Burnham v. S&L Sawmill: Limitation of Non-Delegable Duty Doctrine

•September 10, 2013 • Leave a Comment


Last week, the Court of Appeals (Ervin, Hunter, Stroud) published an opinion affirming summary judgment for the defendants in Burnham v. S&L Sawmill, Inc. (COA12-1581).  Given the tough facts, it can hardly be described as a surprising decision.  The Motion was heard before Judge Evans in Mecklenburg County Superior Court.

Plaintiff was a truck driver for McGee Brothers Company, Inc.  His job duties included delivering logs to a sawmill owned by Defendant S&L Sawmill, Inc. (“S&L”).  Once there, Plaintiff’s truck would be weighed and the logs sold.   After the truck was weighed, Plaintiff would park the truck and remove the binding straps to release the logs.  It was his choice where to park the truck, and he was not instructed where to do so by S&L, nor did it generally participate in the dumping of the logs.  On April 3, 2008, Plaintiff arrived at the sawmill and had his truck weighed.  He then parked his truck and took off the front strap of the load.  Nothing happened at this point, but, when he unbound the second strap, it snapped toward him.  He dodged the strap but was not able to escape the falling logs.  As a result of the incident, Mr. Burnham is now confined to a wheel chair.

 The lengthy opinion included discussion of a number of issues, among them: the applicable duty owed by S&L, the non-delegable duty doctrine, and contributory negligence.  As to the duty owed by S&L, the Court interpreted Plaintiff’s Complaint and his claims to be based on premises liability.  The Court found, however, that there was no evidence establishing that S&L had breached any duty owed to Plaintiff.  It appears Plaintiff contended either (a) that S&L had certain affirmative obligations to assist Plaintiff in unloading the logs, or (b) the uneven ground was a defective condition causing the incident.  As to the first issue, the Court simply found that there was no such affirmative duty and that the cases to which Plaintiff cited all involved some defective condition on the land.  This was in spite of Affidavit evidence that indicated Defendant had the ability to assist with dangerous loads by using a front end loader with a grapple hook.  Here, the only arguably defective condition mentioned was the uneven ground, and, according to the Court, there was no evidence in the record indicating that the unevenness of the ground had caused Plaintiff’s injuries.  In any event, the Court noted that Plaintiff was just as aware of the uneven ground as Defendant, with the obvious inference that he would have been contributorily negligent even if this condition had caused his injuries.

While the case is largely confined to its own facts and is of little precedential value, it is noteworthy for its discussion of the inherently dangerous/non-delegable duty doctrine.  That doctrine, of course, holds broadly that a landowner has a non-delegable duty to provide a safe workplace for independent contractors that are engaged in an inherently dangerous activity.  The Court decided that doctrine did not apply in this case because Plaintiff was an employee of a seller, not of an independent contractor.  He was not there to perform any work on the premises of S&L, only to deliver goods.

Integon National Insurance Company v. Villafranco: Liability Coverage for Joyrides!

•August 6, 2013 • Leave a Comment

14 year old teenagers should not drive automobiles.  Along with some legal guidance, that’s one of the lessons from the Court of Appeals’ opinion released this morning in Integon National Insurance Company v. Villafranco (COA13-82).  In a much welcomed break from a string of adverse decisions, the Court (Steelman, Calabria, McCullough) affirmed a Summary Judgment entered against Integon and in favor of two individuals injured by the negligence of the policy holder’s 14 year old son.  The Court found that the subject Integon policy did provide automobile liability coverage of $50,000.00/$100,000.00.

The parties stipulated to the Court that there was no material issue of fact.  The sole question was whether, as a matter of law, the Integon automobile insurance policy did or did not provide coverage to two injured passengers who were traveling in the vehicle operated by 14 year old Ramses Vargas.  The subject insurance policy was purchased by Ramses’ mother, Elizabeth Villafranco.  Among the relevant facts was that the vehicle operated by Ramses had actually been used by a woman unrelated to Ms. Villafranco, Deborah Stallings, for approximately 6 months prior to the automobile collision.  Integon contended that Ms. Villafranco had “failed to advise it that Stallings would be the primary driver,” and that “had [Integon] known of this fact, it would have charged a high premium for the insurance policy.”  Integon argued that this “material misrepresentation” voided the policy.  The Court found that there was no evidence in the affidavits or depositions that a higher premium would have been charged had Ms. Villafranco made this disclosure, so it could not find as a matter of law there had been a “material misrepresentation.”

