An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1296
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
DEBORAH LYNN JACKSON,
Administratrix of the Estate of
JOEL EDWARD TRIPP
vs. Columbus County
No. 11 CVS 1360
TOWN OF LAKE WACCAMAW
vs.
ES & J ENTERPRISES, INC.
Appeal by Plaintiff from order entered 26 July 2013 by
Judge D. Jack Hooks, Jr., in Columbus County Superior Court.
Heard in the Court of Appeals 5 March 2014.
Brent Adams & Associates, by Brenton D. Adams, for
Plaintiff.
Crossley, McIntosh, Collier, Hanley & Edes, PLLC, by Brian
E. Edes and Jarrett W. McGowan, for Defendant and Third-
Party Plaintiff Town of Lake Waccamaw.
McAngus, Goudelock & Courie, PLLC, by John T. Jeffries and
Jeffrey B. Kuykendal, for Third-Party Defendant ES&J
Enterprises, Inc.
DILLON, Judge.
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Plaintiff Deborah Lynn Jackson, Administratrix of the
Estate of Joel Edward Tripp, appeals from the trial court’s
order denying her motion for summary judgment and granting
summary judgment in favor of Defendant Town of Lake Waccamaw
(the Town). For the following reasons, we affirm.
I. Factual & Procedural Background
On the morning of 2 August 2007, Third-Party Defendant ES&J
Enterprises, Inc. (ES&J) was engaged in trenching and pipe-
laying operations as an independent contractor, hired by the
Town. Joel E. Tripp (Decedent) was employed by ES&J as a member
of ES&J’s “Utility Crew,” which was responsible for
“install[ing] water, sewer and storm drain pipes of various
sizes.”
At approximately 9:00 a.m., Decedent was situated at the
bottom of a trench – which was approximately twelve feet deep
and ten feet wide – taking measurements to determine the extent
to which additional soil needed to be excavated to facilitate
installation of an already partially-installed 42-inch cement
pipe. Decedent determined that one additional “pass was needed
with the bucket of the trackhoe” to render the trench
sufficiently deep, and he signaled the trackhoe operator to
lower the bucket accordingly. It was intended that Decedent
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remain within the excavation area as the bucket was lowered and
that he climb inside the already-installed portion of the cement
pipe for protection. Although the ES&J safety manual explicitly
prohibited its workers from being “in an excavation while
equipment is working or parked next to the edge[,]” ES&J had
developed this practice of taking cover within the already-
installed pipe as its standard operating procedure, as the ES&J
supervisors believed – and so testified – that the cement pipe
would sufficiently shield the ES&J workers from the bucket of
the trackhoe.
The trackhoe operator observed Decedent’s signal and waited
for Decedent to climb into the pipe before lowering the bucket
into the trench. Another worker, who was assisting Decedent as
his “tail man” at the time, also observed Decedent enter the
pipe before the bucket was lowered into the trench. The
trackhoe operator lost sight of both Decedent and the trench as
the bucket was lowered into the trench, as his view was obscured
by the bucket itself. The bucket struck Decedent, pinning his
body against the pipe that was intended to serve as his
protective shelter. Decedent sustained internal injuries as a
result of the accident, and died several hours later.
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On 6 October 2011, Plaintiff filed the present action
against the Town, alleging negligence and seeking both
compensatory and punitive damages.1 On 23 January 2013, the Town
filed its amended answer denying Plaintiff’s allegations of
negligence and raising numerous defenses against Plaintiff’s
claims, including contributory negligence. The Town also
asserted a third-party complaint against ES&J, seeking
indemnification and/or contribution to the extent that the Town
was held liable in connection with Decedent’s death.
On 3 July 2013, the Town moved for summary judgment against
Plaintiff on her claims, contending that “Plaintiff ha[d] failed
to meet essential elements of her claim in establishing actual
negligence/wrongful conduct against the Town”; that “Plaintiff’s
claims for punitive damages [were] barred by law”; and that
“Plaintiff’s claims [were] barred by [Decedent’s] own
contributory negligence.” On 11 July 2013, Plaintiff filed a
reply and countering motion for partial summary judgment,
contending that the Town had, as a matter of law, “failed to
1
Plaintiff previously filed a wrongful death action against the
Town, ES&J, and several other named defendants in 2009. In this
previous action, Plaintiff voluntarily dismissed without
prejudice her claims against the Town, and the trial court
ultimately granted ES&J’s motion for summary judgment, a
decision that was upheld by this Court in Jackson v. ES&J
Enterprises, Inc., No. COA11-225 (Feb. 7, 2012) (unpublished).
