IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-223
Filed 16 May 2023
Brunswick County, No. 20 CVS 1131
DEBRA CULLEN, Plaintiff,
v.
LOGAN DEVELOPERS, INC., Defendant.
Appeal by Plaintiff from judgment entered 14 October 2021 by Judge Henry L.
Stevens in Brunswick County Superior Court. Heard in the Court of Appeals 20
September 2022.
Ricci Law Firm, P.A., by Meredith S. Hinton and William J. Patterson, for plaintiff-appellant.
McAngus Goudelock & Courie PLLC, by Jeffery I. Stoddard, for defendant- appellee.
MURPHY, Judge.
The trial court improperly granted Defendant’s motion for summary judgment
and dismissed Plaintiff’s negligence claim where the forecast of evidence showed a
genuine issue of material fact as to whether Plaintiff knew or should have known that
the scuttle hole Defendant constructed in her attic walk space had not been closed
but was concealed with drywall and thus presented an unsafe condition. As the
forecast of evidence must be viewed in the light most favorable to Plaintiff, the trial
court erred in concluding Plaintiff was contributorily negligent as a matter of law. CULLEN V. LOGAN DEVELOPERS, INC.
Opinion of the Court
The forecast of evidence likewise showed a genuine issue as to whether Defendant’s
conduct in visually concealing the scuttle hole with drywall amounted to gross
negligence. We vacate the trial court’s order.
BACKGROUND
Defendant general contractor Logan Developers, Inc. contracted to build a new
home for Plaintiff Debra Cullen and her husband in Southport. The home was a
model home that Defendant designed. During a final walkthrough of the home
nearing the end of construction, Plaintiff and her husband noticed that Defendant
had cut a new scuttle hole to access the attic through the area of the existing attic
walk space and the master bathroom ceiling. Plaintiff and her husband complained
to Defendant that the scuttle hole was an eyesore and they wanted it gone.
Defendant’s agent told Plaintiff the local building code required the scuttle hole be
there; however, “[t]o meet the Cullens halfway,” according to Defendant, it agreed to
cover the scuttle hole with drywall and concealed its appearance from the master
bathroom ceiling.
During their first week in the home, on 1 May 2019, Plaintiff walked into the
attic and began taking pictures of areas where she wanted to add plywood flooring to
the existing walk space but where there was only insulation. Plaintiff stepped onto
the area of the walk space that Defendant cut for the scuttle hole and fell through the
ceiling of the master bathroom. Plaintiff suffered serious injuries, including a broken
ankle and thumb.
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Plaintiff acknowledged at deposition that, if she had looked down at the scuttle
hole, she likely “would have seen insulation and [she] would not have stepped in it.”
However, according to Plaintiff, Defendant never spoke with her about what covering
the scuttle hole would entail or “the details of what work they were going to do[.]”
Instead, Plaintiff stated that Defendant’s agent’s “exact words were ‘by closing, you’ll
never know [the scuttle hole] was there.’” Plaintiff testified that, in light of
Defendant’s statements, she did not think to look down at the area because she
“thought that [w]hole thing was plywood like it was in the beginning . . . .”1
On 15 October 2020, Plaintiff filed suit in Brunswick County, asserting one
count each of negligence and gross negligence. Plaintiff alleged Defendant was
negligent and grossly negligent in, inter alia, (1) failing to comply with applicable
building codes, (2) failing to construct the home in a fit and habitable condition and
failing to properly inspect and repair the scuttle hole, and (3) failing to adequately
warn Plaintiff of the unsafe condition. Plaintiff sought recovery for her injuries,
1 Defendant answered the following to an interrogatory regarding its placement of the scuttle hole: On [28 December] 2018, the rough-in inspection noted that the distance from the attic entry to the mechanical air handler unit was greater than 20 feet. According to the [building] code, if the air handler is more than 20 feet from the access point, the entire walk path to the unit must have six feet of head clearance. Some of the framing in the Cullen’s house lowered the head clearance below six feet. This required a scuttle hole or another access to the mechanic air handler unit. . . . The only location that would allow for access within 20 feet along with the clearance requirement was the master bathroom [area of the attic].
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including medical expenses and lost income and Social Security benefits, as well as
punitive damages for Defendant’s gross negligence.