Another coverage issue discussed in  detail was an exclusion in the policy providing that Integon did “not provide Liability Coverage for any insured . . . [u]sing a vehicle without a belief that [sic] insured is entitled to do so.”  As a resident relative, Ramses was an insured under the policy, but, presumably, he was not authorized by his mother to take the vehicle out for a ride.  While Integon attempted to rely on this clause, it ignored an exception that provided that the exclusion did “not apply to a family member using your covered auto which is owned by you.”  The Court found that “[b]y including the family member exception to the reasonable belief exclusion, plaintiff explicitly extended coverage to  family members using the covered vehicle even when they do not have a reasonable belief that they were entitled to use the  covered motor vehicle.”

Having rejected both of Integon’s arguments, the Court found that the policy’s  $50,000.00/$100,000.00 liability limits would be available to the claimants.

Nowlin v. Moravian Church in Am.: Standard of Care for Camps and Other Supervisors of Minors

•July 16, 2013 • Leave a Comment

In Nowlin v. Moravian Church in Am. (COA12-1290), the Court of Appeals (Calabria, Ervin, Dillon) had the unenviable task of considering a negligence case involving an alleged sexual assault of a 16 year old female camper by a male employee of the camp, Raj Crawford.  At the trial level, Judge Lindsay Davis, Jr. granted summary judgment to the defendants, who appear to have been the entities responsible for running and operating the camp.  The COA affirmed, finding that “[t]here was no evidence which would have allowed defendants to anticipate Crawford’s actions towards [plaintiff] or take additional reasonable steps to prevent them.”

After first acknowledging that our appellate courts have never considered the standard of a care of a camp in relation to its minor campers, the Court then analogized this case to others involving the duties owed by supervisors of minors.  The two cases to which it referred were Pruitt v. Powers, 128 N.C.App. 585 (1998) and Royal v. Armstrong, 136 N.C.App. 465 (2000).  Pruitt involved a minor injured at a day care, while Armstrong involved a tragic incident where a child drowned while at a pool party.  Relying upon similar standards of care stated in each of these cases, the COA held that “camps and their employees have a duty to their campers to exercise the same standard of care that a person of ordinary prudence, charged with the duty of supervising campers, would exercise under the same circumstances.”

Normally I prefer to go into a bit of detail, but with a case of this nature, I think it’s best left alone.  It should be sufficient to say that the COA considered deposition transcripts and multiple affidavits and found that the camp had acted reasonably and did not have reason to foresee such an alleged sexual assault.


James v. Integon: Material Misrepresentation a Defense in UIM Coverage Dispute

•July 10, 2013 • Leave a Comment

The Court of Appeals (Calabria, Dillon, Ervin) recently published an opinion in James v. Integon National Insurance Company (COA 12-1417).  This declaratory judgment action involved an automobile insurance policy issued  by Integon to Mr. James’ fiancee, Natalie Williams.  The trial court (Judge Hudson) granted Plaintiff’s Motion for Summary Judgment, finding that Plaintiff was an insured for purposes of the Underinsured Motorist (UIM) coverage provided by the policy.  The COA reversed, with  Judge Calabria writing that the trial court had erred in determining that fraud was the only affirmative defense at issue.  Judge Calabria found that material misrepresentation is an available defense for a insurance carrier seeking to deny UIM coverage under an automobile insurance policy, and Integon had forecast enough evidence to create an issue of fact as to whether Ms. Williams had procured her policy by making such a material misrepresentation.

Ms. Williams applied for automobile insurance coverage with Integon in September 2010.  She initially only identified herself as a driver of the two insured vehicles.  Later, in April 2010, she added her mother as an additional driver.  On November 6, 2011, her fiance, Plaintiff, was involved in a serious automobile accident in which he was severely injured while operating her vehicle.  The at-fault driver apparently had purchased only a minimum limits $30,000/$60,000 policy.  Ms. Williams’ Integon policy contained UIM coverage in the amounts of $50,000/$100,000.

Mr. James made a claim to Integon for damages under the policy’s UIM provisions.  That claim was denied, with Integon contending that Plaintiff had been an adult driver living in Ms. Williams’ household at the time of her initial application for insurance and that, therefore, she had procured the policy based upon a material misrepresentation.  At the hearing on Plaintiff’s Motion for Summary Judgment, his counsel had apparently argued succesfully, relying upon language Odum v. Nationwide Mut. Ins. Co., 101 N.C. App. 627 (1991), that the sole defense to coverage was fraud and that Integon had not forecast evidence of the element of scienter.  

