                                 NO. COA14-70

                     NORTH CAROLINA COURT OF APPEALS

                              Filed: 15 July 2014

FRANKENMUTH INSURANCE, as subrogee
of Catawba Country Club,
     Plaintiff,

    v.                                     Catawba County
                                           No. 11 CVS 689
CITY OF HICKORY, a North Carolina
Municipal Corporation, and MORGAN
FIRE & SAFETY, INC., a North
Carolina Corporation d/b/a UNIFOUR
FIRE & SAFETY,
     Defendants.


    Appeal by plaintiff from order entered 14 May 2013 by Judge

Timothy S. Kincaid in Catawba County Superior Court.               Heard in

the Court of Appeals 6 May 2014.


    Dean Gibson Hofer & Nance, PLLC, by Jeremy S. Foster, for
    plaintiff-appellant.

    Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch and
    Patrick H. Flanagan, for defendant-appellee City         of
    Hickory.


    HUNTER, Robert C., Judge.


    Frankenmuth      Insurance     (“plaintiff”),   as    a   subrogee       of

Catawba    Country   Club     (“the   Club”),   appeals   from    an      order

granting    the   City   of    Hickory’s   (“defendant’s”)       motion     for

summary judgment on plaintiff’s negligence claim.                On appeal,

plaintiff argues that the trial court erred by entering summary
                                                -2-
judgment       in   favor      of    defendant          because      genuine       issues    of

material fact existed as to whether: (1) defendant negligently

operated   its      municipal        water       system,       and   (2)     the      Club   was

contributorily negligent in its installation of sprinkler system

pipes.

    After careful review, we affirm the trial court’s order.

                                         Background

    On     5    July      2009,     a        water    pipe    leading      to    the    Club’s

sprinkler system burst, causing damage to the clubhouse.                                     The

Club was insured by plaintiff, which filed this action against

defendant as the Club’s subrogee.                       In the complaint, plaintiff

alleged that defendant’s negligent care of the municipal water

system,    specifically             in       allowing        unreasonably        high    water

pressure to build up in the pipes, was the proximate cause of

the damage.

    In     2000,         the   Club          hired     Crawford        Sprinkler        Company

(“Crawford”)        to   install         a    sprinkler       system    on      its   grounds.

Defendant sent members of its Fire Prevention Office to the site

to measure the water pressure of the area.                             The standing water

pressure was 180 pounds per square inch (“psi”).                                 Kevin Greer

(“Greer”), the Assistant Public Services Director for defendant,

testified during deposition that 180 psi was not an uncommon
                                      -3-
standing    water    pressure    in   that   service    area.      The     average

citywide standing water pressure was 115 to 120 psi, with some

areas in the system attaining pressures of 230 to 240 psi.

       It is undisputed that Crawford designed a sprinkler system

that    called    for   eight-inch    ductile    iron    pipes     to    be   used

throughout, given the 180 psi standing water pressure at the

Club.    However, Crawford actually installed six-inch PVC piping

instead.       Greer explained in his testimony that piping comes in

two forms—PVC and ductile iron.              PVC piping has two different

pressure ratings—Class 150 psi and Class 200 psi; ductile iron

comes in Class 250 psi and Class 350 psi.                   The ductile iron

pipes    are     designed   to   constantly     withstand       standing      water

pressures within their class range, but they can also handle

pressure surges of two-and-a-half times the class rating so long

as the surges are not prolonged or sustained.

       Stephen     Busic    (“Busic”),   the    Club’s    General        Manager,

testified during deposition that soon after installation of the

sprinkler system, the Club had continual problems with water

pressure.      According to Busic, the PVC pipes burst six times due

to excess water pressure from 2000 through July 2009, with the

sixth burst forming the basis of this action.                     One of these

bursts occurred on 27 July 2007.              Morgan Fire & Safety, doing
                                           -4-
business as Unifour Fire & Safety (“Unifour”), repaired this

break in the line and replaced a three-foot section of the PVC

pipe with ductile iron.              One of Unifour’s employees testified

during deposition that it replaced the PVC piping with ductile

iron because ductile iron is stronger than PVC.

