Dunleavy v. Yates Const. Co., Inc.

• Citation: 442 S.E.2d 53,114 N.C.App. 196
• Decision Date: 05 April 1994
• Docket Number: No. 9318SC370,9318SC370
• Parties: Rachel DUNLEAVY and Johnny Glenn Cobb, Administrators of the Estate of Johnny Glenn Cobb, II, Deceased, Plaintiffs, v. YATES CONSTRUCTION COMPANY, INC.; Springfield Properties, Inc.; Robert G. Yates; Douglas B. Yates; and Donald Baynes.
• Court: North Carolina Court of Appeals

Page 53

442 S.E.2d 53

114 N.C.App. 196

Rachel DUNLEAVY and Johnny Glenn Cobb, Administrators of the Estate of Johnny Glenn Cobb, II, Deceased, Plaintiffs, v. YATES CONSTRUCTION COMPANY, INC.; Springfield Properties,

Inc.; Robert G. Yates; Douglas B. Yates; and

Donald Baynes.

No. 9318SC370.

Court of Appeals of North Carolina.

April 5, 1994.

Smith, Follin & James by J. David James, and Ling & Farran by Stephen D. Ling, Greensboro, for plaintiffs-appellants.

Henson Henson Bayliss & Sue by Jack B. Bayliss, Jr., of counsel, Greensboro, for defendants-appellees Yates Const. Co., Inc., Robert G. Yates and Douglas B. Yates.

Adams Kleemeier Hagan Hannah & Fouts by J. Alexander S. Barrett and Edward L. Bleynat, Jr., of counsel, Greensboro, for defendant-appellee Springfield Properties, Inc.

JOHNSON, Judge.

Plaintiffs appeal from a summary judgment order entered in favor of defendants Robert G. Yates, Douglas B. Yates, Yates Construction Company (Company), and Springfield Properties, Inc. (Springfield). We summarize the facts of this case in part from Dunleavy v. Yates Construction Co., 106 N.C.App. 146, 149-51, 416 S.E.2d 193, 195-96, disc. review denied,332 N.C. 343, 421 S.E.2d 146 (1992):

In October, 1985, Company, an independent contractor, contracted with Springfield to construct, among other things, sewer lines within the Raven Ridge Subdivision located in Guilford County, North Carolina. Springfield owned the property on which the subdivision was being built. At this time, Johnny Glenn Cobb, II (Cobb) worked for Company as a member of a "new and inexperienced pipe crew." Cobb had no prior experience on a pipe crew. On 17 October 1985, Cobb and the other members of the crew arrived with their equipment at the Raven Ridge work site to begin installing the sewer lines. Before 17 October 1985, the pipe crew had been digging trenches to lay water lines at a location different than the Raven Ridge work site. They did not begin any trench work that day because Baynes, the crew foreman, did not plan to make much progress with such a new and inexperienced crew.

On the morning of 18 October 1985, the pipe crew began the first leg of the trench work at the Raven Ridge work site. The soil at the work site was "firm and stable." At no time that morning did the depth of the trench exceed five feet. Douglas Yates, vice president of Company, "requested that trench boxes owned by the company be transferred from another construction site for use during the progress of the construction work at the Raven Ridge subdivision...." By the afternoon, the pipe crew had begun the second leg of the trench work. In the early stages of this second leg, the trench was not to exceed five feet in depth. Baynes was called away to another side of the project, and while he was gone, the operator of the backhoe made more progress than Baynes had expected. In fact, the operator of the backhoe was digging well ahead [of] ... the pipe laying crew. When Baynes left, the trench did not exceed five feet in depth. While Baynes was gone, however, the digging increased at such a rate that before Baynes could return to the trench, the trench exceeded five feet in depth in certain parts. According to Robert Yates, president of Company, "it was the policy of the Company to use trench boxes or slope the sides of a trench when conditions warranted such action, including whenever the depth of a trench exceeded five feet...." It is undisputed that Occupational Safety and Health Act (OSHA) regulations in effect at the time required trenches of more than five feet in depth to be properly supported. This trench, however, was approximately 150 feet long, the walls of the trench were vertical and had not been shored, sloped, braced, or otherwise supported to prevent a collapse, and the trench boxes which Douglas Yates had requested had not yet arrived. While Cobb was in a portion of the trench where the depth exceeded five feet, a small portion of one side of the trench collapsed and struck Cobb in the head resulting in his death. Cobb, contrary to OSHA regulations, had not been provided a hard helmet and consequently was not wearing such protective equipment at the time of his death.

