An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1296
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 3 June 2014


DEBORAH LYNN JACKSON,
Administratrix of the Estate of
JOEL EDWARD TRIPP

      vs.                                     Columbus County
                                              No. 11 CVS 1360
TOWN OF LAKE WACCAMAW

      vs.

ES & J ENTERPRISES, INC.


      Appeal by      Plaintiff from order entered 26 July 2013 by

Judge D. Jack Hooks, Jr., in Columbus County Superior Court.

Heard in the Court of Appeals 5 March 2014.


      Brent Adams        &   Associates,      by    Brenton     D.    Adams,    for
      Plaintiff.

      Crossley, McIntosh, Collier, Hanley & Edes, PLLC, by Brian
      E. Edes and Jarrett W. McGowan, for Defendant and Third-
      Party Plaintiff Town of Lake Waccamaw.

      McAngus, Goudelock & Courie, PLLC, by John T. Jeffries and
      Jeffrey B. Kuykendal, for Third-Party Defendant ES&J
      Enterprises, Inc.


      DILLON, Judge.
                                          -2-
       Plaintiff    Deborah      Lynn        Jackson,   Administratrix           of     the

Estate of Joel Edward Tripp,                 appeals from the trial court’s

order   denying     her    motion      for    summary     judgment       and    granting

summary judgment in favor of Defendant Town of Lake Waccamaw

(the Town).      For the following reasons, we affirm.

                   I. Factual & Procedural Background

       On the morning of 2 August 2007, Third-Party Defendant ES&J

Enterprises,      Inc.    (ES&J)    was      engaged    in    trenching        and    pipe-

laying operations as an independent contractor, hired by the

Town.     Joel E. Tripp (Decedent) was employed by ES&J as a member

of     ES&J’s     “Utility       Crew,”         which     was     responsible          for

“install[ing]      water,      sewer   and     storm    drain     pipes    of    various

sizes.”

       At approximately 9:00 a.m., Decedent was situated at the

bottom of a trench – which was approximately twelve feet deep

and ten feet wide – taking measurements to determine the extent

to which additional soil needed to be excavated to facilitate

installation of an already              partially-installed 42-inch cement

pipe.     Decedent determined that one additional “pass was needed

with    the     bucket    of     the    trackhoe”       to      render    the        trench

sufficiently      deep,    and   he    signaled     the      trackhoe     operator       to

lower the bucket accordingly.                  It was intended that Decedent
                                           -3-
remain within the excavation area as the bucket was lowered and

that he climb inside the already-installed portion of the cement

pipe for protection.         Although the ES&J safety manual explicitly

prohibited      its    workers     from     being    “in    an    excavation        while

equipment is working or parked next to the edge[,]” ES&J had

developed    this     practice     of     taking    cover    within     the    already-

installed pipe as its standard operating procedure, as the ES&J

supervisors believed – and so testified – that the cement pipe

would sufficiently shield the ES&J workers from the bucket of

the trackhoe.

       The trackhoe operator observed Decedent’s signal and waited

for Decedent to climb into the pipe before lowering the bucket

into the trench.          Another worker, who was assisting Decedent as

his “tail man” at the time, also observed Decedent enter the

pipe   before    the      bucket    was    lowered    into       the   trench.        The

trackhoe operator lost sight of both Decedent and the trench as

the bucket was lowered into the trench, as his view was obscured

by the bucket itself.             The bucket struck Decedent, pinning his

body   against      the    pipe    that     was    intended      to    serve   as    his

protective shelter.          Decedent sustained internal injuries as a

result of the accident, and died several hours later.
                                               -4-
     On    6    October           2011,    Plaintiff    filed     the    present      action

against     the           Town,     alleging     negligence        and    seeking       both

compensatory and punitive damages.1                    On 23 January 2013, the Town

filed   its     amended           answer   denying     Plaintiff’s       allegations      of

negligence          and    raising     numerous      defenses     against      Plaintiff’s

claims,     including             contributory       negligence.         The   Town     also

asserted        a     third-party          complaint      against        ES&J,     seeking

indemnification and/or contribution to the extent that the Town

was held liable in connection with Decedent’s death.

