Bishop & Smith, PLLC, by Keith A. Bishop, and Couch & Associates, PC, by Finesse G. Couch, for the plaintiff. Burton & Sue, by Stephanie Anderson, for defendant Ronald Francis Rice, Jr.
Appeal by plaintiff from order entered 15 June 2009 by Judge J.B. Allen in Durham County Superior Court. Heard in the Court of Appeals 24 January 2012. Bishop & Smith, PLLC, by Keith A. Bishop, and Couch & Associates, PC, by Finesse G. Couch, for the plaintiff. Burton & Sue, by Stephanie Anderson, for defendant Ronald Francis Rice, Jr.
Carolyn Hayes (“Plaintiff”), wife of John Hayes (“Decedent”), brought an action against Time Warner Cable, Inc., and Ronald Francis Rice, Jr., (“Rice”) after Decedent was electrocuted while working on an aerial cable installation job with Rice. We must decide whether the trial court erred by granting Rice's motion for summary judgment for Plaintiff's negligence claim against Rice. Because Plaintiff has failed to prove Rice owed a duty of care to Decedent, we affirm.
I. Procedural and Factual History
On the date of his death, 23 October 2004, Decedent was employed by Diverse Networks, Inc., as a cable television installation subcontractor. Decedent had approximately twelve years of cable installation experience and was working as a lead technician. As a lead technician, Decedent had his own route as a cable installer, but also provided assistance to technicians in the field who had questions or problems and checked behind technicians to ensure the quality of their work.
Rice was a new technician for Diverse Networks, and, on 23 October 2004, Rice had been working unsuccessfully on an aerial installation for a downed cable line. Decedent was called to assist Rice with the installation. When Decedent arrived at the job site, it was “[p]itch black” outside and the cable was tangled in a tree. Rice testified that Decedent climbed the tree while Rice stood on the ground with a flashlight and handed Decedent a motorized hacksaw to cut some tree limbs. Decedent then asked Rice to hand him a metal “lay-up” pole from Decedent's truck so Decedent could untangle the cable. While in the tree working with the metal pole, the electricity from an overhead power line reached the pole. Decedent was electrocuted and fell from the tree. He later died as a result of his injuries.
On 29 February 2008, Plaintiff commenced this action against Time Warner Cable and Rice, alleging various claims against Time Warner Cable and gross negligence against Rice. On 30 April 2009, Rice filed an Amended Motion for Summary Judgment. The trial court heard arguments on the motion on 8 June 2009 and entered an order granting Rice's motion for summary judgment on 15 June 2009. On 2 June 2011, Plaintiff filed a voluntary dismissal with prejudice as to the remaining defendant, Time Warner Cable. Plaintiff appeals from the 15 June 2009 order granting Rice's motion for summary judgment.
“The grant of summary judgment as to fewer than all parties or claims is generally not appealable.” Johnson v. Wornom, 167 N.C.App. 789, 791, 606 S.E.2d 372, 374 (2005) (citation omitted), disc. review denied,359 N.C. 411, 612 S.E.2d 321 (2005). However, a plaintiff's voluntary dismissal of claims which survive summary judgment “has the effect of making the trial court's grant of partial summary judgment a final order.” Combs & Associates, Inc. v. Kennedy, 147 N.C.App. 362, 367, 555 S.E.2d 634, 638 (2001) (citation omitted); see also Duval v. OM Hospitality, LLC, 186 N.C.App. 390, 394, 651 S.E.2d 261, 264 (2007) (holding that the voluntary dismissal without prejudice as to the defendant Days Inn did not render the order of summary judgment as to the other defendant interlocutory because time “has expired for plaintiff to refile this claim against defendant Days Inn”; thus, “[t]he procedural posture of this case does not cause us to believe that counsel are manipulating the Rules of Civil Procedure in an attempt to appeal an order that should not be appealable”) (quotation and quotation marks omitted). Here, although the order granting Rice's motion for summary judgment did not dispose of the case as to all parties, Plaintiff subsequently filed a dismissal with prejudice as to defendant Time Warner Cable. Thus, we find the partial summary judgment appealable.
II. Summary Judgment
On appeal, Plaintiff contends the trial court erred by granting Rice's motion for summary judgment on Plaintiff's claim against Rice for gross negligence. We disagree.
“Our standard of review of an appeal from summary judgment is de novo; such 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) (quotation and quotation marks omitted). The showing required for summary judgment may be accomplished by proving “an essential element of the opposing party's claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of her claim.” Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (citations omitted). “When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party.” Jones, 362 N.C. at 573, 669 S.E.2d at 576 (quotation omitted).
