-16 (2005) provides, [a]ll contracts
made by or on behalf of a city shall be in writing. A contract
made in violation of this section shall be void and unenforceable
unless it is expressly ratified by the council.
LAI and defendants offered testimony that no such contract
existed between them. The owner of the Comanche testified, [i]t'sthe pilot in command's duty to make sure the aircraft is fueled.
Plaintiff failed to proffer any evidence that a contract existed
between LAI and defendants or that defendants owed LAI a duty to
refuel the aircraft.
With regard to summary judgment, our Supreme Court has stated:
Although [d]etermining what, constitutes a
genuine issue of material fact is often
difficult . . . an issue is genuine if it is
supported by substantial evidence, and [a]n
issue is material if the facts alleged would
constitute a legal defense, or would affect
the result of the action, or if its resolution
would prevent the party against whom it is
resolved from prevailing in the action.
Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate
to support a conclusion, and means more than a
scintilla or a permissible inference.
DeWitt v. Eveready Battery Co., Inc., 355 N.C. 672, 681, 565 S.E.2d
140, 146 (2002) (internal quotations and citations omitted)
Plaintiff failed to proffer relevant evidence that defendants
owed LAI a duty to refuel the Comanche. Since this essential
element is missing, it is unnecessary to, and we decline to
consider the remaining elements of negligence. This Court has
stated, These elements of duty, breach, and injury are essentials
of actionable negligence. In the absence of any one of them, no
cause of action for negligence will lie. Constr. Co. v. Holiday
Inns, Inc., 14 N.C. App. 475, 477, 188 S.E.2d 617, 618, cert.
denied, 281 N.C. 621, 190 S.E.2d 465 (1972).
The trial court properly granted summary judgment in favor of
defendants. Plaintiff has failed to provide relevant evidence .
. . a reasonable mind might accept as adequate to support a
conclusion that defendants owed LAI a contractual duty to refuel
the Comanche. Id
. The trial court's judgment is affirmed.
Judges MCCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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