{ "id": 8524156, "name": "JOHN RAY COWAN v. LAUGHRIDGE CONSTRUCTION COMPANY, a corporation", "name_abbreviation": "Cowan v. Laughridge Construction Co.", "decision_date": "1982-05-18", "docket_number": "No. 8129SC941", "first_page": "321", "last_page": "326", "citations": [ { "type": "official", "cite": "57 N.C. App. 321" } ], "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": "246 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626188 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0327-01" ] }, { "cite": "281 S.E. 2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "53 N.C. App. 619", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522880 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/53/0619-01" ] }, { "cite": "78 S.E. 2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "238 N.C. 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610742 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/238/0422-01" ] }, { "cite": "218 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "27 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550620 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/27/0107-01" ] }, { "cite": "79 A.L.R. 3d 962", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1977, "pin_cites": [ { "parenthetical": "violation of OSHA regulation as affecting tort liability" } ], "opinion_index": 0 }, { "cite": "331 So. 2d 651", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9653898 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/so2d/331/0651-01" ] }, { "cite": "608 F. 2d 522", "category": "reporters:federal", "reporter": "F.2d", "year": 1979, "opinion_index": 0 }, { "cite": "433 F. Supp. 913", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3942701 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f-supp/433/0913-01" ] }, { "cite": "386 F. Supp. 1240", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3339211 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f-supp/386/1240-01" ] }, { "cite": "131 S.E. 2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561356 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0531-01" ] }, { "cite": "29 U.S.C. \u00a7 651", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "29 U.S.C. \u00a7\u00a7 651-678", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "131 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 721", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562462 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0721-01" ] }, { "cite": "241 S.E. 2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 182", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571242, 8571211, 8571281, 8571317, 8571350 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0182-02", "/nc/294/0182-01", "/nc/294/0182-03", "/nc/294/0182-04", "/nc/294/0182-05" ] }, { "cite": "238 S.E. 2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "34 N.C. App. 421", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549510 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0421-01" ] }, { "cite": "183 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 395", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568480, 8568641, 8568552, 8568595, 8568445, 8568511 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0395-02", "/nc/279/0395-06", "/nc/279/0395-04", "/nc/279/0395-05", "/nc/279/0395-01", "/nc/279/0395-03" ] }, { "cite": "181 S.E. 2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "11 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554419 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0275-01" ] }, { "cite": "250 S.E. 2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566400 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0400-01" ] }, { "cite": "98 S.E. 2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 } ], "analysis": { "cardinality": 592, "char_count": 10044, "ocr_confidence": 0.781, "pagerank": { "raw": 2.9792326641441786e-07, "percentile": 0.8509011529243596 }, "sha256": "8be1070b3a8a45fca1022c4d10e5c9ea39c7a9df4f1005f0e1a08c51cc596bef", "simhash": "1:af6516a9c6e6468f", "word_count": 1630 }, "last_updated": "2023-07-14T20:31:38.946391+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN (Robert M.) and ARNOLD concur." ], "parties": [ "JOHN RAY COWAN v. LAUGHRIDGE CONSTRUCTION COMPANY, a corporation" ], "opinions": [ { "text": "VAUGHN, Judge.\nNegligence is not presumed simply because an accident has occurred. In order to establish a prima facie case of negligence, plaintiff must offer evidence that defendant owed him a duty of care, that defendant breached that duty, and that defendant\u2019s breach was the actual and proximate cause of plaintiffs injury. Burr v. Everhart, 246 N.C. 327, 98 S.E. 2d 327 (1957). If plaintiff fails to show any one of these elements, it is proper for the court to enter a directed verdict in favor of defendant.