               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-1066

                                 Filed: 7 May 2019

Forsyth County, No. 16 CVS 4863

CHERYL CHRISTINE POAGE, individually and as Executrix of the Estate of
ROBERT BATEMENT POAGE, Plaintiffs,

              v.

IRA COX; GAIL COX; and SCHOENEN POOL AND SPA, LLC, Defendants.


        Appeal by plaintiffs from order entered 12 June 2018 by Judge Michael L.

Robinson in Forsyth County Superior Court. Heard in the Court of Appeals 5 March

2019.

        Fox Rothschild LLP, by Robert H. Edmunds, Jr., Kip David Nelson, and Jules
        Zacher, pro hac vice, for plaintiff-appellants.

        Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones, for defendant-
        appellees Cox.

        Robert B. Laws for defendant-appellee Schoenen Pool and Spa, LLC.


        TYSON, Judge.

        Cheryl Christine Poage appeals the trial court’s order granting summary

judgment to Ira and Gail Cox (“the Coxes”) and Schoenen Pool and Spa, LLC,

(“Schoenen”). We affirm in part, reverse in part, and remand.

                                   I. Background
                                      POAGE V. COX

                                  Opinion of the Court



      The Coxes owned a mountain cabin (“the Cabin”) they rented to vacationers.

In July 2009, they installed a hot tub and an adjacent waterfall on their property.

The Coxes had hired Schoenen to maintain, clean, and perform routine service on the

hot tub and waterfall.

      Cheryl Poage reserved the Cabin on the Airbnb.com website. Cheryl Poage;

her husband, Robert Poage; and Robert’s two adult sons, Eric and Jason Poage;

stayed at the Cabin from 24 August to 27 August 2015. During their visit, Cheryl

and Robert Poage spent time in and around the hot tub and waterfall. On 29 August

2015, shortly after their visit to the Cabin, Cheryl Poage began experiencing

weakness and fever. Robert Poage began experiencing fever, weakness, chills, and

headache. Cheryl and Robert Poage (“the Poages”) were allegedly diagnosed with

Legionella pneumonia, more commonly known as Legionnaires’ disease, and both

allegedly required hospitalization.

      On 10 August 2016, the Poages filed a complaint alleging they had contracted

Legionnaires’ disease after coming into contact with Legionella bacteria in the Coxes

hot tub and waterfall. The Poages asserted claims for negligence against the Coxes

and Schoenen (collectively “Defendants”), and breach of contract against the Coxes.

The Poages alleged, among other things:

             15. Defendants Cox owed a duty to their rental customers,
             including plaintiffs, to exercise reasonable care in the
             operation and maintenance of the rental unit and to keep
             the facility in a reasonably safe condition.


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                                  Opinion of the Court




             16. Defendants Cox further owed a duty to their rental
             customers, including plaintiffs, to warn of hidden perils or
             unsafe conditions known by defendants or discoverable by
             reasonable inspection.

             ...

             24. It was the duty of Defendant Schoenen [to properly]
             maintain the said water feature in a reasonably safe
             manner so as not to subject guests and visitors to the
             premises, including plaintiffs, to unreasonable risks of
             harm.

             ...

             27. Plaintiffs contracted with Defendants Cox for the
             rental of defendants’ property for occupancy by plaintiffs.

             28. An implied term of the rental contract was that the
             rental property would be suitable and safe for normal
             occupancy, and that plaintiffs would have the quiet
             enjoyment of same.

             29. Defendants Cox breached the contract by providing
             plaintiffs with a facility that included an unreasonably
             dangerous peril, namely the contaminated water feature
             described herein.

             30. As a proximate result of said defendants’ breach of their
             contract with plaintiffs, plaintiffs suffered the injuries and
             losses set forth above.

      Robert Poage died on 16 December 2016, purportedly for reasons unrelated to

Legionnaires’ disease, and Plaintiff moved to substitute herself for him as executrix

of his estate in the lawsuit.    On 14 December 2017, the trial court entered a




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                                    POAGE V. COX

                                  Opinion of the Court



scheduling and discovery consent order, which required the completion of all

discovery by 13 July 2018. The Coxes and Schoenen filed motions for summary

judgment pursuant to North Carolina Rule of Civil Procedure 56 in April 2018. The

parties subsequently submitted briefs, exhibits and deposition transcripts.

      A hearing was conducted on Defendants’ motions on 11 June 2018 and the trial

court issued an order granting Defendants’ summary judgment.