Defendant answered, alleging Plaintiff was aware of the scuttle hole and that
“the framed opening from the attic side was left open, not concealed in any way, and
clearly visible to someone in the attic.” Defendant asserted affirmative defenses,
including contributory negligence, assumption of risk, and completion and
acceptance.2
On or about 1 July 2021,3 Defendant filed a motion for summary judgment
seeking Plaintiff’s claims be dismissed and judgment be entered in its favor on all
counts. By order entered 14 October 2021, the trial court concluded the forecasted
evidence, even in the light most favorable to her, showed Plaintiff was contributorily
negligent as a matter of law, thus barring her negligence claim, and that Plaintiff
had alleged “insufficient facts . . . to support a conclusion of gross negligence on behalf
of Defendant.” The trial court granted Defendant’s motion for summary judgment
and dismissed Plaintiff’s claims. Plaintiff timely appealed.
ANALYSIS
We review a trial court’s order granting summary judgment de novo. Proffitt
v. Gosnell, 257 N.C. App. 148, 151 (2017). “Under a de novo review, the reviewing
2Defendant also alleged affirmative defenses of failure to mitigate and lack of proximate cause. 3 Defendant’s motion for summary judgment is not file stamped, but there was no dispute regarding the filing of the motion at the hearing.
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court considers the matter anew and freely substitutes its own judgment for that of
the lower court.” Id. (marks omitted).
Summary judgment is appropriate under Rule 56 of the North Carolina Rules
of Civil Procedure where
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 a judgment as a matter of law. The party moving for summary judgment bears the burden of showing that no triable issue of fact exists, and may satisfy its burden by proving: (1) that an essential element of the non-moving party’s claim is nonexistent; (2) that discovery indicates the non-moving party cannot produce evidence to support an essential element of his claim; or (3) that an affirmative defense would bar the non-moving party’s claim.
Id. at 151 (marks omitted); N.C.G.S. § 1A-1, Rule 56(c) (2021).
“[S]ummary judgment is proper in a negligence case where the forecast of
evidence fails to show negligence on [the] defendant’s part, or establishes [the]
plaintiff’s contributory negligence as a matter of law.” Stansfield v. Mahowsky, 46
N.C. App. 829, 830, disc. review denied, 301 N.C. 96 (1980); see also McCauley v.
Thomas, 242 N.C. App. 82, 90 (2015) (“The issue of gross negligence should be
submitted to the jury if there is substantial evidence of the defendant’s wanton and/or
[willful] conduct.”). Summary adjudication of such claims, however, “is normally
inappropriate due to the fact that the test of the reasonably prudent person is one
which the jury must apply in deciding the questions at issue.” Barber v. Presbyterian
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Hosp., 147 N.C. App. 86, 88 (2001). Moreover, the issue of whether a plaintiff was
contributorily negligent “is ordinarily a question for the jury; such an issue is rarely
appropriate for summary judgment, and only where the evidence establishes a
plaintiff’s negligence so clearly that no other reasonable conclusion may be reached.”
Proffitt, 257 N.C. App. at 152.
A. Contributory Negligence
For the purposes of this appeal, Defendant concedes that its actions may have
been negligent, but maintains that, “[r]egardless of whether it was negligent to place
the scuttle hole, cover the scuttle hole with drywall, fail to cover the attic side of the
scuttle hole with plywood, or whether any of these actions were a code violation, the
evidence is unequivocal that [Plaintiff] was negligent in stepping backwards in an
attic while unreasonably choosing to not watch where she was stepping.” The trial
court, in its order, concluded that Plaintiff’s “own negligence clearly contributed to
her” injuries in that the forecasted evidence “affirmatively show[ed]” she failed “to
keep a proper lookout for her own safety while stepping backwards and off the
plywood walking path in the attic and into an area that she knew was unsafe.”
We disagree and conclude the forecast of evidence shows a genuine issue of fact
exists as to whether Plaintiff knew or should have known there was an unsafe
condition in the area where she was walking in the attic. The trial court therefore
erred in concluding Plaintiff was contributorily negligent as a matter of law for failing
to look down and behind her before she stepped in that area.
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The doctrine of contributory negligence provides that “a plaintiff cannot
recover for injuries resulting from a defendant’s negligence if the plaintiff’s own
negligence contributed to [her] injury.” Draughon v. Evening Star Holiness Church
of Dunn, 374 N.C. 479, 483 (2020). Contributory negligence is “conduct which fails
to conform to an objective standard of behavior—the care an ordinarily prudent
person would exercise under the same or similar circumstances to avoid injury.”
Proffitt, 257 N.C. App. at 152 (emphasis omitted).
A successful defense requires “a want of due care on the part of the plaintiff[.]”
