USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 1 of 18
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-1158
LYNNE E. KRITTER, as Executor of the Estate of Eugene John Kritter, III; KRITTER CROPDUSTING, INC.,
Plaintiffs - Appellants,
v.
BRENT MOORING, as Administrator CTA of the Estate of Murry Rayborn Daw; DAW FARMS, INC.; NUTRIEN AG SOLUTIONS, INC.; WILLIAM JORDAN ELMORE, Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Richard E. Myers, II, Chief District Judge. (5:22-cv-00243-M-BM)
Argued: October 29, 2024 Decided: May 19, 2025
Before AGEE, RICHARDSON and BERNER, Circuit Judges.
Vacated and remanded by published opinion. Judge Berner wrote the opinion, in which Judge Agee and Judge Richardson joined.
ARGUED: John Chilson, COMERFORD CHILSON & MOSER, LLP, Winston-Salem, North Carolina, for Appellants. Walter E. Brock, Jr., YOUNG MOORE & HENDERSON, PA, Raleigh, North Carolina; Benjamin James Hogan, BRYAN CAVE LLP, Denver, Colorado, for Appellees. ON BRIEF: W. Thompson Comerford, Jr., COMERFORD CHILSON & MOSER LLP, Winston-Salem, North Carolina, for Appellants. Paul J. Lopach, BRYAN CAVE LLP, Denver, Colorado; Christopher M. Kelly, GALLIVAN, USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 2 of 18
WHITE & BOYD, PA, Charlotte, North Carolina, for Appellees Nutrien AG Solutions, Inc. and William Jordan Elmore. David W. Earley, YOUNG MOORE & HENDERSON PA, Raleigh, North Carolina; Donald E. Clark, Jr., DONALD E. CLARK, JR., ATTORNEY AT LAW, PLLC, Goldsboro, North Carolina, for Appellee Daw Farms, Inc. Jay C. Salsman, HARRIS, CREECH, WARD & BLACKERBY, New Bern, North Carolina; Angela R. Sheets, HUFF POWELL & BAILEY, PLLC, Raleigh, North Carolina, for Appellee Brent Mooring.
2 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 3 of 18
BERNER, Circuit Judge:
Eugene Kritter was an experienced helicopter pilot who owned and operated a crop
dusting company, Kritter Cropdusting. While crop dusting over a farm in North Carolina,
his helicopter collided with a low-hanging steel wire. Kritter was killed in the resulting
crash. Kritter Cropdusting and Kritter’s estate brought this negligence case against the
owners and operators of the farm and Nutrien, the pesticide company that retained Kritter
Cropdusting to carry out the job. The district court granted summary judgment to the
defendants.
Under North Carolina law, summary judgment is appropriate “only in exceptional
negligence cases . . . [because] the standard of reasonable care should ordinarily be applied
by the jury under appropriate instructions from the court.” Ragland v. Moore, 261 S.E.2d
666, 668 (N.C. 1980) (emphasis added). This is not an exceptional case. Rather, this is a
case in which liability depends on disputed facts and the competing reasonable inferences
that could be drawn from those facts. That is the province of the jury, not the court.
Accordingly, we vacate the order of the district court and remand for further proceedings.
I. Background
Murry Rayborn Daw (Rayborn) owned a parcel of land in Wayne County, North
Carolina, where he farmed and hunted. In one of his fields, Rayborn erected a deer stand,
a raised platform that provides an elevated vantage point for hunting deer. The deer stand
was affixed to a tall pole, which stood approximately 30 feet high. To attract doves for
3 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 4 of 18
hunting, Rayborn strung a steel wire, about a quarter of an inch in diameter, from atop the
deer stand pole to a tree nearly 300 feet away.
After he ceased farming the land himself, Rayborn leased his parcel to Daw Farms,
Inc., a farming company owned and operated by his relatives, Paul and Delanor Daw.
Although Rayborn allowed Daw Farms to farm on his land, he maintained the right to
access the land for hunting.
Daw Farms had long battled stinkbug infestations. For several years, Daw Farms
hired a local pilot to crop dust its fields with pesticides. In 2019, Daw Farms engaged
Nutrien Ag Solutions, Inc. (Nutrien) to take over this work. Nutrien employed a local
farmer, Jordan Elmore, as a crop consultant to work with Daw Farms and to hire pilots to
crop dust on Nutrien’s behalf.