\nIt is the exceptional negligence action, however, where a directed verdict is entered. On a motion for directed verdict, the court must view the evidence in the light most favorable to the plaintiff. Where plaintiff receives the benefit of every reasonable inference, the issues of reasonable care and breach of that care are usually for the jury. Williams v. Power & Light Co., 296 N.C. 400, 250 S.E. 2d 255 (1979); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E. 2d 147, cert. denied, 279 N.C. 395, 183 S.E. 2d 243 (1971).\nIn the present action, the court concluded there was insufficient evidence to require submission of the issue of defendant\u2019s negligence to the jury. We disagree.\nDefendant, as general contractor, subcontracted with plaintiff\u2019s employer for the installation of the building\u2019s roof. Plaintiff was, therefore, an invitee to whom defendant owed a duty of ordinary care. Benton v. Construction Co., 34 N.C. App. 421, 238 S.E. 2d 655 (1977), cert. denied, 294 N.C. 182, 241 S.E. 2d 517 (1978). When defendant furnished a ramp which was the only access to the building\u2019s roof, it could reasonably foresee that plaintiff would use the ramp. Defendant owed plaintiff the duty to use proper care in the ramp\u2019s construction. See Casey v. Byrd, 259 N.C. 721, 131 S.E. 2d 375 (1963).\nPlaintiff argues that defendant breached that duty as a matter of law by violating certain federal OSHA regulations. These regulations require guardrails for open runways four feet or more above ground and toeboards wherever tools and materials are likely to be used on the runway. We disagree that defendant\u2019s noncompliance constituted negligence per se.\nThe Occupational Safety and Health Act of 1970 (OSHA) was enacted to assure safe working conditions for employees. 29 U.S.C. \u00a7\u00a7 651-678. It authorizes the Secretary of Labor to set mandatory safety standards. 29 U.S.C. \u00a7 651. In G.S. 95431(a), the General Assembly of North Carolina has adopted the Secretary\u2019s occupational safety and health standards as the rules and regulations of the North Carolina Commissioner of Labor. Plaintiff contends that the adopted regulations establish a standard of care and are enforceable by criminal sanctions. When noncompliance with an administrative safety regulation is criminal, the rule in North Carolina is that the violation is negligence per se in a civil trial. Swaney v. Steel Co., 259 N.C. 531, 131 S.E. 2d 601 (1963).\nAccording to G.S. 95-139, however, a willful violation of an OSHA rule constitutes a misdemeanor only if said violation causes the death of an employee. For all other violations, the sanction is a possible civil penalty accessed by the Commissioner. G.S. 95-138. We conclude that the adopted OSHA regulations are not penal in nature, and, therefore, a violation does not constitute negligence per se. Accord Otto v. Specialties, Inc., 386 F. Supp. 1240 (N.D. Miss. 1974).\nOSHA regulations are, however, some evidence of the custom in the construction industry. See, e.g., National Marine Service, Inc. v. Gulf Oil Co., 433 F. Supp. 913 (E.D. La. 1977), aff\u2019d 608 F. 2d 522 (5th Cir. 1979); Knight v. Burns, Kirkley & Williams Const. Co., Inc., 331 So. 2d 651 (Ala. 1976). See generally Annot., 79 A.L.R. 3d 962 (1977) (violation of OSHA regulation as affecting tort liability). Custom is admissible to establish the standard of care required of reasonable men in the same circumstances. 1 Stansbury, N.C. Evidence \u00a7 95 (Brandis rev. 1973). Therefore, by presenting evidence that defendant had violated certain OSHA regulations, plaintiff presented some evidence on the issue of defendant\u2019s negligence. See Flying Service v. Thomas, 27 N.C. App. 107, 218 S.E. 2d 203 (1975).\nPlaintiff\u2019s evidence also showed that, defendant\u2019s ramp gave under the weight of people crossing it. The accident occurred when one side of the ramp tilted, suggesting that it was not anchored in place. The ramp was located over an open trench which was ten to twelve feet deep.\nWe hold that such evidence was sufficient 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. It was error for the court to find no negligence as a matter of law.\nDefendant argues that the court nevertheless properly entered a directed verdict because plaintiff\u2019s evidence established contributory negligence as a matter of law. We disagree.\nContributory negligence is a jury question unless the evidence is so clear that no other conclusion is possible. R.R. v. Trucking Co., 238 N.C. 422, 78 S.E. 2d 159 (1953); Ridge v. Grimes, 53 N.C. App. 619, 281 S.E. 2d 448 (1981). In the present action, reasonable men could differ as to whether plaintiff exercised ordinary care in working from a ramp which lacked guardrails. Conflicting conclusions could also arise concerning plaintiffs balancing of weight on the ramp. There was no evidence that plaintiff\u2019s fall was caused by loose gravel which he should have observed.