Plyler v. Cox Brothers, Inc.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CASE NO. 3:22-CV-00413-FDW-DCK

ROBBIE G. PLYLER, and )

DEBORAH PLYLER, )

)

Plaintiffs, )

)

v. ) ORDER

)

COX BROTHERS, INC., et al., )

)

Defendants. )

)

THIS MATTER is before the Court on Defendants’ Motion for Summary Judgment (Doc.

No. 19). This matter has been fully briefed, (Doc. Nos. 19–1, 23, 27), and is ripe for ruling. For

the reasons set forth below, Defendants’ Motion is GRANTED IN PART, as to Defendants Cox

Land Investments, Limited Partnership, and Cox Land Company, LLC, and DENIED IN PART,

as to the remaining individual and corporate Defendants.

I. BACKGROUND1

Plaintiffs Robbie G. Plyler (“Mr. Plyler”) and Deborah Plyler (“Mrs. Plyler,” and

collectively, “Plaintiffs”) filed this action against Defendants Cox Brothers, Inc., doing business

as Cox Brothers Farm; Cox Farm Management, LLC, doing business as Cox Brothers Farm; Cox

Land Investments, Limited Partnership; Cox Land Company, LLC; Russell F. Cox; Delano S. Cox;

Marion F. Cox; Campbell Cox; and Cox Brothers Farms, a North Carolina General Partnership,

asserting claims arising from an injury Mr. Plyler suffered during his employment. (Doc. No. 1).

1 The background set forth herein is taken from a combination of the parties’ briefing and attached exhibits.

The background is taken in the light most favorable to Plaintiffs, the nonmoving party.

Plaintiffs’ Complaint, filed on August 17, 2022, raises four causes of action:

(1) Negligence/Gross Negligence against all Defendants; (2) Premises Liability against

Defendants Owner and Owner Management; (3) Loss of Consortium against all Defendants; and

(4) Punitive Damages against all Defendants. (Doc. No. 1). On June 14, 2023, Defendants filed a

Motion for Summary Judgment, seeking “summary judgment on all of Plaintiffs’ claims and on

the issues of contributory negligence and offset.” (Doc. No. 19). On July 12, Plaintiffs filed a

Notice of Partial Voluntary Dismissal, Without Prejudice, to dismiss Cox Brothers, Inc.; Cox Farm

Management, LLC; Cox Land Investments, Limited Partnership; and Cox Land Company, LLC.

(Doc. No. 22). On that same day, Plaintiffs also filed their Memorandum of Law in Opposition to

Defendants’ Motion for Summary Judgment. (Doc. No. 23). Defendants filed their Reply

Memorandum in Support of Motion for Summary Judgment on July 26. (Doc. No. 27).

II. STANDARD OF REVIEW

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

fact is material only if it might affect the outcome of the suit under governing law. Id.

The movant has the “initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted). Once this initial burden is met, the burden shifts to the nonmoving

party. The nonmoving party “must set forth specific facts showing that there is a genuine issue for

trial.” Id. at 322 n.3. The nonmoving party may not rely upon mere allegations or denials of

allegations in his pleadings to defeat a motion for summary judgment. Id. at 324. The nonmoving

party must present sufficient evidence from which “a reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert Cnty., Md., 48

F.3d 810, 818 (4th Cir. 1995).

When ruling on a summary judgment motion, a court must view the evidence and any

inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477

U.S. at 255. “Where the record taken as a whole could not lead a rational trier of fact to find for

the nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S. 557, 586

(2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “Only disputes over

facts that might affect the outcome of the suit under the governing law will properly preclude the

entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be

counted.” Anderson, 477 U.S. at 248. Also, the mere argued existence of a factual dispute does

not defeat an otherwise properly supported motion. Id. If the evidence is merely colorable, or is

not significantly probative, summary judgment is appropriate. Id. at 249-50. In the end, the

question posed by a summary judgment motion is whether the evidence as applied to the governing

legal rules “is so one-sided that one party must prevail as a matter of law.” Id. at 252.