In June 2019, Elmore arranged for two helicopter pilots to crop dust over Daw
Farms. When one of the pilots reached Rayborn’s parcel, he conducted an aerial survey
before spraying. The pilot identified no visible hazards. He then descended and began
spraying Rayborn’s parcel. Flying low above the parcel, the pilot caught sight of the dove
wire. Just before colliding with the wire, the pilot quickly pulled the helicopter upward and
“hopped over” the wire. J.A. 2241. The pilot described spotting the wire as “pure luck [. . .]
just the way the sun was shining.” J.A. 2241. In the moment, he told the other pilot “that
one about got me,” but he never told anyone else about his near-miss with the wire.
J.A 2248–49.
The following year, in 2020, Daw Farms once again hired Nutrien to apply
pesticides on its fields. Elmore made the arrangements and, this time, hired Kritter
4 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 5 of 18
Cropdusting. Kritter was an experienced agricultural pilot with over 19,000 hours of flight
time on his record.
The day before the planned crop dusting operation at Daw Farms, Kritter sent a
ground crew to meet with Elmore to identify landing zones. Elmore offered to drive the
ground crew around to show them which fields should be crop dusted, but they declined.
Instead, they told Elmore that Kritter would have him identify the locations to be sprayed
by placing virtual pins on a digital map on his iPad. The ground crew never inquired about
potential hazards and Elmore volunteered no such information.
The following morning, Kritter and Elmore met. As expected, Kritter asked Elmore
to identify the fields to be sprayed by placing virtual pins on map on his iPad. Kritter then
commenced the crop dusting operation in his helicopter. Late that afternoon, Kritter
reached Rayborn’s parcel. Shortly before spraying the parcel, Kritter called Elmore while
he was on the ground refueling and refilling the helicopter’s pesticide tanks. During the
call, Kritter asked Elmore whether there was anything he “need[ed] to be aware of on this
farm.” J.A. 696. Elmore did not mention the dove wire. Elmore responded only that there
was a housing development nearby.
Kritter first made two aerial passes to survey Rayborn’s parcel. He then descended
to begin crop dusting. As Kritter flew over the parcel, his helicopter collided with the dove
wire. The wire wrapped around the main rotor and blades of the helicopter, causing it to
crash and killing Kritter.
5 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 6 of 18
II. Procedural History
Kritter’s estate and Kritter Cropdusting sued Rayborn, 1 Daw Farms, Elmore, and
Nutrien (who we refer to collectively as “Appellees”) for tortious negligence under North
Carolina state law. After the close of discovery, the parties filed cross-motions for summary
judgment. The district court granted Appellees’ motion for summary judgment, concluding
that defendants Rayborn and Daw Farms, the owner and lessee of Rayborn’s land, owed
no duty of care to remove or modify the dove wire or to warn Kritter of its existence. The
district court reasoned that the risk posed by the dove wire to a pilot was not reasonably
foreseeable to them because they were farmers, not pilots. It also concluded that neither
Nutrien nor Elmore owed Kritter a duty of care under any theory of liability. Kitter v.
Mooring, 712 F. Supp. 3d 684, 703–06 (E.D.N.C. 2024).
In response to Appellees’ affirmative defenses, the district court rejected the
argument that Kritter was contributorily negligent for ignoring an obvious risk, finding that
the dove wire was not an “open and obvious condition.” Id. at 700. The district court noted
that the wire was difficult to spot, particularly from a helicopter. Id. Finally, the district
court rejected Appellees’ argument that they should be shielded from liability for Kritter’s
death under North Carolina’s incident to the work undertaken exception. Id. at 701–02.
This exception shields Appellees from liability when an independent contractor exercises
sufficient control and possession over a property. Id.
1 Rayborn died during the pendency of this litigation and his estate is now represented by his son, Brent Mooring. We refer to the estate as “Rayborn” for ease of understanding. 6 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 7 of 18
Having granted Appellees’ motion for summary judgment, the district court denied
Kritter’s cross motion for partial summary judgment. Id. at 706–07. Kritter timely
appealed. He asks that we vacate the district court’s grant of summary judgment for
Appellees and grant partial summary judgment in his favor.
III. Standard of Review
We review “de novo a district court’s decision to grant summary judgment, applying
the same legal standards as the district court and viewing the facts and reasonable
inferences in the light most favorable to the nonmoving party.” English v. Clarke, 90 F.4th
636, 645 (4th Cir. 2024) (internal quotation omitted). Summary judgment is appropriate
only when “there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Fed. R. Civ. P. 56(a).
