{ "id": 4176304, "name": "KENNETH P. ANDRESEN and MARGUERITTE C. ANDRESEN, Plaintiffs v. PROGRESS ENERGY, INC., CAROLINA POWER & LIGHT COMPANY, and CAROLINA POWER & LIGHT COMPANY D/B/A PROGRESS ENERGY CAROLINAS, INC., Defendants", "name_abbreviation": "Andresen v. Progress Energy, Inc.", "decision_date": "2010-05-18", "docket_number": "No. COA09-1207", "first_page": "182", "last_page": "187", "citations": [ { "type": "official", "cite": "204 N.C. App. 182" } ], "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": "637 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637287 ], "year": 2006, "pin_cites": [ { "page": "530", "parenthetical": "citing Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004)" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0528-01" ] }, { "cite": "463 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "572" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 870", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918773 ], "year": 1995, "pin_cites": [ { "page": "871" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0870-01" ] }, { "cite": "530 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "843", "parenthetical": "citing Jackson v. Carolina Hardwood, Co., 120 N.C. App. 870, 871, 463 S.E.2d 571, 572 (1995)" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078414 ], "year": 2000, "pin_cites": [ { "page": "26", "parenthetical": "citing Jackson v. Carolina Hardwood, Co., 120 N.C. App. 870, 871, 463 S.E.2d 571, 572 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0019-01" ] }, { "cite": "4 N.C. Admin. Code 11", "category": "laws:admin_compilation", "reporter": "N.C. Admin. Code", "weight": 3, "opinion_index": 0 }, { "cite": "411 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "653" }, { "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521196 ], "year": 1992, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0064-01" ] }, { "cite": "514 S.E.2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "528", "parenthetical": "citing Westbrook v. Cobb, 105 N.C. App. 64, 67, 411 S.E.2d 651, 653 (1992)" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 63", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11216043 ], "year": 1999, "pin_cites": [ { "page": "65", "parenthetical": "citing Westbrook v. Cobb, 105 N.C. App. 64, 67, 411 S.E.2d 651, 653 (1992)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0063-01" ] }, { "cite": "507 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "604", "parenthetical": "citation omitted" }, { "page": "604", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 619", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11203456 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "621", "parenthetical": "citation omitted" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0619-01" ] }, { "cite": "565 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "146", "parenthetical": "internal citations and quotation marks omitted" }, { "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220147 ], "year": 2002, "pin_cites": [ { "page": "681", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0672-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "year": 2004, "pin_cites": [ { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "361 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3744780 ], "year": 2006, "pin_cites": [ { "page": "88", "parenthetical": "citing Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004)" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0085-01" ] } ], "analysis": { "cardinality": 657, "char_count": 12804, "ocr_confidence": 0.732, "pagerank": { "raw": 8.306259092003491e-08, "percentile": 0.47975268056168524 }, "sha256": "694217c144bc6525628a149752aefb69f3a137c245211282787b78a6d9344400", "simhash": "1:9788deb4909d745f", "word_count": 1986 }, "last_updated": "2023-07-14T20:38:54.150336+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STROUD concur." ], "parties": [ "KENNETH P. ANDRESEN and MARGUERITTE C. ANDRESEN, Plaintiffs v. PROGRESS ENERGY, INC., CAROLINA POWER & LIGHT COMPANY, and CAROLINA POWER & LIGHT COMPANY D/B/A PROGRESS ENERGY CAROLINAS, INC., Defendants" ], "opinions": [ { "text": "JACKSON, Judge.\nKenneth P. Andresen (\u201cAndresen\u201d) and Margueritte C. Andresen (collectively, \u201cplaintiffs\u201d) appeal the 6 May 2009 order granting summary judgment to Progress Energy, Inc.; Carolina Power & Light Company; and Carolina Power & Light Company D/B/A Progress Energy Carolinas, Inc. (\u201cdefendants\u201d). For the reasons stated herein, we affirm.\nOn 4 January 2008, plaintiffs arrived at their vacation home on Bald Head Island to find \u201csomething unusual\u201d with their electrical system. When they flipped the light switches, the light bulbs were a dim amber color and then glowed intensely. According to Andresen, \u201cthe lights would get very bright on one portion of the house and then they were, at that same moment, rather dim where my wife was.\u201d Plaintiffs placed a call to defendants, their electric service provider. One of defendants\u2019 service crews arrived at plaintiffs\u2019 house later that evening, and after fixing the problem with the underground neutral line, which apparently had been nicked, a crew member told plaintiffs to check all of their appliances because they \u201cprobably ha[d] all gotten fried.\u201d When plaintiffs checked their appliances, they found problems with all of them. The majority, if not all, of plaintiffs\u2019 appliances had been plugged directly into the wall outlets, and to plaintiff\u2019s recollection, none of the appliances were equipped with internal surge protectors. Plaintiffs contacted defendants\u2019 claims department.