     On 3 July 2013, the Town moved for summary judgment against

Plaintiff on her claims, contending that “Plaintiff ha[d] failed

to meet essential elements of her claim in establishing actual

negligence/wrongful conduct against the Town”; that “Plaintiff’s

claims for punitive damages [were] barred by law”; and that

“Plaintiff’s              claims     [were]      barred     by      [Decedent’s]         own

contributory negligence.”                  On 11 July 2013, Plaintiff filed a

reply     and       countering        motion     for    partial     summary      judgment,

contending that the Town had, as a matter of law, “failed to

1
  Plaintiff previously filed a wrongful death action against the
Town, ES&J, and several other named defendants in 2009. In this
previous   action,   Plaintiff  voluntarily   dismissed   without
prejudice her claims against the Town, and the trial court
ultimately granted ES&J’s motion for summary judgment, a
decision that was upheld by this Court in Jackson v. ES&J
Enterprises, Inc., No. COA11-225 (Feb. 7, 2012) (unpublished).
                                                -5-
exercise due care for the safety of the employees of [ES&J],

including       [Decedent]”;        that    there        existed       genuine   issues     of

material     fact      concerning      whether          “the    activity     conducted      by

[ES&J] was inherently dangerous and whether the [Town] failed to

exercise due care to ensure that the work place was safe for the

employees of [ES&J] and for the public in general”; that “all

the evidence show[ed] as a matter of law that the activities

engaged in by [Decedent] were inherently dangerous and that the

Town [] did absolutely nothing to ensure a safe work place”; and

that Decedent “was killed as a result of the failure of [the

Town]   to      exercise      due    care       and     [was]     therefore      liable     to

[Plaintiff]      for    the    death       of    [Decedent]       in    an   amount   to    be

determined . . . by the jury.”

    On     15    July    2013,      these       matters     came   on     for    hearing    in

Columbus County Superior Court.                   By order entered 26 July 2013,

the trial court granted summary judgment in favor of the Town,

concluding that there existed no genuine issue of material fact

“as to: (1) that [the Town] knew or should have known that

excavation       was    an    inherently              dangerous    activity;       and     (2)

Decedent’s contributory negligence was a proximate cause of his

own injury.”        From this order, Plaintiff appeals.

                                     II. Analysis
                                        -6-
     Plaintiff contends that the trial court erred in denying

her motion for summary judgment and in granting summary judgment

in favor of the Town.          We disagree.

     A   motion    for      summary   judgment       is    appropriately    granted

where “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and

that any party is entitled to a judgment as a matter of law.”

N.C. Gen. Stat. § 1A–1, Rule 56(c) (2011).                   We review the trial

court’s summary judgment order de novo.                   Foster v. Crandell, 181

N.C. App. 152, 164, 638 S.E.2d 526, 535 (2007).

     Here,    there    is    no    dispute    that   the     Town   hired   ES&J   to

perform trenching and pipe-laying operations as an independent

contractor.      The general rule in North Carolina is that “[o]ne

who employs an independent contractor is not liable for the

independent contractor’s negligence[.]”                    Kinsey v. Spann, 139

N.C. App. 370, 374, 533 S.E.2d 487, 491 (2000) (quoting Woodson

v. Rowland, 329 N.C. 330, 350, 407 S.E.2d 222, 234 (1991)).

There is an exception to this rule, however, where the work to

be   performed    by     the      independent    contractor         is   “inherently

dangerous”:

             One who employs an independent contractor to
             perform an inherently dangerous activity may
                                 -7-
            not delegate to the independent contractor
            the duty to provide for the safety of
            others:

            The liability of the employer rests upon the
            ground that mischievious [sic] consequences
            will arise from the work to be done unless
            precautionary measures are adopted, and the
            duty   to   see  that    these   precautionary
            measures   are   adopted    rests   upon   the
            employer, and he cannot escape liability by
            entrusting this duty to another as an
            ‘independent contractor’ to perform.

            The party that employs the independent
            contractor has a continuing responsibility
            to ensure that adequate safety precautions
            are taken.

Woodson, 329 N.C. at 352, 407 S.E.2d at 235 (citations omitted).

Moreover,

            an owner’s liability to third parties within
            the scope of this nondelegable duty rule
            requires a showing that: (1) the activity
            causing the injury was, at the time of the
            injury, inherently dangerous, (2) the owner
            knew, at the time of the injury, of the
            inherent dangerousness of the activity, or
            knew   or  should   have  known,   from  the
            circumstances preceding the injury, that the
            work would likely create an inherently
            dangerous situation, and (3) the owner
            failed to take or ensure that reasonable
            precautions were taken to avoid the injury
            and this negligence was a proximate cause of
            the plaintiff’s injuries,

O'Carroll v. Texasgulf, Inc., 132 N.C. App. 307, 312, 511 S.E.2d

313, 317-18 (1999) (citations omitted).
                                        -8-
    Plaintiff       contends    that    the   Town   should   be     held   liable

based   upon     its   negligent       supervision     of   ES&J’s    inherently

dangerous pipe-laying activities, which, in turn, resulted in

Decedent’s death.       At the very least, Plaintiff asserts, there

is a genuine issue of material fact concerning whether the Town

exercised due care in its supervision of ES&J’s activities.

    This       issue   concerning       the   danger    inherent      in    ES&J’s

activities in question was addressed – at least tangentially –

by this Court in Jackson v. ES&J Enterprises, Inc., No. COA11-

225 (Feb. 7, 2012) (unpublished).               There, Plaintiff sought to

recover against ES&J outside of the              Workers’ Compensation Act,

under the exceptions carved out by our Supreme Court in Woodson

and Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985).

