{ "id": 8997839, "name": "POMPANO MASONRY CORPORATION, Plaintiff v. HDR ARCHITECTURE, INC., Defendant", "name_abbreviation": "Pompano Masonry Corp. v. HDR Architecture, Inc.", "decision_date": "2004-07-20", "docket_number": "No. COA03-43", "first_page": "401", "last_page": "412", "citations": [ { "type": "official", "cite": "165 N.C. App. 401" } ], "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": "513 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "550" } ], "opinion_index": 0 }, { "cite": "350 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132115 ], "year": 1999, "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0231-01" ] }, { "cite": "250 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "257" } ], "opinion_index": 0 }, { "cite": "296 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566400 ], "year": 1979, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0400-01" ] }, { "cite": "123 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "600-01" } ], "opinion_index": 0 }, { "cite": "256 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571475 ], "year": 1962, "pin_cites": [ { "page": "123-26" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0110-01" ] }, { "cite": "437 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "507" }, { "page": "507" } ], "opinion_index": 0 }, { "cite": "112 N.C. 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Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "page": "(16)" } ], "opinion_index": 0 }, { "cite": "28 Emory L.J. 377", "category": "journals:journal", "reporter": "Emory L.J.", "year": 1979, "pin_cites": [ { "page": "385-87" } ], "opinion_index": 0 }, { "cite": "259 S.E.2d 911", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570627, 8570535, 8570503, 8570473, 8570575 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0295-05", "/nc/298/0295-03", "/nc/298/0295-02", "/nc/298/0295-01", "/nc/298/0295-04" ] }, { "cite": "255 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1979, "pin_cites": [ { "page": "583-84" }, { "page": "666" }, { "page": "584" }, { "page": "667" }, { "page": "584" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 661", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551418 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0661-01" ] }, { "cite": "321 U.S. 730", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 301940 ], "year": 1944, "pin_cites": [ { "page": "737" } ], "opinion_index": 0, "case_paths": [ "/us/321/0730-01" ] }, { "cite": "385 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2490592, 2492204, 2490927, 2491153, 2491093 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0545-02", "/nc/325/0545-05", "/nc/325/0545-01", "/nc/325/0545-04", "/nc/325/0545-03" ] }, { "cite": "380 S.E.2d 796", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1989, "pin_cites": [ { "page": "800" }, { "page": "799" }, { "page": "806" }, { "page": "806" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527337 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "396" }, { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0392-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-128", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 8, "year": 2003, "pin_cites": [ { "page": "(al)" }, { "page": "(b)" }, { "page": "396" } ], "opinion_index": 0 }, { "cite": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "565 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "146", "parenthetical": "quoting Collingwood v. General Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)" } ], "opinion_index": 0 }, { "cite": "355 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220147 ], "year": 2002, "pin_cites": [ { "page": "681", "parenthetical": "quoting Collingwood v. General Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0672-01" ] }, { "cite": "504 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "577" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470258 ], "year": 1998, "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0729-01" ] } ], "analysis": { "cardinality": 917, "char_count": 26961, "ocr_confidence": 0.728, "pagerank": { "raw": 2.486012668363775e-07, "percentile": 0.8080677676574967 }, "sha256": "e14b9c5ab879d1e5c6c6fc0fbde588856b009bc22bc22476b1f82239c3698a84", "simhash": "1:99111d465c6c1e2f", "word_count": 4214 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and ELMORE concur." ], "parties": [ "POMPANO MASONRY CORPORATION, Plaintiff v. HDR ARCHITECTURE, INC., Defendant" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nPompano Masonry Corporation (\u201cplaintiff\u2019) appeals the trial court order granting summary judgment in favor of HDR Architecture, Inc. (\u201cdefendant\u201d). For the reasons discussed herein, we reverse the trial court\u2019s order.