In Odum, the COA had indicated that fraud was a proper defense in disputes involving automobile insurance coverage.  The Court here in James found, however, that it is not the sole available defense, at least when UIM coverage is involved.  If an insurer can establish a material misrepresentation in the procurement of the policy, Underinsured Motorist coverage can be voided.  Importantly, this rule does not apply to the minimum liability limits required under the Financial Responsibility Act.  Even if a policy is procured by fraud or material misrepresentation, the $30,000/$60,000 limits remain available to an injured third party.  That coverage becomes locked in at the moment of a collision.

The COA ultimately remanded this case back to Durham County Superior Court for a determination as to whether “Williams made a material misrepresentation on her application for insurance.” Let’s hope for Mr. James’  sake that she had not!

Church v. Bemis Manufacturing: Suitable Employment and Apportionment of Disability

•June 20, 2013 • 1 Comment

The Court of Appeals’ June 18, 2013 opinions include a single workers’ compensation case, Church v. Bemis Manufacturing Company (COA12-1433).  Ms. Church sustained a serious left shoulder injury and had later returned to work “under medical restrictions through August 9, 2009.”  On August 18, 2009 she underwent surgery for a cerebral aneurysm.  After the aneurysm, she was completely disabled.  The COA affirmed the Industrial Commission’s Order awarding Plaintiff attorney’s fees, medical expenses, and temporary total disability compensation from her last day of employment until further order otherwise.   A deduction was given for Plaintiff’s short-term disability compensation.  

On appeal, Defendants argued that the inquiry  as to whether Plaintiff was offered suitable employment following her shoulder injury was a legal issue and that the Commission had erred in determining that the “machine operator” position to which it had assigned Plaintiff was unsuitable.  The Court summarily rejected the first argument, finding that the inquiry is a factual issue.  Judge McGee then proceeded to also reject Defendant’s substantive argument, noting that Plaintiff could not perform the duties required of a machine operator without pain and without calling upon the assistance of others.

The Court similarly rejected Defendants’ argument that the Commission made reversible error in determining that Plaintiff was totally disabled due to her left shoulder injury.  The Commission had found that even prior to Plaintiff’s aneurysm, she was medically debilitated due to the pain in her shoulder and did not have the requisite vocational skills and education to overcome the physical limitations.  It had went on to find that the complications of her aneurysm surgery had “worsened her compensable left shoulder condition and caused additional left sided weakness and decreased functional ability in her left upper extremity,” and that her “disability after the date of her cerebral aneurysm was caused by the combination of the effects of her left shoulder injury and her neurologic impairment due to her aneurysm.”

Last, Defendants appealed the IC’s finding that because there was no evidence of how to apportion Plaintiff’s disability, she was entitled to temporary total disability.  The COA affirmed the IC and reiterated that “[a]pportionment is not proper where there is no evidence attributing a percentage of the plaintiff’s total incapacity to earn wages to his compensable injury.”

Bridges v. Parrish: Store Your Guns However You Want or Don’t

•June 13, 2013 • Leave a Comment

Today the Supreme Court published its opinion in Bridges v. Parrish (No. 409A12).  Catryn Bridges had filed suit against Harvey and Barbara Parrish, the parents of 52 year old Bernie Parrish, for negligently failing to secure their personal firearms from their son.  The Complaint alleged that that Bernie had a history of violence against his female partners, his parents were aware of that history, that Bernie accessed one of his parent’s unsecured firearms and thereafter shot Plaintiff in her abdomen.  On Defendants’ Rule 12(b)(6) Motion, the trial court (Judge Haigwood) dismissed all claims.  In a split decision (Judge Geer dissenting), the Court of Appeals affirmed the trial court.

Plaintiff’s core allegations were that “Harvey and Barbara ‘knew or should have known that Bernie Parrish posed a risk of serious harm to Plaintiff’ yet ‘failed to take reasonable and/or necessary steps to keep [their] guns in a safe and secure place, or otherwise adequately locked and located such that Bernie Parrish could not get access to and possession of any such guns.’”  The Court initially stated that “the law does not generally impose a duty to prevent the criminal acts of a third party,” unless there is a “special relationship.”  It cited as examples of “special relationships” the relationships between common carriers, inn keepers, and land owners with their patrons and invitees.  Even in those situations, though, the parties only have a duty to safeguard from criminal acts that are foreseeable.

The Court found that no “special relationship” existed between Plaintiff and the Parrishes and held that Plaintiff had waived any argument that there was such a relationship between the parents and Bernie.  In any event, it’s unlikely the Court would have found such a relationship between parents and son, as it emphasized Bernie Parrish’s age on multiple occasions.

