{ "id": 11920273, "name": "NINA GOOCH NIFONG, Plaintiff-Appellant v. C. C. MANGUM, INC., Defendant and Third-Party Plaintiff-Appellee v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Third-Party Defendant", "name_abbreviation": "Nifong v. C. C. Mangum, Inc.", "decision_date": "1996-03-05", "docket_number": "No. COA94-1222", "first_page": "767", "last_page": "771", "citations": [ { "type": "official", "cite": "121 N.C. App. 767" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "58 ALR2d 865", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "13 ALR2d 191", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "228 N.Y.S. 302", "category": "reporters:state", "reporter": "N.Y.S.", "year": 1928, "pin_cites": [ { "page": "305" } ], "opinion_index": 0 }, { "cite": "265 S.W.2d 714", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1650387 ], "year": 1954, "pin_cites": [ { "page": "719", "parenthetical": "quoting Jaroniec v. C.O. Hasselbarth, Inc., 228 N.Y.S. 302, 305 (N.Y. App. Div. 1928)" } ], "opinion_index": 0, "case_paths": [ "/ark/223/0314-01" ] }, { "cite": "56 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "231 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629302 ], "year": 1949, "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0270-01" ] }, { "cite": "40 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1946, "pin_cites": [ { "page": "344" }, { "page": "344-45" }, { "page": "345" } ], "opinion_index": 0 }, { "cite": "226 N.C. 758", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625369 ], "weight": 3, "year": 1946, "pin_cites": [ { "page": "759" }, { "page": "759" }, { "page": "759" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0758-01" ] }, { "cite": "378 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "324 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482580 ], "year": 1989, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0427-01" ] }, { "cite": "451 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517792, 2517761, 2520054, 2520218, 2519355 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0308-02", "/nc/338/0308-05", "/nc/338/0308-01", "/nc/338/0308-03", "/nc/338/0308-04" ] }, { "cite": "446 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "800" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522225 ], "year": 1994, "pin_cites": [ { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0082-01" ] }, { "cite": "442 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "\"Many courts have completely abandoned the 'completed and accepted' rule, even in the context of construction contracts.\"" } ], "opinion_index": 1 }, { "cite": "336 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534356 ], "year": 1994, "pin_cites": [ { "parenthetical": "\"Many courts have completely abandoned the 'completed and accepted' rule, even in the context of construction contracts.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/336/0309-01" ] }, { "cite": "433 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "Greene, J. dissenting" } ], "opinion_index": 1 }, { "cite": "111 N.C. App. 758", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523837 ], "year": 1993, "pin_cites": [ { "page": "766", "parenthetical": "Greene, J. dissenting" } ], "opinion_index": 1, "case_paths": [ "/nc-app/111/0758-01" ] } ], "analysis": { "cardinality": 538, "char_count": 9953, "ocr_confidence": 0.753, "pagerank": { "raw": 4.600180649105027e-07, "percentile": 0.9259030159673401 }, "sha256": "0ed48e58087061f5437597a25b6ea858873fbb0a4c3a13cb22802b669b5fbce8", "simhash": "1:2921c4b21f390656", "word_count": 1571 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JOHNSON concurs.", "Judge WYNN dissents." ], "parties": [ "NINA GOOCH NIFONG, Plaintiff-Appellant v. C. C. MANGUM, INC., Defendant and Third-Party Plaintiff-Appellee v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Third-Party Defendant" ], "opinions": [ { "text": "EAGLES, Judge.\nSummary judgment is proper \u201cif 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.\u201d G.S. 1A-1, Rule 56(c). The trial court must view the forecast of evidence in the light most favorable to the non-moving party. Canady v. McLeod, 116 N.C. App. 82, 84, 446 S.E.2d 879, 800, disc. review denied, 338 N.C. 308, 451 S.E.2d 632 (1994). If the trial court grants summary judgment, the decision should be affirmed on appeal if there is any ground to support the decision. Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989).