      The trial court’s summary judgment order stated, in relevant part:

             2. During the hearing on Jun 11, 2018, counsel for both
             Defendants made oral motions to strike the statements or
             affidavits of Carl Fliermans and Jonathan Kornreich.
             Defendants contend that the statements were not timely
             served, did not contain necessary attestations, were not
             sworn to, or were otherwise procedurally improper and
             inadmissible and are thus not properly considered as
             evidence with regard to the Motions. The Court in its
             discretion denies these motions to strike to the extent they
             are based on claimed procedural irregularities and
             determines that, for purposes of its consideration of the
             Motions, it will consider the statements made by Dr.
             Fliermans and Mr. Kornreich. Whether the testimony or
             statements within the documents are admissible and
             properly considered by the Court, or sufficient in and of
             themselves, when combined with other evidence brought
             forward by Plaintiffs, to permit Plaintiffs to avoid
             summary judgment, is an entirely different and is matter
             dealt with hereinbelow.

             3. Notwithstanding the Court’s denial of the oral motions
             to strike, and based on the Court’s review of the Motions,
             its review of the Court file, including the statements
             brought forward by Plaintiffs, and its consideration of the
             arguments of counsel for the parties, the Court concludes
             that Defendants’ motions for summary judgment should be


                                         -4-
                       POAGE V. COX

                     Opinion of the Court



granted and Plaintiffs’ claims dismissed.

...

5. It is undisputed as a factual matter that the water in the
water treatment never tested positive for the presence of
legionella bacteria, though the parties disagree as to the
cause of this fact.

...

8. The parties all agree that legionella bacteria is
ubiquitous – it exists throughout nature in greater or lesser
degrees. Notwithstanding this fact, Plaintiffs have come
forward with no objective evidence that the water feature
was contaminated with legionella bacteria at the time
Plaintiffs stayed at the Coxes’ home.

9. Following several years of discovery pursuant to a
discovery scheduling order entered in the case, but before
the deadline for Defendants to designate their expert
witnesses. Defendants filed the Motions, pursuant to Rule
56 of the North Carolina Rules of Civil Procedure, seeking
entry of summary judgment in their favor and dismissing
Plaintiffs’ action for a host of reasons. Defendants contend
that Plaintiffs have failed to come forward with sufficient
admissible evidence to prove either that Defendants
breached a legal duty to Plaintiffs or (in the case of the
Coxes) breached a contract between the Coxes and
Plaintiffs. Defendants further contend that Plaintiffs have
failed to come forward with sufficient admissible evidence
to prove that, even assuming a breach of a duty or contract,
that the alleged breach proximately resulted in Plaintiffs’
illness. Defendants also contends [sic] that Plaintiffs
assumed the risk of illness and were contributorily
negligent by virtue of the fact that they were aware of
irregularities in the water and they were warned not to use
the spa until further notice but used it nonetheless.

...


                            -5-
                        POAGE V. COX

                      Opinion of the Court




13. Having carefully considered the record in this matter,
and having also considered the arguments of counsel for
the parties, the Court concludes that Defendants have
made a sufficient initial showing to shift the burden to
Plaintiffs to come forward with evidence to substantiate
their claims. Further, while there may be in the Court’s
opinion sufficient evidence of negligence or breach of
contract on Defendants’ part, Plaintiffs have nonetheless
failed to come forward with sufficient admissible evidence
to support one or more of their required factual showings
to proceed to trial: (a) that the water feature was
contaminated with legionella bacteria at the time Plaintiffs
stayed at the Coxes’ house; or (b) that Plaintiffs contracted
legionella pneumonia from being in the vicinity of the
water feature.

14. With regard to both factual issues, Plaintiffs have
relied on speculation and conjecture, as opposed to coming
forward with admissible evidence to support their
contentions in two critical regards, Michael L. Silverman’s
statement, dated June 6, 2018, states that:

              Based upon my training,
              experience and expertise and
              based upon my review of the
              records listed above, it is my
              medical opinion more likely than
              not that Mr. and Mrs. Poage
              developed Legionella pneumonia
              as a result of exposure to the hot
              tub and waterfall while staying
              at this rental property from
              August 24 to August 27, 2015
              (Silverman Aff. ¶ 8.)

15. Putting aside the “more likely that not” standard
utilized by Dr. Silverman, rather than “to a reasonable
degree of medical certainty”, the basis for this opinion is set
forth in an earlier paragraph as follows:


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                       POAGE V. COX

                     Opinion of the Court




             The simple fact that both Mr.
             and Mrs. Poage developed
             Legionella pneumonia at the
             same time in early September
             2015, supports the Airbnb home
             they stayed as the source as [sic]
             the incubation of two to ten days
             is consistent with this fact.
             (Silverman Aff., ¶4, p. 5)

16. Dr. Silverman’s statement is the only one put forward
by Plaintiffs that purports to provide the vital and
necessary proximate cause link between Defendants’
alleged negligence and Plaintiffs’ claims for illness and
injuries. The Court believes that Dr. Silverman’s
statement does not provide a proper basis for an opinion
satisfying the proof element of proximate causation. The
above quoted language stands for nothing more than that
the timeline in this case is “consistent with” the Poages
having contracted legionella bacteria while at the Coxes’
home. The Court concludes that such a statement does not
satisfy Plaintiffs’ obligation to come forward with
admissible evidence of proximate causation.

