{ "id": 4173394, "name": "JAMES KEVIN PIKE, Plaintiff v. D.A. FIORE CONSTRUCTION SERVICES, INC., a North Carolina Corporation, Defendant", "name_abbreviation": "Pike v. D.A. Fiore Construction Services, Inc.", "decision_date": "2009-12-08", "docket_number": "No. COA09-520", "first_page": "406", "last_page": "412", "citations": [ { "type": "official", "cite": "201 N.C. App. 406" } ], "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": "616 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633457 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/616/0227-01" ] }, { "cite": "359 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794693, 3804106, 3799854, 3797940, 3803604, 3802940, 3797532 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0629-03", "/nc/359/0629-01", "/nc/359/0629-06", "/nc/359/0629-07", "/nc/359/0629-04", "/nc/359/0629-02", "/nc/359/0629-05" ] }, { "cite": "609 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2005, "pin_cites": [ { "page": "410" }, { "page": "415" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 17", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11913984 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "164-65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0162-01" ] }, { "cite": "131 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "259 N.C. 721", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562462 ], "year": 1963, "pin_cites": [ { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0721-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 95-131", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(a)", "parenthetical": "adopting federal OSHA regulations as the rules of the North Carolina Commissioner of Labor" } ], "opinion_index": 0 }, { "cite": "379 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486400, 2484576, 2488423, 2488682, 2487325 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0433-01", "/nc/324/0433-04", "/nc/324/0433-02", "/nc/324/0433-05", "/nc/324/0433-03" ] }, { "cite": "291 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1982, "pin_cites": [ { "page": "290" }, { "page": "288" }, { "page": "322-23" }, { "page": "288" }, { "page": "324" }, { "page": "289", "parenthetical": "emphasis added" }, { "page": "290" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 321", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524156 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "325" }, { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0321-01" ] }, { "cite": "367 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515232, 2513895, 2515211, 2516050, 2513109 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0115-04", "/nc/322/0115-03", "/nc/322/0115-02", "/nc/322/0115-01", "/nc/322/0115-05" ] }, { "cite": "362 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "88 N.C. App. 76", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357796 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/88/0076-01" ] }, { "cite": "374 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "445", "parenthetical": "citing Wellmon v. Hickory Constr. Co., 88 N.C. App. 76, 362 S.E.2d 591 (1987), disc. review denied, 322 N.C. 115, 367 S.E.2d 921 (1988); Cowan v. Laughridge Constr. Co., 57 N.C. App. 321, 291 S.E.2d 287 (1982)" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 327", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526870 ], "year": 1988, "pin_cites": [ { "page": "329", "parenthetical": "citing Wellmon v. Hickory Constr. Co., 88 N.C. App. 76, 362 S.E.2d 591 (1987), disc. review denied, 322 N.C. 115, 367 S.E.2d 921 (1988); Cowan v. Laughridge Constr. Co., 57 N.C. App. 321, 291 S.E.2d 287 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0327-01" ] }, { "cite": "76 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619060 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0738-01" ] }, { "cite": "442 S.E.2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532101, 2527527, 2527596, 2527312, 2528350 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0770-05", "/nc/335/0770-02", "/nc/335/0770-03", "/nc/335/0770-04", "/nc/335/0770-01" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0330-01" ] }, { "cite": "436 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "page": "148", "parenthetical": "citing Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991)" }, { "page": "148" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521766 ], "year": 1993, "pin_cites": [ { "page": "403", "parenthetical": "citing Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0400-01" ] }, { "cite": "525 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571623, 571722, 571603, 571709, 571583 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0355-01", "/nc/349/0355-02", "/nc/349/0355-03", "/nc/349/0355-04", "/nc/349/0355-05" ] }, { "cite": "502 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "406" } ], "opinion_index": 0 }, { "cite": "130 N.C. 