Olympic Products Co., A Div. of Cone Mills Corp. v. Roof Systems, Inc., 8618SC1292
| Decision Date | 05 January 1988 |
| Docket Number | No. 8618SC1292,8618SC1292 |
| Citation | 88 N.C.App. 315,363 S.E.2d 367 |
| Court | North Carolina Court of Appeals |
| Parties | OLYMPIC PRODUCTS COMPANY, A DIVISION OF CONE MILLS CORPORATION, Plaintiff, v. ROOF SYSTEMS, INC., Carlisle Corporation, d/b/a Carlisle Tire & Rubber Company, Carolina Steel Corporation, and Craven Steel, Inc., Defendants. CAROLINA STEEL CORPORATION, Third-Party Plaintiff, v. Carlos M. SUAREZ, t/a and d/b/a Carlos M. Suarez and Associates, Third-Party Defendant. |
Smith, Helms, Mulliss & Moore by Vance Barron, Jr. and Jonathan Berkelhammer, Greensboro, for plaintiff-appellant Olympic Products Company, a div. of Cone Mills Corp.
Henson, Henson, Bayliss & Coates by Perry C. Henson and Jack B. Bayliss, Jr., Greensboro, for defendant-appellee Roof Systems, Inc.
Womble, Carlyle, Sandridge & Rice by Keith A. Clinard and Timothy G. Barber, Winston-Salem, for defendant-appellee Carlisle Corporation d/b/a Carlisle Tire and Rubber Company.
This is a civil action filed by plaintiff, Olympic Products (hereinafter "Olympic"), seeking damages in the amount of $501,124.66 and loss of profits in the amount of $93,670.70. Plaintiff's claims for relief are founded on the alleged negligence of defendant Carlisle Corporation (hereinafter "Carlisle") and the alleged negligence and wanton negligence of defendant Roof Systems, Inc. (hereinafter "Roof Systems"). Defendants filed answers denying any negligence and alleging plaintiff's contributory negligence. In reply, plaintiff denied contributory negligence and alleged defendants had the last clear chance to avoid the damage.
Defendants filed motions for summary judgment and the trial court entered summary judgment in favor of defendant Roof Systems on plaintiff's claim for wanton negligence. At the close of plaintiff's case, the trial court granted Carlisle's motion for directed verdict as to all of plaintiff's claims. The trial court also allowed Roof Systems' motion for directed verdict on the issues of contributory negligence and last clear chance. Plaintiff appeals from the summary judgment and the order for directed verdicts.
Plaintiff's evidence tended to show that Randy Mize, vice president in charge of engineering for Olympic, employed Carlos Suarez, a roofing consultant, for a reroofing project to be done on one of Olympic's plants. Suarez was to submit a reroofing program for the plant, help select a contractor to reroof the building, and supervise and inspect the reroofing work. The evidence also tended to show that Suarez has degrees in architecture and engineering from the University of Havana, Cuba, which are not recognized in the United States. Suarez was not licensed in North Carolina as either an architect or an engineer. Mize knew that Suarez could not perform any type of activity that required a license, such as engineering or architectural work, but did know that Suarez could act as a roofing consultant. Suarez eventually recommended a rubber membrane roof to be held down by rock ballast.
The contractor selected for the project was defendant Roof Systems. Olympic and Roof Systems entered into a contract in which Roof Systems agreed to install the roof membrane in such a manner that the manufacturer of the membrane, defendant Carlisle, would issue its standard warranty. The parties further agreed that materials used in the project would be in accordance with the manufacturer's recommendations.
Roof Systems completed the reroofing project on 5 May 1982. On 18 May 1982, the roof was inspected by a Carlisle inspector, several employees of Roof Systems, and Suarez. The building had several drains which were to take water from the roof and away from the building. Each roof drain had a drain opening and a drain pipe. The drain opening acted as a funnel to the smaller drain pipe. The specifications prepared by Carlisle indicated that the rubber membrane should be spread over the drain opening, clamped at the opening's edge, and then cut away to the interior edge of the drain opening. Carlisle's inspector had been instructed by Carlisle in training sessions that the membrane over the drain opening should have a hole cut at least as large as the drain pipe leading from the drain opening. However, on the Olympic plant, the evidence tended to show the openings cut in the membrane over each of the drains were over fifty percent smaller than the drain pipes. Carlisle's inspector noted several deficiencies in his report on 18 May 1982 but none of them concerned the drain openings. In early to mid-May and again on 25 May 1982, Mize went onto the roof and observed that the membrane had not been cut out to the width of the drain opening. On each occasion, Mize called Suarez and requested that someone cut back the membrane.
