Lilley v. BLUE RIDGE ELEC. MEMBERSHIP

• Decision Date: 18 May 1999
• Docket Number: No. COA97-1219.,COA97-1219.
• Citation: 133 NC App. 256,515 S.E.2d 483
• Court: North Carolina Court of Appeals
• Parties: James David LILLEY, Plaintiff, Sheila Lilley, Intervenor Plaintiff, v. BLUE RIDGE ELECTRIC MEMBERSHIP CORPORATION, and Floyd S. Pike Electrical Contractor, Incorporated, Defendants.

515 S.E.2d 483

133 NC App. 256

James David LILLEY, Plaintiff, Sheila Lilley, Intervenor Plaintiff, v. BLUE RIDGE ELECTRIC MEMBERSHIP CORPORATION, and Floyd S. Pike Electrical Contractor, Incorporated, Defendants.

No. COA97-1219.

Court of Appeals of North Carolina.

May 18, 1999.

Blanchard, Jenkins & Miller, P.A. by Robert O. Jenkins, Raleigh, and Cunningham & Gray, P.A. by George G. Cunningham, Wilkesboro, for plaintiff-appellant.

George E. Francisco, Mount Airy, for intervenor plaintiff-appellant.

Parker, Poe, Adams & Bernstein, L.L.P. by David N. Allen, Josephine H. Hicks and John E. Grupp, Charlotte, for defendant-appellee Blue Ridge Electric Membership Corporation.

JOHN, Judge.

Plaintiff James David Lilley and his wife, intervenor plaintiff Sheila Lilley (plaintiffs), appeal the trial court's grant of summary judgment in favor of defendant Blue Ridge Electric Membership Corporation (Blue Ridge). For the reasons set forth below, we reverse the order of the trial court.

Pertinent factual and procedural information includes the following: Blue Ridge distributes electricity in Watauga County, North Carolina. In 1993, Blue Ridge began upgrading its distribution system in an area of the county known as Lost Ridge. Blue Ridge contracted with defendant Floyd S. Pike Electrical Contractor, Inc. (Pike), to perform work in connection with the project. Plaintiff was employed by Pike as a lineman.

Plaintiff's duties included digging holes in which to place wooden power distribution poles, guiding the poles to the holes, and setting the poles. The utility poles involved were approximately forty-five to fifty feet in length and weighed approximately one ton. The terrain on Lost Ridge was mountainous, being described by Pike's Safety Supervisor as essentially "straight up and down."

On 2 August 1994, plaintiff and other Pike employees were moving poles from their drop-off point to locations designated for installation. Plaintiff was attempting to guide a particular pole to its place using a rock bar, an eight foot long steel pole approximately one inch in diameter, as a winch around which a rope was wound. The rock bar was stuck in the ground at the base of a large rock, with plaintiff and two other employees holding the rock bar. As pressure from the winch was applied to the rope wound around the rock bar, the rope slid up the rock bar, bending the rock bar back. Ultimately, the rope slid off and the rock bar sprang back, striking plaintiff in the forehead and face. He suffered a fractured skull and frontal lobe injury which rendered him permanently and totally disabled.

Plaintiff filed the instant negligence action against Blue Ridge on 14 March 1996. His complaint was amended 3 June 1996 to include Pike as a defendant and add two additional claims. Intervenor plaintiff's subsequent "Motion to Intervene" was allowed in an order filed 11 September 1996, and summary judgment was granted in favor of Blue Ridge in an order filed 3 July 1997. Plaintiffs timely appealed.

Summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. N.C.G.S. § 1A-1, Rule 56 (1990); Davis v. Town of Southern Pines, 116 N.C.App. 663, 665, 449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995). A summary judgment movant bears the burden of showing that

(1) an essential element of plaintiff's claim is nonexistent; (2) plaintiff cannot produce evidence to support an essential element of its claim; or (3) plaintiff cannot surmount an affirmative defense raised in bar of its claim.

Lyles v. City of Charlotte, 120 N.C.App. 96, 99, 461 S.E.2d 347, 350 (1995), rev'd on other grounds, 344 N.C. 676, 477 S.E.2d 150 (1996). A court ruling upon a motion for summary judgment must view all the evidence in the light most favorable to the non-movant, accepting all its asserted facts as true, and drawing all reasonable inferences in its favor. Kennedy v. Guilford Tech. Community College, 115 N.C.App. 581, 583, 448 S.E.2d 280, 281 (1994). Plaintiff also correctly interjects that negligence actions are not frequently susceptible to summary judgment. See Lamb v. Wedgewood South Corp., 308 N.C. 419, 425, 302 S.E.2d 868, 871 (1983)

.

The parties do not dispute that Pike was an independent contractor employed by Blue Ridge. It is well settled in this jurisdiction that

[g]enerally, one who employs an independent contractor is not liable for the independent contractor's negligence unless the employer retains the right to control the manner in which the contractor performs his work.

