Burnham v. S&L Sawmill, Inc.
| Citation | 749 S.E.2d 75 |
| Decision Date | 03 September 2013 |
| Docket Number | No. COA12–1581.,COA12–1581. |
| Court | Court of Appeal of North Carolina (US) |
| Parties | Nicholas BURNHAM, Plaintiff v. S & L SAWMILL, INC., Randy D. Miller Lumber Co., Inc., and Randy D. Miller, Janet B. Miller, and Ryan Miller, Individually, and as officers and sole owners of the corporation, Defendants. |
OPINION TEXT STARTS HERE
Appeal by plaintiff from orders entered 28 September 2012, 16 October 2012, and 27 November 2012 by Judge Yvonne Mims Evansin Mecklenburg County Superior Court. Heard in the Court of Appeals 24 April 2013.
Price, Smith, Hargett, Petho & Anderson, Charlotte, by Wm. Benjamin Smith, and the Law Office of Seth Bernanke P.C., by Seth M. Bernanke, for Plaintiff.
Templeton & Raynor, P.A., Charlotte, by Kenneth R. Raynor, for Defendants.
Plaintiff Nicholas Burnham appeals from orders entered by the trial court granting summary judgment in favor of Defendants S & L Sawmill, Inc., Randy D. Miller Lumber Co., Inc., Randy D. Miller, Janet B. Miller, and Ryan Miller, denying Plaintiff's summary judgment motion, and denying Plaintiff's motion for relief from the trial court's order granting Defendants' summary judgment motion.1 On appeal, Plaintiff argues that he forecast sufficient evidence, including an affidavit submitted after the entry of the summary judgment order, to support a determination that he was injured as a proximate result of Defendants' negligence and that the trial court's orders should, for that reason, be overturned. After careful consideration of Plaintiff's challenges to the trial court's orders in light of the record and the applicable law, we conclude that the trial court's orders should be affirmed.
Plaintiff began working as a dump truck driver for McGee Brothers Company, Inc., in 2006. In the course and scope of his employment, Plaintiff loaded and transported dirt, gravel, brush, logs, and similar materials. Plaintiff had been taught how to load and operate dump trucks in such a manner as to keep the materials being transported from falling out of the trucks, including how to use binding straps. As part of his job responsibilities, Plaintiff was required to ensure that the truck he was operating had been safely loaded, including making sure that binding straps were used to keep loose materials, such as logs, from falling off the truck.
According to Plaintiff, one binding strap should be utilized to secure the front end of a load while the other should be utilized to secure the rear of the load. After the truck had been loaded, Plaintiff was required to conduct a “walkaround” in order to ensure that nothing was protruding from the truck and that the load on the truck could be safely transported. In addition, Plaintiff was responsible for determining if any items in the truck had shifted in transit to such an extent that they would fall when the binding straps were removed. After the straps had been released during the unloading process, Plaintiff would enter the truck and raise the truck bed to the point where the logs rolled out and the load was successfully dumped.
The logs that Plaintiff occasionally transported to sawmills came from job sites at which McGee Brothers was engaging in clearing land. Plaintiff delivered logs to multiple sawmills, including the sawmill operated by Defendant S & L Sawmill. Plaintiff was not required to communicate with S & L Sawmill prior to delivering a load of logs; instead, he was authorized to simply deliver a load of logs to the S & L Sawmill facility, unload the logs, and receive payment. Upon arriving at S & L Sawmill, Plaintiff would drive his truck onto a scale, enter the office to get a ticket indicating the weight of the truck's load, undo the binding straps which secured the load of logs, and unload the logs. Although Plaintiff would utilize his best efforts to find level ground upon which to unload the logs, he acknowledged being aware that “the yard was just dirt and uneven ground all over the place.” However, if Plaintiff was uncomfortable with the angle at which he had parked the truck as part of the unloading process, he simply refrained from loosening the binding straps.
On 3 April 2008, Plaintiff went to S & L Sawmill for the purpose of unloading a truck full of logs. After weighing his truck, Plaintiff chose the location at which he wished to unstrap his load without having received any specific directions from Defendants. He had previously parked in the same spot without incident on multiple occasions and saw no reason to believe that it would be unsafe to do so in this instance. At the time that he selected a place to park, Plaintiff was aware that the ground at that location was “fairly,” although not completely, level and that the truck would be leaning toward the location at which he would be standing. Although Plaintiff could have moved the truck to a location at which the load was not leaning in this manner, he did not do so because of his assumption, based on past experience, that nothing untoward would occur.