       The flooding that forms the basis of this action occurred

on 5 July 2009.               Martin Chang (“Chang”), plaintiff’s expert

witness, visited the Club on 15 July 2009 to investigate the

cause    of    the    fracture.       Chang      was    a    forensic    engineer;   he

received a bachelor’s and master’s degree in textile engineering

but had no experience in designing or running a municipal water

system.       After speaking with Busic and examining the site, Chang

determined that: (1) a longitudinal fracture was found on the

six-inch      PVC     pipe,    indicating        stress       produced   by   internal

pressure; (2) the fire sprinkler pressure gauge failed at a

pressure greater than 300 psi; and (3) the cause of the failure

was excessive water pressure from defendant’s water supply and

potentially      a    sudden    surge      in   water       pressure.     Chang   noted

triangular fractures in the ductile iron reducers, but admitted

that    he    could    not    rule   out    mechanical        mistakes    made    during

excavation of the pipe as the cause of the fractures.                             Greer

agreed with Chang’s assessment that the longitudinal fracture
                                            -5-
was caused by internal pressure.                       However, he developed the

opinion    that    the    cause     of    the     fracture       was    due   to    inferior

piping    material,       given    that     the    six-inch       PVC     pipes     actually

installed were of lesser strength than the minimum Class 250 psi

eight-inch ductile iron pipes that were called for in Crawford’s

plan.

      After      making    insurance        payouts         to   the    Club,      plaintiff

brought this action against defendant and Unifour.                              It alleged

that Unifour was liable for the damages, in part, because it

“[n]egligently failed to recommend removal of the six-inch PVC

pipe and . . . replacement with eight-inch ductile iron pipe for

the     entire    distance        between       the     pit      and    the     clubhouse.”

Plaintiff     alleged     that     defendant          was   negligent      when     it:   (1)

“negligently failed to ensure that the water pressure in its

municipal water supply did not exceed reasonable levels”; (2)

“negligently failed to correct the layout of its municipal water

distribution system with a ‘loop’ system to protect residents at

the terminal ends against excess pressures, water hammer, and

shock    waves    within     the    water       distribution           system”;     and   (3)

“negligently failed to recommend or install a pressure-relieving

device to prevent damage from excess water pressures.”
                                      -6-
    Defendant and Unifour filed motions for summary judgment in

April 2013.        Both parties were awarded summary judgment in May

2013.      Plaintiff    timely     appealed       from   both     orders   granting

summary    judgment    but   subsequently         withdrew   its    appeal    as   to

Unifour.

                                   Discussion

                     I. Summary Judgment for Defendant

    Plaintiff argues that summary judgment was inappropriate

where genuine issues of material fact existed as to whether: (1)

defendant was negligent in its operation of the municipal water

system, and (2) plaintiff was contributorily negligent.                      Because

plaintiff    has    failed   to    carry    its    burden    of    establishing    a

standard     of      care    for    defendant’s          alleged     professional

negligence, we affirm the trial court’s order granting summary

judgment in defendant’s favor.

    “This     Court    reviews     orders   granting      summary     judgment     de

novo.”     Foster v. Crandell, 181 N.C. App. 152, 164, 638 S.E.2d

526, 535 (2007).       Summary judgment is appropriate “only when the

record shows 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.”     In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,

576 (2008) (internal quotation marks omitted).                     The burden of
                                       -7-
proof rests with the movant to show that summary judgment is

appropriate.   Development Corp. v. James, 300 N.C. 631, 637, 268

S.E.2d 205, 209 (1980).         We review the record in the light most

favorable to the non-moving party.              Caldwell v. Deese, 288 N.C.

375, 378, 218 S.E.2d 379, 381 (1975).

    Because “the standard of reasonable care should ordinarily

be applied by the jury under appropriate instructions from the

court,”   summary    judgment    is   rarely     an   appropriate   remedy   in

cases of negligence or contributory negligence.                 Thompson v.