Id. at *1.         In reviewing the trial court’s decision to grant

summary judgment in ES&J’s favor, we held,                  inter alia, that

Plaintiff    had    presented   insufficient      evidence    that     ES&J   knew

that its practice of requiring workers to take cover within the

pipe during a dig was substantially certain to result in serious

injury or death.        Id. at *4-7.          In so holding, we stated the

following:

            Plaintiff, however, asserts that the OSHA
            inspector   assigned   to  investigate  the
            fatality,  Paul    Vogel, found   that  the
            practice was inherently dangerous and could
                                           -9-
            cause serious injury or death. However, the
            OSHA report repeatedly indicates that the
            danger was to employees “within the confines
            of the trench box”—it does not state that
            the same danger existed if the employee went
            into the already-installed pipe past the end
            of the trench box, where the pipe was
            covered with dirt. In fact, Mr. Vogel
            testified that if an employee followed ES &
            J's   practice,   the   employee   would  be
            protected in the concrete pipe with overhead
            and lateral protection. According to Mr.
            Vogel, had Mr. Tripp been in the pipe
            consistent with standard ES & J operating
            procedure, he would not have been hurt.

            Additionally, the OSHA report states in the
            “Employer Knowledge” section that ES & J
            “believed this [practice] to be safe.”
            Plaintiff   has,   in  fact,   presented  no
            evidence that suggested that the supervisors
            or anyone else at defendant ES & J knew that
            going into the pipe was dangerous at all—to
            say nothing of being substantially certain
            to result in serious injury or death.

Id. at *5 (emphasis added).

       The issue    now before us           differs from that presented in

Plaintiff’s previous appeal, in that here we are not concerned

with   whether     ES&J   knew      that    the       practice     in    question    was

substantially      certain    to    result       in   serious      injury     or   death;

rather,   the    question     presented          is    whether     ES&J’s      “standard

operating    procedure”      in    question      qualifies       as     an   “inherently

dangerous”      activity.         The   second        prong   of      the    “inherently

dangerous” test, however, queries whether “the owner knew, at
                                            -10-
the time of the injury, of the inherent dangerousness of the

activity, or knew or should have known, from the circumstances

preceding      the    injury,      that    the     work      would     likely    create     an

inherently dangerous situation.”                    O’Carroll, 132 N.C. App. at

312, 511 S.E.2d at 317-18.                In other words, whereas Plaintiff’s

previous appeal concerned ES&J’s knowledge concerning the danger

inherent in its activities, the present appeals concerns the

Town’s    knowledge         of    the    danger     associated         with     those     same

activities.          This     Court     thoroughly       considered       in    Plaintiff’s

previous appeal whether ES&J knew of the hazards associated with

its    workers       taking      cover    within     the       already-installed          pipe

during its trenching operations, and we answered that question

in the negative.            Here, on virtually the same evidence, we take

the logical view that if ES&J lacked knowledge of the danger

inherent in its operating procedure – and indeed, this Court

determined that there was no evidence demonstrating otherwise –

then we must conclude that the Town – a party further removed

from     the    activities         in     question       –     likewise        lacked     such

knowledge.        The    Town     hired     ES&J    to       perform    the    pipe     laying

portion of its project, relying on ES&J’s expertise in the area

and    its     ability      to    develop     its    own       internal        policies     to

safeguard its workers.                Absent any evidence to the contrary –
                                                -11-
and we have found none – we cannot say that the Town knew of a

danger         associated      with     ES&J’s     activities          of   which     ES&J    was

unaware.

          Alternatively,            assuming    arguendo        that    ES&J’s       activities

were inherently dangerous, and further assuming that the Town

was aware of such danger, the uncontroverted evidence indicates

that Decedent’s own conduct contributed to his death.                                 The only

evidence         before       the    trial     court    pertinent       to     the    issue    of

Decedent’s contributory negligence was that ES&J had developed a

policy through practice that required its pipe layers to enter

the already-installed pipe to protect themselves from the bucket

of the trackhoe; that no ES&J worker had previously been injured

as    a    result      of     this    policy;    that     the    trackhoe       operator      and

Decedent’s        “tail       man”     each    testified     that       they    had    observed

Decedent signal the trackhoe operator before entering the pipe;

and       that,     as      the      OSHA     inspector     determined          through       his

investigation of the incident, Decedent would have not been hurt

had       he    been     in    the     pipe     consistent       with       ES&J     procedure.

Plaintiff has not introduced any evidence that would create a

genuine issue of material fact on this issue.

          Accordingly, in light of the foregoing, we affirm the trial

court’s order granting summary judgment in the Town’s favor.
                         -12-
AFFIRMED.

Judges BRYANT and STEPHENS concur.

Report per Rule 30(e).