III. ANALYSIS

A. Plaintiffs’ Partial Voluntary Dismissal, Without Prejudice

As an initial matter, the Court must address Plaintiffs’ Partial Voluntary Dismissal,

Without Prejudice, filed on July 12, 2023. (Doc. No. 22). Therein, Plaintiffs stated:

Pursuant to Rule 41(a) of the North Carolina Rules of Civil Procedure, Plaintiffs

Robbie G. Plyler and Deborah Plyler hereby voluntarily dismiss, without prejudice,

all of their claims in this action against: Defendants Cox Brothers, Inc. d/b/a Cox

Brothers Farm; Cox Farm Management, LLC d/b/a Cox Brothers Farm; Cox Land

Investments, Limited Partnership; and Cox Land Company, LLC. Nothing herein

is intended to, or does, dismiss any of Plaintiffs’ remaining claims against any other

party.

(Doc. No. 22, p. 1) (emphasis in original). Importantly, only Plaintiffs signed and filed this

dismissal. (Id.).

Plaintiffs’ reliance on Rule 41(a) of the North Carolina Rules of Civil Procedure is

misplaced, as the applicable rule for voluntary dismissals in federal courts is Rule 41(a) of the

Federal Rules of Civil Procedure. There is a notable difference between the two rules. Under North

Carolina Rules, a plaintiff may voluntarily dismiss all the way up until the close of his case. N.C.

GEN. STAT. § 1A-1 (allowing a plaintiff to dismiss without a court order “any time before the

plaintiff rests his case”). The Federal Rules, however, provide:

(a) Voluntary Dismissal.

(1) By the Plaintiff.

(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66

and any applicable federal statute, the plaintiff may dismiss an action

without a court order by filing:

(i) a notice of dismissal before the opposing party serves either an

answer or a motion for summary judgment; or

(ii) a stipulation of dismissal signed by all parties who have

appeared.

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is

without prejudice. But if the plaintiff previously dismissed any federal-

or state-court action based on or including the same claim, a notice of

dismissal operates as an adjudication on the merits.

(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may

be dismissed at the plaintiff’s request only by court order, on terms that the

court considers proper. . . . Unless the order states otherwise, a dismissal

under this paragraph (2) is without prejudice.

FED. R. CIV. P. 41(a) (emphasis in original). Thus, under the Federal Rules, a plaintiff may only

unilaterally voluntarily dismiss an action before the defendant files an answer or motion for

summary judgment; after this, to voluntarily dismiss, the plaintiff must have either the defendant’s

consent or a court order. Here, the Federal Rules of Civil Procedure apply and as such, any

dismissals by the parties must comply with Rule 41. See Hanna v. Plumer, 380 U.S. 460, 465–

(1965) (explaining that federal courts sitting in diversity cases “are to apply state substantive law

and federal procedural law.”) (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)).

Defendants have already filed their Answer to Plaintiffs’ Complaint, (Doc. No. 4), as well

as the instant Motion for Summary Judgment, (Doc. No. 19). However, Plaintiffs’ dismissal filing

was not a stipulation of dismissal signed by all parties who have appeared, nor was it a motion

requesting a court order dismissing the named Defendants. (Doc. No. 22). Therefore, Plaintiffs’

Partial Voluntary Dismissal does not comply with Rule 41(a) of the Federal Rules.

Accordingly, Plaintiffs’ Partial Voluntary Dismissal, Without Prejudice (Doc. No. 22), has

no effect on this action and is STRICKEN from the record. Thus, the Court now turns to

Defendants’ Motion for Summary Judgment.

A. Defendants Cox Land Investments, Limited Partnership, & Cox Land Company, LLC

In moving for summary judgment, Defendants first argue that Cox Land Investments,

Limited Partnership, and Cox Land Company, LLC, do not own, use, or otherwise control, the

property on which Mr. Plyler sustained his injury. Thus, they contend that because they thus do

not owe any legal duty to Mr. Plyler, they cannot be held liable for any of Plaintiffs’ claims against

them. The Court agrees.