\nThe evidence presented upon the motion for summary judgment tends to show the following: In 1995, the University of North Carolina (\u201cUNC\u201d) entered into a public construction project contract with defendant, whereby defendant was to oversee the project design work related to the construction of the Biological Science Research Center at the University of North Carolina at Chapel Hill (\u201cthe project\u201d). In 1997, UNC and defendant entered into a contract that named defendant \u201cproject expediter.\u201d As project expediter, defendant was responsible for preparing the project schedule and overseeing and coordinating the work between various prime contractors and subcontractors. Metric Constructors, Inc. (\u201cMetric\u201d) served as the prime contractor for the general construction work of the project. In early 1998, Metric entered into a subcontract with plaintiff, whereby plaintiff agreed to perform the masonry work for the project.\nOn 10 February 1998, defendant prepared the first Project Schedule (\u201c10 February Project Schedule\u201d) for the project. The 10 February Project Schedule provided that concrete masonry work would begin on 22 June 1998, after the initiation of the mechanical, electrical, and plumbing (\u201cMEP\u201d) work. The 10 February Project Schedule also provided that plaintiff\u2019s masonry work would be completed on 25 March 1999.\nOn 16 June 1998, plaintiff\u2019s representatives attended a coordination meeting at the project site. At the coordination meeting, plaintiff criticized the scheduling and sequencing of the MEP work in the 10 February Project Schedule. Plaintiff provided defendant with input as to the scheduling and sequencing of the MEP work and requested that plaintiff\u2019s masonry work be rescheduled ahead of the MEP work for efficiency reasons. The prime contractors, plaintiff, and defendant each agreed to reschedule plaintiff\u2019s work prior to the MEP work but after completion of Metric\u2019s concrete work. The subcontract b\u00e9tween Metric and plaintiff remained unsigned.\nIn July 1998, plaintiff was notified that Metric\u2019s concrete work had progressed to the point where masonry work could begin. However, plaintiff refused to sign the subcontract with Metric, and in plaintiff\u2019s absence, the MEP work began. On 13 July 1998, plaintiff notified Metric that plaintiff would incur $127,924 in additional costs in order to perform masonry work after the MEP work. On the same day, plaintiff began its masonry work on the project, and on 15 July 1998, plaintiff signed the subcontract with Metric.\nPlaintiff completed its masonry work on the project on 10 November 1999, eight months after the original completion date indicated by the 10 February Project Schedule, and fifteen months after the actual start date of the masonry work. On 31 May 2001, plaintiff filed a Complaint alleging that defendant \u201cfail[ed] ... to properly schedule and coordinate the work on the [p]roject,\u201d and that as a result, \u201c[plaintiff] was forced to perform out-of-sequence work and incurred significant disruptions to its work, substantially impairing [plaintiff\u2019s] ability to efficiently perform its work.... thereby increasing [plaintiff\u2019s] costs to perform its work.\u201d Defendant filed an Answer asserting that plaintiff was \u201cresponsible, through its own action or omissions, for some or all of the acts and omissions alleged to have been committed by [defendant],\u201d and that plaintiff \u201cknowingly and voluntarily assumed the risk of any delays or other problems that were in existence or were reasonably foreseeable at the time [plaintiff undertook its [work on the project].\u201d\nOn 10 July 2002, defendant moved the trial court for summary judgment, stating, inter alia, the following:\nPlaintiffs claim is barred by the applicable statute of limitations, the economic loss doctrine, the lack of any contractual or statutory relationship between [p]laintiff and [defendant], and [plaintiff's failure to pursue its alleged damages through the claims of its prime contractor. . . . Additionally, [plaintiff\u2019s claim.is barred by its own contributory negligence, by its assumption of risk, and by its failure to mitigate its alleged damages.\nOn 30 August 2002, the trial court granted summary judgment in favor of defendant. Plaintiff appeals.