17. Similarly, the “statement” by Jonathan Kornreich,
another witness proferred by Plaintiffs as a purported
expert opinion witness, provides, in relevant part (at least
as to the proximate cuase [sic] issue), that:

             In this instance, it is clearly
             more likely than not that the
             chain of failures and disregard of
             standard safety practices, both
             by Schoenen and Cox, observed
             at this property created a
             situation in which dangerous
             bacteria were permitted to
             propogate [sic] and infect an
             innocent member of the public.


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                       POAGE V. COX

                     Opinion of the Court



             (Kornreich statement, p. 4)

18. While it is not at all clear to the Court, to the extent
that “an innocent member of the public” is intended by Mr.
Kornreich to refer to Mr. and/or Mrs. Poage, Mr[.]
Kornreich’s statement provides no information from which
the Court can conclude that his opinion, at least as it
relates to the issue of proximate causation, would be
admissible before a jury. In fact, based on Mr. Kornreich’s
resume attached to his statement, the Court can amply
conclude that he is not competent to render an opinion in
this case with regard to medical causation.

19. In other words, having no objective evidence that
legionella bacteria was present in the Coxes’ water feature,
or that the water in the water feature was the source of
Plaintiffs’ illness, as opposed to any number of other
possible alternative sources, legionella bacteria being
admitted by Plaintiffs to be ubiquitous, Plaintiffs
extrapolate from (a) the fact that the Poages were allegedly
later diagnosed with legionella pneumonia; into a factually
unsupported conclusion that (b) the water feature must
have been contaminated with legionella bacteria and must
have been the source of Plaintiffs’ illness. The Court does
not believe the law of North Carolina permits such a “leap
of faith”. Plaintiffs’ factual assertions are tantamount to
the application of the doctrine of res ipsa loquitur which
has, to the Court’s knowledge, never been applied to a
factual situation such as this. [footnote omitted].

20. Therefore, based on the record before the Court, the
Court concludes that Plaintiffs have failed to come forward
with sufficient admissible evidence to substantiate a claim
that Plaintiffs were injured as a proximate result of
Defendants’ wrongful conduct. As a result of this
fundamental evidentiary failure of proof, the Court
concludes that Motions should be and are hereby granted
and Summary Judgment is hereby entered in Defendants’
favor and against Plaintiffs.



                            -8-
                                      POAGE V. COX

                                    Opinion of the Court



       Cheryl Poage, individually and as executrix of the estate of Robert Poage

(“Plaintiffs”), filed timely notice of appeal to this Court.

                                         II. Jurisdiction

       Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2017).

                                    III. Standard of Review

       “Summary judgment is appropriate 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 [a] party is entitled to a

judgment as a matter of law.” Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247,

249 (2003) (citation and internal quotation marks omitted); see N.C. Gen. Stat. § 1A-

1, Rule 56(c) (2017).

              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 forecast of evidence demonstrating
              specific facts, as opposed to allegations, showing that he
              can at least establish a prima facie case at trial.




                                           -9-
                                    POAGE V. COX

                                  Opinion of the Court



      Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732,

735 (2003) (Tyson, J.) (citations and quotation marks omitted), aff’d per curiam, 358

N.C. 131, 591 S.E.2d 521 (2004). “Evidence presented by the parties is viewed in the

light most favorable to the non-movant.” Summey, 357 N.C. at 496, 586 S.E.2d at 249.

      Rule of Civil Procedure 56(e) provides in relevant part: “Supporting and

opposing affidavits [submitted in connection with summary judgment] shall be made

on personal knowledge, shall set forth such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is competent to testify to the matters

stated therein.” N.C. Gen. Stat. § 1A-1, Rule 56(e) (2017) (emphasis supplied).

      “‘Ordinarily, whether a witness qualifies as an expert is exclusively within the

discretion of the trial judge.’” FormyDuval v. Bunn, 138 N.C. App. 381, 385, 530

S.E.2d 96, 99 (2000) (brackets omitted) (quoting State v. Underwood, 134 N.C. App.

533, 541, 518 S.E.2d 231, 238 (1999)). “The determination of the admissibility of

expert testimony is within the sound discretion of the trial judge and will not be

disturbed on appeal absent abuse of discretion.” Braswell v. Braswell, 330 N.C. 363,

377, 410 S.E.2d 897, 905 (1991). “[T]o survive defendants’ motion for summary

judgment . . . plaintiff must allege a prima facie case of negligence—defendants owed

plaintiff a duty of care, defendants’ conduct breached that duty, the breach was the

actual and proximate cause of plaintiff’s injury, and damages resulted from the




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                                   Opinion of the Court



injury.” Lamm v. Bissette Realty, 327 N.C. 412, 416, 395 S.E.2d 112, 115 (1990)

(citation omitted).