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exercise due care for the safety of the employees of [ES&J],
including [Decedent]”; that there existed genuine issues of
material fact concerning whether “the activity conducted by
[ES&J] was inherently dangerous and whether the [Town] failed to
exercise due care to ensure that the work place was safe for the
employees of [ES&J] and for the public in general”; that “all
the evidence show[ed] as a matter of law that the activities
engaged in by [Decedent] were inherently dangerous and that the
Town [] did absolutely nothing to ensure a safe work place”; and
that Decedent “was killed as a result of the failure of [the
Town] to exercise due care and [was] therefore liable to
[Plaintiff] for the death of [Decedent] in an amount to be
determined . . . by the jury.”
On 15 July 2013, these matters came on for hearing in
Columbus County Superior Court. By order entered 26 July 2013,
the trial court granted summary judgment in favor of the Town,
concluding that there existed no genuine issue of material fact
“as to: (1) that [the Town] knew or should have known that
excavation was an inherently dangerous activity; and (2)
Decedent’s contributory negligence was a proximate cause of his
own injury.” From this order, Plaintiff appeals.
II. Analysis
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Plaintiff contends that the trial court erred in denying
her motion for summary judgment and in granting summary judgment
in favor of the Town. We disagree.
A motion for summary judgment is appropriately granted
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.”
N.C. Gen. Stat. § 1A–1, Rule 56(c) (2011). We review the trial
court’s summary judgment order de novo. Foster v. Crandell, 181
N.C. App. 152, 164, 638 S.E.2d 526, 535 (2007).
Here, there is no dispute that the Town hired ES&J to
perform trenching and pipe-laying operations as an independent
contractor. The general rule in North Carolina is that “[o]ne
who employs an independent contractor is not liable for the
independent contractor’s negligence[.]” Kinsey v. Spann, 139
N.C. App. 370, 374, 533 S.E.2d 487, 491 (2000) (quoting Woodson
v. Rowland, 329 N.C. 330, 350, 407 S.E.2d 222, 234 (1991)).
There is an exception to this rule, however, where the work to
be performed by the independent contractor is “inherently
dangerous”:
One who employs an independent contractor to
perform an inherently dangerous activity may
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not delegate to the independent contractor
the duty to provide for the safety of
others:
The liability of the employer rests upon the
ground that mischievious [sic] consequences
will arise from the work to be done unless
precautionary measures are adopted, and the
duty to see that these precautionary
measures are adopted rests upon the
employer, and he cannot escape liability by
entrusting this duty to another as an
‘independent contractor’ to perform.
The party that employs the independent
contractor has a continuing responsibility
to ensure that adequate safety precautions
are taken.
Woodson, 329 N.C. at 352, 407 S.E.2d at 235 (citations omitted).
Moreover,
an owner’s liability to third parties within
the scope of this nondelegable duty rule
requires a showing that: (1) the activity
causing the injury was, at the time of the
injury, inherently dangerous, (2) the owner
knew, at the time of the injury, of the
inherent dangerousness of the activity, or
knew or should have known, from the
circumstances preceding the injury, that the
work would likely create an inherently
dangerous situation, and (3) the owner
failed to take or ensure that reasonable
precautions were taken to avoid the injury
and this negligence was a proximate cause of
the plaintiff’s injuries,
O'Carroll v. Texasgulf, Inc., 132 N.C. App. 307, 312, 511 S.E.2d
313, 317-18 (1999) (citations omitted).
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Plaintiff contends that the Town should be held liable
based upon its negligent supervision of ES&J’s inherently
dangerous pipe-laying activities, which, in turn, resulted in
Decedent’s death. At the very least, Plaintiff asserts, there
is a genuine issue of material fact concerning whether the Town
exercised due care in its supervision of ES&J’s activities.
This issue concerning the danger inherent in ES&J’s
activities in question was addressed – at least tangentially –
by this Court in Jackson v. ES&J Enterprises, Inc., No. COA11-
225 (Feb. 7, 2012) (unpublished). There, Plaintiff sought to
recover against ES&J outside of the Workers’ Compensation Act,
under the exceptions carved out by our Supreme Court in Woodson
and Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985).
