               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-1021

                                Filed: 7 January 2020

Orange County, No. 17 CVS 162

WILLIAM EVERETT COPELAND IV and CATHERINE ASHLEY F. COPELAND,
Co-Administrators of the ESTATE OF WILLIAM EVERETT COPELAND, Plaintiffs,

              v.

AMWARD HOMES OF N.C., INC., CRESCENT COMMUNITIES, LLC; and
CRESCENT HILLSBOROUGH, LLC, Defendants.


        Appeal by plaintiffs from order entered 7 May 2018 by Judge W. Osmond Smith

III in Orange County Superior Court. Heard in the Court of Appeals 12 February

2019.


        Edwards Kirby, LLP, by David F. Kirby and William B. Bystrynski, and Holt
        Sherlin LLP, by C. Mark Holt and David L. Sherlin, for plaintiffs-appellants.

        Cranfill Sumner & Hartzog LLP, by Susan K. Burkhart and F. Marshall Wall,
        for defendants-appellees.


        DIETZ, Judge.


        Five-year-old Everett Copeland died after an overloaded dump truck rolled

away and struck him as he played near his home. The dump truck was left

unattended, with its engine running and without wheel chocks, at a home

construction site up a hill from the Copeland’s home.

        This case screams of negligence—by the dump truck driver, by the company

that operated the dump truck, perhaps even by the general contractor responsible for
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supervising the operation. This appeal involves none of those parties.

      This case concerns negligence claims against the real estate developer who

designed the planned community where the accident occurred. The Copelands argue

that the developer—although it sold the lots to independent builders to handle

construction—retained a duty to develop a safety plan, sequence the project to

minimize harm from construction accidents, and conduct inspections of builders’

progress.

      Most of the Copelands’ theories of legal duty are barred by settled tort

principles established by our Supreme Court. A real estate developer, like anyone

else, may hire a contractor to perform a service such as building a home, and has no

duty to supervise that contractor’s work. Woodson v. Rowland, 329 N.C. 330, 350, 407

S.E.2d 222, 234 (1991). Similarly, a real estate developer, like anyone else, has no

duty to imagine all of the harms that might be caused by other people’s negligence

and then to take precautionary steps to avoid those harms. Chaffin v. Brame, 233

N.C. 377, 380, 64 S.E.2d 276, 279 (1951).

      Still, as explained below, the Copelands have advanced a theory of legal duty

that survives summary judgment under these principles. They have forecast evidence

that this development occurred on unusually steep, hilly terrain; that the

construction would involve heavy equipment and materials; that there were

foreseeable risks of roll-aways during construction; and that a reasonably prudent



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developer would take steps to sequence construction or grade the area in advance to

avoid foreseeable harm caused by these construction accidents. There are genuine

issues of material fact on this theory of duty and we therefore reverse and remand for

further proceedings on this legal claim.

                          Facts and Procedural History

      The following recitation of facts represents the Copelands’ version of events,

viewed in the light most favorable to them. As the non-movant at the summary

judgment stage, this Court must accept the Copelands’ evidence as true. See Dobson

v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000).

      In 2013, Defendants Crescent Communities, LLC and Crescent Hillsborough,

LLC, to which we refer collectively as “Crescent,” began developing a residential

planned community known as Forest Ridge. Crescent purchased more than 100 acres

of steep, hilly land as the future site of the development.

      Crescent recorded the necessary instruments to subdivide the site and create

applicable covenants and declarations typical of planned communities. The company

then sold lots to builders, who constructed homes consistent with the overall aesthetic

and design elements of the community.

      Although Forest Ridge is situated on hilly terrain, Crescent did not mass grade

the entire community before selling lots to builders—meaning at least some of the

lots had to be individually graded before a home could be built on them. “Grading” is



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the process of ensuring the earth on which construction will take place is either level,

or appropriately sloped for the necessary construction. Grading typically involves

heavy equipment including dump trucks, excavators, and bulldozers.

      Crescent also did not sequence the construction of the community so that uphill

lots were built before downhill ones. As a result, the Copelands moved into their home

in Forest Ridge while at least some lots uphill from the Copelands’ home had yet to

be graded.

