{ "id": 4158729, "name": "PATSY MICHAEL, individually and as Administrator of the Estate of DAVID GWEAN MICHAEL, deceased; and MEREDITH T. MICHAEL, individually and as Administrator of the Estate of CHRISTOPHER ROBERT MICHAEL, deceased; Plaintiffs v. HUFFMAN OIL COMPANY, INC.; CITY OF BURLINGTON, NORTH CAROLINA; ARCADIS FPS, INC., formerly doing business as FINKBEINER, PETTIS & STROUT, INC.; and PAUL HOWARD CONSTRUCTION COMPANY, INC.; Defendants", "name_abbreviation": "Michael v. Huffman Oil Co.", "decision_date": "2008-05-06", "docket_number": "No. COA07-1293", "first_page": "256", "last_page": "273", "citations": [ { "type": "official", "cite": "190 N.C. App. 256" } ], "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": "657 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640561, 12640562, 12640563 ], "weight": 2, "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/657/0667-01", "/se2d/657/0667-02", "/se2d/657/0667-03" ] }, { "cite": "362 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640561, 12640460 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/657/0667-01", "/se2d/657/0373-02" ] }, { "cite": "643 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638094 ], "year": 2007, "pin_cites": [ { "page": "57-58" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0055-01" ] }, { "cite": "646 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638866 ], "year": 2007, "pin_cites": [ { "page": "651", "parenthetical": "quoting Babb v. Bynum & Murphrey, PLLC, 182 N.C. App. 750, 753-54, 643 S.E.2d 55, 57-58 (2007)" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0645-01" ] }, { "cite": "649 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639270 ], "year": 2007, "pin_cites": [ { "page": "661", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0658-01" ] }, { "cite": "631 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636049 ], "year": 2006, "pin_cites": [ { "page": "119", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0114-01" ] }, { "cite": "543 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155717, 1155826, 1155731, 1155895, 1155679 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0474-05", "/nc/351/0474-04", "/nc/351/0474-01", "/nc/351/0474-03", "/nc/351/0474-02" ] }, { "cite": "463 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "569" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 857", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918657 ], "year": 1995, "pin_cites": [ { "page": "859" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0857-01" ] }, { "cite": "524 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240441 ], "pin_cites": [ { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0465-01" ] }, { "cite": "507 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "892" } ], "opinion_index": 0 }, { "cite": "349 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571622 ], "year": 1998, "pin_cites": [ { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0615-01" ] }, { "cite": "430 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "480", "parenthetical": "citations omitted" }, { "page": "525" }, { "page": "481" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 519", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525960 ], "year": 1993, "pin_cites": [ { "page": "525", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0519-01" ] }, { "cite": "607 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2005, "pin_cites": [ { "page": "31", "parenthetical": "citation and quotation omitted" }, { "page": "31" }, { "page": "31" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8467979 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "11", "parenthetical": "citation and quotation omitted" }, { "page": "11" }, { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0001-01" ] }, { "cite": "590 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "435 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "792" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521670 ], "year": 1993, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0380-01" ] }, { "cite": "455 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790140 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0102-01" ] }, { "cite": "442 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "570" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 562", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527820 ], "year": 1994, "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0562-01" ] }, { "cite": "550 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "523" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 602", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435960 ], "year": 2001, "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0602-01" ] }, { "cite": "64 S.E. 2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "827" } ], "opinion_index": 0 }, { "cite": "233 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612347 ], "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0536-01" ] }, { "cite": "138 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569217 ], "opinion_index": 0, "case_paths": [ "/nc/262/0528-01" ] }, { "cite": "160 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "711", "parenthetical": "emphasis supplied" }, { "page": "711", "parenthetical": "emphasis supplied" }, { "page": "711" } ], "opinion_index": 0 }, { "cite": "273 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575888 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "627", "parenthetical": "emphasis supplied" }, { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0624-01" ] }, { "cite": "182 N.C. App. 750", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8176722 ], "year": 2007, "pin_cites": [ { "page": "753-54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0750-01" ] }, { "cite": "184 N.C. App. 317", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8185639 ], "year": 2007, "pin_cites": [ { "page": "325", "parenthetical": "quoting Babb v. Bynum & Murphrey, PLLC, 182 N.C. App. 750, 753-54, 643 S.E.2d 55, 57-58 (2007)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0317-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-215.77", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-215.93", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "559 S.W.2d 518", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9943358 ], "weight": 2, "year": 