Bradley, 142 N.C. App. 636, 641, 544 S.E.2d 258, 261 (2001)

(internal quotation marks omitted).              However, summary judgment

is appropriate in a cause of action for negligence where “the

forecast of evidence fails to show negligence on defendant’s

part, or establishes plaintiff’s contributory negligence as a

matter of law.”      Stansfield v. Mahowsky, 46 N.C. App. 829, 830,

266 S.E.2d 28, 29 (1980).        “[A] [p]laintiff is required to offer

legal evidence tending to establish beyond mere speculation or

conjecture   every    essential       element    of   negligence,   and   upon

failure to do so, [summary judgment] is proper.”               Young v. Fun

Services-Carolina, Inc., 122 N.C. App. 157, 162, 468 S.E.2d 260,

263 (1996) (internal quotation marks omitted).
                                             -8-
       Although      the     complaint          states           only    a     claim    for

“negligence,”        this    cause      of     action        is     actually      one   for

“professional         negligence”           because      plaintiff           is   alleging

negligent performance by defendant in its professional capacity

as the operator of a municipal water system.                               See Michael v.

Huffman Oil Co., 190 N.C. App. 256, 271, 661 S.E.2d 1, 11 (2008)

(characterizing negligence action brought against the City of

Burlington     for    failure      to   warn,       failure       to    investigate,    and

negligent misrepresentation as professional negligence where the

defendant      was    installing        a    potable        waterline).           Defendant

admitted in its answer that it “has all of the corporate powers

as    set   forth    in     [the   North      Carolina           General     Statutes   for

municipal      corporations][.]”              When      a    municipal         corporation

operates a system of waterworks and sells water for private

consumption     and       use,   “it    is    acting        in    its    proprietary    or

corporate capacity and is liable for injury or damage resulting

from such operation to the same extent and upon the same basis

as a privately owned water company would be.”                                 Mosseller v.

Asheville, 267 N.C. 104, 107, 147 S.E.2d 558, 561 (1966).

       In a professional negligence action, the plaintiff bears

the   burden    of    showing:      “(1)      the     nature       of   the    defendant’s

profession; (2) the defendant’s duty to conform to a certain
                                                -9-
standard of conduct; and (3) a breach of the duty proximately

caused injury to the plaintiffs.”                           Huffman Oil Co., Inc., 190

N.C.   App.      at     271,    661    S.E.2d     at        11    (emphasis      and    internal

quotation        marks        omitted).           “Where           common     knowledge        and

experience        of     the        jury   is    [not]           sufficient      to    evaluate

compliance with a standard of care,” the plaintiff is required

to establish the standard of care through expert testimony.                                    Id.

“The standard of care provides a template against which the

finder      of        fact    may     measure         the        actual     conduct     of     the

professional.            The purpose of introducing evidence as to the

standard of care in a professional negligence lawsuit is to see

if   this     defendant’s           actions     lived        up     to    that   standard[.]”

Associated Indus. Contr’rs, Inc. v. Fleming Eng'g, Inc., 162

N.C.   App.       405,       410,    590   S.E.2d       866,        870     (2004)     (internal

quotation marks omitted), aff'd, 359 N.C. 296, 608 S.E.2d 757

(2005).     If the plaintiff fails to establish the proper standard

of care through expert testimony in a professional negligence

claim, summary judgment for the defendant is proper.                                     Huffman

Oil Co., 190 N.C. App. at 271, 661 S.E.2d at 11.

       This Court has previously held that the “common knowledge”

exception        to    the     requirement       that       the     standard      of    care   be

established by expert testimony applies either when the actions
                                           -10-
are “of such a nature that the common knowledge of laypersons is

sufficient to find the standard of care required, a departure

therefrom,         or      proximate    causation.”              Associated         Indus.