“Actionable negligence is established by showing: (1) a failure to exercise due care in the performance of a legal duty owed to the plaintiff under the circumstances and (2) a negligent breach of such duty proximately causing the plaintiff's injury.” Croker v. Yadkin, Inc., 130 N.C.App. 64, 68, 502 S.E.2d 404, 407 (citation omitted), disc. review denied, 349 N.C. 355, 525 S.E.2d 449 (1998). “[N]egligence actions are rarely susceptible to summary judgment; [h]owever, if it is shown the defendant had no duty of care to the plaintiff, summary judgment is appropriate.” Id. at 66–67,502 S.E.2d at 406 (citations omitted). “Whether defendant owes plaintiff a duty of care is a question of law.” Huntley v. Howard Lisk Co., Inc., 154 N.C.App. 698, 703, 573 S.E.2d 233, 236 (2002) (citation omitted), disc. review denied,357 N.C. 62, 579 S.E.2d 389 (2003).
Plaintiff cites Williamson v. Clay, 243 N.C. 337, 90 S.E.2d 727 (1956), for the proposition that “[t]he law imposes upon every person who enters upon an active course of conduct the positive duty to exercise ordinary care to protect others from harm, and calls a violation of that duty negligence.” Id. at 343, 90 S.E.2d at 731 (determining whether the defendant, the plaintiff's employer and the proprietor of the garage and body shop, was negligent in causing an explosion that injured the plaintiff). Plaintiff contends Rice “entered upon an active course of repairing TWC Cable equipment[,]” and because Rice knew the power line was present, he owed Decedent a “duty of care not to introduce metal objects within ten (10) feet of high voltage electric lines.” While our courts have recognized the general proposition cited by Plaintiff, they have also recognized that:
[A]n action to recover damages for an injury to person or property may not be sustained on the theory that such injury was caused by the negligence of the defendant unless there existed, at the time and place where the injury occurred, a duty on the part of the defendant to exercise care for the protection of the plaintiff or his property.
Firemen's Mut. Ins. Co. v. High Point Sprinkler Co., 266 N.C. 134, 140, 146 S.E.2d 53, 60 (1966) (citing 38 Am.Jur., Negligence, § 12) (emphasis added).
“Whether there is a duty owed by one person to another to use care, and, if so, the degree of care required, depends upon the relationship of the parties one to the other.” Id. The duty to use due care may arise “by reason of special business or economic relations between the parties[,]” for example, an employer-employee relationship. Id. at 141, 146 S.E.2d at 60. Furthermore, “[i]n the absence of any control of the place and of the work there is a corresponding absence of any liability incident thereto. That authority precedes responsibility, or control is a prerequisite of liability, is a well recognized principle of law as well as of ethics.” Wilkerson v. Norfolk Southern Ry. Co., 151 N.C.App. 332, 343, 566 S.E.2d 104, 111 (2002) (quotation omitted).
Here, the evidence shows that Rice and Decedent were coworkers. Neither party cites, nor does our review of North Carolina case law reveal, a case in which a co-worker relationship was considered a special relationship for purposes of the duty of care. Compare Macklin v. Dowler, 53 N.C.App. 488, 490, 281 S.E.2d 164, 166 (1981) (stating that “an employer ... has a duty to warn an employee of dangers, which are known to the employer, inherent in the task the employee is directed to undertake”) (citation omitted). Furthermore, there is no evidence that Rice owned or controlled the cable or power lines or the land on which the lines were located. Compare Huntley v. Howard Lisk Co., Inc., 154 N.C.App. 698, 703, 573 S.E.2d 233, 236 (2002) (stating that “[g]enerally, owners and occupiers of land owe a duty of reasonable care toward all lawful visitors[;][h]owever, there is no duty to warn against dangers either known or so obvious and apparent that they reasonably may be expected to be discovered by a person exercising ordinary care”) (citations omitted), disc. review denied,357 N.C. 62, 579 S.E.2d 389 (2003).
Moreover, we find this case analogous to Thomas v. Poole, 45 N.C.App. 260, 262 S.E.2d 854 (1980), disc. review denied, 304 N .C. 733, 287 S.E.2d 902 (1982). In Thomas, this court concluded that the defendant's co-worker, a security guard working the shift prior to the defendant's shift, had “no duty ... to warn of the extra bullet when he transferred the gun to [the defendant] who had full knowledge that the gun was loaded.” Id. at 266, 262 S.E.2d at 857. Like Thomas, the evidence in the present case shows that Decedent had approximately twelve years of cable installation experience and knew there was potential for a power line to be present. Plaintiff testified that she worked with her husband at CMI and Decedent trained her to do cable installations; that “cable lines are typically run on power pole lines ... in the same area where overhead high voltage lines are run”; and that Decedent was aware that with any aerial cable installation, there was the potential for an electrical wire, a telephone wire, and a cable wire. Additionally, Rice testified that Decedent asked him to retrieve the metal “lay-up” pole from Decedent's truck, and Rice “brought it back and handed it to him[.]”
Given this evidence and the fact that our review of North Carolina case law did not reveal a case in which a co-worker relationship was considered a special relationship for purposes of the duty of care, we find that Rice did not owe Decedent a duty of care. As no duty of care existed, the alleged negligence is not actionable as a matter of law. Thus, the trial court did not err by granting Rice's motion for summary judgment. Because no actionable negligence existed on the part of Rice, we need not address Rice's contention that Decedent was contributorily negligent.
AFFIRMED. Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).