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App.", "case_ids": [ 11465277 ], "pin_cites": [ { "page": "66-67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0064-01" ] }, { "cite": "570 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511298, 1511302, 1511117, 1511568, 1511191 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0297-05", "/nc/356/0297-02", "/nc/356/0297-01", "/nc/356/0297-04", "/nc/356/0297-03" ] }, { "cite": "467 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "342 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795971, 795908, 796133, 796109, 795919 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/342/0656-04", "/nc/342/0656-01", "/nc/342/0656-03", "/nc/342/0656-05", "/nc/342/0656-02" ] }, { "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": "859-60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0857-01" ] }, { "cite": "562 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "pin_cites": [ { "page": "603" }, { "page": "603", "parenthetical": "internal quotation marks omitted" }, { "page": "603", "parenthetical": "internal quotation marks omitted" }, { "page": "603" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 428", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081506 ], "weight": 4, "pin_cites": [ { "page": "430" }, { "page": "430" }, { "page": "430" }, { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0428-01" ] } ], "analysis": { "cardinality": 754, "char_count": 16251, "ocr_confidence": 0.762, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1367573939638952 }, "sha256": "d8777e3d7a4a54faba7449ccd2bc505fa6de0ac7e8437fcd2e7ee130aa6807e1", "simhash": "1:8380d6686c8e8086", "word_count": 2555 }, "last_updated": "2023-07-14T21:19:33.177262+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and ERVIN concur." ], "parties": [ "JAMES KEVIN PIKE, Plaintiff v. D.A. FIORE CONSTRUCTION SERVICES, INC., a North Carolina Corporation, Defendant" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nPlaintiff James Kevin Pike appeals from the trial court\u2019s order granting summary judgment in favor of defendant D.A. Fiore Construction Services, Inc. (\u201cdefendant-general contractor\u201d) and dismissing the action with prejudice. For the reasons stated, we must affirm.\nThe parties do not dispute that, in March 2006, plaintiff was employed as a carpenter by B.G. Construction. At that time, B.G. Construction was employed by defendant as a framing subcontractor on a residential construction project for which defendant was the general contractor.\nPlaintiff worked as the \u201ccut man\u201d on B.G. Construction\u2019s three-member crew and, on 16 March 2006, was responsible for cutting sheets of plywood for the other crew members to use to \u201csheet[] the roof.\u201d The parties agree that, on that day, plaintiff undertook to relocate his cutting operation from the ground to a second-floor landing located in the interior of the residential structure in order to facilitate his ability to pass plywood panels to the other members of his crew while they worked on the roof of the structure. In order to help plaintiff relocate his cutting operation, the other two members of plaintiffs crew began to pass sheets of 4-foot-by-8-foot plywood from the ground to plaintiff, who was located on the second-floor landing. Plaintiff alleges that he was in the process of stacking one of the thirty-pound sheets of plywood when he stepped backwards and fell from the landing onto the concrete floor approximately ten feet below. Plaintiff further alleges that, \u201c[a]s a result of his fall, [plaintiff] struck the back of his head on the concrete floor and the plywood board that he had been holding when he fell struck his forehead.\u201d Consequently, plaintiff sustained \u201ca depressed skull fracture and a complex laceration of his scalp, which . . . resulted in traumatic brain injury.\u201d The parties do not dispute that, at the time that plaintiff fell, the second-floor landing was not equipped with a guardrail and, unlike the other two members of his crew, plaintiff was not wearing a safety harness. However, while defendant-general contractor asserts that, \u201c[p]rior to the fall, a railing had been installed, which the plaintiff removed,\u201d plaintiff asserts that \u201c[n]o person removed the railing from the platform because no railing was ever placed on the platform.\u201d\nPlaintiff filed a workers\u2019 compensation claim against his employer, B.G. Construction, for which he was awarded compensation benefits pursuant to an Opinion and Award by the North Carolina Industrial Commission. On 19 June 2007, plaintiff filed his Complaint in the present action in Buncombe County Superior Court against defendant-general contractor, alleging that plaintiff\u2019s injuries \u201cwere proximately caused by [defendant-general contractor\u2019s] negligence.