Contractors, Inc., 162 N.C. App. at 411, 590 S.E.2d at 871.                                In

Associated       Indus.      Contractors,      Inc.,     this    Court     held     that   a

surveyor’s actions fell within the “common knowledge” exception

because a trier of fact could adequately determine whether the

surveyor correctly measured ninety-degree angles in its design

of a rectangular building site.                   Id. at 411-12, 590 S.E.2d at

871.     It noted that “where . . . the service rendered does not

involve esoteric knowledge or uncertainty that calls for the

professional’s judgment, it is not beyond the knowledge of the

jury   to    determine        the   adequacy      of     the    performance.”            Id.

(citation and quotation omitted).

       Here, plaintiff asserted that defendant was negligent in

three ways: (1) failing to ensure that water pressure did not

exceed reasonable levels; (2) failing to install a “loop” system

in its municipal water distribution system to prevent excessive

pressures     at     the     terminal   ends      of    the    water    line;      and   (3)

failing     to     install     or   recommend          that    the     Club   install      a

pressure-relieving           device.       Unlike      the     measuring      of   ninety-

degree      angles      in    Associated     Indus.       Contractors,        Inc.,      the
                                        -11-
alleged wrongdoing of defendant here required the exercise of

professional judgment regarding a “reasonable” level of water

pressure    in    a   municipal       water   system,     the     skill    needed    to

install    a     “loop”     system,    and    the     expertise      to   install     or

recommend installing a pressure-relieving device at the terminal

ends of the system.          Because these claims could not be properly

evaluated      with   the    “common    knowledge      and    experience”       of   the

jury, plaintiff bore the burden of producing expert testimony to

establish the proper standard of care to which defendant should

have been held.           See Huffman Oil Co., Inc., 190 N.C. App. at

271, 661 S.E.2d at 11.

       Plaintiff failed to meet this burden.                    Chang, plaintiff’s

sole   expert     witness,     specifically      testified       that     he   had   not

studied defendant’s facility, did not know what type of water

distribution       system     defendant       used,     had     no   experience      in

designing or running a municipal water system, and did not know

of anything defendant may have done to create an increase in

water pressure.           Busic, the Club’s General Manager, testified

that he had no experience or training in the field of plumbing

at all.        Although Chang and Busic testified that the six-inch

PVC pipe installed by Crawford burst due to internal pressure,

neither could identify what a reasonable municipal corporation
                                           -12-
providing water to the Club would do given the facts of this

case.        Nor could they identify any action taken by defendant

that might have caused a sudden increase in water pressure.

       Thus, plaintiff essentially argues that because defendant

could    have      prevented        the    six-inch     PVC    piping     erroneously

installed into the Club’s sprinkler system from bursting, they

necessarily breached a duty owed to the Club by failing to do

so.     However, absent expert testimony establishing the standard

of    care    that      defendant    owed     the    Club,    plaintiff    failed   to

provide a context to assess whether defendant’s conduct differed

from    what       it     should    have    done.        See    Associated     Indus.

Contractors, Inc., 162 N.C. App. at 410, 590 S.E.2d at 870.

Thus,    by    leaving      the    standard    of    care    unresolved,    plaintiff

failed to “offer legal evidence tending to establish beyond mere

speculation          or     conjecture        every     essential       element     of

negligence[.]”            Fun Services-Carolina, Inc., 122 N.C. App. at

162, 468 S.E.2d at 263.               In other words, “without evidence of

the applicable standard of care, [plaintiff] [has] failed to

establish      a    prima    facie    claim    for    professional      negligence.”

Huffman Oil Co., 190 N.C. App. at 272, 661 S.E.2d at 11-12.

Accordingly, summary judgment for defendant was proper, and we

need not address defendant’s alternative argument on appeal—that
                                 -13-
plaintiff was contributorily negligent.       Id.; see also Huffman

Oil Co., 190 N.C. App. at 271, 661 S.E.2d at 11 (holding that

summary judgment in favor of the defendant City of Burlington

was   proper   where   the   plaintiff   failed   to   provide   expert

testimony establishing the applicable standard of care).

                              Conclusion

      Because plaintiff failed to establish a standard of care in

its professional negligence claim, we affirm the trial court’s

grant of summary judgment in defendant’s favor.



      AFFIRMED.

      Judges McGEE and ELMORE concur.