\nOn 18 January 2008, Andresen met at the vacation home with representatives from defendants; AT&T, plaintiffs\u2019 telephone and Internet provider; and Telemedia, plaintiffs\u2019 television provider. According to Andresen, defendants scheduled this meeting because defendants\u2019 representative \u201cthought that one of those entities [Telemedia or AT&T] damaged the line.\u201d Defendants\u2019 representatives unearthed the power, cable, and telephone lines and took photographs of them. Defendants denied plaintiffs\u2019 claim, because their representative thought \u201cthat someone else is responsible for [the nicked line] and [defendants] are not.\u201d\nPlaintiffs filed suit against defendants on 2 April 2008, claiming both negligence and breach of contract. On 25 July 2008, plaintiffs filed an amended complaint. Plaintiffs voluntarily dismissed Progress Energy, Inc. as a defendant on 21 August 2008. Defendants filed their answer on 26 September 2008, denying, inter alia, both that they had been negligent and that they had breached their contract with plaintiffs. Defendants filed a motion for summary judgment, and following discovery and a 27 April 2009 hearing on the motion, the trial court granted summary judgment in favor of defendants on 6 May 2009. Plaintiffs appeal.\nPlaintiffs\u2019 first argument is that genuine issues of material fact exist as to whether defendants owed plaintiffs a duty to maintain their power line. We disagree.\nWe review a trial court\u2019s grant of summary judgment de novo. Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006) (citing Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004)). \u201cSummary judgment is appropriate when \u2018there is no genuine issue as to any material fact\u2019 and \u2018any party is entitled to a judgment as a matter of law.\u2019 \u201d Id. (quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2005)). Our Supreme Court has held that \u201can issue is genuine if it is supported by substantial evidence, and [a]n issue is material if the facts alleged . . . would affect the result of the action[.]\u201d DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (internal citations and quotation marks omitted). Furthermore, \u201c[substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and means more than a scintilla or a permissible inference[.]\u201d Id. (internal citations and quotation marks omitted).\nThe movant \u2014 defendants in the case sub judice \u2014 bears the burden of showing that \u201c(1) an essential element of plaintiff\u2019s claim is nonexistent; (2) plaintiff cannot produce evidence to support an essential element of its claim; or (3) plaintiff cannot surmount an affirmative defense raised in bar of its claim.\u201d Liller v. Quick Stop Food Mart, Inc., 131 N.C. App. 619, 621, 507 S.E.2d 602, 604 (1998) (citation omitted).\nIn order to sustain a claim for negligence, a plaintiff must prove (1) the defendant owed a duty to the plaintiff; (2) the defendant failed to exercise proper care in the performance of the duty; and (3) the breach of the duty was a proximate cause of the injury suffered by the plaintiff.\nSweat v. Brunswick Electric Membership Corp., 133 N.C. App. 63, 65, 514 S.E.2d 526, 528 (1999) (citing Westbrook v. Cobb, 105 N.C. App. 64, 67, 411 S.E.2d 651, 653 (1992)).\nOur case law that addresses an electricity provider\u2019s duty to maintain its equipment focuses on above-ground lines \u2014 rather than those buried underground as here \u2014 and bodily injury to people\u2014 rather than the damage to property asserted here.\nA supplier of electricity owes the highest degree of care to the public because of the dangerous nature of electricity. An electric company is required \u201cto exercise reasonable care in the construction and maintenance of their lines when positioned where they are likely to come in contact with the public.\u201d However, \u201cthe duty of providing insulation should be limited to those points or places where there is reason to apprehend that persons may come in contact with the wires....\u201d Also, this Court has held that an electrical utility has exercised reasonable care when it has insulated its power lines \u201cby height and isolation in accordance with existing regulations.\u201d\nId. (internal citations omitted).\nAccording to the administrative rules and regulations that govern our State\u2019s utilities, \u201c[e]ach utility shall maintain its plant, distribution system and facilities at all times in proper condition for use in rendering safe and adequate service.\u201d 4 N.C. Admin. Code ll.R8-5(a) (2007). North Carolina utilities also \u201cshall make a full and prompt investigation of all service complaints made to it by its consumers[.]\u201d 4 N.C. Admin. Code 11.R8-6 (2007). Within its section specifically addressing underground utility lines, the National Electrical Safety Code from the American National Standards Institute requires that \u201c[accessible lines and equipment... be inspected by the responsible party at such intervals as experience has shown to be necessary.\u201d NESC \u00a7 31.313.A.2 (2002).\nIn the instant case, whether defendants owed plaintiffs a duty to maintain their underground power line is an element of a prima facie case of negligence and is, therefore, material because it would affect the result of the action. However, plaintiffs\u2019 case must fail because they have failed to forecast any evidence that defendants in fact owed them a duty to unearth the underground power lines periodically and visually to inspect the lines to ascertain whether they had been nicked.\nPlaintiffs argue that Chapter 8, Rule R8-23 of the North Carolina Utilities Commission Rules and Regulations requires electric utilities to \u201coperate and maintain in safe, efficient and proper condition, all the facilities and instrumentalities used in connection with the regulation, measurement and delivery of electric current . ...