      “Summary judgment is seldom appropriate in a negligence action.” Hamby v.

Thurman Timber Co., LLC, __ N.C. App. __, __, 818 S.E.2d 318, 323 (2018) (citation

omitted). “Our standard of review of an appeal from summary judgment is de novo[.]”

In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v.

Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)).

                                     IV. Discovery Period

      Plaintiffs argue the trial court prejudicially erred by considering and granting

Defendants’ motions for summary judgment before the discovery period had ended.

We disagree.


               Ordinarily it is error for a court to hear and rule on a
               motion for summary judgment when discovery procedures,
               which might lead to the production of evidence relevant to
               the motion, are still pending and the party seeking
               discovery has not been dilatory in doing so. However, [a]
               trial court is not barred in every case from granting
               summary judgment before discovery is completed.

      Patrick v. Wake Cty. Dep’t of Human Servs., 188 N.C. App. 592, 597, 655 S.E.2d

920, 924 (2008) (citations and quotation marks omitted) (alteration in original). “A

trial court’s granting summary judgment before discovery is complete may not be

reversible error if the party opposing summary judgment is not prejudiced.” Hamby




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                                   POAGE V. COX

                                 Opinion of the Court



v. Profile Prod., LLC, 197 N.C. App. 99, 113, 676 S.E.2d 594, 603 (2009) (citations

omitted).

      Plaintiffs were not awaiting any responses to interrogatories or the production

of any further evidence at the time the trial court heard the motions. Plaintiffs had

not requested any additional depositions. Plaintiffs never argued before the trial

court that additional discovery was needed to challenge or delay ruling upon

Defendants’ summary judgment motions.

      Plaintiffs have failed to demonstrate they were prejudiced by the trial court

considering and ruling upon Defendants’ summary judgment motions before the

discovery period had ended. See id.     Plaintiffs’ argument is without merit and

overruled.

                                   V. Plaintiffs’ Experts

      Plaintiffs submitted expert-prepared materials in response to Defendants

motions for summary judgment. One was the affidavit of Dr. Carl Fliermans, Ph.D,

and another was a report authored by Jonathan Kornreich. Defendants argue Dr.

Fliermans’s affidavit and Kornreich’s report should not be considered in determining

whether summary judgment is proper because they do not constitute sworn

testimony.

      Defendants made oral motions to strike Dr. Fliermans’s affidavit and

Kornreich’s report at the trial court’s hearing on their motions for summary judgment



                                        - 12 -
                                     POAGE V. COX

                                   Opinion of the Court



in part, on the basis these expert materials were not sworn testimony. The trial

court’s order granting summary judgment to Defendants states, in relevant part:

“The Court in its discretion denies these motions to strike to the extent they are based

on claimed procedural irregularities[.]” Defendants assert this Court should not

consider Dr. Fliermans’s affidavit and Kornreich’s report because of procedural

irregularities, but do not reference or cross-appeal the trial court’s denial of their

motions to strike.

      “We review the trial court’s ruling on [a] motion to strike [an] affidavit for

abuse of discretion.” Blair Concrete Servs., Inc. v. Van-Allen Steel Co., 152 N.C. App.

215, 219, 566 S.E.2d 766, 768 (2002). Defendants do not argue the trial court abused

its discretion or otherwise erred by denying their motions to strike. Based upon

Defendants failure to cross-appeal from or argue the trial court abused its discretion

by denying their motions to strike, we find their purported arguments that this Court

should not consider Dr. Fliermans’s affidavit or Kornreich’s report are waived and

subject to dismissal. See High Rock Lake Partners, LLC v. N. Carolina Dep’t of

Transp., 234 N.C. App. 336, 341, 760 S.E.2d 750, 754 (2014) (finding the appellants

argument that the trial court erred by denying their motion for attorney’s fees was

waived when appellants failed to argue the trial court abused its discretion).

                                    VI. Negligence




                                          - 13 -
                                    POAGE V. COX

                                  Opinion of the Court



      Plaintiffs next argues genuine issues of material fact on their negligence claim

precludes summary judgment.

      “To recover damages for actionable negligence, plaintiff must establish (1) a

legal duty, (2) a breach thereof, and (3) injury proximately caused by such breach.”

Petty v. Cranston Print Works, 243 N.C. 292, 298, 90 S.E.2d 717, 721 (1956) (citation

omitted). Our Supreme Court has held that negligence is the “failure to exercise that

degree of care which a reasonable and prudent person would exercise under similar

conditions. A defendant is liable for his negligence if the negligence is the proximate

cause of injury to a person to whom the defendant is under a duty to use reasonable

care.” Hart v. Ivey, 332 N.C. 299, 305, 420 S.E.2d 174, 177-78 (1992) (citation

omitted).