1977, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/sw2d/559/0518-01" ] }, { "cite": "363 N.E.2d 1266", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "173 Ind. App. 372", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 1491746 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ind-app/173/0372-01" ] }, { "cite": "130 S.E. 739", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1925, "pin_cites": [ { "page": "743" } ], "opinion_index": 0 }, { "cite": "190 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611558 ], "year": 1925, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/nc/190/0632-01" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "235", "parenthetical": "quoting Greer v. Construction Co., 190 N.C. 632, 637, 130 S.E. 739, 743 (1925)" }, { "page": "236" } ], "opinion_index": 0 }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "352", "parenthetical": "quoting Greer v. Construction Co., 190 N.C. 632, 637, 130 S.E. 739, 743 (1925)" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0330-01" ] }, { "cite": "88 S.E. 874", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "pin_cites": [ { "page": "876" } ], "opinion_index": 0 }, { "cite": "171 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271762 ], "year": 1916, "pin_cites": [ { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/nc/171/0672-01" ] }, { "cite": "533 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "492", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496763 ], "year": 2000, "pin_cites": [ { "page": "375", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0370-01" ] }, { "cite": "185 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8212179 ], "year": 2007, "pin_cites": [ { "page": "672", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0668-01" ] }, { "cite": "608 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2005, "pin_cites": [ { "parenthetical": "emphasis supplied" }, { "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "359 N.C. 296", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3795840 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0296-01" ] }, { "cite": "590 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "872" }, { "page": "872" }, { "page": "872" }, { "page": "872" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 405", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917663 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "413" }, { "page": "413" }, { "page": "413" }, { "page": "413" }, { "page": "413" }, { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0405-01" ] }, { "cite": "461 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "639-41" } ], "opinion_index": 0 }, { "cite": "341 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793165 ], "year": 1995, "pin_cites": [ { "page": "527-29" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0513-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2004, "pin_cites": [ { "page": "686", "parenthetical": "internal quotations and citations omitted" }, { "page": "686", "parenthetical": "citation omitted" }, { "page": "687", "parenthetical": "internal citations and quotations omitted" }, { "page": "687", "parenthetical": "alteration original" }, { "page": "686" }, { "page": "686" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "458", "parenthetical": "internal quotations and citations omitted" }, { "page": "459" }, { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "357 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "702" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 342", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12130028 ], "year": 1987, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0342-01" ] }, { "cite": "360 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3795905 ], "year": 2006, "pin_cites": [ { "page": "524", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0518-01" ] } ], "analysis": { "cardinality": 1456, "char_count": 40197, "ocr_confidence": 0.748, "pagerank": { "raw": 9.91678575029701e-08, "percentile": 0.5359899360927992 }, "sha256": "9d7498b210087e2a742751c294256fa0c7f4315cf6bb6c87b056123f738acd56", "simhash": "1:b704f66a042f6de3", "word_count": 6276 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and STEPHENS concur." ], "parties": [ "PATSY MICHAEL, individually and as Administrator of the Estate of DAVID GWEAN MICHAEL, deceased; and MEREDITH T. MICHAEL, individually and as Administrator of the Estate of CHRISTOPHER ROBERT MICHAEL, deceased; Plaintiffs v. HUFFMAN OIL COMPANY, INC.; CITY OF BURLINGTON, NORTH CAROLINA; ARCADIS FPS, INC., formerly doing business as FINKBEINER, PETTIS & STROUT, INC.; and PAUL HOWARD CONSTRUCTION COMPANY, INC.; Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nPatsy Michael and Meredith T. Michael (collectively, \u201cplaintiffs\u201d), both individually and as Administrators of the Estates of David Gwean Michael and Christopher Robert Michael, respectively, appeal from orders: (1) excluding expert testimony by plaintiffs\u2019 witness, Dr. Wu-Seng Lung, Ph.D., P.E. (\u201cDr. Lung\u201d) regarding the standard of care applicable to Arcadis FPS, Inc. (\u201cArcadis\u201d) and the City of Burlington, North Carolina (\u201cCity of Burlington\u201d); (2) granting partial summary judgment in favor of the City of Burlington on plaintiffs\u2019 Chapter 143 and negligent misrepresentation claims; (3) granting summary judgment in favor of Arcadis on all of plaintiffs\u2019 claims; and (4) subsequently granting summary judgment in favor of the City of Burlington on all of plaintiffs\u2019 remaining claims. We affirm.\nI. Background\nOn 10 July 2002, the City of Burlington purchased an easement from Huffman Oil Company, Inc. (\u201cHuffman\u201d) to construct and maintain a waterline under and across Huffman\u2019s property near the comer of U.S. Highway 70 and N.C. Highway 100 in Guilford County. In 2003, the City of Burlington began construction of approximately 12,300 linear feet of 24-inch potable waterline to connect the City of Burlington\u2019s water system to the City of Greensboro\u2019s water system (\u201cthe water main project\u201d).\nArcadis was retained to provide engineering and surveying services for the project. Paul Howard Construction Company, Inc. (\u201cHoward\u201d) was hired to perform the required construction work. Howard entered into a sub-contract with PDM Investments, Inc. (\u201cPDM\u201d) to install a series of underground vaults to house and provide access to valves at specified locations along the waterline.