\u201d In defendant-general contractor\u2019s Amended Answer to Plaintiff\u2019s Complaint, it denied plaintiff\u2019s allegations and set forth four affirmative defenses, including its contention that \u201cplaintiff\u2019s injuries were proximately caused by his own contributory negligence.\u201d\nOn 8 October 2008, defendant-general contractor moved for summary judgment on the grounds that \u201ca general contractor owes no duty to the employee of a subcontractor under the circumstances of this case, and on the grounds that the undisputed facts of this case establish that the [p]laintiff was contributorily negligent as a matter of law.\u201d The trial court heard the motion on 6 January 2009. On 4 February 2009, the court entered its order granting defendant-general contractor\u2019s motion for summary judgment and dismissing the action with prejudice. Plaintiff gave timely notice of appeal to this Court on 10 February 2009.\n\u201cIn a negligence action, to survive a motion for summary judgment, plaintiff must establish a prima facie case by showing\u201d: \u201c \u2018(1) that defendant failed to exercise proper care in the performance of a duty owed plaintiff; (2) the negligent breach of that duty was a proximate cause of plaintiff\u2019s injury; and (3) a person of ordinary prudence should have foreseen that plaintiff\u2019s injury was probable under the circumstances.\u2019 \u201d Bolick v. Bon Worth, Inc., 150 N.C. App. 428, 430, 562 S.E.2d 602, 603 (quoting Lavelle v. Schultz, 120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995), disc. review denied, 342 N.C. 656, 467 S.E.2d 715 (1996)), disc. review denied, 356 N.C. 297, 570 S.E.2d 498 (2002). Thus, although \u201cnegligence actions are rarely susceptible to summary judgmentf,] ... if it is shown the defendant had no duty of care to the plaintiff, summary judgment is appropriate.\u201d Croker v. Yadkin, Inc., 130 N.C. App. 64, 66-67, 502 S.E.2d 404, 406 (citation omitted), disc. review denied, 349 N.C. 355, 525 S.E.2d 449 (1998).\n\u201cThe Courts of North Carolina have long recognized that a general contractor is not liable for injuries sustained by a subcontractor\u2019s employees.\u201d Hooper v. Pizzagalli Constr. Co., 112 N.C. App. 400, 403, 436 S.E.2d 145, 148 (1993) (citing Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991)), disc. review denied, 335 N.C. 770, 442 S.E.2d 516 (1994). Moreover, \u201cNorth Carolina law provides that a general contractor does not have a duty to furnish a subcontractor or the subcontractor\u2019s employees with a safe place in which to work.\u201d Id. at 403-04, 436 S.E.2d at 148 (citing Brown v. Texas Co., 237 N.C. 738, 76 S.E.2d 45 (1953)). \u201cInstead, it is the duty of the subcontractor to provide himself and his employees with a safe place to work and, also, to provide proper safeguards against the dangers of the work.\u201d Id. at 404, 436 S.E.2d at 148. \u201cHowever, North Carolina does recognize a few exceptions to the general rule of no liability.\u201d Id. \u201cThese exceptions are: (1) situations where the contractor retains control over the manner and method of the subcontractor\u2019s substantive work, (2) situations where the work is deemed to be inherently dangerous, and (3) situations involving negligent hiring and/or retention of the subcontractor by the general contractor.\u201d Id.\n\u201cIt is also well-settled that the employee of a subcontractor working for a general contractor is an invitee [or lawful visitor] in relation to the general contractor.\u201d Langley v. R.J. Reynolds Tobacco Co., 92 N.C. App. 327, 329, 374 S.E.2d 443, 445 (1988) (citing Wellmon v. Hickory Constr. Co., 88 N.C. App. 76, 362 S.E.2d 591 (1987), disc. review denied, 322 N.C. 115, 367 S.E.2d 921 (1988); Cowan v. Laughridge Constr. Co., 57 N.C. App. 321, 291 S.E.2d 287 (1982)), disc. review denied, 324 N.C. 433, 379 S.E.2d 241 (1989). \u201cOrdinarily, therefore, both the general contractor and the owner of the premises owe to the subcontractor and its employees the duty of ordinary care.\u201d Id. However, \u201c[t]his rule extends only to defects which the subcontractor or his employees could not have reasonably discovered and of which the owner or general contractor knew or should have known.\u201d Id.