Id. (marks omitted). Oftentimes, “[t]he basic issue with respect to contributory
negligence is whether the evidence shows that, as a matter of law, [the] plaintiff failed
to keep a proper lookout for her own safety. The question is . . . whether a person
using ordinary care for his or her own safety under similar circumstances would have
looked down at the floor.” Norwood v. Sherwin-Williams Co., 303 N.C. 462, 468
(1981), overruled on other grounds, Nelson v. Freeland, 349 N.C. 615 (1998); see also
Proffitt, 257 N.C. App. at 164 (“[I]t is well settled that a person is contributorily
negligent if he or she knows of a dangerous condition and voluntarily goes into a place
of danger.”). Our Supreme Court has further explained that “one is not required to
anticipate the negligence of others; in the absence of anything which gives or should
give notice to the contrary, one is entitled to assume and to act on the assumption
that others will exercise ordinary care for their own or others’ safety.” Norwood, 303
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N.C. at 469. Plaintiff’s behavior must be “compared to that of a reasonable person
under similar circumstances.” Draughon, 374 N.C. at 484.
In this case, Defendant affirmed its agent
told [Plaintiff and her husband] that wherever there was subflooring in the attic they could place storage bins but that they were prohibited by code from adding any additional subflooring to the attic. [Plaintiff and her husband] knew from these conversations they could not step off the subflooring in the attic. . . . [Defendant told Plaintiff the scuttle hole] was required by code so [Defendant] could not cover it with plywood. To meet [Plaintiff and her husband] halfway, [Defendant’s agent] told them he could put drywall over the scuttle hole.
(Emphasis added). But Plaintiff’s forecasted evidence, if believed, shows the only
time Plaintiff walked in the attic prior to the accident was before Defendant installed
the scuttle hole, and the area where Defendant cut the scuttle hole was within the
area of what was once a walk space when Plaintiff was previously in the attic. See
Norwood, 303 N.C. at 469 (emphasis added) (“Applying this principle to the facts of
the case sub judice, [the] plaintiff was contributorily negligent only if in the exercise
of ordinary care she should have seen and appreciated the danger of the protruding
platform.”). Plaintiff explained in her answers to interrogatories that her husband
had previously
walked in and saw the hole in the [master bathroom] ceiling. He asked [Defendant] what it was. [Defendant] told him not to worry, that they would fix the hole as soon as the inspection was completed. It was our understanding that this was fixed prior to us closing on the house.
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Plaintiff stated she believed this meant Defendant would “replace[] the plywood that
[Defendant] had . . . removed to” cut the scuttle hole. Plaintiff further averred that
“[t]he hole was something that [Defendant] told us would be fixed prior to us closing
on the house.” (Emphasis added).
We must view the evidence in the light most favorable to Plaintiff, and these
statements create a genuine issue of material fact as to whether Plaintiff knew the
area remained unsafe such that she was negligent in failing to look out for her safety
while walking. See Dobson v. Harris, 352 N.C. 77, 83 (2000) (citations omitted) (“The
movant’s papers are carefully scrutinized; those of the adverse party are indulgently
regarded. All facts asserted by the adverse party are taken as true, and their
inferences must be viewed in the light most favorable to that party.”); Maness v.
Fowler-Jones Constr. Co., 10 N.C. App. 592, 598 (“While . . . there may have been
other, safer procedures which [the] plaintiff could have followed . . . , this would not
as a matter of law require a holding that [she] was negligent in doing what [she]
did.”), cert. denied, 278 N.C. 522 (1971). The merits of Defendant’s affirmative
defense and any evidence that Plaintiff knew the danger existed present a question
of fact for the jury to decide. See, e.g., id.; Duval v. OM Hospitality, LLC, 186 N.C.
App. 390, 395 (2007) (marks omitted) (“[S]ummary judgment is rarely appropriate in
cases of negligence or contributory negligence.”); see also Proffitt, 257 N.C. App. at
152 (“Contradictions or discrepancies in the evidence even when arising from the
plaintiff’s evidence must be resolved by the jury rather than the trial judge.”).
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We note further the cases Defendant cites in support of its argument
pertaining to Plaintiff’s knowledge in this case all involve plaintiffs employed and
working in a specialized or dangerous line of work, or involve falls in public areas
where the plaintiff had no reasonable expectation the area would be free of dangers.
See Swinson v. Lejeune Motor Co., 147 N.C. App. 610, 618-19 (2001) (McCullough, J.,
dissenting) (affirming finding of contributory negligence where the plaintiff fell in a
car dealership parking lot), reversed for reasoning stated in dissenting opinion, 356
N.C. 286 (2002); Holland v. Malpass, 266 N.C. 750, 752 (1966) (“The plaintiff’s
evidence . . . shows that the plaintiff, an experienced garage worker, failed to look
before he stepped where he should have anticipated some obstruction was likely.”);
Lee v. Carolina Upholstery Co., 227 N.C. 88, 89 (1946) (“[The P]laintiff was an
experienced truckman and was doing the work in his own way.”); Dunnevant v.
