Cullen v. Logan Developers

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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Opinion of the Court

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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CULLEN V. LOGAN DEVELOPERS, INC.

Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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CULLEN V. LOGAN DEVELOPERS, INC.

Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

....

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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Opinion of the Court

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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Opinion of the Court

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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