      In late 2016, on a lot uphill from the Copelands’ home, a subcontractor

employed by the home builder began grading work. This grading work occurred on

hilly, sloping terrain facing the Copelands’ home. It involved a dump truck and heavy

excavating equipment.

      During the grading, the dump truck driver left the truck unattended. The

dump truck was overloaded, had its engine running, and did not have wheel chocks.

The truck broke free and rolled downhill. Five-year-old Everett Copeland was playing

outside near his home. The dump truck struck and killed Everett.

      The Copelands, as administrators of their son’s estate, sued Crescent for

wrongful death, asserting several theories of negligence. After a full opportunity for

discovery, Crescent moved for summary judgment, arguing that it owed no legal duty

to the Copelands. The trial court granted Crescent’s motion for summary judgment.

The Copelands timely appealed.



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                                     Analysis

      The Copelands appeal the trial court’s grant of summary judgment in favor of

Crescent. “Summary judgment is appropriate when viewed in the light most

favorable to the non-movant, 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.” S.B. Simmons Landscaping & Excavating, Inc. v. Boggs, 192 N.C.

App. 155, 164, 665 S.E.2d 147, 152 (2008) (citations omitted). We review the trial

court’s grant of summary judgment de novo. In re Will of Jones, 362 N.C. 569, 573,

669 S.E.2d 572, 576 (2008).

      To survive a motion for summary judgment in a negligence case, the plaintiff

must establish a “prima facie case” by showing “(1) that defendant failed to exercise

proper care in the performance of a duty owed plaintiff; (2) the negligent breach of

that duty was a proximate cause of plaintiff’s injury; and (3) a person of ordinary

prudence should have foreseen that plaintiff’s injury was probable under the

circumstances.” Lavelle v. Schultz, 120 N.C. App. 857, 859–60, 463 S.E.2d 567, 569

(1995).

      In their briefing, the parties focus entirely on the question of duty. “The duty

of ordinary care is no more than a duty to act reasonably.” Fussell v. N.C. Farm

Bureau Mut. Ins. Co., 364 N.C. 222, 226, 695 S.E.2d 437, 440 (2010). “The duty does



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not require perfect prescience, but instead extends only to causes of injury that were

reasonably foreseeable and avoidable through the exercise of due care.” Id. The

Copelands assert several independent theories of legal duty in this case and we

address each in turn below.

   I.      Duty to inspect or monitor the construction site

        We begin with the Copelands’ argument that Crescent had a duty to “routinely

inspect the construction going on in its subdivision.” Crescent designed this planned

community and recorded an instrument containing covenants that included various

architectural limits on homes constructed there. But the company did not actually

build the homes. It sold the lots to builders, who would then construct homes

consistent with the covenants and other restrictions included in the lot purchase

agreement.

        Those lot purchase agreements required builders to obtain permission from

Crescent before clearing trees or grading the lot. There is evidence in the record

showing the builder of the home from which the dump truck rolled away began

grading the lot without permission from Crescent, and that the builder did not take

routine safety measures such as installing a silt fence or creating a temporary gravel

driveway. The Copelands argue that “Crescent violated the standard of care for a

master developer because it failed to routinely inspect the construction going on in

its subdivision” and that, had it done so, it would have discovered the builder’s



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unauthorized and unsafe grading work, halted it, “and Everett Copeland would not

have been killed.”

      This theory of legal duty is barred by precedent. The builder was not an

employee of Crescent. It was, at most, an independent contractor performing

construction work on property that was part of a planned community designed and

managed by Crescent. When one hires an independent contractor to perform work,

there is no legal duty “to take proper safeguards against dangers which may be

incident to the work undertaken by the independent contractor.” Cook v. Morrison,

105 N.C. App. 509, 515, 413 S.E.2d 922, 926 (1992). The legal responsibility for the

safe performance of that work rests entirely on the independent contractor. Id.

      The only exception to this rule concerns “inherently dangerous activities.” See

Woodson v. Rowland, 329 N.C. 330, 352–53, 407 S.E.2d 222, 235–36 (1991). Our

caselaw does not establish a bright-line rule for determining which activities are

inherently dangerous, but home construction is not inherently dangerous. Id. Our

Supreme Court has long held that ordinary building construction work is not “of that

character which the policy of the law requires that the owner shall not be permitted

to free himself from liability by contract with another for its execution.” Vogh v. F. C.

