Copeland v. Amward Homes of N.C., Inc.

269 N.C.App. 143

837 S.E.2d 903

William Everett COPELAND IV and Catherine Ashley F. Copeland, Co-Administrators of the Estate of William Everett Copeland, Plaintiffs,

v.AMWARD HOMES OF N.C., INC., Crescent Communities, LLC; and Crescent Hillsborough, LLC, Defendants.

No. COA18-1021

Court of Appeals of North Carolina.

Filed: January 7, 2020

Edwards Kirby, LLP, Raleigh, by David F. Kirby and William B. Bystrynski, and Holt Sherlin LLP, by C. Mark Holt and David L. Sherlin, for plaintiffs-appellants.

Cranfill Sumner & Hartzog LLP, Raleigh, by Susan K. Burkhart and F. Marshall Wall, for defendants-appellees.

DIETZ, Judge.

Five-year-old Everett Copeland died after an overloaded dump truck rolled away and struck him as he played near his home. The dump truck was left unattended, with its engine running and without wheel chocks, at a home construction site up a hill from the Copeland's home.

This case screams of negligence—by the dump truck driver, by the company that operated the dump truck, perhaps even by the general contractor responsible for supervising the operation. This appeal involves none of those parties.

This case concerns negligence claims against the real estate developer who designed the planned community where the accident occurred. The Copelands argue that the developer—although it sold the lots to independent builders to handle construction—retained a duty to develop a safety plan, sequence the project to minimize harm from construction accidents, and conduct inspections of builders' progress.

Most of the Copelands' theories of legal duty are barred by settled tort principles established by our Supreme Court. A real estate developer, like anyone else, may hire a contractor to perform a service such as building a home, and has no duty to supervise that contractor's work. Woodson v. Rowland , 329 N.C. 330, 350, 407 S.E.2d 222, 234 (1991). Similarly, a real estate developer, like anyone else, has no duty to imagine all of the harms that might be caused by other people's negligence and then to take precautionary steps to avoid those harms. Chaffin v. Brame , 233 N.C. 377, 380, 64 S.E.2d 276, 279 (1951).

Still, as explained below, the Copelands have advanced a theory of legal duty that survives summary judgment under these principles. They have forecast evidence that this development occurred on unusually steep, hilly terrain; that the construction would involve heavy equipment and materials; that there were foreseeable risks of roll-aways during construction; and that a reasonably prudent developer would take steps to sequence construction or grade the area in advance to avoid foreseeable harm caused by these construction accidents. There are genuine issues of material fact on this theory of duty and we therefore reverse and remand for further proceedings on this legal claim.

Facts and Procedural History

The following recitation of facts represents the Copelands' version of events, viewed in the light most favorable to them. As the non-movant at the summary judgment stage, this Court must accept the Copelands' evidence as true. See Dobson v. Harris , 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000).

In 2013, Defendants Crescent Communities, LLC and Crescent Hillsborough, LLC, to which we refer collectively as "Crescent," began developing a residential planned community known as Forest Ridge. Crescent purchased more than 100 acres of steep, hilly land as the future site of the development.

Crescent recorded the necessary instruments to subdivide the site and create applicable covenants and declarations typical of planned communities. The company then sold lots to builders, who constructed homes consistent with the overall aesthetic and design elements of the community.

Although Forest Ridge is situated on hilly terrain, Crescent did not mass grade the entire community before selling lots to builders—meaning at least some of the lots had to be individually graded before a home could be built on them. "Grading" is the process of ensuring the earth on which construction will take place is either level, or appropriately sloped for the necessary construction. Grading typically involves heavy equipment including dump trucks, excavators, and bulldozers.

Crescent also did not sequence the construction of the community so that uphill lots were built before downhill ones. As a result, the Copelands moved into their home in Forest Ridge while at least some lots uphill from the Copelands' home had yet to be graded.

In late 2016, on a lot uphill from the Copelands' home, a subcontractor employed by the home builder began grading work. This grading work occurred on hilly, sloping terrain facing the Copelands' home. It involved a dump truck and heavy excavating equipment.