\nThe dispositive issue on appeal is whether the trial court erred in granting summary judgment in favor of defendant. Because we conclude defendant was not entitled to judgment as a matter of law, we hold that the trial court erred in granting summary judgment in favor of defendant.\n\u201c[T]he standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.\u201d Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). Summary judgment is appropriate when, \u201cviewed in the light most favorable to the non-movant[,]\u201d Id., \u201cthe 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 N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2003). The party moving for summary judgment must establish that no triable issue of material fact exists \u201c \u2018by proving that an essential element of the opposing party\u2019s claim is non-existent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.\u2019 \u201d DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (quoting Collingwood v. General Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)).\nStatutory and Contractual Bars to Recovery of Economic Loss\nDefendant contends that plaintiff\u2019s negligence action was barred by the lack of any contractual or statutory relationship between defendant and plaintiff. According to defendant, N.C. Gen. Stat. \u00a7 143-128 (2003) and the cases interpreting it require that plaintiff first submit its claims against defendant to Metric, its prime contractor. We disagree.\nN.C. Gen. Stat. \u00a7 143-128(al) (2003) provides as follows:\nConstruction methods.\u2014The State, a county, municipality, or other public body shall award contracts to erect, construct, alter, or repair buildings pursuant to any of the following methods:\n(1) Separate-prime bidding.\n(2) Single-prime bidding.\n(3) Dual prime bidding pursuant to subsection (dl) of this section.\n(4) Construction management at risk contracts pursuant to G.S. 143-128.1.\n(5) Alternative contracting methods authorized pursuant to G.S. 143-135.26(9).\nN.C. Gen. Stat. \u00a7 143-128(b) (2003) provides further that where the State chooses to award contracts to multiple contractors:\nEach separate contractor shall be directly liable to the State of North Carolina, or to the county, municipality, or other public body and to the other separate contractors for the full performance of the separate contracts and in accordance with the plans and specifications, which shall specifically set forth the duties and obligations of each separate contractor.\nThe statute defines a \u201cseparate contractor\u201d as \u201cany person, firm or corporation who shall enter into a contract with the State, or with any county, municipality, or other public entity to erect, construct, alter or repair any building or buildings, or parts of any building or buildings.\u201d Id. Thus, under N.C. Gen. Stat. \u00a7 143-128, \u201ca prime contractor may be sued by another prime contractor working on a construction project for economic loss foreseeably resulting from the first prime contractor\u2019s failure to fully perform \u2018all duties and obligations due respectively under the terms of the separate contracts.\u2019 \u201d Bolton Corp. v. T.A. Loving Co., 94 N.C. App. 392, 396, 380 S.E.2d 796, 800, disc. review denied, 325 N.C. 545, 385 S.E.2d 496 (1989). However, the statute does not provide an express remedy for the circumstances of the instant case, where a subcontractor has sued a separate prime contractor that also served as project expediter.\nIn Bolton, a heating and ventilating prime contractor sued a project expediter for the project expediter\u2019s breach of its contract with the State. The prime contractor claimed that the project expediter\u2019s breach caused the prime contractor and its subcontractor \u201cundue delay\u201d and damages. This Court recognized initially that the suit was based not in tort, but upon the provisions of N.C. Gen. Stat. \u00a7 143-128. Id. at 396, 380 S.E.2d at 799. We concluded that the subcontractor\u2019s claims against the project expediter were properly brought by the prime contractor because \u201c[a] contractor may recover from an owner its subcontractor\u2019s \u2018extra costs and services wrongfully demanded\u2019 when the subcontractor is not in privity with the owner and could not recover directly.\u201d Id. at 407, 380 S.E.2d at 806 (quoting United States v. Blair, 321 U.S. 730, 737 (1944)). Interpreting the terms of the contract between the project expediter and the State, we concluded the following:\nThere is no privity of contract between the subcontractor and the [State], nor the subcontractor and the other primes. The subcontractor is viewed under the contract as a mere employee or agent of the prime contractor.