                                       A. Duty

      With regards to the Coxes, Plaintiffs have forecasted evidence to establish a

genuine issue of material fact with respect to the element of duty of care.

      Our Supreme Court has held that landowners owe a “duty to exercise

reasonable care in the maintenance of their premises for the protection of lawful

visitors.” Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998). “Whether

a landowner’s care is reasonable is judged against the conduct of a reasonably

prudent person under the circumstances.” Kelly v. Regency Ctrs. Corp., 203 N.C. App.

339, 343, 691 S.E.2d 92, 95 (2010). The Coxes’ counsel conceded at the summary



                                         - 14 -
                                     POAGE V. COX

                                   Opinion of the Court



judgment hearing before the trial court that the Coxes, and their cabin, were subject

to the Vacation Rental Act, N.C. Gen. Stat. §§ 42A-1 to 42A-40. Pursuant to the

Vacation Rental Act, “A landlord of a residential property used for a vacation rental

shall[,]” among other things:

             (2) Make all repairs and do whatever is reasonably
             necessary to put and keep the property in a fit and habitable
             condition.

             (3) Keep all common areas of the property in safe condition.

             (4) Maintain in good and safe working order and
             reasonably and promptly repair all electrical, plumbing,
             sanitary, heating, ventilating, and other facilities and
             major appliances supplied by him or her upon written
             notification from the tenant that repairs are needed.

N.C. Gen. Stat. § 42A-31 (2017) (emphasis supplied).

      The Vacation Rental Act further provides that “[t]hese duties shall not be

waived[.]” Id. Plaintiffs’ forecast of evidence could support a conclusion that the

Coxes leased their cabin as a vacation rental to the Poages; that the hot tub and

waterfall were not safe for tenant occupancy; and that the Coxes breached their

statutory duty to “do whatever is reasonably necessary to put and keep the property

in a fit and habitable condition.” Id.

      “A violation of the duty to maintain the premises in a fit and habitable

condition is evidence of negligence.” Brooks v. Francis, 57 N.C. App. 556, 559, 291

S.E.2d 889, 891 (1982).



                                          - 15 -
                                    POAGE V. COX

                                  Opinion of the Court



      With regard to Schoenen owing the Poages a duty of care:

             Privity of contract is not required in order to recover
             against a person who negligently performs services for
             another and thus injures a third party. There is a duty to
             protect third parties where a reasonable person would
             recognize that if he does not use ordinary care and skill in
             his own conduct, he will cause damages or injury to the
             person or property of the other.

      Westover Products, Inc. v. Gateway Roofing, Inc., 94 N.C. App. 63, 67, 380

S.E.2d 369, 372 (1989) (emphasis supplied).

      Here, it is undisputed the Poages were invitees and renters of the Coxes who

stayed at the cabin from the 25 to 27 August 2015.

      The Coxes argue they delegated any duty they may have owed the Poages to

Schoenen, by hiring them “as the experts to maintain” the hot tub and waterfall.

      Amy Schoenen Avery (“Avery”), the owner of Schoenen, answered in her

response to Plaintiffs’ interrogatories that “she was never advised the Cox property

was leased to tenants.” Avery testified in her deposition that if she had known the

cabin was being rented, Schoenen would have utilized the maintenance procedures

that are suitable for a commercial hot tub. Gail Cox testified that from when she

initially hired Schoenen to service the hot tub and waterfall, she let Avery know that

they were renting the cabin.

      Presuming arguendo, the Coxes could delegate their common law duty of

reasonable care and their statutory duties under the Vacation Rental Act to



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                                  Opinion of the Court



Schoenen, genuine issues of material fact exist regarding whether the Coxes

delegated their duties to Schoenen. The difference between Gail Cox and Avery’s

testimony with regards to whether Avery knew the Cabin was being rented to third-

parties creates a genuine issue of material fact, which precludes summary judgment

on this issue.

                                      B. Breach

      Plaintiffs argue sufficient evidence creates a question of material fact of

whether Defendants breached their duty of care. We agree.

      The Division of Public Health of the North Carolina Department of Health and

Human Services (“DHHS”) conducted an investigation of the Coxes’ Cabin, including

the hot tub and waterfall, following notification that the Poages were hospitalized for

Legionnaires’ disease.

      Following this investigation by DHHS, Drs. Jessica Rinsky and Zachary Moore

prepared a final report dated 24 November 2015 (“the Rinsky Report”).

      The Rinsky Report stated, in relevant part:

             Division of Public Health and Burke County
             Environmental Health staff identified hot tub and
             waterfall maintenance practices that may have provided
             conditions conducive for Legionella growth, including a
             lack of continual disinfection of the spa; periods where the
             waterfall system did not continuously flow; water
             stagnation between rentals; and, a lack of continual
             disinfection of the waterfall system.