Geer Co., 171 N.C. 672, 676, 88 S.E. 874, 876 (1916).

      Were we to hold that owners of property on which homes are being constructed

have a legal duty to monitor the builder’s grading work, it would be an unprecedented



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expansion of tort liability at odds with our Supreme Court’s longstanding application

of these negligence principles in the home construction context. As we have often

explained, “this Court is not in the position to expand the law. Rather, such

considerations must be presented to our Supreme Court or our Legislature.” Shera v.

N.C. State Univ. Veterinary Teaching Hosp., 219 N.C. App. 117, 126, 723 S.E.2d 352,

358 (2012).

      The Copelands also suggest that Crescent retained sufficient control over the

project to subject itself to liability for the negligence of the builder or its

subcontractors. See Trillium Ridge Condo. Ass’n, Inc. v. Trillium Links & Vill., LLC,

236 N.C. App. 478, 489, 764 S.E.2d 203, 212 (2014). But this principle applies only in

situations where the developer retains control over how the work is performed. In

Trillium Ridge, for example, a developer hired a construction firm to act as “Asst

Project Manager” but employees of the developer retained various “[c]onstruction

duties & responsibilities.” Id. at 490, 764 S.E.2d at 212.

      Here, by contrast, there is no evidence that Crescent retained any construction

responsibilities or had any control over the builder’s decisions concerning grading

work. To be sure, the declaration Crescent recorded when creating the Forest Ridge

community imposed aesthetic restrictions on builders and required builders to obtain

permission from Crescent before beginning various phases of construction. But there

is no evidence that Crescent retained any control over the actual construction work



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performed by the builders. Accordingly, we reject the Copelands’ argument that

Crescent had a legal duty to monitor or inspect the grading work of a subcontractor

of the builder.

   II.      Duty to take precautions against negligent construction work

         The Copelands next argue that when Crescent “decided to develop the Forest

Ridge subdivision, it was undertaking a course of conduct that required it to exercise

ordinary care to protect others from harm.” This duty, according to the Copelands,

included anticipating the risk of harm caused by negligent operation of heavy

equipment at construction sites and taking reasonable precautionary steps to prevent

that harm.

         Again, this theory of duty is barred by precedent. “It is a well established

principle in the law of negligence that a person is not bound to anticipate negligent

acts or omissions on the part of others.” Chaffin v. Brame, 233 N.C. 377, 380, 64

S.E.2d 276, 279 (1951). This principle has been repeated by our State’s appellate

courts many times. Britt v. Sharpe, 99 N.C. App. 555, 558, 393 S.E.2d 359, 361 (1990)

(citing Supreme Court cases).

         Here, undisputed facts in the record demonstrate that the driver of a dump

truck at the construction site left the vehicle unattended, with its engine running,

without wheel chocks. There is no dispute that the dump truck operator acted




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negligently and that this negligence proximately caused Everett Copeland’s death.

The Copelands concede this in their reply brief.

      The law could impose a duty on Crescent, as the developer of a large planned

community, to anticipate potential negligence on construction sites within the

community and to take precautionary steps to prevent harm should that occur. But

the tort law of our State, as it exists today, does not impose that duty. Chaffin, 233

N.C. at 380, 64 S.E.2d at 279.

      Some tort scholars have criticized this type of bright-line rule and argued that

there should be a “duty to take precautions against the negligence of others” when “a

reasonable person would recognize the existence of an unreasonable risk of harm to

others through the intervention of such negligence.” W. Page Keeton et al., Prosser &

Keeton on the Law of Torts § 33, p. 199 (5th ed. 1984). But that is not what our law

holds today. And, as explained above, we do not have the authority to change settled

common law tort principles established by our Supreme Court. Shera, 219 N.C. App.

at 126, 723 S.E.2d at 358.

      To be sure, Chaffin and its progeny carve out an exception when the defendant

is aware of any fact “which gives or should give notice” that the negligence will occur.