IV. Analysis
When sitting in diversity jurisdiction, we apply the law of the forum state. Moore v.
Equitrans, L.P., 27 F.4th 211, 220 (4th Cir. 2022). North Carolina’s courts have repeatedly
held that “issues of negligence are not ordinarily susceptible to summary disposition.”
Cone v. Watson, 736 S.E.2d 210, 212 (N.C. Ct. App. 2012) (internal quotation omitted);
see also Mozingo by Thomas v. Pitt Cnty. Mem’l Hosp., Inc., 400 S.E.2d 747, 750 (N.C.
Ct. App. 1991), aff’d, 415 S.E.2d 341 (N.C. 1992) (“Summary judgment is such a drastic
remedy that it should rarely be granted in negligence cases.”). “[E]ven where there is no
7 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 8 of 18
substantial dispute as to what occurred, it usually remains for the jury to apply the
appropriate standard of care to the facts of the case.” Mozingo, 400 S.E.2d at 750 (internal
quotation omitted). That is true because either “when the facts are in dispute or when more
than a single inference can be drawn from the evidence” those issues of fact must first be
resolved by a jury. Id. at 753.
Under North Carolina law, a common law claim of negligence has three elements:
(1) a legal duty owed by the defendant to the plaintiff; (2) a breach of that legal duty; and
(3) injury proximately caused by the breach. Keith v. Health-Pro Home Care Servs., Inc.,
873 S.E.2d 567, 574 (N.C. 2022). This appeal turns on the first element: whether Appellees
owed Kritter a legal duty of care. Appellees argue that they owed no such duty. Even if
they did, however, Appellees argue that summary judgment was still appropriate for two
independent reasons: because Kritter was contributorily negligent and because his death
was incident to his work as an independent contractor.
For the reasons discussed below, we conclude material questions of fact remain as
to whether each of the Appellees owed Kritter a legal duty of care. The issue of whether
such duty exists must, under North Carolina law, be left for a jury to resolve. Mozingo, 400
S.E.2d at 753. Similarly, whether Kritter was contributorily negligent in causing the
accident turns on factual determinations that cannot be resolved at summary judgment.
Appellees’ argument that Kritter’s death was incident to his work is unsupported by North
Carolina law and must be rejected.
8 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 9 of 18
A. Premises Liability
Kritter claims that Rayborn and Daw Farms owed him a legal duty of care under
North Carolina’s doctrine of premises liability. Under this doctrine, landowners have a
“nondelegable duty to exercise reasonable care in the maintenance of their premises for the
protection of lawful visitors.” Asher v. Huneycutt, 876 S.E.2d 660, 667 (N.C. Ct. App.
2022) (internal quotation omitted). This duty of reasonable care “requires that the
landowner not unnecessarily expose a lawful visitor to danger and give warning of hidden
hazards of which the landowner has express or implied knowledge.” Shepard v. Catawba
Coll., 838 S.E.2d 478, 486 (N.C. Ct. App. 2020). Landowners must “take reasonable
precautions to ascertain the condition of the property and to either make it reasonably safe
or give warnings as may be reasonably necessary to inform the [lawful visitor] of any
foreseeable danger.” Martishius v. Carolco Studios, Inc., 542 S.E.2d 303, 308 (N.C. Ct.
App. 2001) (alteration in original) (internal quotation omitted), aff’d, 562 S.E.2d 887 (N.C.
2002) (internal quotation and citation omitted). An independent contractor or subcontractor
who enters premises at the request of an owner or occupier is considered a lawful visitor
who is owed a duty of reasonable care. McCorkle v. N. Point Chrysler Jeep, Inc., 703
S.E.2d 750, 752 (N.C. Ct. App. 2010).