Southern Ry. Co., 167 N.C. 232, 233 (1914) (sustaining motion to nonsuit where the
plaintiff fell at a train station late at night after walking off into the dark without his
lantern).
Our Supreme Court held in Holland that “[w]hat constitutes reasonable care
depends upon the nature of the business and the normal use in such business
establishments of like areas.” Holland, 266 N.C. at 752. Plaintiff’s state of mind is
relevant in determining whether she conducted herself in a reasonably prudent
manner; in this case, Plaintiff’s state of mind was that of someone walking into her
brand-new home she contracted with Defendant to build, subject to the safety
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standards set forth in the applicable building codes, as well as any contractual
assurances and warranties. She was also aware of the area of attic previously covered
by plywood flooring, prior to the creation of the scuttle hole, and aware of Defendant’s
assurance the scuttle hole had been fixed prior to closing on the home. See Beck v.
Carolina Power & Light Co., 57 N.C. App. 373, 377 (marks omitted) (“The standard
is always the rule of the prudent man or the care which a prudent man ought to use
under like circumstances. What reasonable care is, of course, varies in different cases
and in the presence of different conditions.”), aff’d, 307 N.C. 267 (1982); see also
Crescent Univ. City Venture, LLC v. Trussway Mfg., Inc., 376 N.C. 54, 61-62 (2020)
(noting that, even in cases involving only economic loss by “subsequent home
purchaser[s],” the plaintiff may “recover against the builder of a home in negligence”
on grounds of public policy specific to “the plight of residential homebuyers[,]”
specifically that “[t]he ordinary purchaser of a home is not qualified to determine
when or where a defect exists”). Plaintiff’s forecast of evidence, taken as true,
prevented a conclusion by the trial court that Plaintiff was contributorily negligent
as a matter of law by failing to look out for her safety. The trial court therefore erred
in concluding Plaintiff was contributorily negligent and dismissing Count I of
Plaintiff’s complaint.
B. Plaintiff’s Claim of Gross Negligence
Plaintiff next challenges the trial court’s conclusion that Plaintiff alleged
insufficient facts to support a finding of gross negligence.
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Gross negligence “consists of wanton conduct done with conscious or reckless
disregard for the rights and safety of others. An act is wanton when it is . . . done
needlessly, manifesting a reckless indifference to the rights of others.” Trillium
Ridge Condo. Ass’n v. Trillium Links & Vill., LLC, 236 N.C. App. 478, 490 (citations
and marks omitted), disc. review denied, 766 S.E.2d 646 (2014).
Our Supreme Court
has described the difference between ordinary and gross negligence as follows:
[T]he difference between the two is not in degree or magnitude of inadvertence or carelessness, but rather is intentional wrongdoing or deliberate misconduct affecting the safety of others. An act or conduct rises to the level of gross negligence when the act is done purposely and with knowledge that such act is a breach of duty to others, i.e., a conscious disregard of the safety of others.
Ray v. N.C. Dep’t of Transp., 366 N.C. 1, 13 (2012) (quoting Yancey v. Lea, 354 N.C.
48, 53 (2001)).
In determining or defining gross negligence, this Court has often used the terms willful and wanton conduct and gross negligence interchangeably to describe conduct that falls somewhere between ordinary negligence and intentional conduct. We have defined gross negligence as wanton conduct done with conscious or reckless disregard for the rights and safety of others. An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others. Our Court has defined willful negligence in the following language:
An act is done wilfully when it is done purposely and deliberately in violation of law or when it is done knowingly
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and of set purpose, or when the mere will has free play, without yielding to reason. The true conception of wilful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, which duty the person owing it has assumed by contract, or which is imposed on the person by operation of law.
Green v. Kearney, 217 N.C. App. 65, 70 (2011) (emphases added) (quoting Yancey, 354
N.C. at 52-53). “Wanton and willful negligence rests on the assumption that [the
defendant] knew the probable consequences, but was recklessly, wantonly or
intentionally indifferent to the results.” Wagoner v. R.R., 238 N.C. 162, 168 (1953).
Plaintiff alleged the following “intentional wrongdoing or deliberate
misconduct[,]” Green, 217 N.C. App. at 75, in support of her claim of gross negligence:
4. Prior to Plaintiff taking possession of the Premises, Defendant left a hole in the ceiling of the master bathroom in order for it to be inspected.