\nHere, plaintiff argues that the trial court erred in granting defendant\u2019s motion for summary judgment because plaintiff presented a sufficient forecast of evidence to demonstrate defendant\u2019s negligence. Defendant counters that the trial court correctly granted its motion for summary judgment because defendant owed no legal duty to plaintiff under the \u201ccompleted and accepted work\u201d doctrine. Defendant also argues that because plaintiff was only an incidental beneficiary of the contract between defendant and the DOT, plaintiff cannot maintain an action based upon an alleged breach of contract. Third, defendant argues that even if the \u201ccompleted and accepted work\u201d doctrine did not apply, plaintiff presented no forecast of evidence of any negligence of defendant during the construction process.\nIn North Carolina, the \u201ccompleted and accepted work\u201d doctrine provides that \u201can independent contractor is not liable for injuries to third parties occurring after the contractor has completed the work and it has been accepted by the owner.\u201d Price v. Cotton Co., 226 N.C. 758, 759, 40 S.E.2d 344, 344 (1946). Price provides that the contractor is not liable even if the contractor \u201cwas negligent in carrying out the contract.\u201d Price, 226 N.C. at 759, 40 S.E.2d at 344-45. There are exceptions by which a contractor may be liable even after it has turned over the completed work. Among the exceptions is the so-called \u201cimminently dangerous\u201d work exception. Plaintiff argues that defendant remains liable here because it turned over work to the State that was \u201cimminently dangerous.\u201d See Price, 226 N.C. at 759, 40 S.E.2d at 345 (stating that a \u201ccontractor is liable . . . where the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons, provided, . . . the contractor knows, or should know, of the dangerous situation created by him, and the owner or contractee does not know of the dangerous condition or defect and would not discover it by reasonable inspection\u201d). Our Supreme Court has stated that an object is \u201cimminently dangerous\u201d if injury will reasonably occur when the object is used for its declared purpose. Gas Co. v. Montgomery Ward & Co., 231 N.C. 270, 274, 56 S.E.2d 689, 693 (1949). Other courts have stated that to be imminently dangerous, \u201c \u2018[t]here must be knowledge of a danger, not merely possible, but probable.\u2019 \u201d Reynolds v. Manley, 265 S.W.2d 714, 719 (Ark. 1954) (quoting Jaroniec v. C.O. Hasselbarth, Inc., 228 N.Y.S. 302, 305 (N.Y. App. Div. 1928)). Black\u2019s Law Dictionary defines an \u201cimminently dangerous article\u201d as \u201c[o]ne that is reasonably certain to place life or limb in peril.\u201d Black\u2019s Law Dictionary 750 (6th ed. 1990).\nPlaintiff relies on the deposition testimony of Don Moore, a member of a transportation engineering firm in Florida, to argue that defendant turned over' work that was imminently dangerous. Don Moore testified that the road as constructed deviated from the DOT\u2019S plans and that it \u201ccreate[d] a hazardous hydroplaning condition.\u201d Don Moore also opined that it \u201cshould have been obvious\u201d that the transition in the curve as constructed by defendant did not occur as designed by the DOT. Plaintiff also presented the affidavits of three people who stated that when it rained, water collected on the road at the location of plaintiff\u2019s accident and that several people had hydroplaned in that area.\nIn contrast, defendant presented deposition testimony from several engineers who testified that defendant constructed the Miami Boulevard project in accordance with DOT plans and that the DOT would not have accepted and paid for the work unless the DOT was satisfied with defendant\u2019s performance. Defendant presented deposition testimony to show that before a contractor begins working on a road project, DOT engineers drive stakes in the ground with written instructions on them and also write instructions on the edge of the roadway to show the contractor exactly where to build the pavement. The contractor follows the guidelines set by the DOT and DOT engineers inspect the work as it progresses. It is ultimately up to the DOT to insure that the road is constructed properly. One engineer testified at his deposition that there was no hydroplaning hazard where the curve transitioned. This same engineer testified that a reasonable person would not have noticed any change in the curve as constructed from the original design.\nAfter carefully reviewing the entire record, we conclude that plaintiff failed to present a forecast of evidence sufficient to survive summary judgment. Regardless of whether defendant knew or should have known of a difference between the road as constructed and the road as designed, plaintiff has failed to present any forecast of evidence to show that defendant\u2019s work was imminently dangerous. Don Moore\u2019s opinion that the difference in the transition of the curve created a hazardous hydroplaning condition does not show that defendant turned over to the State work that was imminently dangerous. Because we have determined that plaintiff failed to forecast evidence to bring her claim within the \u201cimminently dangerous\u201d work exception to the \u201ccompleted and accepted work\u201d doctrine, we conclude that defendant owed no legal duty to plaintiff under the \u201ccompleted and accepted work\u201d doctrine. Accordingly, the trial court did not err in granting defendant\u2019s summary judgment motion.