\nId. at 408, 380 S.E.2d at 806.\nIn the instant case, defendant contends that because no privity exists between it and plaintiff, Bolton requires plaintiff to first submit its claims \u201cup the chain\u201d to Metric rather than directly against defendant. However, we note that Bolton merely allows a subcontractor to submit to its own prime contractor its claims against a separate prime contractor \u2014 the decision does not require the subcontractor to follow such a procedure. Furthermore, we also note that this Court\u2019s decision in Bolton does not overrule our previous decision in Davidson and Jones, Inc. v. County of New Hanover, 41 N.C. App. 661, 255 S.E.2d 580, disc. review denied, 298 N.C. 295, 259 S.E.2d 911 (1979).\nIn Davidson, a general contractor and its subcontractors sued an architect for the architect\u2019s failure to reasonably conduct its examinations and inspections of the soil conditions and foundations adjoining a county building site. The trial court dismissed the subcontractor\u2019s complaints for failure to state a claim upon which relief may have been granted. On appeal, this Court reversed the trial court and held that \u201cin the absence of privity of contract^] an architect may be held liable to a general contractor and his subcontractors for economic loss resulting from breach of a common law duty of care.\u201d Id. at 666, 255 S.E.2d at 583-84. We noted that \u201ca complete binding contract between the parties is not a prerequisite to a duty to use due care in one\u2019s actions in connection with an economic relationship, nor is it a prerequisite to suit by a contractor against an architect.\u201d Id. at 666, 255 S.E.2d at 584. We further concluded that\n[a]n architect, in the performance of his contract with his employer, is required to exercise the ability, skill, and care customarily used by architects upon such projects. 5 Am. Jur. 2d, Architects, \u00a7 8, pp. 669-70. Where breach of such contract results in foreseeable injury, economic or otherwise, to persons so situated by their economic relations, and community of interests as to impose a duty of due care, we know of no reason why an architect cannot be held liable for such injury.\nId. at 667, 255 S.E.2d at 584.\nIn the instant case, we conclude defendant may be held liable for the foreseeable economic injury resulting from its alleged negligent performance of its duties as project expediter. As we recognized in Davidson, \u201c[liability arises from the negligent breach of a common law duty of care flowing from the parties\u2019 working relationships.\u201d Id. In the instant case, while no privity of contract exists between defendant and plaintiff, a \u201cworking relationship\u201d and \u201ccommunity of interests\u201d clearly exists. Thus, while plaintiff could not maintain a cause of action against defendant grounded upon defendant\u2019s negligent performance of its contract with the State, Davidson authorizes plaintiff to sue defendant for the economic loss resulting from defendant\u2019s alleged breach of its common law duty of care, despite the fact that no privity exists between plaintiff and defendant. Id.\n\u201cThe project expediter is charged with using proper procedures to obtain information to evaluate the progress of the project.\u201d Bolton, 94 N.C. App. at 398, 380 S.E.2d at 801 (citing Goldberg, The Owner\u2019s Duty to Coordinate Multi-Prime Construction Contractors, A Condition of Cooperation, 28 Emory L.J. 377, 385-87 (1979)). Plaintiffs Complaint recognizes this duty and claims that defendant breached its duty as project expediter by failing to properly schedule the work, failing to maintain a reasonable and workable project schedule, failing to give adequate and reasonable notice to the subcontractors regarding the sequencing of work to ensure efficient coordination of all phases of the work, and failing to properly incorporate into the schedule the subcontractors\u2019 input regarding the sequencing' of work. Based upon our holding in Davidson, we conclude plaintiff stated a proper cause of action for negligence in the instant case. Therefore, we hold that summary judgment was improper on the grounds that plaintiffs claim was barred by N.C. Gen. Stat. \u00a7 143-128 or the absence of privity of contract.\nStatute of Limitations\nDefendant also contends that plaintiffs claim is barred by the applicable statute of limitations. We disagree.