As he began the unloading process, Plaintiff released the front binding strap without incident. At that point, Plaintiff walked around the truck for the purpose of inspecting the terrain and confirming that the truck was safely positioned. During that process, Plaintiff did not observe that any portion of the load of logs was protruding from the truck so as to be in danger of falling off. As Plaintiff released the second binding strap, however, it “snapped out” towards him. Although he ducked his head towards the truck in the expectation that a log would fall off of the edge of the truck, Plaintiff's efforts at evading the falling log were unsuccessful. As a result of the injuries that he sustained when the falling log struck him, Plaintiff is now confined to a wheelchair.
S & L Sawmill had not acted to provide wheel stops for Plaintiff's use, to check to make sure that the dump truck could be safely unloaded before allowing Plaintiff to release the binding straps, to ensure that Plaintiff was protected by “racks or stanchions” during the unloading process, or to inquire as to whether Plaintiff was adequately trained to perform the unloading function before allowing Plaintiff to proceed with that process. According to Defendant Ryan Miller, S & L Sawmill's Vice President and manager of the facility at which Plaintiff was injured, no one, including drivers employed by McGee Brothers, had ever complained that the dump sites at S & L Sawmill were unsafe or interfered with their ability to unload their dump trucks. In addition, Ryan Miller stated that no one from S & L Sawmill was aware that any condition on Defendants' property posed any danger to Plaintiff or other dump truck drivers.
On 30 March 2011, Plaintiff filed a complaint alleging that he had been injured as the result of Defendants' ordinary, gross, and willful and wanton negligence and seeking an award of compensatory and punitive damages. Among other things, Plaintiff asserted that Defendants had violated a number of regulations which had been promulgated by the Occupational Safety and Health Administration and that the business in which they were engaged was inherently dangerous, a fact which precluded them from delegating any of their safety-related responsibilities to anyone else. On 16 May 2011, Defendants 2 filed an answer in which they denied the material allegations set out in Plaintiff's complaint and asserted contributory negligence, gross contributory negligence, and negligence on the part of McGee Brothers as affirmative defenses.
On 28 June 2012, Defendants filed a motion seeking the entry of summary judgment in their favor on the ground that Plaintiff could not show that Defendants had breached any duty owed towards him and that the claims that he had asserted against Defendants were barred by Plaintiff's contributory negligence. On 10 July 2012, Plaintiff filed a motion seeking the entry of summary judgment in his favor on the issue of whether Defendants were engaged in an inherently dangerous activity sufficient to preclude them from assigning responsibility for their negligence to any other party. On 28 September 2012, the trial court entered an order granting Defendants motion for summary judgment and denying Plaintiff's partial summary judgment motion.
On 4 October 2012, Plaintiff filed a motion for relief from the trial court's order pursuant to N.C. Gen.Stat. § 1A–1, Rule 60(b)(2), or, alternatively, for reconsideration of the trial court's order granting summary judgment in favor of Defendants pursuant to N.C. Gen.Stat. § 1A–1, Rules 52 and 59, on the basis of alleged newly discovered evidence set out in an attached affidavit executed by Gary Fisher, an S & L Sawmill employee, in which Mr. Fisher described steps that he had been instructed to take by Defendants in instances involving apparently unsafe loads of logs for the purpose of stabilizing the load in question. On 16 October 2012, the trial court entered an order denying Plaintiff's motion for relief from its earlier order. On 27 November 2012, the trial court entered an amended order, which contained findings of fact and conclusions of law, denying Plaintiff's motion for relief from the trial court's earlier order. Plaintiff noted an appeal to this Court from the 28 September 2012, 16 October 2012, and 27 November 2012 orders.
In his brief before this Court, Plaintiff argues that the trial court erred by granting summary judgment in Defendants' favor on the grounds that the record reflected the existence of numerous issues of material fact concerning the extent to which Defendants were engaged in an inherently dangerous activity, the extent to which Defendants operated the sawmill in a negligent manner, and the extent to which Plaintiff's claim was barred by contributory negligence. We do not believe that any of Plaintiff's challenges to the trial court's summary...
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