\u201d 4 N.C. Admin. Code 11.R8-23 (2007) (emphasis added). However, defendants have complied with the specific requirements of the rules and regulations. They promptly investigated plaintiffs\u2019 complaint, arriving the same night that Andresen called in order to inspect and repair the nicked line. 4 N.C. Admin. Code 11.R8-6 (2007) (\u201cEach utility shall make a full and prompt investigation of all service complaints made to it by its consumers!)]\u201d). Plaintiffs presented no case law or statute that imposes a duty upon utility companies to inspect underground power lines. The applicable rules suggest that only accessible lines are subject to \u201cinspection] by the responsible party at such intervals as experience has shown to be necessary.\u201d NESC \u00a7 31.313.A.2 (2002). Plaintiffs have not suggested that they have an expert or any witness who will testify that such periodic inspection of underground lines is part of the reasonable care owed to customers by utility companies. Therefore, plaintiffs have failed to \u201cproduce evidence to support an essential element of [their] claim\u201d because they have forecast no evidence that defendants owed them a duty to inspect underground power lines periodically in the absence of specific complaints. Liller, 131 N.C. App. at 621, 507 S.E.2d at 604 (citation omitted).\nBecause we hold that plaintiffs did not establish the element of duty within their prima facie case of negligence, plaintiffs cannot survive a motion for summary judgment based upon that claim. Therefore, we do not address their second argument that addresses one of defendants\u2019 defenses to the negligence claim \u2014 whether a genuine issue of material fact existed as to intervening negligence by a third party.\nPlaintiffs\u2019 final argument is that genuine issues of fact exist as to the terms of the contract between plaintiffs and defendants. We disagree.\nThe requirements for summary judgment are set forth supra. \u201cThe elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract.\u201d Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000) (citing Jackson v. Carolina Hardwood, Co., 120 N.C. App. 870, 871, 463 S.E.2d 571, 572 (1995)).\nHere, defendants alleged that \u201c [plaintiffs\u2019 claim of breach of contract against [defendant] fails as a matter of law based on the valid and enforceable Service Agreement, produced in discovery and used as the basis of the plaintiffs\u2019 relationship with [defendant.]\u201d The service agreement requires that the customer \u201cinstall and maintain devices adequate to protect his equipment against irregularities on [defendants\u2019] system, including devices to protect against single phasing[,]\u201d which plaintiffs did not do.'However, plaintiffs contend that Andresen\u2019s testimony that he had neither seen, executed, nor agreed to the service agreement raises a genuine issue of material fact as to the terms of the contract between the parties. This controversy is material because the terms of the contract necessarily implicate whether or not the contract was breached \u2014 the second element of a breach of contract claim. However, plaintiffs\u2019 claim still must fail, because although the unsigned service agreement presented by defendants is not dispositive, Andresen has not met his burden to present substantial evidence as to what the terms of the actual agreement between the parties were. A reasonable mind would not accept as adequate Andresen\u2019s testimony \u2014 that he neither saw, agreed to, nor signed defendants\u2019 service agreement \u2014 to support the existence of some as yet unidentified contractual terms that defendants allegedly breached. Without such forecast of evidence, plaintiffs have failed to present aprima facie case of breach of contract.\nFor these reasons, no genuine issues of material fact exist, and defendants were entitled to summary judgment as a matter of law. Therefore, we affirm the trial court\u2019s grant of summary judgment to defendants.\nAffirmed.\nJudges ELMORE and STROUD concur.\n. The National Electrical Safety Code was adopted by Rule R8-26 of the North Carolina Utility Commission Rules and Regulations.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Andresen & Arronte, PLLC, by Julian M. Arronte, for plaintiff s-appellants.", "Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Scott Lewis and Ellen J. Persechini, for defendants-appellees." ], "corrections": "", "head_matter": "KENNETH P. ANDRESEN and MARGUERITTE C. ANDRESEN, Plaintiffs v. PROGRESS ENERGY, INC., CAROLINA POWER & LIGHT COMPANY, and CAROLINA POWER & LIGHT COMPANY D/B/A PROGRESS ENERGY CAROLINAS, INC., Defendants\nNo. COA09-1207\n(Filed 18 May 2010)\n1. Utilities\u2014 underground power line \u2014 no duty to inspect\nThe trial court correctly granted summary judgment for defendants in a negligence action arising from a damaged underground power line where plaintiffs did not establish a duty to periodically unearth and inspect the line.\n2. Contracts\u2014 power company service contract \u2014 prima facie case of breach \u2014 evidence not sufficient\nThere was no genuine issue of fact as to the terms of a contract between plaintiff and defendant-power companies where plaintiff testified that he neither saw, agreed to, nor signed defendants\u2019 service agreement. A reasonable mind would not accept this testimony as adequate to support the existence of contract terms as yet unidentified and summary judgment was properly granted.\nAppeal by plaintiffs from order entered 6 May 2009 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 25 February 2010.\nAndresen & Arronte, PLLC, by Julian M. Arronte, for plaintiff s-appellants.\nHedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Scott Lewis and Ellen J. Persechini, for defendants-appellees." }, "file_name": "0182-01", "first_page_order": 206, "last_page_order": 211 }