On the afternoon of 26 May 1982, an employee of Roof Systems went onto the plant's roof at Mize's request and checked the drain openings. It was raining at the time and had been raining for several hours. It was later discovered that between the hours of 3:00 p.m. and 7:30 p.m., a total of five inches of rain fell around the plant. The holes in the membrane over the drain openings were covered with cross-hatch wire mesh with one-half inch openings to prevent debris from flowing down the drain pipe. If the drains were blocked, water would accumulate on the roof against one of the parapet walls. Roof Systems' employee found debris clogging the screens in several of the drains and water collecting on the roof. He removed the debris but did nothing further. At approximately 6:00 p.m. that evening, the portion of the roof nearest the plant's west wall collapsed. The next morning another Roof Systems' representative came to the plant and informed Mize that Roof Systems had sent someone the day before to cut the rubber membrane out to the interior edge of the drain opening.
During plaintiff's case, a great deal of detailed evidence was presented concerning the structure of the building, the installation of the roof, the amount of rainfall before the collapse, and the applicable provisions of the North Carolina Building Code. N.C.G.S. Sec. 143-136 et seq. (1983). Briefly, the evidence tended to show several Building Code violations. The holes cut in the rubber membrane at the drain openings indicated the holes did not comply with the Building Code because they were smaller than the Code required. The wire mesh covering the holes in the membrane did not meet Building Code standards either. The steel column at the plant's west wall had been improperly constructed when the plant was built in 1969 and did not meet the strength requirements of the Building Code. The rubber membrane and the wire mesh over the drain openings restricted the roof's drainage. Because of this restricted drainage, water accumulated on the roof to the approximate depth of five inches just before the collapse. Testimony indicated that water would not have accumulated and the roof would not have collapsed if the drain openings had not been partially covered by the rubber membrane and the wire mesh. Testimony also indicated that, if the steel column had complied with the Building Code requirements at the time of the building's construction, the roof would not have collapsed even with an accumulation of five inches of water.
Olympic presented evidence from an expert in the field of civil engineering and structural design who testified the installation of the rubber membrane at the drain openings did not meet the standard of care and workmanship of roofing contractors. The expert also testified that approval of the drain openings by the roofing inspector from Carlisle did not meet the standard of care for roofing inspectors.
Olympic did not have a contract with Carlisle. The contract between Olympic and Roof Systems required that all details of the roof installation be approved by Carlisle. The contract between Roof Systems and Carlisle required Roof Systems to follow Carlisle's specifications in installing the roof and, at Roof Systems' expense, make changes Carlisle deemed necessary for a proper installation.
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This appeal presents numerous issues but we shall primarily address the following: I) Whether there was sufficient evidence to direct a verdict for defendant Carlisle on the issue of whether it, as the manufacturer of the roof membrane, owed a duty to Olympic, the building owner, to properly inspect the roof application; II) whether defendant Roof Systems was entitled to summary judgment on the issue of its wanton negligence for failing to cut back the membrane around the drains; and III) whether there was sufficient evidence to direct a verdict against Olympic on the issue of its contributory negligence: (A) for violating the Building Code; (B) for negligently hiring and relying on Carlos Suarez as a roofing consultant; (C) for violating general engineering principles; (D) for failing to correct the alleged negligence on the part of defendants; and (E) for exercising a nondelegable duty which would render Olympic liable for the negligence of persons it hired to perform the reroofing work.
A motion for directed verdict pursuant to Rule 50(a) of the North Carolina Rules of Civil Procedure, N.C.G.S. Sec. 1A-1 (1983), presents the question of whether plaintiff's evidence is sufficient to carry the case to the jury:
In passing on this motion, the trial judge must consider the evidence in the light most favorable to the non-movant, and conflicts in the evidence together with inferences which may be drawn from it must be resolved in favor of the non-movant. The motion may be granted only if the evidence is insufficient to justify a verdict for the non-movant as a matter of law.
Arnold v. Sharpe, 296 N.C. 533, 537, 251 S.E.2d 452, 455 (1979) (citation omitted).
Olympic seeks recovery against Carlisle for failing to exercise reasonable care in inspecting the installation of the membrane....
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