\nDavid and Christopher Michael (\u201cthe Michaels\u201d) of Michael\u2019s Backhoe & Landscaping, Inc. were sub-contracted to construct part of the waterline on behalf of PDM. The Michaels were contractually responsible for all excavation, pipe installation, fittings and valve installation, compacting, erosion control measures, and testing from Station 0+00 to Station 48+00.\nOn 3 July 2003, after completing the majority of the required work, the Michaels performed a pressure test on a portion of the waterline recently installed. This test required access through the underground vault installed by PDM and Howard, near the intersection of Highways 70 and 100. The waterline failed to maintain sufficient pressure for the required period of time. The Michaels dismissed the remainder of their crew and proceeded to search for the leak. The next morning, the Michaels were found dead at the bottom of the vault.\nThe cause of death was determined to be \u201casphyxia and environmental hypoxia\u201d due to a hazardous and toxic environment and petroleum discharge. The medical examiner found that the cause of death was \u201cconsistent with the extremely low oxygen levels in the vault measured shortly after the bodies of [the Micheals] were removed.\u201d\nOn 6 June 2005, plaintiffs filed a complaint alleging fourteen separate wrongful death claims against Huffman, the City of Burlington, Arcadis, and Howard. Plaintiffs contended that the deaths were caused by hazardous environmental conditions existing near the corner of Highways 100 and 70. Plaintiffs alleged the hazardous environmental condition resulted from toxic vapors leaking into the soil from two underground storage tanks used in connection with a gasoline service station that formerly operated on Huffman\u2019s property.\nPlaintiffs alleged the following claims for relief against the City of Burlington: (1) strict liability under a violation of Chapter 143; (2) third-party beneficiary; (3) failure to investigate; (4) failure to warn; (5) negligent misrepresentation; (6) inherently dangerous work; and (7) premises liability. Plaintiffs alleged negligence and negligent misrepresentation against Arcadis. Subsequently, both the City of Burlington and Arcadis filed answers, which denied plaintiffs\u2019 material allegations and asserted the affirmative defense of contributory negligence. On 13 December 2006, Arcadis filed a motion to exclude plaintiffs\u2019 expert witness, Dr. Lung, and moved for summary judgment on all claims.\nOn 21 December 2006, the City of Burlington moved for partial summary judgment regarding the following claims: (1) third-party beneficiary; (2) failure to investigate; (3) failure to warn; (4) negligent misrepresentation; (5) inherently dangerous work; and (6) premises liability. On 20 February 2007, the City of Burlington filed: (1) a second motion for partial summary judgment regarding plaintiffs\u2019 claim for strict liability under Chapter 143 and (2) a motion to exclude Dr. Lung\u2019s expert testimony.\nBy separate orders dated 18 January and 4 April 2007, the trial court ruled that Dr. Lung would not be permitted to testify at trial as to the appropriate standard of care or the breach of such standard regarding defendants, Arcadis and the City of Burlington. On 4 April 2007, the trial court also granted partial summary judgment in favor of the City of Burlington regarding plaintiffs\u2019 claims of: (1) strict liability under violation of Chapter 143 and (2) negligent misrepresentation.\nOn 2 May 2007, the trial court granted summary judgment in favor of Arcadis on all of plaintiffs\u2019 claims. The trial court also granted summary judgment in favor of the City of Burlington on all of plaintiffs\u2019 remaining claims. On 29 May and 15 June 2007,' the trial court issued orders staying the remaining proceedings pending resolution of this appeal. Plaintiffs appeal.\nII. Issues\nPlaintiffs argue the trial court erred by: (1) granting Arcadis\u2019s and the City of Burlington\u2019s motions to exclude Dr. Lung\u2019s expert testimony; (2) granting partial summary judgment in favor of the City of Burlington regarding plaintiffs\u2019 Chapter 143 and negligent misrepresentation claims; (3) granting summary judgment in favor of Arcadis regarding all of plaintiffs\u2019 claims; and (4) subsequently granting summary judgment in favor of the City of Burlington regarding all of plaintiffs\u2019 remaining claims.\nIII. Interlocutory Anneal\nAs a preliminary matter, this appeal is interlocutory. \u201cGenerally, a party cannot immediately appeal from an interlocutory order unless failure to grant immediate review would affect[] a substantial right pursuant to N.C.G.S. sections 1-277 and 7A-27(d).\u201d Davis v. Davis, 360 N.C. 518, 524, 631 S.E.2d 114, 119 (2006) (internal citations and quotations omitted). In cases where there are complex facts and a possibility of inconsistent verdicts in separate trials, an order allowing summary judgment as to fewer than all defendants affects a substantial right. Federal Land Bank v. Lieben, 86 N.C. App. 342, 344, 357 S.E.2d 700, 702 (1987). As this is true of the case sub judice, we review the merits of plaintiffs\u2019 appeal.\nIV. Exclusion of Expert Testimony\nPlaintiffs argue Dr. Lung should be allowed to testify as an expert witness in this case and opine the standard of care to be employed by professional engineers in the design and administration of underground utility construction projects. We disagree.\nA. Standard of Review\nIt is well-established that trial courts must decide preliminary questions concerning the qualifications of experts to testify or the admissibility of expert testimony. When making such determinations, trial courts are not bound by the rules of evidence. In this capacity, trial courts are afforded wide latitude of discretion when making a determination about the admissibility of expert testimony. Given such latitude, it follows that a trial court\u2019s ruling on the qualifications of an expert or the admissibility of an expert\u2019s opinion will not be reversed on appeal absent a showing of abuse of discretion.\nHowerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (internal quotations and citations omitted) (emphasis supplied).\nB. Analysis\nNorth Carolina has adopted a three-part test in determining the admissibility of expert testimony: \u201c(1) Is the expert\u2019s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? [and] (3) Is the expert\u2019s testimony relevant?