\nN.C. Gen. Stat. \u00a7 1-52 (2003) imposes a three-year statute of limitations for negligence actions. The negligence action accrues at the time the plaintiff discovers, or reasonably should have discovered, the injury- or damage, as long as it is within ten years of the defendant\u2019s negligence. N.C. Gen. Stat. \u00a7 1-52(16) (2003).\nIn the instant case, plaintiff filed its negligence action within three years of its discovery of defendant\u2019s alleged negligence during the June 1998 coordination meetings. Furthermore, we cannot conclude as a matter of law that plaintiff reasonably should have discovered the damages or negligence prior to the coordination meetings. Therefore, we hold that summary judgment was improper on the grounds that plaintiffs claim was barred by the statute of limitations.\nContributory Negligence\nA trial court may grant summary judgment in a negligence case where the \u201cuncontroverted\u201d evidence establishes that the defendant \u201cfailed to use ordinary care and that want of ordinary care was at least one of the proximate causes of injury.\u201d DiOrio v. Penny, 331 N.C. 726, 728, 417 S.E.2d 457, 459 (1992). A trial court may also grant summary judgment in a negligence action where the evidence fails to show negligence on the part of defendant, or where contributory negligence on the part of plaintiff is established. Hale v. Power Co., 40 N.C. App. 202, 203, 252 S.E.2d 265, 267, disc. review denied, 297 N.C. 452, 256 S.E.2d 805 (1979). However, \u201c[t]he existence of contributory negligence is ordinarily a question for the jury; such an issue is rarely appropriate for summary judgment, and only where the evidence establishes a plaintiffs negligence so clearly that no other reasonable conclusion may be reached.\u201d Martishius v. Carolco Studios, Inc., 355 N.C. 465, 479, 562 S.E.2d 887, 896 (2002).\nOur Supreme Court has held that \u201c[a] plaintiff is contributor-ily negligent when he fails to exercise such care as an ordinarily prudent person would exercise under the circumstances in order to avoid injury.\u201d Newton v. New Hanover County Bd. of Education, 342 N.C. 554, 564, 467 S.E.2d 58, 65 (1996). This Court has previously held that\ncontributory negligence ... may arise where a plaintiff knowingly exposes himself to a known danger when he had a reasonable choice or option to avoid that danger, or when a plaintiff heedlessly or carelessly exposes himself to a danger or risk of which he knew or should have known.\nLashlee v. White Consol. Indus., Inc., 144 N.C. App. 684, 690-91, 548 S.E.2d 821, 825-26, disc. review denied, 354 N.C. 574, 559 S.E.2d 179 (2001) (citations omitted).\nIn the instant case, defendant contends that plaintiff chose to ignore a clear invitation contained in its subcontract with Metric to participate in the project planning and scheduling. According to defendant, plaintiff thus aggravated and contributed to its own injury despite a reasonable opportunity to avoid the injury. We disagree.\nAngelo Antenucci (\u201cAntenucci\u201d), one of plaintiffs officers in 1998, stated in his deposition that there had been no conversations between plaintiff and defendant regarding the scheduling or sequencing of the project prior to the June 1998 coordination meeting. Antenucci also stated that plaintiff would ordinarily participate in those meetings in other projects. However, Antenucci further stated that plaintiff would not participate in coordination meetings \u201ctoo far early into the project ... if masonry wouldn\u2019t start, you know, for three months down the road.\u201d\nWe conclude a genuine issue as to a material fact remained regarding plaintiffs contributory negligence. Whether plaintiff had a duty as a subcontractor to participate in the project planning and scheduling as early as February 1998 is a question for the jury. Furthermore, assuming arguendo that plaintiff was negligent in not participating in the planning and approval of the project schedule, there is no clear indication in the record that such negligence was the proximate cause of plaintiffs injury and damages. Thus, a genuine issue of fact exists in the instant case regarding not only whether plaintiff was negligent but also whether plaintiffs failure was the proximate cause of plaintiffs injury. Therefore, we hold that summary judgment was improper on the grounds that plaintiffs claim was barred by plaintiffs own contributory negligence.