As the Court found no “special relationship,” it had to answer whether the Parrishes owed a duty to the public at-large to safeguard its guns.  The Court found that in North Carolina there is a duty to exercise due care in the use of dangerous instrumentalities but not in such instrumentalities’ storage.  In so doing, they accepted the defense bar’s absurd argument that “‘under Plaintiff’s theory, a negligent-based cause of action would exist against a homeowner virtually any time a gun (or any other object that could be used to injure someone) was stolen from the homeowner’s premise[s] and then used in the commission of a violent crime . . .” Clearly this case was not about some stranger breaking into a home and stealing a gun used in the commission of a crime.  That’s a very different situation.  It was about parents who lived with a dangerous child who they allowed to have access to weapons that could easily kill another human being. Dynamite

Taking the argument to the absurd in the opposite direction, the Supreme Court’s decision means that the parents of an adult child fascinated with explosions could leave sticks of dynamite on the kitchen table and face no civil liability when their child, surprise surprise, uses the dynamite and seriously injures or kills innocent parties.  As you might be able to tell, my opinion is that these are cases for a jury and shouldn’t be taken out of their hands on the basis of Rule 12(b)(6) motion.

Williams v. Hampton: Fear Wake County Juries

•June 5, 2013 • 1 Comment

Today I learned of a mess of an unpublished case from a few weeks back, Williams v. Hampton (COA12-1273).  The case offers no real precedent, but it does serve as a reminder to be weary of Wake County juries when you have an option of filing a personal injury claim elsewhere.  The case came for trial before Judge Shannon Joseph.  It involved a rear-end automobile collision after which the Plaintiff complained of “injuries to his right shoulder, back, and neck.”

Plaintiff testified that although he had past problems with his shoulder, he had not experienced any issues in the 10 years preceding the collision.  Dr. Kevin Speer performed a shoulder replacement and testified that Plaintiff’s “bone-on-bone shoulder osteoarthritis was clinically aggravated [as a result of the accident] and made symptomatic to the severity it required the surgery.”   As the Court of Appeals noted, Dr. Speer also testified that “he did not know anything about the forces involved in the accident and whether they were significant enough to cause plaintiff’s injuries.”  Defendant did not offer its own medical doctor or any evidence of any kind.  The total medical expenses were approximately $74,000.00.  The Wake County jury allowed the Plaintiff the lavish sum of $5,000.00.

Following trial, Plaintiff’s counsel made motions for a new trial and a JNOV.  Both were denied by Judge Joseph.  He also filed a Motion for attorney’s fees and costs pursuant to Rules 36 and 37.  The Court allowed costs of $115.00, the amount incurred from the date the complaint was filed until the first offer of judgment ($10,001.00).  No attorney’s fees were awarded.

As to the Motion for a new trial, the COA (Hunter, Martin, Stephens) rejected Plaintiff’s argument that the jury award was arbitrary and unsupported by the evidence.  Plaintiff specifically pointed out that Defendant had not put any evidence forward to rebut the $74,000.00 in medical expenses.  The COA noted that Defendant had cross-examined Dr. Speer on the issue of whether “the accident was the proximate cause of all of his injuries” and the extent to which his injuries were caused by the collision.  The Court also stated that “[i]t is well within the jury’s power to minimize or wholly disregard even the testimony given by a party’s expert witnesses.”

With respect to Plaintiff’s Rule 37 Motion for Attorney’s Fees, the Court of Appeals similarly affirmed Judge Joseph.  The rationale doesn’t entirely make sense.  Apparently, Plaintiff served a Request for Admission as to whether Defendant’s “negligence proximately caused plaintiff’s injuries and damages.”  Defendant appears to have given a blanket denial, without specifying what injuries were and were not proximately caused by his negligence.  The COA affirmed Judge Joseph’s ruling, because “the jury found some of plaintiff’s injuries and damages were proximately caused by the accident,” and “others were not.”  It seems to me that Defendant’s obligation in this situation was to give a qualified denial, specifying what injuries he admitted were caused by the automobile collision.  His failure to have done so should have permitted the Court to award Plaintiff’s attorney’s fees incurred in establishing causation.

The Rule 36 Motion was denied on the basis that Plaintiff’s judgment of $5,000.00 did not exceed the $10,001.00 offer of judgment.  Interestingly, it appears that the Court utilized the 2011 version of 6-21.1.  It was my understanding that the older version of the statute was to be used for injuries occurring prior to October 31, 2011 (See Session Law 2011-317).


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