\u201d Id. (citing State v. Goode, 341 N.C. 513, 527-29, 461 S.E.2d 631, 639-41 (1995)).\nHere, the trial court separately considered Arcadis\u2019s and the City of Burlington\u2019s motions to exclude Dr. Lung\u2019s expert testimony. In its order excluding Dr. Lung\u2019s testimony concerning the standard of care applicable to Arcadis, it applied the three-part test enunciated in Howerton and concluded, inter alia:\nDr. Lung\u2019s testimony regarding the standard of care applicable to [Arcadis] and any breach of the standard of care by [Arcadis] is not admissible and should be excluded .... Specifically (1) Dr. Lung is not qualified to express opinions regarding the standard of care applicable to the design of a water main construction project by North Carolina professional engineers, (2) Dr. Lung\u2019s testimony is not relevant to the claims asserted against [Arcadis], and (3) Dr. Lung\u2019s method of proof is not sufficiently reliable as an area for expert testimony.\nThe trial court further stated, \u201cThis Order is not intended to and shall not affect the ability of Dr. Lung from testifying at the trial of this lawsuit regarding matters other than the standard of care applicable to [Arcadis] or any breach of the applicable standard of care by [Arcadis].\u201d In a less extensive order, the trial court concluded that the same rationale applied to Dr. Lung\u2019s testimony regarding the standard of care applicable to the City of Burlington.\nAs a threshold issue, the trial court is required to \u201cdetermine whether the expert\u2019s method of proof is sufficiently reliable as an area for expert testimony.\u201d Id. at 459, 597 S.E.2d at 686 (citation omitted). In Howerton, our Supreme Court stated:\n[T]o determine whether an expert\u2019s area of testimony is considered sufficiently reliable, a court may look to testimony by an expert specifically relating to the reliability, may take judicial notice, or may use a combination of the two. Initially, the trial court should look to precedent for guidance in determining whether the theoretical or technical methodology underlying an expert\u2019s opinion is reliable. Although North Carolina does not exclusively adhere to the Frye general acceptance test, when specific precedent justifies recognition of an established scientific theory or technique advanced by an expert, the trial court should favor its admissibility, provided the other requirements of admissibility are likewise satisfied. . . . Conversely, there are those scientific theories and techniques that have been recognized by this Court as inherently unreliable and thus generally inadmissible as evidence.\nId. at 459-60, 597 S.E.2d at 687 (internal citations and quotations omitted).\nIn cases where the trial court is without precedential guidance to determine whether the expert\u2019s proffered scientific or technical method of proof is sufficiently reliable, it should focus on the nonexclusive \u201cindices of reliability\u201d including: \u201cthe expert\u2019s use of established techniques, the expert\u2019s professional background in the field, the use of visual aids before the jury so that the jury is not asked to sacrifice its independence by accepting [the] scientific hypotheses on faith, and independent research conducted by the expert.\u201d Id. at 460, 597 S.E.2d at 687 (alteration original) (citation and quotation omitted).\nThe dispositive issue before us is whether plaintiffs have shown an abuse of discretion in the trial court\u2019s ruling that Dr. Lung\u2019s use of a code of ethics for engineers is an unreliable methodology for determining the standard of care applicable to the defendants at bar.\nThis Court addressed a similar issue in Associated Indus. Contr\u2019rs, Inc. v. Fleming Eng\u2019g, Inc., 162 N.C. App. 405, 413, 590 S.E.2d 866, 872 (2004), aff\u2019d, 359 N.C. 296, 608 S.E.2d 757 (2005). In Fleming, the defendant challenged the trial court\u2019s findings of fact, which took judicial notice of various statutes relating to the practice of engineering and land surveying. Id. Specifically, the defendant challenged the following finding of fact:\n4. Under N.C.G.S. \u00a7 89C-3 and 89C-2, the Defendant, as a regulated professional engineer and surveyor, had a legal duty to safeguard the property of the public. In this case, the Defendant was to render its services in a professional adequate and workmanlike manner, in light of Plaintiff\u2019s evidence that its employees did not feel competent in performing the work themselves. The Court finds that the Defendant failed to meet its legal duty and failed to meet the standard of care created by N.C.G.S. \u00a7 89C-2 and N.C.G.S. \u00a7 89C-3.\nId. (emphasis supplied). This Court subsequently concluded, \u201c[t]o the extent that Finding of Fact 4 suggests that N.C. Gen. Stat. \u00a7\u00a7 89C-2, -3 (2003) creates a specific standard of care, we agree with Fleming that the trial court erred in relying on those statutes.\u201d Id. (emphasis supplied).\nN.C. Gen. Stat. \u00a7 89C-2 (2003) provides:\nIn order to safeguard life, health, and property, and to promote the public welfare, the practice of engineering and the practice of land surveying in this State are hereby declared to be subject to regulation in the public interest. It shall be unlawful for any person to practice or to offer to practice engineering or land surveying in this State, as defined in the provisions of this Chapter, or to use in connection with the person\u2019s name or otherwise assume or advertise any title or description tending to convey the impression that the person is either a professional engineer or a professional land surveyor, unless the person has been duly licensed. The right to engage in the practice of engineering or land surveying is a personal right, based on the qualifications of the person as evidenced by the person\u2019s certificate of licensure, which shall not be transferable.