\nAssumption of Risk\nDefendant also contends that summary judgment was proper in the instant case because plaintiff assumed the risk of its alleged injury by entering into its subcontract with Metric. We disagree.\nIn the instant case, defendant failed to allege any contractual relationship between it and plaintiff in its pleadings, and on appeal to this Court defendant challenges plaintiffs right to sue defendant because of the lack of contractual privity between the parties. \u201cIt is well established in this jurisdiction that assumption of risk is not available as a defense to one not in a contractual relationship to the plaintiff.\u201d McWilliams v. Parham, 269 N.C. 162, 166, 152 S.E.2d 117, 120 (1967) (citations omitted). Therefore, we hold that summary judgment was improper on the grounds that plaintiff assumed the risk of its injury.\nDamages\nDefendant also contends that summary judgment was proper in the instant case because plaintiff failed to mitigate its damages and is barred from recovering its extended home office overhead damages. We disagree.\n\u201cIn a negligence action, it is well settled the party wronged must use due care to minimize the loss occasioned by defendant\u2019s negligence.\u201d Smith v. Childs, 112 N.C. App. 672, 682-83, 437 S.E.2d 500, 507 (1993). However, \u201cthe failure to mitigate damages is not an absolute bar to all recovery; rather, a plaintiff is barred from recovering for those losses which could have been prevented through the plaintiffs reasonable efforts.\u201d Id. at 683, 437 S.E.2d at 507. Thus, in the instant case, plaintiffs alleged failure to mitigate damages does not serve as an absolute bar to its claim. Therefore, we hold that summary judgment was improper on the grounds that plaintiff failed to mitigate its damages.\nDefendant maintains that plaintiff is prevented from recovering home office expenses in its negligence claim, and that therefore summary judgment is proper in the instant case. We disagree.\nHome office expenses are those expenses incurred by the plaintiff indirect of the damages proximately caused by the defendant. In Construction Co. v. Crain and Denbo, Inc., 256 N.C. 110, 123-26, 123 S.E.2d 590, 600-01 (1962), our Supreme Court concluded that the plaintiffs were not entitled to recover any home office expenses not contemplated in their contract with defendant. However, as discussed above, no such contract or privity exists between plaintiff and defendant in the instant case. Furthermore, assuming arguendo that plaintiff is in fact prevented from recovering its home office expenses, the trial court is authorized only to dismiss plaintiffs claims to those particular damages, not plaintiff\u2019s entire claim. Therefore, we hold that summary judgment was improper on the grounds that plaintiff\u2019s action contained improper claims for damages.\nConclusion\nSummary judgment is a \u201cdrastic measure, and it should be used with caution.\u201d Williams v. Power & Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979). \u201c[I]t is seldom appropriate to grant summary judgment in a negligence action, [and] it is [only] proper if there are no genuine issues of material fact, and the plaintiff fails to demonstrate one of the essential elements of the claim.\u201d Parish v. Hill, 350 N.C. 231, 236, 513 S.E.2d 547, 550 (1999). As detailed above, we conclude that plaintiff is not barred from bringing the action in the instant case, and we also conclude that genuine issues of material fact remain in the action. Therefore, we hold that the trial court erred in granting summary judgment in favor of defendant.\nReversed.\nJudges WYNN and ELMORE concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Smith, Currie & Hancock LLP, by Harry R. Bivens and David Hill Bashford, for plaintiff-appellant.", "Moore & Van Allen, PLLC, by George V. Hanna, III, and Robert C. Bowers, for defendant-appellee." ], "corrections": "", "head_matter": "POMPANO MASONRY CORPORATION, Plaintiff v. HDR ARCHITECTURE, INC., Defendant\nNo. COA03-43\n(Filed 20 July 2004)\n1. Construction Claims\u2014 breach of duty \u2014 negligent performance as project expediter \u2014 economic loss\nThe trial court erred in a negligence action by granting summary judgment in favor of defendant, a separate prime contractor also serving as project expediter, based on N.C.G.S. \u00a7 143-128 or lack of privity of contract with plaintiff subcontractor, because: (1) although a subcontractor is allowed to submit to its own prime contractor its claims against a separate prime contractor, the subcontractor is not required to follow such a procedure; (2) defendant may be held, liable for the foreseeable economic injury resulting from its alleged negligent performance of its duties as project expediter; and (3) while no privity of contract exists between defendant and plaintiff, a working relationship and community of interests exists allowing plaintiff to sue defendant for the economic loss resulting from defendant\u2019s alleged breach of its common law duty of care.