\nIn the present case, plaintiff does not allege that defendant-general contractor\u2019s liability arises from one of the recognized exceptions to the prevailing rule that a general contractor is not liable for injuries sustained by a subcontractor\u2019s employee. Plaintiff also does not allege that defendant-general contractor breached a \u201cduty of ordinary care\u201d owed to plaintiff as a lawful visitor. Instead, plaintiff alleges only that, \u201cas the prime or general contractor of the construction project where the [p]laintiff [was a lawful visitor, defendant-general contractor] . . . owed a duty to the [p]laintiff to comply with [all applicable] safety requirements and regulations,\u201d and that defendant-general contractor was negligent because it failed to comply with several federal Occupational Safety and Health Administration (\u201cOSHA\u201d) regulations. Plaintiff then directs this Court\u2019s attention to excerpts from Cowan v. Laughridge Construction Co., 57 N.C. App. 321, 291 S.E.2d 287 (1982), to support his contention that North Carolina courts have \u201crecognized liability of a general contractor for injuries to employees of subcontractors on construction sites\u201d based on a general contractor\u2019s failure to comply with OSHA regulations, even though this Court concluded in Cowan that a violation of federal OSHA regulations \u201cdoes not constitute negligence per se.\u201d See Cowan, 57 N.C. App. at 325, 291 S.E.2d at 290; see also N.C. Gen. Stat. \u00a7 95-131(a) (2007) (adopting federal OSHA regulations as the rules of the North Carolina Commissioner of Labor). After careful review, we conclude that plaintiff has misapplied Cowan to the present case.\nIn Cowan, a roofing subcontractor\u2019s employee was injured after falling off of a ramp that was furnished by the general contractor. See Cowan, 57 N.C. App. at 322, 291 S.E.2d at 288. The ramp, which was used by \u201c[a]ll employees\u201d and was \u201cthe only access [the subcontractor\u2019s] employees had to reach the roof,\u201d was alleged to have been furnished by the defendant. See id. at 322-23, 291 S.E.2d at 288. This Court recognized that the plaintiff was \u201can invitee to whom defendant owed a duty of ordinary care,\u201d and so stated that, \u201c[w]hen defendant furnished a ramp which was the only access to the building\u2019s roof, it could reasonably foresee that plaintiff would use the ramp. [Accordingly, this Court determined that defendant owed plaintiff the duty to use proper care in the ramp\u2019s construction.\u201d Id. at 324, 291 S.E.2d at 289 (emphasis added) (citing Casey v. Byrd, 259 N.C. 721, 723, 131 S.E.2d 375, 377 (1963) (stating that, where a contractor \u201cfurnishes appliances to be used for a particular purpose with knowledge of such use, he is liable for a defect therein created by his own negligence, or negligently permitted to exist, where such negligence renders the appliance dangerous to life and limb of those who may use the same\u201d (internal quotation marks omitted))). Consequently, after considering all of the evidence, including evidence that the general contractor had violated certain OSHA regulations by furnishing a ramp without guardrails and toeboards for use by all lawful visitors, this Court held that all of the evidence was \u201csufficient to permit a finding that defendant failed to exercise ordinary care in the construction of the ramp and that the results of its failure were foreseeable.\u201d See id. at 325, 291 S.E.2d at 290.\nHowever, unlike Cowan, the evidence in the present case does not show that the landing from which plaintiff fell was constructed or furnished by defendant-general contractor for the purpose of giving plaintiff access to the roof. The landing was a balcony located in the interior of the residential structure, built by one of plaintiff\u2019s employer\u2019s subcontractors for the purpose of overlooking the interior living area. Further, although plaintiff alleges that he was \u201crequired to perform his job duties\u201d on the landing from which he fell, plaintiff provides no evidence to support this allegation. Plaintiff and one of his co-workers testified that the members of their crew chose to relocate to the second-floor landing on their own, even though plaintiff\u2019s employer testified that he was prepared to provide steel scaffolding, ladders, metal walk boards, and harnesses if such equipment was required for the performance of the work. In other words, unlike Cowan, plaintiff in the present case neither alleged nor presented evidence that defendant-general contractor breached any duty owed to plaintiff as a lawful visitor on the premises. Thus, Cowan does not support plaintiff\u2019s. assertion that defendant-general contractor\u2019s alleged failure to comply with OSHA regulations establishes that defendant-general contractor \u201cfailed to exercise proper care in the performance of a duty owed plaintiff\u2019 as a lawful visitor. See Bolick, 150 N.C. App. at 430, 562 S.E.2d at 603 (internal quotation marks omitted).