             ....


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                                    POAGE V. COX

                                  Opinion of the Court




             [E]nvironmental health staff noted hot tub and waterfall
             maintenance practices that did not meet recommendations
             for Legionella control.

      In addition to the Rinsky Report, Plaintiffs submitted the report of Jonathan

Kornreich (“Kornreich Report”).      Jonathan Kornreich previously owned a pool

construction and maintenance company.             Kornreich’s report compared the

maintenance practices performed at the Cabin to recommended industry standards

and best practices. Kornreich’s report states, in relevant part:


             a. Equipment: The [hot tub] relied on an alternative
             sanitization device [Nature2 Sticks] which is not meant to
             be a primary and sole system. There was no provision made
             to create a sanitizer residual. This could have been
             accomplished easily and with very little cost through use of
             a chlorine or bromine floater, although the owner noted
             that renters were found to have removed the floater. In
             that case an inline feeder should have been installed. Had
             an inline feeder been installed, a sanitizer residual could
             have been automatically maintained. A lack of residual
             sanitizer combined with warm spa water created conditions
             which were ideal for the propagation of bacteria, including
             legionella.

             b. Maintenance: Maintenance was provided by a
             professional swimming pool service company. According to
             their records, the chemical parameters were out of range
             on numerous occasions between June 2 and September 1,
             the dates for which we have records. Of the 14 service calls
             documented during that time, at no time were the water
             parameters within the “ideal range” as determined by the
             ANSI standard or within the range identified by the
             Nature2 manufacturer as correct operating parameters for
             their product. In one instance (July 8), the pH was at the
             maximum limit and the alkalinity was near the minimum

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                                     POAGE V. COX

                                   Opinion of the Court



             limit. On that day a calculation of the Lanelier Saturation
             Index (as required when water is outside the ideal range)
             would have almost certainly found the water to be out of
             balance, although a failure to keep accurate records makes
             a retrospective calculation impossible.

             When water chemistry parameters are outside the ideal
             range, the efficacy of sanitizers is diminished and
             pathogens are able to live and reproduce unhindered.
             Because of the lack of residual sanitizer, bacteria such as
             Legionella can become established in the water and create
             a biofilm. Biofilm bacteria may take a disinfectant level
             100 times higher in concentration as well as vigorous
             scrubbing to remove.

             ...

             Further, there is no record of the waterfall having been
             drained, cleaned, sanitized or scrubbed. It is again more
             likely than not that a colony of Legionella would have been
             able to propagate in the waterfall and infected anyone
             nearby through aerosolized droplets containing the
             bacteria.

             ...

             In this instance, it is clearly more likely than not that the
             chain of failures and disregard of standard safety practices,
             both by Schoenen and Cox, observed at this property created
             a situation in which dangerous bacteria were permitted to
             propagate[.] [Emphasis supplied].

      In addition to Kornreich’s report, Plaintiffs also submitted the affidavit of their

expert witness, Dr. Carl Fliermans, who possesses a Ph.D. in microbiology and has

conducted ecological research on Legionella bacteria since 1977. Dr. Fliermans stated

in his affidavit, in relevant part, that it was “more likely than not”:



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                                   POAGE V. COX

                                 Opinion of the Court



            The maintenance of this hot tub and water feature were
            not conducted in a proper way to prevent the growth,
            dissemination and infectivity of the Legionella bacterium
            to susceptible individuals2 [sic].

            ...

            During the month of August, maintenance was performed
            on the spa and water feature on a weekly basis. Generally,
            two (2) ounces of granular chlorine were scattered into the
            spa pool area which contained 900 gallons of water. Such
            an addition is inadequate to affect the Legionella
            bacterium. Legionella is associated with biofilms in nature
            and those biofilms protect the bacterium from the action of
            the biocide. Doses of biocide need to exceed 10-30 ppm for
            shock chlorination to be effective.

            ...

            The lack of a chlorine residual as specified by CDC, is to be
            between 2-4 ppm for a maintenance level of chlorine to
            provide a safe operation of a hot tub. This level was never
            achieved in this facility with 2 ounces of chlorine granules.
            The absence of chlorine in a hot tub makes the hot tub with
            its warm waters and organic loading, a breeding ground for
            Legionella. [Emphasis supplied]

      With regard to the waterfall, Avery testified that there were periods where the

waterfall system was not continuously circulating. According to Avery, the waterfall

would occasionally run out of water from evaporation and remain stagnant for

extended periods of time.    Avery further testified “[M]y industry doesn’t have

standards for waterfalls. They’re ornamental. They’re not for swimming or bathing. I

didn’t test the water in the waterfall.” (emphasis supplied). Avery agreed with the




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                                  Opinion of the Court



Rinsky Report’s results that stagnant water in the waterfall may have been conducive

to the growth of Legionella bacteria.