In order for a negligence claim to survive a motion for summary judgment, the plaintiff

must present evidence showing: “(1) that defendant failed to exercise proper care in the

performance of a duty owed plaintiff; (2) the negligent breach of that duty was a proximate cause

of plaintiff's injury; and (3) a person of ordinary prudence should have foreseen that plaintiff's

injury was probable under the circumstances.” Burnham v. S&L Sawmill, Inc., 749 S.E.2d 75, 79–

80 (N.C. Ct. App. 2013) (quoting Von Viczay v. Thomas, 538 S.E.2d 629, 630–31 (N.C. Ct. App.

2000), aff’d, 545 S.E.2d 210 (2001) (per curiam) (citations omitted)). Thus, inherent, and integral,

to satisfying the elements required for a negligence claim is the existence of a duty owed by the

defendant to the plaintiff.

Furthermore, in premises liability cases, the “ultimate issue . . . is determining whether

Defendants breached ‘the duty to exercise reasonable care in the maintenance of their premises for

the protection of lawful visitors.’” Id. (quoting Nelson v. Freeland, 507 S.E.2d 882, 892 (N.C. Ct.

App. 1998)). To that end, the plaintiff must show the defendant either “(1) negligently created the

condition causing the injury, or (2) negligently failed to correct the condition after actual or

constructive notice of its existence.” Id. (quoting Fox v. PGML, LLC, 744 S.E.2d 483, 485 (N.C.

Ct. App. 2013)). Thus, “ordinarily the ownership, use, and control of the premises is the usual test

of liability.” Atkinson v. Corriher Mills Co., 158 S.E. 554, 555 (N.C. 1931).

Here, the claims for negligence and premises liability arise out of an allegedly dangerous

condition on the land, or an alleged manipulation of equipment on the land. (Doc. No. 1, p. 9–11).

Thus, in order for Defendants Cox Land Investments, Limited Partnership, and Cox Land

Company, LLC, to be liable for Plaintiffs’ first and second causes of action for negligence and

premises liability, they must have owed Plaintiffs a legal duty due to their ownership, use, or

control, of the property where Mr. Plyler was injured. See Atkinson, 158 S.E. at 555 (holding that

“no duty of inspecting the path where plaintiff was injured was imposed upon the defendant by

virtue of the fact that the defendant had no use or control over the [land],” because “[a]s long as

the railway company had the right to use the land for railway purposes and was then in the present

use and occupancy of such land for such purpose, the defendant was thereby deprived of control

over the premises.”). It is undisputed that neither Cox Land Investments, Limited Partnership, nor

Cox Land Company, LLC, owned the land at issue. (Doc. No. 19-1, p. 12; Doc. No. 23, p. 52). It

2 In response to Defendants’ contention that Marion and Delano Cox are the only proper defendants in this

matter and that Cox Land Investments, Limited Partnership, and Cox Land Company, LLC, do not own, use, or control

is also undisputed that these entities did not use the premises or control the premises during the

relevant period. (Doc. No. 19-1, p. 12; Doc. No. 23, p. 5).3 Thus, because there is no genuine

dispute that Cox Land Investments, Limited Partnership, and Cox Land Company, LLC, did not

own, use, or control, the premises, they did not owe Mr. Plyler any legal duty arising therefrom.

As such, Defendants Cox Land Investments, Limited Partnership, and Cox Land Company, LLC,

cannot be liable to Plaintiffs under any theory of negligence or premises liability. Therefore, they

are entitled to summary judgment as a matter of law for Plaintiffs’ First and Second Causes of

Action for Negligence/Gross Negligence and Premises Liability.