\nPlaintiff also asserts that Sloan v. Miller Building Corp., 119 N.C. App. 162, 458 S.E.2d 30, disc. review denied, 341 N.C. 652, 462 S.E.2d 517 (1995), supports his contention that defendant-general contractor breached a duty owed to plaintiff in the present case. In Sloan, this Court held that the trial court improperly granted summary judgment in favor of the general contractor where a subcontractor\u2019s employee was injured after falling from the third floor at a site where the general contractor had been cited for a serious OSHA violation involving the general contractor\u2019s \u201cfailure to have standard railings or the equivalent on the open-sided second and third floors.\u201d See Sloan, 119 N.C. App. at 164-65, 458 S.E.2d at 31. However, \u201c[t]he sole issue presented by the parties [on appeal in Sloan wa]s whether the trial court erred by finding evidence of defendant\u2019s willful or wanton negligence insufficient to overcome the bar of contributory negligence . . . .\u201d Id. at 163, 458 S.E.2d at 30. Since the issue of whether the general contractor had breached any duty owed to a subcontractor\u2019s employee was not before this Court in Sloan, we conclude that Sloan is not instructive on the issue of whether plaintiff established that defendant-general contractor \u201cfailed to exercise proper care in the performance of a duty owed plaintiff.\u201d See Bolick, 150 N.C. App. at 430, 562 S.E.2d at 603 (internal quotation marks omitted).\nWe further conclude that plaintiff\u2019s reliance on North Carolina Commissioner of Labor v. Weekley Homes, L.P., 169 N.C. App. 17, 609 S.E.2d 407, appeal dismissed and disc. review denied, 359 N.C. 629, 616 S.E.2d 227 (2005), is misplaced. In Weekley Homes, a safety compliance officer with the North Carolina Department of Labor issued a citation to the general contractor after observing one of its subcontractor\u2019s employees working without fall protection on a steep pitch roof over six feet from the ground in violation of OSHA regulations. See Weekley Homes, 169 N.C. App. at 18-19, 609 S.E.2d at 410. The matter on appeal before this Court in Weekley Homes was whether an administrative agency could issue a citation holding a general contractor \u201cliable for violations that its subcontractor may create if [the general contractor] could reasonably have been expected to detect the violation by inspecting the job site.\u201d See id. at 28, 609 S.E.2d at 415. However, since, contrary to plaintiff\u2019s suggestion, Weekley Homes has not been recognized to stand for the proposition that a general contractor\u2019s violation of OSHA regulations necessarily gives rise to tort liability, we further conclude that Weekley Homes is not instructive in the present case.\nBecause plaintiff has not established that defendant-general contractor failed to exercise proper care in the performance of a duty owed to plaintiff which could serve as the basis for defendant-general contractor\u2019s liability to plaintiff, see Bolick, 150 N.C. App. at 430, 562 S.E.2d at 603, we hold the trial court did not err when it allowed defendant-general contractor\u2019s motion for summary judgment and dismissed the action with prejudice. Our disposition renders it unnecessary to address plaintiff\u2019s remaining argument.\nAffirmed.\nJudges JACKSON and ERVIN concur.\n. Plaintiff died after filing his Notice of Appeal. The administrator of his estate, Trade S. Hart, has been substituted as a party plaintiff. However, this opinion still refers to the decedent as \u201cplaintiff.\u201d", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "The Moore Law Office, by George W. Moore, for plaintiff-appellant.", "Northup, McConnell & Sizemore, PLLC, by Robert E. Allen, for defendant-appellee.", "Cranfill, Sumner & Hartzog, L.L.P., by Jaye Bingham, for workers\u2019 compensation employer and carrier." ], "corrections": "", "head_matter": "JAMES KEVIN PIKE, Plaintiff v. D.A. FIORE CONSTRUCTION SERVICES, INC., a North Carolina Corporation, Defendant\nNo. COA09-520\n(Filed 8 December 2009)\nNegligence\u2014 duty of care \u2014 general contractor to subcontractor\u2019s employee\nThe trial court did not err in a negligence case arising out of a construction accident by granting summary judgment in favor of defendant general contractor and dismissing the action with prejudice because plaintiff subcontractor employee did not establish that defendant failed to exercise proper care in the performance of a duty owed to plaintiff.\nAppeal by plaintiff from order entered 4 February 2009 by Judge Mark Powell in Buncombe County Superior Court. Heard in the Court of Appeals 12 October 2009.\nThe Moore Law Office, by George W. Moore, for plaintiff-appellant.\nNorthup, McConnell & Sizemore, PLLC, by Robert E. Allen, for defendant-appellee.\nCranfill, Sumner & Hartzog, L.L.P., by Jaye Bingham, for workers\u2019 compensation employer and carrier." }, "file_name": "0406-01", "first_page_order": 434, "last_page_order": 440 }