During the grading, the dump truck driver left the truck unattended. The dump truck was overloaded, had its engine running, and did not have wheel chocks. The truck broke free and rolled downhill. Five-year-old Everett Copeland was playing outside near his home. The dump truck struck and killed Everett.

The Copelands, as administrators of their son's estate, sued Crescent for wrongful death, asserting several theories of negligence. After a full opportunity for discovery, Crescent moved for summary judgment, arguing that it owed no legal duty to the Copelands. The trial court granted Crescent's motion for summary judgment. The Copelands timely appealed.

Analysis

The Copelands appeal the trial court's grant of summary judgment in favor of Crescent. "Summary judgment is appropriate when viewed in the light most favorable to the non-movant, 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." S.B. Simmons Landscaping & Excavating, Inc. v. Boggs , 192 N.C. App. 155, 164, 665 S.E.2d 147, 152 (2008) (citations omitted). We review the trial court's grant of summary judgment de novo . In re Will of Jones , 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008).

To survive a motion for summary judgment in a negligence case, the 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." Lavelle v. Schultz , 120 N.C. App. 857, 859–60, 463 S.E.2d 567, 569 (1995).

In their briefing, the parties focus entirely on the question of duty. "The duty of ordinary care is no more than a duty to act reasonably." Fussell v. N.C. Farm Bureau Mut. Ins. Co ., 364 N.C. 222, 226, 695 S.E.2d 437, 440 (2010). "The duty does not require perfect prescience, but instead extends only to causes of injury that were reasonably foreseeable and avoidable through the exercise of due care." Id. The Copelands assert several independent theories of legal duty in this case and we address each in turn below.

I. Duty to inspect or monitor the construction site

We begin with the Copelands' argument that Crescent had a duty to "routinely inspect the construction going on in its subdivision." Crescent designed this planned community and recorded an instrument containing covenants that included various architectural limits on homes constructed there. But the company did not actually build the homes. It sold the lots to builders, who would then construct homes consistent with the covenants and other restrictions included in the lot purchase agreement.

Those lot purchase agreements required builders to obtain permission from Crescent before clearing trees or grading the lot. There is evidence in the record showing the builder of the home from which the dump truck rolled away began grading the lot without permission from Crescent, and that the builder did not take routine safety measures such as installing a silt fence or creating a temporary gravel driveway. The Copelands argue that "Crescent violated the standard of care for a master developer because it failed to routinely inspect the construction going on in its subdivision" and that, had it done so, it would have discovered the builder's unauthorized and unsafe grading work, halted it, "and Everett Copeland would not have been killed."

This theory of legal duty is barred by precedent. The builder was not an employee of Crescent. It was, at most, an independent contractor performing construction work on property that was part of a planned community designed and managed by Crescent. When one hires an independent contractor to perform work, there is no legal duty "to take proper safeguards against dangers which may be incident to the work undertaken by the independent contractor." Cook v. Morrison , 105 N.C. App. 509, 515, 413 S.E.2d 922, 926 (1992). The legal responsibility for the safe performance of that work rests entirely on the independent contractor. Id.

The only exception to this rule concerns "inherently dangerous activities." See Woodson v. Rowland , 329 N.C. 330, 352–53, 407 S.E.2d 222, 235–36 (1991). Our caselaw does not establish a bright-line rule for determining which activities are inherently dangerous, but home construction is not inherently dangerous. Id. Our Supreme Court has long held that ordinary building construction work is not "of that character which the policy of the law requires that the owner shall not be permitted to free himself from liability by contract with another for its execution."

Vogh v. F. C. Geer Co ., 171 N.C. 672, 676, 88 S.E. 874, 876 (1916).

Were we to hold that owners of property on which homes are being constructed have a legal duty to monitor the builder's grading work, it would be an unprecedented expansion of tort liability at odds with our Supreme Court's longstanding application of these negligence principles in the home construction context. As...