Id. at *1. In reviewing the trial court’s decision to grant
summary judgment in ES&J’s favor, we held, inter alia, that
Plaintiff had presented insufficient evidence that ES&J knew
that its practice of requiring workers to take cover within the
pipe during a dig was substantially certain to result in serious
injury or death. Id. at *4-7. In so holding, we stated the
following:
Plaintiff, however, asserts that the OSHA
inspector assigned to investigate the
fatality, Paul Vogel, found that the
practice was inherently dangerous and could
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cause serious injury or death. However, the
OSHA report repeatedly indicates that the
danger was to employees “within the confines
of the trench box”—it does not state that
the same danger existed if the employee went
into the already-installed pipe past the end
of the trench box, where the pipe was
covered with dirt. In fact, Mr. Vogel
testified that if an employee followed ES &
J's practice, the employee would be
protected in the concrete pipe with overhead
and lateral protection. According to Mr.
Vogel, had Mr. Tripp been in the pipe
consistent with standard ES & J operating
procedure, he would not have been hurt.
Additionally, the OSHA report states in the
“Employer Knowledge” section that ES & J
“believed this [practice] to be safe.”
Plaintiff has, in fact, presented no
evidence that suggested that the supervisors
or anyone else at defendant ES & J knew that
going into the pipe was dangerous at all—to
say nothing of being substantially certain
to result in serious injury or death.
Id. at *5 (emphasis added).
The issue now before us differs from that presented in
Plaintiff’s previous appeal, in that here we are not concerned
with whether ES&J knew that the practice in question was
substantially certain to result in serious injury or death;
rather, the question presented is whether ES&J’s “standard
operating procedure” in question qualifies as an “inherently
dangerous” activity. The second prong of the “inherently
dangerous” test, however, queries whether “the owner knew, at
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the time of the injury, of the inherent dangerousness of the
activity, or knew or should have known, from the circumstances
preceding the injury, that the work would likely create an
inherently dangerous situation.” O’Carroll, 132 N.C. App. at
312, 511 S.E.2d at 317-18. In other words, whereas Plaintiff’s
previous appeal concerned ES&J’s knowledge concerning the danger
inherent in its activities, the present appeals concerns the
Town’s knowledge of the danger associated with those same
activities. This Court thoroughly considered in Plaintiff’s
previous appeal whether ES&J knew of the hazards associated with
its workers taking cover within the already-installed pipe
during its trenching operations, and we answered that question
in the negative. Here, on virtually the same evidence, we take
the logical view that if ES&J lacked knowledge of the danger
inherent in its operating procedure – and indeed, this Court
determined that there was no evidence demonstrating otherwise –
then we must conclude that the Town – a party further removed
from the activities in question – likewise lacked such
knowledge. The Town hired ES&J to perform the pipe laying
portion of its project, relying on ES&J’s expertise in the area
and its ability to develop its own internal policies to
safeguard its workers. Absent any evidence to the contrary –
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and we have found none – we cannot say that the Town knew of a
danger associated with ES&J’s activities of which ES&J was
unaware.
Alternatively, assuming arguendo that ES&J’s activities
were inherently dangerous, and further assuming that the Town
was aware of such danger, the uncontroverted evidence indicates
that Decedent’s own conduct contributed to his death. The only
evidence before the trial court pertinent to the issue of
Decedent’s contributory negligence was that ES&J had developed a
policy through practice that required its pipe layers to enter
the already-installed pipe to protect themselves from the bucket
of the trackhoe; that no ES&J worker had previously been injured
as a result of this policy; that the trackhoe operator and
Decedent’s “tail man” each testified that they had observed
Decedent signal the trackhoe operator before entering the pipe;
and that, as the OSHA inspector determined through his
investigation of the incident, Decedent would have not been hurt
had he been in the pipe consistent with ES&J procedure.
Plaintiff has not introduced any evidence that would create a
genuine issue of material fact on this issue.
Accordingly, in light of the foregoing, we affirm the trial
court’s order granting summary judgment in the Town’s favor.
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AFFIRMED.
Judges BRYANT and STEPHENS concur.
Report per Rule 30(e).