\n(Emphasis supplied). Further, N.C. Gen. Stat. \u00a7 89C-3 (2003) defines the \u201c[practice of engineering\u201d as:\nAny service or creative work, the adequate performance of which requires engineering education, training, and experience, in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning, and design of engineering works and systems, planning the use of land and water, engineering surveys, and the observation of construction for the purposes of assuring compliance with drawings and specifications, including the consultation, investigation, evaluation, planning, and design for either private or public use, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects, and industrial or consumer products or equipment of a mechanical, electrical, hydraulic, pneumatic or thermal nature, insofar as they involve safeguarding life, health or property, and including such other professional services as may be necessary to the planning, progress and completion of any engineering services.\n(Emphasis supplied). N.C. Gen. Stat. \u00a7\u00a7 89C-2, -3 both emphasize \u201csafeguarding life, health, or property])]\u201d In Fleming, this Court expressly rejected the contention that this language created a specific standard of care for professional engineers in this State. 162 N.C. App. at 413, 590 S.E.2d at 872. We hold that N.C. Gen. Stat. \u00a7\u00a7 89C-2, -3 are analogous to the \u201ccode of ethics for engineers,\u201d upon which Dr. Lung solely relied to base his expert opinion.\nDuring Dr. Lung\u2019s deposition, the following colloquy took place:\n[Mr. Griffin]: And what imposes that duty, Dr. Lung?\n[Dr. Lung]: That\u2019s [sic] standard of care.\n[Mr. Griffin]: Standard of care in North Carolina?\n[Dr. Lung]: For average engineers.\n[Mr. Griffin]: In what locality? Everywhere?\n[Dr. Lung]: I\u2019m using very general\u2014\n[Mr. Griffin]: Yes, sir.\n[Dr. Lung]: \u2014very general- terms.\n[Mr. Griffin]: Where does that standard of care come from? If I were an engineer and I said, I want to understand my standard of care along these lines. Where would I go to look it up?\n[Dr. Lung]: My earlier statement referred to the code of ethics for professional engineers. That is where it comes from.\n[Mr. Griffin]: Does the code of ethics talk about environmental investigations for water lines?\n[Dr. Lung]: Not specifically.\n[Mr. Griffin]: What does it say?\n[Dr. Lung]: Protecting the public.\n(Emphasis supplied).\nIt is clear from the record that Dr. Lung based his expert opinion solely on a methodology that has been previously found to be insufficient to establish the standard of care applicable to professional engineers. See Fleming, 162 N.C. App. at 413, 590 S.E.2d at 872. We hold plaintiffs have failed to show any abuse of discretion in the trial court\u2019s ruling that Dr. Lung\u2019s method of proof is not \u201csufficiently reliable as an area for expert testimony\u201d as is required by Howerton. 358 N.C. at 459, 597 S.E.2d at 686.\nThe trial court was also not convinced that Dr. Lung was qualified to testify as an expert witness regarding the standard of care applicable to the design and administration of underground utility construction projects and entered extensive findings of fact to support this conclusion in its order. Because we affirm the trial court\u2019s ruling that Dr. Lung\u2019s proffered method of proof is not \u201csufficiently reliable as an area for expert testimony[,]\u201d review of the second and third factors under Howerton is unnecessary. Plaintiffs have failed to show the trial court abused its discretion by granting Arcadis\u2019s and the City of Burlington\u2019s motion to exclude Dr. Lung\u2019s expert testimony regarding the standard of care applicable to professional engineers. This assignment of error is overruled.\nV. Summary Judgment\nPlaintiffs argue the trial court erred by granting summary judgment in favor of Arcadis and the City of Burlington because genuine issues of material fact exist regarding all of plaintiffs\u2019 claims.\nA. Standard of Review\nSummary judgment is proper if 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. The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.\nA defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiff\u2019s case is nonexistent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense. Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist.\nOnce the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.\nWe review an order allowing summary judgment de novo. If the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.\nWilkins v. Safran, 185 N.C. App. 668, 672, 649 S.E.2d 658, 661 (2007) (internal citations and quotations omitted).\nB. Analysis\n1. Inherently Dangerous Activities\nPlaintiffs argue the Michaels were engaged in an inherently dangerous activity and the City of Burlington breached its non-delegable duty to provide a safe work place, proximately causing the Michaels\u2019 deaths. We disagree.\nThis Court recently reiterated the elements that must be satisfied in order to establish an inherently dangerous activity claim:\nFirst, the activity must be inherently dangerous. Second, at the time of the injury, the employer either knew, or should have known, that the activity was inherently dangerous. Third, the employer failed to take the necessary precautions to control the attendant risks. And fourth, this failure by the employer proximately caused injury to plaintiff.\nKinsey v. Spann, 139 N.C. App. 370, 375, 533 S.E.2d 487, 492 (2000) (internal citations omitted). Under Kinsey, we first address whether the Michaels were engaged in an activity that was inherently dangerous. Id.\nThe rule in regard to \u2018intrinsically dangerous\u2019 work is based upon the unusual danger which inheres in the performance of the contract, and not from the collateral negligence of the contractor. Mere liability to injury is not the test, as injuries may result in any kind of work where it is carelessly done, although with proper care it is not specially hazardous.\nVogh v. F.C. Geer Co., 171 N.C. 672, 676, 88 S.E. 874, 876 (1916). \u201cThere is an obvious difference between committing work to a contractor to be executed, from which if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted.\u201d Woodson v. Rowland, 329 N.C. 330, 352, 407 S.E.2d 222, 235 (1991) (quoting Greer v. Construction Co., 190 N.C. 632, 637, 130 S.E. 739, 743 (1925)).\nOur Supreme Court has previously considered whether \u201ctrenching\u201d is an inherently dangerous activity and does so on a case-by-case basis. See Woodson, 329 N.C. at 354, 407 S.E.2d at 236. In Woodson, the Court conducted an extensive review of the cases involving \u201ctrenching\u201d and concluded:\nCourts considering the inherent danger of putting a man in a deep trench have reached conflicting results. Some have held it not to be inherently dangerous, see, e.g., Cummings v. Hoosier Marine Properties, Inc., 173 Ind. App. 372, 363 N.E.2d 1266 (1977), while others have held the question is for the jury. See, e.g., Smith v. Inter-City Telephone Co., 559 S.W.2d 518 (Mo. 1977) (en banc). We think the latter approach is the better reasoned.