      Viewed in the light most favorable to Plaintiffs, Plaintiffs have presented

sufficient evidence showing genuine issues of material fact exist with regard to

Defendants breaching their duty of care.

                                 C. Proximate Cause

      Plaintiffs argue they have presented sufficient evidence to create a genuine

issue of material fact of whether Defendants’ negligence proximately caused them to

contract Legionnaires’ disease to overcome Defendants’ motions for summary

judgment. We agree.

      “[T]he test of proximate cause is whether the risk of injury, not necessarily in

the precise form in which it actually occurs, is within the reasonable foresight of the

defendant.” Shelton v. Steelcase, Inc., 197 N.C. App. 404, 431-32, 677 S.E.2d 485, 504

(2009) (citation omitted).

             [I]t is only in exceptional cases, in which reasonable minds
             cannot differ as to foreseeability of injury, that a court
             should decide proximate cause as a matter of law.
             [P]roximate cause is ordinarily a question of fact for the
             jury, to be solved by the exercise of good common sense in
             the consideration of the evidence of each particular case.

       Williams v. Carolina Power & Light Co., 296 N.C. 400, 403, 250 S.E.2d 255,

258 (1979) (emphasis supplied) (citation and quotation marks omitted).




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                                   Opinion of the Court



      Defendants argue Plaintiffs are unable to establish any genuine issue of

material fact to show causation, because tests of the hot tub and waterfall were

negative for Legionella bacteria. Contrary to Defendants’ arguments, it is well-

settled that a plaintiff need not establish direct evidence of proximate causation.

“Direct evidence of negligence is not required; it may be inferred from the attendant

facts and circumstances.” Greene v. Nichols, 274 N.C. 18, 22, 161 S.E.2d 521, 524

(1968). “Actual causation may be proved by circumstantial evidence[.]” Collins v.

Caldwell Furniture Co., 16 N.C. App. 690, 694, 193 S.E.2d 284, 286 (1972) (citation

omitted).

      Ten samples were collected from the hot tub and waterfall on 30 September

2015 by the Burke County Health Department staff, over a month after the Poages

visited the Cabin. These ten samples returned negative test results for Legionella

bacteria. Following Plaintiffs’ stay at the cabin, but before the Coxes were notified of

Plaintiffs’ diagnoses with Legionnaires’ disease, Schoenen drained and cleaned the

hot tub. Dr. Rinsky of DHHS testified in her deposition that Schoenen’s draining and

cleaning on 1 September 2015, irrespective of any chemical sanitation of the hot tub,

would have affected the ability of a test to return positive results for Legionella.

      After DHHS and the Burke County Health Department were notified of

Plaintiffs’ contracting Legionnaires’ disease, Stacie Rhea of DHHS instructed the

Coxes on 23 September 2015 to drain and disinfect the hot tub and waterfall and



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                                   Opinion of the Court



hyperchlorinate the hot tub. This sanitization of the hot tub and waterfall was

conducted by Schoenen on an undetermined date before test samples were taken by

the Burke County Health Department on 30 September 2015.

      Dr. Zackary Moore, a medical doctor employed by DHHS, stated in his

deposition that “The [Poages] were interviewed to look -- to inquire about other

sources of air exposure or water exposure, and none were identified aside from the

hot tub and waterfall at the rental house.” He further stated that he “inquired about

other sources of aerosolized water beyond the rental house, but none were identified

so no other sources were considered further.” “[T]he onset of illness in both cases

meant that their time at the rental home would have been during . . . the likely

exposure period.”

      Plaintiff’s expert Dr. Fliermans testified in his affidavit, in relevant part:

             Schoenen Pool & Spa, LLC serviced the facility in question
             and has been shown by [the] John Kornreich Affidavit[] not
             to adequately treat the hot tub and water feature to
             prevent the Legionella bacterium from growing.

             ...

             On August 25, the Schoenen Pool & Spa, LLC company
             according to the sparse records treated the hot tub with 4
             ounces, of granular chlorine. No chlorine measurements
             were made in the field and none were recorded in the
             maintenance records. If this had been a shock chlorine
             treatment, then the Poage party would not have been able
             to enter the hot tub because of safety considerations. Thus,
             it was not a shock chlorination treatment that requires
             chlorine levels in excess of 20 ppm for an extended period


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                                   Opinion of the Court



             of time. It is my opinion that the addition of 4 ounces of
             granular chlorines was effective in disturbing the biofilm
             in which the Legionella resided and may have exacerbated
             conditions to which the Poage’s party were exposed. If
             appropriate water samples had been taken and
             appropriately tested at that time, it is my opinion Legionella
             would have been detected to be present in the samples.

             ...

             Based upon my training and research on the ecology of
             Legionella it is my professional opinion that more likely
             than not the opinions rendered above are true and correct.