There is no dispute that Kritter lawfully entered onto Rayborn’s parcel. Nutrien
hired Kritter pursuant to its agreement with Daw Farms and invited Kritter onto Rayborn’s
parcel. The standard duty of care under premises liability thus required Rayborn and Daw
Farms—as owner and lessee of that land, respectively—to take reasonable precautions,
ascertain the condition of the property, and either make the property reasonably safe or
9 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 10 of 18
give warnings as may be reasonably necessary to inform Nutrien or Kritter of any
foreseeable danger. See Martishius, 542 S.E.2d at 308; Roumillat v. Simplistic Enters., Inc.,
414 S.E.2d 339, 342–43 (N.C. 1992).
At the heart of the premises liability determination lies the question of whether the
danger was foreseeable. Rayborn and Daw Farms contend that as farmers, not helicopter
pilots, they could not reasonably have foreseen the hazard that a dove wire would pose to
Kritter in flying his helicopter above their property. Accordingly, they argue they had no
legal duty to make the property safe or to warn Kritter about the wire. The district court
accepted this argument. Under North Carolina negligence law, however, the issue of
foreseeability turns on the particular facts of each case and is generally a question left for
the jury. Stein v. Asheville City Bd. of Educ., 626 S.E.2d 263, 267–68 (N.C. 2006); Fussell
v. N.C. Farm Bureau Mut. Ins., 695 S.E.2d 437, 440 (N.C. 2010). That proves true in this
case as well. Rayborn and Daw Farms need not have been able to foresee the “exact form”
of Kritter’s injury to have had a duty of care. Foster v. Winston-Salem Joint Venture, 281
S.E.2d 36, 40 (N.C. 1981). At summary judgment, it was sufficient for Kritter to put
forward evidence sufficient for a reasonable jury to find that, upon exercising reasonable
care, Rayborn and Daw Farms “should have foreseen that some injury would result.” Id.
Viewing the facts in the light most favorable to Kritter, a jury could reasonably
conclude that Rayborn and Daw Farms should have foreseen the danger posed by the dove
wire. Both Rayborn and the owners of Daw Farms, Paul and Delanor Daw, were aware of
the dove wire. They were also generally familiar with aerial crop dusting practices. Paul
and Delanor Daw had previously hired other pilots to crop dust their fields and personally
10 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 11 of 18
observed the low altitudes at which they fly. Indeed, Delanor testified that he was aware
Kritter would fly low over Rayborn’s parcel and that he had once observed a crop duster
fly so low that it “had beans on [its] wheels.” J.A. 900. Although Rayborn passed away
before he could be deposed in connection with this matter, a jury could reasonably infer
that he, like Paul and Delanor Daw, would have been aware that pilots fly low over fields
when crop dusting. Rayborn had also hired crop dusters on many occasions. Because
Rayborn and Daw Farms were aware of the dove wire and knew that pilots fly low over
fields when crop dusting, a jury could reasonably conclude that Rayborn and Daw Farms
should have foreseen the danger the dove wire posed to Kritter.
On the other hand, the facts before us do not establish that the danger posed by the
dove wire was foreseeable as a matter of law. A fair-minded jury could reasonably
conclude that it was not. For this reason, we find that summary judgment is equally
inappropriate for Kritter. Where, as here, either the facts are in dispute or more than one
inference can be drawn from the evidence, these issues of fact must first be resolved by the
jury. Mozingo, 400 S.E.2d at 753. Here, a jury must decide the issue of foreseeability, as is
the ordinary course in negligence actions arising under North Carolina law.
As a final note on premises liability, Rayborn argues separately that he had no legal
duty to Kritter because he had leased his parcel to Daw Farms. North Carolina law provides
that where a landowner retains partial control over a leased property, the landowner
remains liable for injuries to third parties if the injury is caused by conditions under the
landowner’s control. Franklin Drug Stores, Inc. v. Gur–Sil Corp., 152 S.E.2d 77, 79 (N.C.
1967). Under such circumstances, control over specific conditions on property can be
11 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 12 of 18
shared by landlord and tenant. Holcomb v. Colonial Assocs., L.L.C., 597 S.E.2d 710, 715
(N.C. 2004). At least for summary judgment purposes, it is sufficient that a reasonable jury
could conclude that Rayborn would owe a legal duty to Kritter for conditions on the parcel
over which he retained control, including the dove wire. Id.
The extent of Rayborn’s continued control over the parcel remains unclear. Though
Rayborn claims that he relinquished control over the parcel, Paul Daw testified that
Rayborn retained access to his parcel to hunt, including use of the dove wire and deer stand.
Paul Daw further testified that Daw Farms did not have permission to remove the dove
wire from the field. Because material issues of fact remain regarding the extent to which
Rayborn maintained control over the parcel and dove wire, this question must be left for a
jury.