Accordingly, Plaintiffs remaining claims for loss of consortium and punitive damages

against Defendants Cox Land Investments, Limited Partnership, and Cox Land Company, LLC,

necessarily fail. Though permitted under North Carolina law, “[l]oss of consortium is a derivative

action, and . . . a spouse cannot recover for loss of consortium unless the action of the injured

plaintiff is successful.” Sargent v. Edwards, 808 S.E.2d 927, at *8 (Table) (N.C. Ct. App. 2018);

see also Nicholson v. Hugh Chatham Mem. Hospital, 266 S.E.2d 818 (N.C. 1980). Similarly, a

party “cannot have a cause of action for punitive damages by itself. If the complainant fails to

plead or prove his cause of action, then he is not allowed an award for punitive damages because

he must establish his cause of action as a prerequisite for a punitive damage award.” Oestreicher

the premises at issue in this matter, Plaintiffs argue that Rusty and Campbell are also proper defendants because of

their general involvement in the operations at Cox Brothers Farm and specific involvement in the events leading up

to Mr. Plyler’s injury. (Doc. No. 23, p. 5). However, with regard to the remaining Defendants, Plaintiffs—in a

footnote—state that they “voluntarily dismissed the corporate defendants, and only the four individual defendants

remain.” (Id. at 5, n.1). Thus, because Plaintiffs have failed to argue or provide any evidence indicating otherwise, the

Court construes this as conceding that Defendants Cox Land Investments, Limited Partnership, and Cox Land

Company, LLC, do not own, use, or control the premises at issue.

3 In addition, the Court notes that under these facts, the theory of respondeat superior is also unavailable

here. See Gupton v. U.S., 799 F.2d 941, 942–43 (4th Cir. 1986) (holding that under North Carolina law, “in order to

glean the benefits of respondeat superior, a plaintiff must prove: (1) the fact of employment, and (2) that the employee,

at the time of the injury, was engaged in the master’s business.”) (citing Lindsey v. Leonard, 68 S.E.2d 852 (N.C.

1952)).

v. Am. Nat’l Stores, Inc., 225 S.E.2d 797, 808 (N.C. 1976) (citing Clemmons v. Ins. Co., 163

S.E.2d 761 (N.C. 1968); Gaskins v. Sidbury, 42 S.E.2d 513 (N.C. 1947)). Thus, because Plaintiffs’

underlying claims for negligence and premises liability failed for the reasons above, their

derivative claims necessarily fail as well. As such, Defendants Cox Land Investments and Cox

Land Company are entitled to summary judgment as a matter of law on Plaintiffs’ Third and Fourth

Causes of Action for Loss of Consortium and Punitive Damages.

Therefore, Defendants’ Motion for Summary Judgment is GRANTED as to Defendants

Cox Land Investments, Limited Partnership, and Cox Land Company, LLC, because they are

entitled to summary judgment as a matter of law with regard to all of Plaintiffs’ claims against

them. Thus, the Court turns to whether the remaining individual and corporate Defendants are

entitled to summary judgment.

B. Remaining Individual and Corporate Defendants4

After reviewing the pleadings, exhibits, and applicable law, the Court finds that the

remaining individual and corporate Defendants are not entitled to summary judgment on Plaintiffs’

claims against them. In short, it is clear from this record that the parties’ evidence reveals a genuine

dispute as to material facts that preclude the entry of judgment for the Remaining Defendants as a

matter of law on all of Plaintiffs’ claims against them. For example, the evidence indicates disputes

as to the relationships between the Remaining Defendants, and also as to the parties’ knowledge

of, and responsibility for, the allegedly dangerous condition on the land. Accordingly, resolution

of liability as to Plaintiffs’ claims is appropriate for resolution by a jury.5 Accordingly, Defendants’

Motion is DENIED as to Plaintiffs’ claims against the Remaining Defendants.

4 The remaining Defendants are Cox Brothers, Inc., d/b/a Cox Brothers Farm; Cox Farm Management, LLC,

d/b/a Cox Brothers Farm; Russell F. Cox; Delano S. Cox; Marion F. Cox; Campbell Cox; and Cox Brothers Farms, a

North Carolina General Partnership, (collectively the “Remaining Defendants”) . (Doc. No. 1, p. 1).

