Bramlett v. Overnite Transport

• Decision Date: 05 March 1991
• Docket Number: No. 9029SC775,9029SC775
• Citation: 401 S.E.2d 410,102 N.C.App. 77
• Parties: Kelly BRAMLETT, Individually; Kelly Bramlett, Administrator of the Estate of William Robert Bramlett, deceased; and Eugene M. Carr III, Ancillary Administrator of the Estate of William Robert Bramlett, deceased, Plaintiffs, v. OVERNITE TRANSPORT, Ivan Herron; Cable Plant Management, Inc.; Essex Communication Corp., d/b/a Essex Cable CATV, and Coast to Coast CATV, Inc., Defendants.
• Court: North Carolina Court of Appeals

Page 410

401 S.E.2d 410

102 N.C.App. 77

Kelly BRAMLETT, Individually; Kelly Bramlett, Administrator of the Estate of William Robert Bramlett, deceased; and Eugene M. Carr III, Ancillary Administrator of the Estate of William Robert Bramlett, deceased, Plaintiffs, v. OVERNITE TRANSPORT, Ivan Herron; Cable Plant Management Inc.; Essex Communication Corp., d/b/a Essex Cable CATV, and Coast to Coast CATV Inc., Defendants.

No. 9029SC775.

Court of Appeals of North Carolina.

March 5, 1991.

Toms & Bazzle, P.A. by Ervin W. Bazzle, Hendersonville, for plaintiffs-appellants.

Roberts Stevens & Cogburn, P.A. by Frank P. Graham, Asheville, for defendant-appellee Coast to Coast CATV, Inc.

JOHNSON, Judge.

On 21 October 1987, William Robert Bramlett was killed in an accident at or near the intersection of Highway 191 and North Mills River Road in Henderson County, North Carolina, when an Overnite tractor trailer operated by Ivan Herron struck a cable wire which was being installed across the highway. Mr. Bramlett was hanging cable for Wilson Construction Company (hereinafter "Wilson Construction") on a project that was being undertaken for Essex Communication, a local cable franchise. In 1987 Essex Communication was engaged in placing cable lines throughout the county. Essex Communication contracted with Cable Plant Management to have this work done and Cable Plant Management in turn accepted a bid from Coast to Coast to hang the cable lines. Coast to Coast then subcontracted the work to Wilson Construction pursuant to a verbal contract. Approximately one week prior to the accident, Wilson Construction hired Mr. Bramlett.

Wilson Construction was owned by Clinton Wilson and he arranged the Henderson County project with Rick LaBarron, vice-president of Coast to Coast. Under the contract, Wilson Construction was paid based upon the number of feet of line it installed and was required to hire its own employees, pay their taxes, social security, worker's compensation insurance, provide most of the equipment needed and comply with all state and federal regulations. Wilson Construction was allowed to hire whomever it wanted to assist in stringing the cable and to employ whatever means it felt were necessary to complete the job.

Wilson Construction borrowed cable trucks from Coast to Coast wherein Coast to Coast provided the insurance and the license tags. No rental or leasing fee was charged and Wilson Construction was responsible for the borrowed equipment. If any equipment had been lost or stolen, Wilson Construction was required to replace it.

On the jobsite on the day of the accident, Russell Wilson, Obie Bilyeu and Robert Bramlett were stringing cable. The truck they were using was pulled onto the shoulder near the intersection of Highway 191 and North Mills River Road. Bilyeu and Bramlett climbed two poles to stretch the cable across the two roads while Wilson placed cones in the road and flagged traffic. Bilyeu and Bramlett pulled the cable tight manually. Wilson then left the highway and got into the truck to "suck up" the cable, pulling it tight so that it could be clamped with a three bolt clamp. This was done by advancing the truck forward with the free end of the cable line attached to it. Once the cable was tightened, Bilyeu and Bramlett clamped it down to the poles. To check to see if it was securely fastened, Bilyeu struck the line with a wrench. Upon being asked three times by Wilson if the cable was properly clamped and tightened, Bramlett responded in the affirmative. Wilson then backed up the truck.

At the same time that Wilson backed the cable truck up, an Overnite tractor trailer approached the work site travelling down Highway 191 in a path perpendicular to the recently strung cable. The tractor trailer caught the cable and pulled it through the clamp which Bramlett had fastened. The cable snapped and the stress and rupture of the cable fractured Bilyeu's arm and severed Bramlett's head.

On appeal, plaintiffs first contend that the trial court improvidently granted defendant Coast to Coast's motion for summary judgment. Specifically, plaintiffs contend that Coast to Coast is liable since it had a non-delegable duty to maintain a safe workplace for Wilson Construction and its employees. Relying upon Cathey v. Southeastern Construction Co., 218 N.C. 525, 11 S.E.2d 571 (1940), plaintiffs argue that Coast to Coast knew or should have known that the equipment used by Wilson Construction was insufficient to meet state and federal safety standards and is therefore liable. We disagree.

Summary judgment should be granted when the moving party can show that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. G.S. § 1A-1, Rule 56. In ruling on a motion for summary judgment, the trial court must consider the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, in the light most favorable to the non-moving party. Carter v. Poole, 66 N.C.App. 143, 310 S.E.2d 617, rev. denied, 310 N.C. 624, 315 S.E.2d 689 (1984). "While summary judgment is generally not appropriate in negligence cases, it may be appropriate when it appears that there can be no recovery for plaintiff, even if the facts presented by the plaintiff are taken as true." Frendlich v. Vaughan's Food, 64 N.C.App. 332, 335, 307 S.E.2d 412, 414 (1983). Where the evidence clearly indicates that: (1) the plaintiff failed to use ordinary care; (2) want of due care was at least one of the proximate causes of the injury; and (3) the plaintiff was contributorily negligent as a matter of law, summary judgment is appropriate. Carter, 66 N.C.App. 143, 310 S.E.2d 617.

Initially, it is important to note that the relationship between Coast to Coast and Wilson Construction was one of contractor and subcontractor. And more importantly, absent a showing that the contractor participated in the negligent act, a contractor is not liable for injuries sustained by the...