The plaintiffs, in addition to filing a claim for workers' compensation benefits, filed a complaint against Company, Robert Yates, Douglas Yates, Baynes, and Springfield. As to Company, Robert Yates, Douglas Yates, and Baynes, the plaintiffs alleged that Cobb's death was the result of a deliberate and intentional assault and willful, wanton, and reckless negligence. As against Springfield, the plaintiffs alleged that Springfield was liable to the plaintiffs on the theories of inherently dangerous activity, negligent selection of Company, and negligent retention of Company. On 17 July 1989, Springfield filed a motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b)(6).... On 27 July 1989, the remaining defendants jointly filed an answer, and on 18 August 1989, they filed a motion to dismiss under Rule 12(b)(6), and in the alternative, for summary judgment under N.C.G.S. § 1A-1, Rule 56.... On 26 October 1989, the plaintiffs made a motion to stay all proceedings pending the North Carolina Supreme Court's resolution of Woodson v. Rowland, 92 N.C.App. 38, 373 S.E.2d 674 (1988), disc. review allowed, 324 N.C. 117, 377 S.E.2d 247 (1989). On 8 November 1989, the trial court denied the plaintiffs' motion to stay and granted summary judgment for Company, Robert Yates, Douglas Yates, and Baynes. The next day, the trial court granted Springfield's motion to dismiss the plaintiff's complaint. The plaintiffs appealed to this Court which, in an unpublished opinion, affirmed the trial court's orders based on Woodson, 92 N.C.App. 38, 373 S.E.2d 674. Dunleavy v. Yates Constr. Co., 103 N.C.App. 804, 407 S.E.2d 905 (1991). The plaintiffs then petitioned the North Carolina Supreme Court for discretionary review of this Court's decision, and on 6 November 1991, the North Carolina Supreme court allowed the plaintiffs' petition for discretionary review "for the limited purpose of entering the following order: the case is remanded to the Court of Appeals for reconsideration in light of" Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). Dunleavy v. Yates Constr. Co., 330 N.C. 194, 412 S.E.2d 54 (1991).

On remand, our Court in Dunleavy v. Yates Construction Co., 106 N.C.App. 146, 416 S.E.2d 193 affirmed the trial court's order granting Springfield's motion to dismiss the plaintiffs' claims for negligent selection and retention; affirmed the trial court's order granting Baynes' motion for summary judgment; reversed and remanded the trial court's order granting Springfield's motion to dismiss the plaintiffs' claim for breach of a nondelegable duty; and remanded the trial court's order granting summary judgment for Company, Robert G. Yates, and Douglas B. Yates for a de novo hearing. Back at the superior court level, discovery was completed and after summary judgment orders were entered in favor of defendants Company, Robert G. Yates, Douglas B. Yates, and Springfield, plaintiffs appealed to our Court.

Plaintiffs argue that they proffered sufficient evidence to withstand summary judgment (1) on the claim against Robert G. Yates, Douglas B. Yates, and Company, and (2) on the claim against Springfield. Summary judgment shall be rendered if 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 judgment as a matter of law. North Carolina General Statutes § 1A-1, Rule 56 (1990). "In summary judgment, the burden is on the moving party to (1) prove an essential element of the opposing party's claim is non-existent, or (2) show through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim." Rose v. Steen Cleaning, Inc., 104 N.C.App. 539, 540, 410 S.E.2d 221, 222 (1991). We address plaintiffs' claims separately.

Plaintiffs' Claim Against Robert G. Yates, Douglas B. Yates,

and Company

We note that Robert G. Yates and Douglas B. Yates, as officers, were acting in capacities as agents for their principal, Company, on the date the...