5 Both parties have demanded a trial by jury. (Doc. No. 1, p. 12; Doc. No. 4, p. 20).

C. Contributory Negligence

Finally, the Court finds that Defendants are not entitled to summary judgment as a matter

of law with regard to their affirmative defense that Mr. Plyler’s contributory negligence precludes

the Remaining Defendants’ liability.

In order for a defendant to prevail on a summary judgment motion based on an

affirmative defense, the defendant must shoulder the burden usually allocated to a

plaintiff moving for summary judgment: the defendant must adduce evidence

which supports the existence of each element of its affirmative defense, and the

evidence must be “so powerful that no reasonable jury would be free to disbelieve

it.”

Herndon v. Massachusetts Gen. Life Ins. Co., 28 F. Supp. 2d 379, 382 (W.D. Va. 1998) (citing 11,

Coquillette, et al., Moore' Federal Practice § 56.13(1) (3rd ed.1987) (citing Brown v. Valentine,

240 F. Supp. 539, 539 (W.D. Va. 1965))). Additionally, in order to establish contributory

negligence, it must be shown “(1) that the plaintiff failed to act with due care and (2) such failure

proximately caused the injury.” Mohr v. Matthews, 768 S.E.2d 10, 12 (N.C. Ct. App. 2014).

Therefore, in order to prevail on this affirmative defense, the Remaining Defendants would need

to assert both elements of the defense for contributory negligence “so powerfully that no

reasonable jury would be free to disbelieve it.” Herndon, 28 F. Supp. 2d at 382.

Here, the parties’ evidence reveals a genuine dispute as to material facts that preclude the

entry of judgment for the Remaining Defendants on the issue of contributory negligence. For

example, as above, the evidence indicates a dispute as to the Mr. Plyler’s knowledge of, and

responsibility for, the allegedly dangerous condition on the land. Accordingly, resolution of

liability as to Defendants’ affirmative defense is appropriate for resolution by a jury. Therefore,

Defendants’ Motion for Summary Judgment is DENIED as to Defendants’ affirmative defense of

contributory negligence.

IV. CONCLUSION

IT IS THEREFORE ORDERED that:

1. Plaintiffs’ Notice of Partial Voluntary Dismissal, Without Prejudice, (Doc. No. 22),

has no effect on this action and is STRICKEN from the record;

2. Defendants’ Motion for Summary Judgment, (Doc. No. 19), is:

a. GRANTED IN PART, to the extent it seeks summary judgment on all of

Plaintiffs claims as against Defendants Cox Land Investments, Limited

Partnership, and Cox Land Company, LLC;

b. DENIED IN PART, to the extent it seeks summary judgment on all of

Plaintiffs’ claims as against Defendants Cox Brothers, Inc., d/b/a Cox

Brothers Farm; Cox Farm Management, LLC, d/b/a Cox Brothers Farm;

Cox Land Company, LLC; Russell F. Cox; Delano S. Cox; Marion F. Cox;

Campbell Cox; and Cox Brothers Farms, a North Carolina General

Partnership;

C. DENIED IN PART, to the extent it seeks summary judgment as to the

Remaining Defendants’ affirmative defense of contributory negligence.

IT IS FURTHER ORDERED that the parties shall TAKE NOTICE that trial is

scheduled to begin on Monday, November 6, 2023. (Doc. No. 11). The parties’ Pretrial

Submissions shall be due by October 16, 2023. Docket Call will take place at 9:01 a.m. on

November 6, 2023, and the Final Pretrial Conference will take place immediately following

Docket Call, in Courtroom #5B of the Charles R. Jonas Federal Building, located at 401 West

Trade Street, Charlotte, North Carolina, 28202.

IT IS SO ORDERED.

August 17, 2023

Frank D. Whitney é +3

United States District Judge ages

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