\n2. Statutes of Limitation and Repose\u2014 statute of limitation \u2014 negligence\nThe trial court erred in a negligence action by granting summary judgment in favor of defendant, a separate prime contractor also serving as project expediter, on the grounds that plaintiff subcontractor\u2019s claim was barred by the statute of limitations, because: (1) N.C.G.S. \u00a7 1-52 imposes a three-year statute of limitations for negligence actions and the action accrues at the time plaintiff discovers or reasonably should have discovered the injury or damage as long as it is within ten years of defendant\u2019s negligence; (2) plaintiff filed its negligence action within three years of its discovery of defendant\u2019s alleged negligence during the June 1998 coordination meetings; and (3) it cannot be concluded as a matter of law that plaintiff reasonably should have discovered the damages or negligence prior to the coordination meetings.\n3. Negligence\u2014 contributory negligence \u2014 participation in planning and approval of project schedule \u2014 proximate cause\nThe trial court erred in a negligence action by granting summary judgment in favor of defendant, a separate prime contractor also serving as project expediter, on the ground that plaintiff subcontractor\u2019s claim was barred by plaintiff\u2019s own contributory negligence, because: (1) whether plaintiff had a duty as a subcontractor to participate in the project planning and scheduling as early as February 1998 is a question for the jury; and (2) assuming arguendo that plaintiff was negligent in not participating in the planning and approval of the project schedule, there was no clear indication in the record that such negligence was the proximate cause of plaintiff\u2019s injury and damages.\n4. Contracts\u2014 assumption of risk \u2014 lack of privity of contract\nThe trial court erred in a negligence action by granting summary judgment in favor of defendant, a separate prime contractor also serving as project expediter, on the ground that plaintiff subcontractor assumed the risk of injury by entering into its subcontract with another prime contractor, because: (1) defendant failed to allege any contractual relationship between itself and plaintiff, and defendant also challenged plaintiff\u2019s right to sue defendant based on lack of contractual privity; and (2) assumption of risk is not available as a defense to one not in a contractual relationship to plaintiff.\n5. Damages and Remedies\u2014 failure to mitigate damages\u2014 summary judgment\nThe trial court erred in a negligence action by granting summary judgment in favor of defendant, a separate prime contractor also serving as project expediter, on the ground that plaintiff subcontractor failed to mitigate damages, because failure to mitigate damages is not an absolute bar to all recovery even though a plaintiff is barred from recovering for those losses which could have been prevented through plaintiffs reasonable efforts.\n6. Damages and Remedies\u2014 home office expenses \u2014 summary judgment\nThe trial court erred in a negligence action by granting summary judgment in favor of defendant, a separate prime contractor also serving as project expediter, on the ground that plaintiff subcontractor is prevented from recovering home office expenses, because: (1) although a plaintiff is not entitled to recover any home office expenses not contemplated in their contract with a defendant, no such contract or privity exists between plaintiff and defendant in the instant case; and (2) assuming arguendo that plaintiff is in fact prevented from recovering home office expenses, the trial court is authorized only to dismiss plaintiffs claims to those particular damages and not plaintiffs entire claim.\nAppeal by plaintiff from judgment entered 30 August 2002 by Judge Robert R Johnston in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 November 2003.\nSmith, Currie & Hancock LLP, by Harry R. Bivens and David Hill Bashford, for plaintiff-appellant.\nMoore & Van Allen, PLLC, by George V. Hanna, III, and Robert C. Bowers, for defendant-appellee." }, "file_name": "0401-01", "first_page_order": 433, "last_page_order": 444 }