837 S.E.2d 903
N.C. Ct. App.2020Background
- Five-year-old Everett Copeland was killed when an overloaded dump truck rolled downhill from an uphill lot and struck him while playing near his home.
- The dump truck was left unattended, engine running, and without wheel chocks during grading performed by a subcontractor of a builder.
- Crescent Communities (the developer) designed and sold lots in the Forest Ridge planned community but did not mass-grade the site or require an order of construction; some uphill lots remained ungraded after residents moved in.
- Lot purchase agreements required builder permission before grading, and there is evidence the builder began grading without Crescent's permission and omitted common safety measures.
- The Copelands sued Crescent for wrongful death asserting (1) a duty to inspect/monitor builders, (2) a duty to take precautions against negligent construction, and (3) a duty to sequence construction or mass-grade to avoid roll-away hazards; the trial court granted summary judgment for Crescent.
- The Court of Appeals affirmed summary judgment as to the inspection and precaution theories but reversed and remanded on the sequencing/mass-grading theory, finding genuine factual disputes on whether such a duty could exist.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to inspect/monitor builders | Crescent, as master developer, had a duty to routinely inspect construction and would have discovered and stopped unsafe grading | Crescent had no duty to supervise independent contractors and retained no construction control | No duty; summary judgment proper on this theory (precluded by precedent) |
| Duty to take precautions against negligent acts of others | Crescent should have anticipated negligent operation of heavy equipment and taken precautions | Law does not impose a duty to anticipate unknown negligence by others absent notice | No duty; summary judgment proper on this theory (precluded by Chaffin) |
| Duty to sequence construction or mass-grade | A developer on steep terrain can and should sequence or mass-grade to prevent foreseeable non-negligent roll-away risks | Crescent disputes foreseeability and factual premises (terrain, industry practice) | Genuine factual dispute exists; remand for factfinding on whether a duty to sequence/mass-grade arose |
Key Cases Cited
- Woodson v. Rowland, 329 N.C. 330 (1991) (no general duty to supervise independent contractors)
- Chaffin v. Brame, 233 N.C. 377 (1951) (no duty to anticipate negligence of others absent notice)
- Vogh v. F. C. Geer Co., 171 N.C. 672 (1916) (ordinary building construction not inherently dangerous for imposing retained-control liability)
- Cook v. Morrison, 105 N.C. App. 509 (1992) (legal responsibility for safe performance rests with independent contractor)
- Trillium Ridge Condo. Ass’n v. Trillium Links & Vill., LLC, 236 N.C. App. 478 (2014) (retained contractual control over construction can create liability)
- Mozingo by Thomas v. Pitt Cty. Mem’l Hosp., Inc., 101 N.C. App. 578 (1991) (duty is a mixed question when facts are disputed; factfinder resolves facts first)
- Fussell v. N.C. Farm Bureau Mut. Ins. Co., 364 N.C. 222 (2010) (duty defined by reasonable care and foreseeability)