5. Defendant assured Plaintiff that the hole would be fixed after the inspection and before her taking possession of the Premises.
6. On or about [25 April 2019], Plaintiff began occupying the Premises.
7. The hole in the ceiling of the master bathroom appeared to have been properly repaired and was no longer visible to Plaintiff.
....
10. Plaintiff had no knowledge or notice of any unresolved dangerous condition of the attic floor/master bathroom ceiling that would cause it to collapse.
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25. The conduct of Defendant constituted gross negligence and/or willful and wanton disregard for the rights and safety of Plaintiff.
26. By reason of the conduct of Defendant, Plaintiff is entitled to punitive damages.
Defendant’s operations director stated the following at Defendant’s Rule 30
deposition:
Q. Do you think [covering the scuttle hole with drywall] was a right decision for [Defendant] to make?
A. No. Absolutely not. I told [our employee working on the site]—I said, that—whether we think it’s necessary or not it is—was required by code. It was installed and inspected and it should have stayed.
Q. And so doing away with that would make the house not up to code?
A. Correct. If an inspector re-inspected that he would have—he would have found that in violation.
Q. Would that be a problem for [Defendant]?
A. Yes.
Q. Did [Defendant’s employee] ever ask if he could do that?
A. He did not.
The forecasted evidence in this case thus contains allegations and averments
which, if taken as true, show Defendant knew concealing the appearance of the
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scuttle hole from the side of the master bathroom ceiling violated applicable building
code, and otherwise knew concealing the hole posed a hazard, but did it anyway. See
Sawyer v. Food Lion, Inc., 144 N.C. App. 398, 403 (2001) (“Conduct is wanton when
it is carried out with a . . . reckless indifference.”). While we acknowledge gross
negligence “is a high threshold for liability,” Green, 217 N.C. App. at 74 (marks
omitted), viewing the materials in the light most favorable to Plaintiff, as we must,
we hold the trial court erred in concluding Defendant was not grossly negligent as a
matter of law. The forecasted evidence states a claim for gross negligence and raises
a genuine issue of material fact whether Defendant’s conduct surrounding the scuttle
hole amounted to “wanton conduct done with conscious or reckless disregard for the
. . . safety of others” such that it cannot be said Defendant was not grossly negligent
as a matter of law.4 See Bullins v. Schmidt, 322 N.C. 580, 583 (1988); Beck, 57 N.C.
App. at 385 (“Plaintiff’s evidence which tended to show numerous violations of the
National Electrical Safety Code and of defendant’s own standards was sufficient to
merit the submission of the issue of punitive damages to the jury.”); cf. Bashford v.
N.C. Licensing Bd. for General Contractors, 107 N.C. App. 462, 466 (1992) (noting
more than a violation of the building code is needed to establish gross negligence
4 Since the forecasted evidence does not establish Plaintiff was contributorily negligent as a matter of law, Defendant’s argument concerning Plaintiff’s gross-contributory negligence likewise fails. See McCauley, 242 N.C. App. at 89 (citation omitted) (“[A] plaintiff’s contributory negligence does not bar recovery from a defendant who is grossly negligent. Only gross contributory negligence by a plaintiff precludes recovery by the plaintiff from a defendant who was grossly negligent.”).
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under both N.C.G.S. § 87-11(a) and the common law). Accordingly, the trial court
erred in dismissing Count II of Plaintiff’s complaint.
Lastly, Defendant’s argument that Plaintiff has abandoned the available
remedy of punitive damages by failing to discuss them in her Appellant Brief is
misplaced. The trial court dismissed Plaintiff’s complaint, determining she was not
entitled to relief as a matter of law. The issue of to what relief she would be entitled
is thus not before us. Plaintiff specifically alleged willful and wanton conduct in
Count II of her complaint for gross negligence in support of punitive damages. If,
from the evidence, the jury determines there was willful and wanton conduct on the
part of Defendant amounting to gross negligence and Plaintiff was not contributorily
negligent, Plaintiff may pursue punitive damages. See Beck, 57 N.C. App. at 383
(marks omitted) (“Our Court has stated that under the common law of this State
punitive damages may be awarded when the wrong is done willfully . . . or in a
manner which evinces a reckless and wanton disregard of [the] plaintiff’s rights.”).
CONCLUSION
For the foregoing reasons, we vacate the trial court’s order granting
Defendant’s motion for summary judgment and remand for further proceedings.
VACATED AND REMANDED.
Chief Judge STROUD and Judge ZACHARY concur.
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