B. Undertaking Liability
We next consider whether Nutrien and Elmore owed Kritter a duty of care. Nutrien
concedes that Elmore was acting within the scope of his employment with Nutrien at all
relevant times. Nutrien is therefore vicariously liable for Elmore’s actions under the
doctrine of respondeat superior. Gordon v. Garner, 493 S.E.2d 58, 63 (N.C. Ct. App.
1997). We thus turn to the question of whether Elmore owed Kritter a duty of care to warn
him about the dove wire.
North Carolina’s doctrine of “undertaking liability” provides that a person owes a
duty to “exercise that degree of care for the safety of others that a reasonable prudent person
would exercise under the same circumstances.” Bogle v. Duke Power Co., 219 S.E.2d 308,
310 (N.C. Ct. App. 1975). For an undertaking arising out of a contractual relationship, there
12 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 13 of 18
is an obligation to exercise reasonable care as would be expected within the scope of the
act agreed to be done. Pinnix v. Toomey, 87 S.E.2d 893, 897–98 (N.C. 1955); Council v.
Dickerson’s, Inc., 64 S.E.2d 551, 553 (N.C. 1951).
Here, Elmore worked for Nutrien as a crop consultant. He hired Kritter to crop dust
Daw Farms’s fields. In carrying out this task, Elmore was under an obligation to exercise
the “ability, skill, and care customarily used” by crop consultants when engaging a pilot to
crop dust fields. See Quail Hollow E. Condo Ass’n v. Donald J. Scholz Co., 268 S.E.2d 12,
16 (N.C. Ct. App. 1980) (holding that an architect “in the performance of his contract with
his employer, is required to exercise the ability, skill, and care customarily used by
architects upon such projects.” (internal quotation omitted)). Kritter claims that industry
standard and custom required Elmore to warn him of the dove wire because such a warning
fell within the scope of the “undertaking.” See Firemen’s Mut. Ins. v. High Point Sprinkler
Co., 146 S.E.2d 53, 59 (N.C. 1966).
In support of his claim that Elmore had a duty to warn about the dove wire, Kritter
points to the testimony of Rod Thomas, a pilot and crop dusting expert. Thomas testified
that Kritter reasonably relied on Elmore to warn him about hidden hazards and that such
reliance conformed with industry standards. Thomas further testified that Kritter’s
“lengthy, preflight briefing with Jordan Elmore” was consistent with how a reasonable and
experienced agricultural pilot would identify hazards. J.A. 2375. According to Thomas, the
industry norm for crop consultants like Elmore is to be aware of and caution about known
aerial application hazards. Indeed, the record before us reflects that, just before he took off
to spray Rayborn’s parcel, Kritter specifically asked Elmore whether there was anything
13 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 14 of 18
he “need[ed] to be aware of.” J.A. 696. Kritter’s crew understood this question to relate to
potential hazards on Rayborn’s parcel. Notably, Elmore warned Kritter of at least one
potential aerial application hazard, the presence of a nearby housing development. A
question of fact remains as to whether Kritter reasonably relied on Elmore’s silence about
the dove wire to mean there were no other known hazards. See Jones v. Douglas Aircraft
Co., 112 S.E.2d 257, 260 (N.C. 1960).
Nutrien and Elmore argue that they had never in the past warned pilots about
potential flight hazards. They claim their role is limited to scheduling crop dusting
operations and identifying fields to be sprayed. Simply because no injury occurred
previously does not necessarily absolve Nutrien and Elmore of liability here. A previously
neglected duty—if one existed—cannot insulate a potential tortfeasor from liability. A jury
could reasonably conclude that Elmore had a legal duty to warn Kritter of reasonably
foreseeable hazards.
We also conclude that a question of fact remains as to whether the risk posed by the
dove wire was reasonably foreseeable to Elmore. Elmore was himself a farmer in addition
to his role as a crop consultant for Nutrien. He often visited local farms to sell chemicals
and determine pesticide application needs. Elmore testified that he had observed crop
dusters his “whole life,” and generally understood how they operate. J.A. 1161. He thus
would have been aware from experience and observation that Kritter would fly his
helicopter low, just above the tops of the crops. The altitude of Kritter’s spray operation
would have been readily apparent to Elmore on the day of the accident because he
personally observed Kritter applying chemicals to his own fields.