\nId.\nPlaintiffs argue that entering into a potable waterline valve vault is analogous to the activity of \u201ctrenching\u201d and should be considered an inherently dangerous activity. We disagree.\nHere, the Michaels were not engaged in the activity known as \u201ctrenching,\u201d but entered a secure concrete water vault structure located below ground level to evaluate the cause for a decrease in waterline pressure. Plaintiffs\u2019 own expert witness, David Jackson Hooks (\u201cHooks\u201d), a supervisor of the construction of underground utilites, stated in his deposition that in the twenty-two years he has worked in construction of underground utilities, \u201cit [was] the first time [he] ever heard of anybody dying in a \u2014 anything associated with new construction with water mains[.]\u201d Hooks further stated, \u201cI\u2019ve heard of it before with sewer mains where the gasses overcame people, but never from water construction.\u201d Under the facts of this case, plaintiffs have failed to establish that the Michaels were engaged in an inherently dangerous activity. The trial court properly granted the City of Burlington\u2019s motion for summary judgment regarding this particular issue.\n2. Violation of Chanter 143\nPlaintiffs argue the trial court erred by granting the City of Burlington\u2019s motion for summary judgment regarding plaintiffs\u2019 claim under Chapter 143. We disagree.\nN.C. Gen. Stat. \u00a7 143-215.93 (2003) provides:\nAny person having control over oil or other hazardous substances which enters the waters of the State in violation of this Part shall be strictly liable, without regard to fault, for damages to persons or property, public or private, caused by such entry, subject to the exceptions enumerated in G.S. 143-215.83(b).\n\u201cHaving control\u201d is statutorily defined as \u201cany person, using, transferring, storing, or transporting oil or other hazardous substances immediately prior to a discharge of such oil or other hazardous substances onto the land or into the waters of the State . . . .\u201d N.C. Gen. Stat. \u00a7 143-215.77(5) (2003).\nHere, the City of Burlington obtained an easement across Huffman\u2019s property to construct and maintain a waterline that connected its water system to the City of Greensboro\u2019s water system. At no time was the City of Burlington \u201cusing, transferring, storing, or transporting oil or other hazardous substances\u201d through its easement. The trial court properly granted the City of Burlington\u2019s motion for summary judgment regarding plaintiffs\u2019 claim that it violated Chapter 143.\n3. Third-Partv Beneficiary\nPlaintiffs argue the trial court erred by granting summary judgment in favor of the City of Burlington regarding its third-party beneficiary claim. Plaintiffs assert they are direct beneficiaries of the construction contract, in which the City of Burlington assumed liability for all losses and damages relating to hazardous environmental conditions entitling plaintiffs to direct damages. We disagree.\nPlaintiffs rely on the following contractual provision between the City of Burlington and Howard as the basis of their claim:\nG. To the fullest extent permitted by Laws and Regulations, Owner shall indemnify and hold harmless, CONTRACTOR, Subcontractors, ENGINEER, ENGINEER\u2019S Consultants and the officers, directors, shareholders, partners, employees, agents, other consultants, and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to a Hazardous Environmental Condition: (i) was not shown or indicated in the Drawings or Specifications or identified in the Contract Documents to be included within the scope of the Work, and (ii) was not created by CONTRACTOR or by anyone for whom CONTRACTOR is responsible. Nothing in this paragraph 4.06.G shall obligate OWNER to indemnify any individual or entity from and against the consequences of that individual\u2019s or entity\u2019s own negligence.\n(Emphasis original).\nIn order to assert rights under a contract as third-party beneficiaries, plaintiffs must show: \u201c(1) that a contract exists between two persons or entities; (2) that the contract is valid and enforceable; and (3) that the contract was executed for the direct, and not incidental, benefit of the [third party].\u201d Spaulding v. Honeywell, Int\u2019l, Inc., 184 N.C. App. 317, 325, 646 S.E.2d 645, 651 (2007) (quoting Babb v. Bynum & Murphrey, PLLC, 182 N.C. App. 750, 753-54, 643 S.E.2d 55, 57-58 (2007)) (alteration original) (emphasis omitted), cert. denied, 362 N.C. 177, 657 S.E.2d 667 (2008). When a party seeks enforcement of a contract as a third-party beneficiary, the contract must be construed strictly against the party seeking enforcement. Id.\nAs in the construction of any contract, the court\u2019s primary purpose in construing a contract of indemnity is to ascertain and give effect to the intention of the parties, and the ordinary rules of construction apply. 42 C.J.S. Indemnity \u00a7 8 (1944). It will be construed to cover all losses, damages and liabilities which reasonably appear to have been within the contemplation of the parties, but it cannot be extended to cover any losses \u2018which are neither expressly within its terms nor of such character that it can reasonably be inferred that they were intended to be within the contract.'1\nDixie Container Corp. v. Dale, 273 N.C. 624, 627, 160 S.E.2d 708, 711 (1968) (emphasis supplied).\nIn Dixie Container Corp., our Supreme Court interpreted a nearly identical indemnity clause and stated:\nWe think it is reasonably clear that in the \u201cindemnify and save harmless\u201d clause, defendant only bound itself to reimburse plaintiff for any damages it became obligated to pay third persons as a result of defendant\u2019s activity on the leased premises. Ordinarily, indemnity connotes liability for derivative fault. Edwards v. Hamill, 262 N.C. 528, 138 S.E.2d 151. \u201cIn indemnity contracts the engagement is to make good and save another harmless from loss on some obligation which he has incurred or is about to incur to a third party. ...\u201d Casualty Co. v. Waller, 233 N.C. 536, 537, 64 S.E. 2d 826, 827.