Woodson v. Rowland, 329 N.C. 330, 350, 407 S.E.2d 222, 234 (1991).

However, our Supreme Court has recognized an exception to this rule, in which

[o]ne who employs an independent contractor to perform an inherently dangerous activity may not delegate to the independent contractor the duty to provide for the safety of others.

Id. at 352, 407 S.E.2d at 235. This duty is nondelegable when (1) the independent contractor is hired to perform an inherently dangerous activity and (2) the general contractor "knows or should know of the circumstances creating the danger." Dunleavy v. Yates Construction Co., 114 N.C.App. 196, 202, 442 S.E.2d 53, 56 (1994) (quoting Dunleavy v. Yates Construction Co., 106 N.C.App. 146, 153, 416 S.E.2d 193, 197, disc. review denied, 332 N.C. 343, 421 S.E.2d 146 (1992)). Thus, if the activity engaged in by plaintiff was inherently dangerous and Blue Ridge knew of the circumstances creating the danger, the latter would be charged with a non-delegable duty to "exercise due care to see that [plaintiff] ... was provided a safe place in which to work and proper safeguards against any dangers as might be incident to the work." Woodson, 329 N.C. at 357,407 S.E.2d at 238.

In defining "inherently dangerous," our Supreme Court stated "[i]t is not essential... that the work should involve a major hazard." Woodson, 329 N.C. at 351, 407 S.E.2d at 235. Rather,

[i]t is sufficient if there is a recognizable and substantial danger inherent in the work, as distinguished from a danger collaterally created by the independent negligence of the contractor, which latter might take place on a job itself involving no inherent danger.

Id. In addition, "inherently dangerous activities are susceptible to effective risk control through the use of adequate safety precautions." Id. at 351, 407 S.E.2d at 234.

Thus, as a threshold matter, we must consider whether the activity engaged in by plaintiff was "inherently dangerous" as a matter of law. Blue Ridge maintains the trial court properly resolved this issue in the negative. Plaintiff disagrees, maintaining

it is a question of fact for a jury whether the work being performed by Pike Electric under subcontract from Blue Ridge Electric on August 2, 1994 was inherently dangerous.

Both parties cite Woodson. Discussing whether a trenching situation was inherently dangerous as a matter of law, the Court therein acknowledged

that in some cases such a determination [that an activity is inherently dangerous] can, as a matter of law be made. For example, Evans [v. Elliott, 220 N.C. 253, 17 S.E.2d 125 (1941)] held as a matter of law that maintaining an open trench in a heavily populated area is inherently dangerous from the standpoint of the public, and the landowner who hired an independent contractor could be held liable for the injuries of a child who fell into the trench negligently left open by the independent contractor....

Similarly, this Court has held as a matter of law that certain activities resulting in injury are not inherently dangerous....

Despite the fact that some activities are always inherently dangerous while others may never be, unlike the dissenters, we do not believe every act can be defined as inherently dangerous or not, regardless of the attendant circumstances. Though bright-line rules are beneficial where appropriate, their usefulness can be limited.... Particular trenching situations... appropriately require a jury to decide the inherently dangerous issue.

Woodson, 329 N.C. at 353-54, 407 S.E.2d at 235-36. A survey of post-Woodson decisions reveals varied constructions of the foregoing language. See, e.g., Simmons v. North Carolina Department of Transportation, 128 N.C.App. 402, 406, 496 S.E.2d 790, 793 (1998) ("[w]hether an activity is inherently or intrinsically dangerous is a question of law"); Brown v. Friday Services, Inc., 119 N.C.App. 753, 757, 460 S.E.2d 356, 359, disc. review denied, 342 N.C. 191, 463 S.E.2d 234 (1995) ("the practice of judicially determining that certain activities, as a matter of law, are inherently dangerous while others not, has since been rejected by our Supreme Court in Woodson ...."); Hooper v. Pizzagalli Construction Co., 112 N.C.App. 400, 406, 436 S.E.2d 145, 149-50 (1993),

disc. review denied, 335 N.C. 770, 442 S.E.2d 516 (1994) (summary judgment properly granted, where, inter alia, "the work performed [plumbing] was not an inherently dangerous activity").

We believe our Supreme Court's holding in Woodson is properly summarized by Blue Ridge as follows:

In other words, there is a spectrum of activities, some of which are never inherently dangerous, as a matter of law, and some of which are always inherently dangerous, as a matter of law.

Mindful of our responsibility to follow Supreme Court decisions "until otherwise ordered" by that court, Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993), we therefore examine "the [instant] attendant circumstances," Woodson, 329 N.C. at 353,407 S.E.2d at 236, so as to determine their appropriate location on the spectrum. In doing so, we find ourselves unpersuaded that those circumstances fall squarely at either end of the spectrum.

At the outset, we must observe that setting utility poles forty-five to fifty feet in length and weighing...