14 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 15 of 18
Elmore’s testimony also makes clear that he knew about the dove wire. While
working in a field adjacent to Rayborn’s parcel, Elmore previously observed the pole, deer
stand, and dove wire. Because he was aware of the dove wire and that Kritter would be
flying low to the ground over Rayborn’s parcel, a jury could reasonably infer that Elmore
should have foreseen the danger that the dove wire would pose to Kritter while crop
dusting.
C. Appellees’ Defenses
Appellees raise two additional defenses to liability. First, they argue that Kritter was
contributorily negligent as a matter of law in causing the crash because the dove wire was
an open and obvious hazard. Second, they argue that Kritter’s injury was incident to his
work, such that the injury would be subject to North Carolina’s “incident to the work
undertaken” exception for tort liability. We reject both contentions.
1. Contributory Negligence
We begin with Appellees’ argument that Kritter was contributorily negligent in
causing the crash. Appellees contend that the dove wire presented an open and obvious
risk, and thus Kritter was contributorily negligent for failing to avoid it. North Carolina’s
law of contributory negligence provides that when “uncontroverted facts viewed from an
objective standpoint establish that the plaintiff encountered an open and obvious risk, it is
appropriate for courts to find as a matter of law that the defendant had no duty to warn the
plaintiff or that the plaintiff’s claim is barred by contributory negligence.” Draughon v.
Evening Star Holiness Church of Dunn, 843 S.E.2d 72, 76 (N.C. 2020). Reasonable people
are assumed, absent a diversion or distraction, to be vigilant in the avoidance of injury
15 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 16 of 18
when faced with a known and obvious danger. Roumillat, 414 S.E.2d at 344. Like
negligence generally, “contributory negligence 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.” Cone, 736 S.E.2d at 213.
We cannot conclude as a matter of law that the dove wire posed an open and obvious
risk. Two pieces of evidence in particular point against such a conclusion. First, as noted
above, Elmore arranged to have two helicopter pilots crop dust on Daw Farms’s land,
including on Rayborn’s parcel, in June 2019. Like Kritter, one of the pilots conducted an
initial aerial survey over Rayborn’s parcel and did not observe the dove wire from the air.
After seeing no visible hazards, that pilot descended and began spraying. While spraying
Rayborn’s parcel, that pilot caught sight of the dove wire just before flying into it, and
pulled up just in time, narrowly avoiding the wire. The pilot described his spotting the dove
wire as “pure luck.” J.A. 2241.
Second, Kritter’s experts reconstructed the accident using a drone and camera. Their
reconstruction showed that, given the helicopter’s speed, Kritter could not have seen the
roughly quarter inch diameter wire with “enough time to begin maneuvering the craft
before he reached the cable’s location.” J.A. 2341–42. This expert evidence establishes, at
a minimum, that a factual dispute exists as to whether Kritter could have seen the dove
wire while operating the helicopter and thus whether he could be found contributorily
negligent.
16 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 17 of 18
Based on the facts before the district court, a reasonable jury could well conclude
that Kritter was contributorily negligent. Indeed, Kritter was aware of the deer stand pole,
and a jury could reasonably infer that the presence of the dove wire would have been
obvious. That is a factual determination, however. The district court thus correctly rejected
summary judgment on the question of whether Kritter was contributorily negligent.
2. Incident to the Work Undertaken Exception
Finally, Appellees contend that Kritter’s negligence claim fails because the crash
resulted from a danger that was incident to work Kritter had undertaken as an independent
contractor. This argument misapprehends North Carolina law. In North Carolina, an owner
or occupier of land who relinquishes control and possession of property to an independent
contractor also relinquishes the duty of care to the independent contractor who is exercising
control and possession, but only with respect to “dangers which may be incident to the
work undertaken by the independent contractor.” McCorkle, 703 S.E.2d at 753. That is not
what happened here.
Kritter neither possessed nor controlled any part of Rayborn’s parcel while he was
crop dusting. Cf. Cook v. Morrison, 413 S.E.2d 922, 926 (N.C. Ct. App. 1992). Moreover,
Kritter played no role in hanging the dove wire. Therefore, the dove wire was in no way
“incident to” Kritter’s work as a crop duster. The district court properly rejected this
argument.
17 USCA4 Appeal: 24-1158 Doc: 63 Filed: 05/19/2025 Pg: 18 of 18
V. Conclusion
Because material facts remain in dispute and reasonable inferences could be drawn
that would establish negligence, we vacate the district court’s grant of summary judgment
and remand for further proceedings.
VACATED AND REMANDED