\nId. at 628, 160 S.E.2d at 711 (emphasis supplied). Further, Black\u2019s Law Dictionary defines the term \u201cindemnify\u201d as \u201c[t]o reimburse (another) for a loss suffered because of a third party\u2019s or one\u2019s own act or default.\u201d Black\u2019s Law Dictionary 783-84 (8th ed. 2004).\nThe City of Burlington contractually bound itself to reimburse the Michaels for \u201call claims, costs, losses, and damages ... arising out of or relating to a Hazardous Environmental Condition[.]\u201d Plaintiffs have not become obligated to pay damages to a third party as a result of the Michaels\u2019 activity at the construction site. It is clear that plaintiffs are not seeking to be indemnified, but are attempting to collect payment of direct damages for personal injury. Plaintiffs seek to recover damages \u201cwhich are neither expressly within its terms nor of such character that it can reasonably be inferred that they were intended to be within the contract.\u201d Dixie Container Corp., 273 N.C. at 627, 160 S.E.2d at 711. The trial court properly ruled that plaintiffs are not entitled to recover direct damages based upon the indemnity language in the contract.\n4. Negligence Claims\nPlaintiffs argue the trial court erred by granting summary judgment in favor of Arcadis and the City of Burlington regarding their negligence claims. Plaintiffs assert the following claims against both Arcadis and the City of Burlington: (1) negligence based upon the failure to warn and the failure to investigate and (2) negligent misrepresentation. Plaintiffs also assert the City of Burlington is liable under a negligence theory of premises liability.\ni. Professional Negligence\nIn order to establish a claim of professional negligence, a plaintiff must show: \u201c(1) the nature of the defendant\u2019s profession; (2) the defendant\u2019s duty to conform to a certain standard of conduct; and (3) a breach of the duty proximately caused injury to the plaintiffs.\u201d Fleming, 162 N.C. App. at 413, 590 S.E.2d at 872 (quoting Greene v. Pell & Pell, L.L.P., 144 N.C. App. 602, 604, 550 S.E.2d 522, 523 (2001)) (emphasis supplied).\nThe 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 \u201cis to see if this defendant\u2019s actions \u2018lived up\u2019 to that standard .. . .\u201d Little v. Matthewson, 114 N.C. App. 562, 567, 442 S.E.2d 567, 570 (1994), aff\u2019d per curiam, 340 N.C. 102, 455 S.E.2d 160 (1995). Ordinarily, expert testimony is required to establish the standard of care. Bailey v. Jones, 112 N.C. App. 380, 387, 435 S.E.2d 787, 792 (1993).\nId. at 410, 590 S.E.2d 870. But see Handex of the Carolinas, Inc. v. County of Haywood, 168 N.C. App. 1, 11, 607 S.E.2d 25, 31 (2005) (citation and quotation omitted) (\u201cThe only exception to the requirement of establishing the professional standard of care by way of expert testimony is where the common knowledge and experience of the jury is sufficient to evaluate compliance with a standard of care [.]\u201d).\nBecause we have previously held that the trial court properly excluded Dr. Lung\u2019s expert testimony regarding the standard of care applicable to Arcadis and the City of Burlington, plaintiffs are unable to establish a prima facie showing of professional negligence. Fleming, 162 N.C. App. at 413, 590 S.E.2d at 872. The trial court properly granted summary judgment in favor of Arcadis and the City of Burlington regarding plaintiffs\u2019 professional negligence claims.\nii. Negligent Misrepresentation\nNorth Carolina has \u201cadopted the Restatement 2d definition of negligent misrepresentation and [our courts have] held that the action lies where pecuniary loss results from the supplying of false information to others for the purpose of guiding them in their business transactions.\u201d Driver v. Burlington Aviation, Inc., 110 N.C. App. 519, 525, 430 S.E.2d 476, 480 (1993) (citations omitted) (emphasis original). In Driver, this Court further stated, \u201cwe have not found, and plaintiffs have not directed us to, any case in which the theory of negligent misrepresentation was approved as a basis for recovery for personal injury.\u201d Id. at 525, 430 S.E.2d at 481.\nPlaintiffs attempt to side-step this precedent by stating in their brief, \u201c[appellants\u2019 use of the term \u2018Negligent Misrepresentation\u2019 does not subject their claim to dismissal. Regardless of how the claim is labeled, [appellants state a claim based upon traditional negligence rules.\u201d As stated above, without evidence of the applicable standard of care, plaintiffs have failed to establish a prima facie claim for professional negligence. Plaintiffs\u2019 contentions have no merit and are overruled.\niii. Premises Liability\nIn Nelson v. Freeland, our Supreme Court articulated a consolidated approach to premises liability in North Carolina and abolished the distinction between invitees and licensees by \u201crequiring a standard of reasonable care toward all lawful visitors.\u201d 349 N.C. 615, 631, 507 S.E.2d 882, 892 (1998). In Royal v. Armstrong, this Court applied this reasoning in Nelson and stated:\n[T]he substitution of a \u2018reasonable care\u2019 standard for earlier distinctions between the duties a host owed to invitees and to licensees in determining premises liability does not mean that summary judgment is inappropriate where, as a matter of law, \u201cthere are no genuine issues of material fact and the plaintiff fails to show one of the elements of negligence.\u201d\n136 N.C. App. 465, 469, 524 S.E.2d 600, 602 (quoting Lavelle v. Schultz, 120 N.C. App. 857, 859, 463 S.E.2d 567, 569 (1995)), disc. rev. denied, 351 N.C. 474, 543 S.E.2d 495 (2000).\nHere, based upon the complexity of the facts before us, expert testimony is required to establish the standard of care applicable to the City of Burlington. Fleming, 162 N.C. App. at 410, 590 S.E.2d at 870; see also Handex, 168 N.C. App. at 11, 607 S.E.2d at 31 (\u201cImplicit in the expert\u2019s establishment of the professional standard of care as the baseline for the jury, is that by way of establishing that standard the expert can assist the jury in discerning whether defendant\u2019s professional performance or conduct did not conform therewith, and thus was in breach of that duty and the proximate cause of plaintiff\u2019s injury.\u201d). This is not a case \u201cwhere the common knowledge and experience of the jury is sufficient to evaluate compliance with a standard of care[.]