Smith v. BLYTHE DEVELOPMENT CO.

665 S.E.2d 154, 192 N.C. App. 219, 2008 N.C. App. LEXIS 1523
CourtCourt of Appeals of North Carolina
DecidedAugust 19, 2008
DocketCOA07-1576
StatusPublished
Cited by2 cases

This text of 665 S.E.2d 154 (Smith v. BLYTHE DEVELOPMENT CO.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. BLYTHE DEVELOPMENT CO., 665 S.E.2d 154, 192 N.C. App. 219, 2008 N.C. App. LEXIS 1523 (N.C. Ct. App. 2008).

Opinions

TYSON, Judge.

Keith and Mary Smith (collectively, “plaintiffs”) appeal from order entered granting Blythe Development Company’s (“defendant”) motion for summary judgment. We reverse and remand for further proceedings.

I. Background

In December 2003, defendant entered into a contract with the North Carolina Department of Transportation (“NCDOT”) to widen, resurface, and expand the shoulder of John Russell Road in Charlotte, North Carolina. On or about 24 September 2004, defendant performed construction work on the portion of John Russell Road located directly in front of plaintiffs’ residence. Soon after completion of the construction work, a heavy rain flooded plaintiffs’ basement. •

On 7 February 2007, plaintiffs filed a complaint against defendant alleging one count of negligence. Plaintiffs asserted “[b]y closing up, [221]*221blocking, removing and/or taking similar action with respect to the drainage ditch in front of [plaintiffs’] [property, [defendant failed to adhere to the accepted standard of care in performing its services.” Plaintiffs further asserted “[a]s a direct and proximate result of [defendant's failure to adhere to the accepted standard of care in performing its services, [p]laintiffs have suffered damages [.]” Plaintiffs prayed for actual damages and reasonable attorney’s fees. On 10 April 2007, defendant filed an answer denying the material allegations therein and sought the costs of the action be taxed against plaintiffs.

On 27 August 2007, plaintiffs filed a motion for summary judgment. On 30 August 2007, defendant also filed a motion for summary judgment and sought dismissal of plaintiffs’ action with prejudice. On 1 October 2007, the trial court entered its order, which: (1) denied plaintiffs’ motion for summary judgment; (2) granted defendant’s motion for summary judgment; and (3) dismissed plaintiffs’ claim with prejudice. Plaintiffs appeal.

II. Issue

Plaintiffs argue the trial court erred by granting defendant’s motion for summary judgment.

III. Summary Judgment

A. Standard of Review

Summary judgment is proper 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 a judgment as a matter of law. The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.
A defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiff’s case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense. Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist.
Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a [222]*222forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.
We review an order allowing summary judgment de novo. If the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.

Wilkins v. Safran, 185 N.C. App. 668, 672, 649 S.E.2d 658, 661 (2007) (internal citations and quotations omitted).

B. Analysis

Plaintiffs argue the trial court erred by granting summary judgment in favor of defendant “on the basis that an expert witness is required to prove negligence.” We agree.

Our Supreme Court has “emphasized that summary judgment is a drastic measure, and it should be used with caution [,]” especially in negligence cases in which a jury ordinarily applies a reasonable person standard. Williams v. Power & Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979) (citation omitted). Summary judgment has been held to be proper in negligence cases “where the evidence fails to show negligence on the part of defendant, or where contributory negligence on the part of plaintiff is established, or where it is established that the purported negligence of defendant was not the proximate cause of plaintiff’s injury.” Hale v. Power Co., 40 N.C. App. 202,, 203, 252 S.E.2d 265, 267 (1979) (citation omitted).

This Court has addressed the issue of whether expert testimony is required to establish the element of causation in flooding cases with differing results based upon the complexity of the facts presented. See BNT Co. v. Baker Precythe Dev. Co., 151 N.C. App. 52, 564 S.E.2d 891, disc. rev. denied, 356 N.C. 159, 569 S.E.2d 283 (2002); Davis v. City of Mebane, 132 N.C. App. 500, 512 S.E.2d 450 (1999), disc. rev. improvidently allowed, 351 N.C. 329, 524 S.E.2d 569 (2000). In Davis v. City of Mebane, the plaintiffs’ properties were repeatedly flooded after a hydroelectric dam was constructed upstream from their respective properties. 132 N.C. App. at 501, 512 S.E.2d at 451. The plaintiffs contended the flooding was due to the negligent design and location of the dam, but were forced to rely solely upon lay testimony to support their assertion. Id. at 501-02, 512 S.E.2d at 451-52. The defendants argued that “lay testimony that there was no flooding before the dam was built and significant flooding after the dam was built [was] not sufficient to survive a motion for summary judgment.” [223]*223Id. at 504, 512 S.E.2d at 453. This Court agreed with the defendants’ assertion and stated “lay testimony would not be sufficient to explain changes in the watershed or in the downstream water flow.” Id. This Court ultimately held that expert testimony was required to establish causation “[w]here . . . the subject matter ... is ‘so far removed from the usual and ordinary experience of the average man that expert knowledge is essential to the formation of an intelligent opinion . . . as to the cause of . . . [the] condition.’ ” Id. (quoting Gillikin v. Burbage, 263 N.C. 317, 325, 139 S.E.2d 753, 760 (1964)).

Several years later in BNT Co. v. Baker Precythe Dev. Co., this Court revisited the issue of causation in negligence actions arising from repeated flooding. 151 N.C. App. at 52, 564 S.E.2d at 891. This Court acknowledged that the factual scenario presented in BNT was clearly distinguishable from the facts presented in Davis. Id. at 57, 564 S.E.2d at 895. In BNT, the plaintiffs owned 12 acres immediately south of the defendant’s 17.472 acre tract. Id. at 54, 564 S.E.2d at 894.

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Bluebook (online)
665 S.E.2d 154, 192 N.C. App. 219, 2008 N.C. App. LEXIS 1523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-blythe-development-co-ncctapp-2008.