      A genuine issue of material fact exists as to whether Legionella bacteria was

present in the Coxes’ hot tub or waterfall, and whether bacteria from the hot tub or

waterfall caused Plaintiffs to contract Legionnaires’ disease. This is based, in part,

upon: (1) Dr. Fliermans’s opinion Legionella bacteria would have been detected in the

hot tub when Plaintiffs used it; (2) the proximity in time to Plaintiffs’ use of the hot

tub and their diagnoses with Legionnaires’ disease; (3) both Plaintiffs contracting

Legionnaires’ disease within the exposure period; and (4) the expert opinions of Dr.

Fliermans and Kornreich that the maintenance standards utilized by Schoenen were

inadequate to have kept Legionella from contaminating the hot tub and waterfall. See

Williams, 296 N.C. at 403, 250 S.E.2d at 258.

                                       D. Injury

      Plaintiffs argue they have presented sufficient evidence to establish genuine

issues of material fact with regard to the Poages’ injuries. We agree.



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                                   Opinion of the Court



      Schoenen argues that Plaintiffs have failed to produce evidence to show Cheryl

Poage was diagnosed with Legionnaires’ disease. Neither Defendant challenges on

appeal that Robert Poage was diagnosed with Legionnaires’ disease.

      Viewing the evidence in the light most favorable to Plaintiffs, sufficient

evidence forecasts that Cheryl Poage was diagnosed with Legionnaires’ disease. Both

Dr. Zachary Moore, and Dr. Michael Silverman, an infectious disease expert, testified

that Cheryl Poage was diagnosed with Legionnaires’ disease by means of a urine

antigen test ordered by Novant Health Forsyth Medical Center, where she was

hospitalized.

      Plaintiffs met their burden to produce evidence showing a genuine issue of

material fact exists with regard to the element of injury. Viewed in the light most

favorable to Plaintiffs, their evidence tends to show the Poages were hospitalized for

Legionnaires’ disease, they incurred medical expenses, and they experienced pain

and suffering as a result of the disease.

      Plaintiffs’ evidence establishes a genuine issue of material fact exists with

respect to the Poages’ injuries resulting from Legionnaires’ disease.

                               VII. Breach of Contract

      In addition to negligence, Plaintiffs asserted a claim for breach of contract

against the Coxes. The motion for summary judgment the Coxes filed with the trial

court challenged all of Plaintiffs’ claims, including breach of contract. The trial



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                                    Opinion of the Court



court’s summary judgment order does not specifically address Plaintiffs’ breach of

contract claim, but the trial court granted summary judgment to Defendants on all of

Plaintiffs’ claims.

       Plaintiffs do not specifically address their breach of contract claim in their

appellate brief. The Coxes argue in their appellee brief that Plaintiffs have failed to

forecast sufficient evidence of breach of contract. In their reply brief, Plaintiffs do not

present an argument with respect to breach of contract, but assert the issue is “not

ripe and should be remanded to the trial court for consideration in the first instance.”

       Although the trial court’s summary judgment order does not specifically

mention the breach of contract claim, the Coxes’ motion for summary judgment

requested summary judgment on all of Plaintiffs’ claims, and the Coxes argued before

the trial court that summary judgment on the breach of contract claim should be

granted. The trial court’s summary judgment order granted summary judgment to

Defendants on all of Plaintiffs’ claims. Based upon this Court’s de novo standard of

review of orders granting summary judgment, Plaintiffs’ contention that the Coxes’

arguments concerning breach of contract are not ripe is without merit. See In re Will

of Jones, 362 N.C. at 573, 669 S.E.2d at 576.

       Plaintiffs have failed to preserve or argue why the trial court’s summary

judgment order should be reversed with respect to their breach of contract claim.

“Issues not presented in a party’s brief, or in support of which no reason or argument



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                                    Opinion of the Court



is stated, will be taken as abandoned.” N.C. R. App. P. 28(b)(6). Plaintiffs have

abandoned any arguments they may have asserted with respect to their breach of

contract claim. See id. The trial court’s summary judgment order is affirmed to the

extent the trial court granted summary judgment to the Coxes on Plaintiffs’ breach

of contract claim.

                                    VIII. Conclusion

      Viewed in the light most favorable to Plaintiffs, Plaintiffs’ forecast of evidence

establishes genuine issues of material fact exist on all elements of their negligence

claims against Defendants. Plaintiffs abandoned any argument that the trial court’s

order should be reversed to the extent the trial court granted summary judgment to

the Coxes on Plaintiffs’ breach of contract claim. The trial court’s summary judgment

order is affirmed with respect to Plaintiffs’ breach of contract claim, reversed with

respect to Plaintiffs’ negligence claims against both Defendants, and is remanded for

trial on Plaintiffs’ negligence claims. It is so ordered.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      Judges DIETZ and BERGER concur.




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