\u201d Handex, 168 N.C. App. at 11, 607 S.E.2d at 31. As held above, plaintiffs failed to present any expert testimony regarding the standard of care applicable to the City of Burlington.\nPlaintiffs failed to show any genuine issues of material fact exist regarding any of the claims asserted against these defendants. The trial court properly granted summary judgment in favor of Arcadis and the City of Burlington. This assignment of error is overruled.\nVI. Conclusion\nDr. Lung solely relied upon a code of ethics for engineers as the basis of his proffered expert testimony. Dr. Lung\u2019s methodology was insufficient to establish the standard of care applicable to professional engineers and was not \u201csufficiently reliable as an area for expert testimony[.]\u201d Howerton, 358 N.C. at 459, 597 S.E.2d at 686. Plaintiffs have failed to show the trial court abused its discretion by granting Arcadis\u2019s and the City of Burlington\u2019s motions to exclude Dr. Lung\u2019s expert testimony.\nViewed in the light most favorable to plaintiffs, no genuine issues of material fact exist regarding any of plaintiffs\u2019 claims against Arcadis and the City of Burlington. The trial court\u2019s orders are affirmed.\nAffirmed.\nJudges McGEE and STEPHENS concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Conner, Gwyn, Schenck, P.L.L.C., by C. Hamilton Jarrett, for plaintiff-appellants.", "Cranfill, Sumner & Hartzog, L.L.P, by Patrick H. Flanagan, Ryan D. Bolick and Melody J. Canady, for defendant-appellee City of Burlington, North Carolina.", "Parker, Poe, Adams & Bernstein, L.L.P., by Thomas N. Griffin, III and John E. Grupp, for defendant-appellee Arcadis FPS, Inc.", "No brief was submitted by defendants Huffman Oil Company, Inc. or Paul Howard Construction Company." ], "corrections": "", "head_matter": "PATSY MICHAEL, individually and as Administrator of the Estate of DAVID GWEAN MICHAEL, deceased; and MEREDITH T. MICHAEL, individually and as Administrator of the Estate of CHRISTOPHER ROBERT MICHAEL, deceased; Plaintiffs v. HUFFMAN OIL COMPANY, INC.; CITY OF BURLINGTON, NORTH CAROLINA; ARCADIS FPS, INC., formerly doing business as FINKBEINER, PETTIS & STROUT, INC.; and PAUL HOWARD CONSTRUCTION COMPANY, INC.; Defendants\nNo. COA07-1293\n(Filed 6 May 2008)\n1. Appeal and Error\u2014 appealability \u2014 partial summary judgment \u2014 substantial right affected\nAn appeal from a summary judgment for fewer than all of the defendants affected a substantial right and was heard where there were complex facts and the possibility of inconsistent verdicts.\n2. Negligence\u2014 engineers \u2014 standard of care\nThe trial court did not abuse its discretion by excluding expert testimony about the standard of care applicable to professional engineers in a case that began with the deaths of two workers in an underground vault during construction of a waterline. The expert opinion was based solely on a methodology that has been found insufficient to establish the standard of care applicable to professional engineers.\n3. Negligence\u2014 construction of waterline \u2014 not inherently dangerous\nWorkers who were killed in an underground vault during the installation of a waterline were not engaged in an inherently dangerous activity. They were not engaged in \u201ctrenching,\u201d and a supervisor stated that he had never in his twenty-two years in the field heard of anyone dying during construction of waterlines (as opposed to sewer mains). The trial court properly granted summary judgment for the City of Burlington on this issue.\n4. Negligence\u2014 deaths during construction of waterline \u2014 no hazardous substance involvement\nThe trial court properly granted summary judgment for the City of Burlington on plaintiffs\u2019 claim that the City violated N.C.G.S. \u00a7 143-215.93 (control over oil or other hazardous substances) during construction of a waterline. The City was at no time \u201cusing, transferring, storing, or transporting oil or other hazardous substances\u201d through its easement.\n5. Contracts\u2014 indemnity provision for costs \u2014 not applicable to damages for personal injury\nThe trial court did not err by ruling that plaintiffs were not entitled to recover direct damages from the City of Burlington for the deaths of workers based upon indemnity language in a contract. The contract required the City to reimburse the decedents for certain claims, but plaintiffs were attempting to collect payment of direct damages for personal injury rather than to be indemnified.\n6. Negligence\u2014 engineers \u2014 evidence of standard of care\u2014 properly excluded\nPlaintiffs could not make a prima facie showing of professional negligence by an engineer where their expert testimony about the standard of care was properly excluded.\n7. Negligence\u2014 misrepresentation \u2014 traditional negligence rules \u2014 standard of care\nEven though one of the claims arising from deaths during a waterline installation was labeled negligent misrepresentation, it was based upon traditional negligence rules, and plaintiffs did not present evidence of the applicable standard of care. Summary judgment was properly granted for defendant city and its engineering firm.\n8. Premises Liability\u2014 waterline construction \u2014 premises liability \u2014 standard of care \u2014 expert testimony required\nSummary judgment was properly granted for defendants on a premises liability claim in an action arising from deaths during a waterline construction project. Based upon the complexity of facts, expert testimony was required to establish the standard of care, but plaintiffs failed to present that testimony.\nAppeal by plaintiffs from orders entered 18 January, 4 April, 1 May and 2 May 2007 by Judge John 0. Craig, III in Guilford County Superior Court. Heard in the Court of Appeals 2 April 2008.\nConner, Gwyn, Schenck, P.L.L.C., by C. Hamilton Jarrett, for plaintiff-appellants.\nCranfill, Sumner & Hartzog, L.L.P, by Patrick H. Flanagan, Ryan D. Bolick and Melody J. Canady, for defendant-appellee City of Burlington, North Carolina.\nParker, Poe, Adams & Bernstein, L.L.P., by Thomas N. Griffin, III and John E. Grupp, for defendant-appellee Arcadis FPS, Inc.\nNo brief was submitted by defendants Huffman Oil Company, Inc. or Paul Howard Construction Company." }, "file_name": "0256-01", "first_page_order": 288, "last_page_order": 305 }