\nAffirmed.\nJudge JOHNSON concurs.\nJudge WYNN dissents.", "type": "majority", "author": "EAGLES, Judge." }, { "text": "Judge Wynn\ndissenting.\nAssuming that the \u201ccompleted and accepted work\u201d doctrine should remain valid in North Carolina and further, that it applies in this case, I believe that the plaintiff forecasted evidence sufficient to overcome summary judgment. Plaintiff\u2019s evidence establishes an issue of fact as to whether the contractor should be liable under an exception to the \u201ccompleted and accepted work\u201d doctrine. For while, as the majority points out, there is testimony to the contrary, when viewed in a light most favorable to the non-moving party, the testimony of the plaintiff\u2019s expert, Don Moore, establishes an issue of fact as to whether the defendant turned over work that was imminently dangerous. He testified that the road as constructed deviated from DOT\u2019s plans; that the road created a \u201chazardous hydroplaning condition\u201d; and that it should have been obvious that the transition in the curve as constructed by defendant did not occur as designed by the DOT. Moreover, plaintiff\u2019s evidence showed that at least three other people had \u201chydroplaned\u201d in the area. I would allow a trial of this case.\n. See Thrift v. Food Lion, 111 N.C. App. 758, 766, 433 S.E.2d 481, 486 n.1 (1993) (Greene, J. dissenting) dissent adopted by our Supreme Court in Thrift v. Food Lion, 336 N.C. 309, 442 S.E.2d 504 (1994) (\u201cMany courts have completely abandoned the \u2018completed and accepted\u2019 rule, even in the context of construction contracts.\u201d)", "type": "dissent", "author": "Judge Wynn" } ], "attorneys": [ "Pulley, Watson, King & Lischer, P.A., by Michael J. O\u2019Foghludha, for plaintiff-appellant.", "Cranfill, Sumner & Hartzog, L.L.P., by David H. Batten, for defendant-appellee." ], "corrections": "", "head_matter": "NINA GOOCH NIFONG, Plaintiff-Appellant v. C. C. MANGUM, INC., Defendant and Third-Party Plaintiff-Appellee v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Third-Party Defendant\nNo. COA94-1222\n(Filed 5 March 1996)\nLabor and Employment \u00a7 187 (NCI4th)\u2014 negligent construction of road alleged \u2014 failure to show work \u201cimminently dangerous\u201d \u2014 no legal duty of contractor under completed and accepted work doctrine\nIn an action arising out of an automobile accident where plaintiff sued the contractor who constructed the road for negligent construction, defendant owed no legal duty to plaintiff under the \u201ccompleted and accepted work\u201d doctrine where plaintiff failed to present any forecast of evidence to show that defendant\u2019s work was \u201cimminently dangerous,\u201d and it was irrelevant whether defendant knew or should have known of a difference between the road as constructed and the road as designed.\nAm Jur 2d, Independent Contractor \u00a7\u00a7 73-75.\nNegligence of building or construction contractor as ground of liability upon his part for injury or damage to third person occurring after completion and acceptance of the work. 13 ALR2d 191, supplemented by 58 ALR2d 865.\nJudge Wynn dissenting.\nAppeal by plaintiff from order entered 15 July 1994 by Judge D. Jack Hooks, Jr. in Durham County Superior Court. Heard in the Court of Appeals 19 October 1995.\nOn 12 August 1991, plaintiff was driving in the rain on Miami Boulevard in Durham County when \u201cwater . . . came up all over [her] windshield\u201d and she \u201ccouldn\u2019t see a thing.\u201d The car slid, hit the curb, and then ran into trees. Plaintiff was seriously injured. She sued C.C. Mangum, Inc. (hereinafter defendant), the contractor who constructed the road, for negligent construction. Plaintiff claimed that defendant constructed the road so that water could \u201cnot drain adequately or sufficiently and would remain dammed or ponded on the roadway, causing a hazard to the motoring public, including [plaintiff].\u201d Defendant impleaded the North Carolina Department of Transportation (hereinafter DOT). Defendant made a motion for summary judgment which the trial court granted.\nPlaintiff appeals.\nPulley, Watson, King & Lischer, P.A., by Michael J. O\u2019Foghludha, for plaintiff-appellant.\nCranfill, Sumner & Hartzog, L.L.P., by David H. Batten, for defendant-appellee." }, "file_name": "0767-01", "first_page_order": 801, "last_page_order": 805 }