Chaffin, 233 N.C. at 380, 64 S.E.2d at 279. But that is not the case here. There is no

evidence that Crescent was aware of the negligent activities of the dump truck

operator. Accordingly, we must reject this theory of legal duty because it would



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impose on a real estate developer a duty to take precautionary steps to protect against

harm resulting from unknown negligence of others at a construction site. That theory

is inconsistent with existing North Carolina law that the negligence of others is not

reasonably foreseeable.

   III.   Duty to sequence construction or conduct mass grading

      We thus turn to the Copelands’ third, and final, theory of duty. This theory is

unlike the other two in a critical way—it does not depend on Crescent having failed

to address negligence at the construction site, either through adequate supervision

or adequate precautions.

      Instead, the Copelands argue that there was a risk that the dump truck could

have broken loose and rolled downhill even without negligence at the construction

site. This is so, they contend, because there always is a risk of roll-away accidents

during construction on steep terrain. And, the Copelands argue, developers of large

planned communities have the ability to limit any harm from these accidents in a

way ordinary property owners do not. They contend that developers can choose the

order in which homes in the development will be constructed and can choose which

construction steps will occur all at once and which will occur lot-by-lot. Thus, the

Copelands argue, developers of large projects on hilly terrain have a duty to sequence

and manage construction to limit the risk that bystanders downhill might be harmed

by foreseeable roll-away accidents.



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      We agree that the Copelands have forecast evidence creating a genuine issue

of material fact on this theory of duty. They put forth experts who testified in

depositions that there are various “hazards” and “risks” associated with roll-away

equipment on hilly construction sites. Those experts testified that the risks of roll-

away accidents are known in the planned development industry. They also testified

that a reasonably prudent developer would undertake a “safety analysis” or “hazard

analysis” and take steps such as sequencing development or conducting mass grading

to eliminate the risk of injury from these roll-away accidents.

      If all of these things are true, it would be sufficient to impose a duty of care.

See Fussell, 364 N.C. at 226, 695 S.E.2d at 440; United Leasing Corp. v. Miller, 45

N.C. App. 400, 406–07, 263 S.E.2d 313, 318 (1980). The Copelands will have

established that a prudent planned community developer would foresee that the

construction creates a risk of roll-away accidents and that sequencing the

construction in various, reasonable ways will reduce the risk of injury resulting from

those accidents.

      Unsurprisingly, Crescent disputes all of the Copelands’ evidence supporting

this theory of duty—everything from the notion that developers can foresee these

types of risks to the assertion that the Forest Ridge community is situated on hilly

terrain.




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      Ordinarily, the determination of whether one owes another a duty of care is a

question of law. But “when the facts are in dispute or when more than a single

inference can be drawn from the evidence, the issue of whether a duty exists is a

mixed question of law and fact. The issues of fact must first be resolved by the fact

finder, and then whether such facts as found by the fact finder give rise to any legal

duty must be resolved by the court.” Mozingo by Thomas v. Pitt Cty. Mem’l Hosp.,

Inc., 101 N.C. App. 578, 588, 400 S.E.2d 747, 753 (1991), aff’d, 331 N.C. 182, 415

S.E.2d 341 (1992). Because there are disputed issues of material fact on the question

of duty, this matter cannot be resolved at summary judgment.

      We note that, although the question of duty involves fact disputes that cannot

be resolved as a matter of law, there may be other legal barriers to the relief the

Copelands seek. The appellate briefing in this case dealt entirely with the legal

question of duty. Issues concerning intervening or superseding causation, and the

admissibility of the rather vague discussions by the Copelands’ experts of the risk of

non-negligent roll-away accidents on hilly construction sites, were not briefed by the

parties. Although our review of a summary judgment ruling is de novo, we decline to

comb through the record and independently address issues not raised by the parties.

Johnson v. Causey, 207 N.C. App. 748, 701 S.E.2d 404, 2010 WL 4288511, at *9 (2010)

(unpublished); N.C. R. App. P. 28(b)(6). We leave for the trial court, on remand, the




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determination of whether there are other grounds on which to rule in this case as a

matter of law, or whether the case must proceed to trial.

                                    Conclusion

      We reverse the trial court’s grant of summary judgment and remand for

further proceedings.

      REVERSED AND REMANDED.

      Judges BRYANT and MURPHY concur.




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