\nBecause the evidence will support a finding that defendant\u2019s negligence was the proximate cause of plaintiffs injuries, the court erred in directing a verdict in defendant\u2019s favor. The order is reversed.\nReversed.\nJudges MARTIN (Robert M.) and ARNOLD concur.", "type": "majority", "author": "VAUGHN, Judge." } ], "attorneys": [ "Goldsmith and Goldsmith, by C. Frank Goldsmith, Jr., for plaintiff appellant.", "Roberts, Cogburn and Williams, by Landon Roberts,' James W. Williams, and Isaac N. Northup, Jr., for defendant appellee." ], "corrections": "", "head_matter": "JOHN RAY COWAN v. LAUGHRIDGE CONSTRUCTION COMPANY, a corporation\nNo. 8129SC941\n(Filed 18 May 1982)\nNegligence \u00a7 29.1\u2014 personal injury action \u2014 negligence\u2014directed verdict improper\nIn a personal injury action, the trial court erred in entering a directed verdict for defendant where the evidence tended to show plaintiff was helping to install a roof; defendant furnished a ramp which was the only access to the building\u2019s roof; defendant\u2019s ramp did not meet certain federal OSHA regulations; defendant\u2019s ramp gave under the weight of people crossing it; and plaintiff was injured when one side of the ramp tilted and he fell in an excavated trench which had not been filled.\nAPPEAL by plaintiff from Lane, Judge. Order entered 3 July 1981 in Superior Court, MCDOWELL County. Heard in the Court of Appeals 27 April 1982.\nPlaintiff appeals from an order directing a verdict in favor of defendant.\nDefendant, as the general contractor of a building to be constructed in Marion, North Carolina, subcontracted with Pyatt Heating and Air Conditioning Company, Incorporated, for the installation of the building\u2019s roof. Plaintiff was an employee on Pyatt\u2019s roofing crew.\nPlaintiff alleges that pursuant to an agreement with Pyatt or, alternatively to the usual custom in the construction industry, defendant provided the subcontractor\u2019s employees access to the roof. It furnished a ramp consisting of plywood and boards across a foundation trench from the ground level to a doorsill of the building. The roofing crew placed a ladder on the ramp, which extended to the roof. On 20 August 1976, while working on the roof\u2019s installation, plaintiff fell from the ramp onto a cement footing at the bottom of the trench.\nPlaintiff alleges that defendant was negligent in furnishing a defective ramp with inadequate safety features and in failing to fill the excavated trench. As a proximate result of defendant\u2019s negligence, plaintiff was severely and permanently injured.\nDefendant denies plaintiff\u2019s allegations and alleges that plaintiff himself was negligent. It alleges that plaintiff used a ladder in an area where he had reason to know there was spilled gravel. Defendant also alleges that should it be found negligent in any respect, then plaintiff\u2019s employer was concurrently negligent in using a ladder which failed to conform to safety regulations.\nAt trial, plaintiff presented evidence that the ramp provided by defendant was level but would give when someone walked across it: \u201cAs to whether I had observed any defects of any kind in the ramp, just that it was pretty flimsy.\u201d Plaintiff did not recall whether the ramp was braced for stability. All employees used the ramp, including workmen pushing wheelbarrows of concrete. The ramp was the only access Pyatt\u2019s employees had to reach the roof.\nPlaintiffs accident occurred about 5:30 p.m. He and another Pyatt employee were standing on the ramp, hoisting up buckets of gravel to the roof: \u201cRay Trantham was just getting ready to pull the bucket ... he stepped back some to pull the rope, and I imagine I had too much weight on one side of the scaffold . . . when the bucket came up the platform tilted up on the right-hand corner and throwed me off.\u201d There were no guardrails on the ramp for plaintiff to grab. He fell 10 to 12 feet into the foundation trench.\nPlaintiff introduced into evidence certain OSHA regulations which require guardrails and toeboards for open-sided runways a certain number of feet above ground. A witness who had been employed in the construction industry for thirty years testified that the custom and practice in the building industry was to require guardrails. Plaintiff also presented evidence t\u00ed\u00edat there was no loose gravel on the ramp at the time of the accident.\nAt the close of plaintiffs evidence, defendant moved for a directed verdict pursuant to Rule 50, North Carolina Rules of Civil Procedure. The court found that there was no evidence of any negligence by defendant and that plaintiffs evidence established contributory negligence as a matter of law. It granted defendant\u2019s motion.\nGoldsmith and Goldsmith, by C. Frank Goldsmith, Jr., for plaintiff appellant.\nRoberts, Cogburn and Williams, by Landon Roberts,' James W. Williams, and Isaac N. Northup, Jr., for defendant appellee." }, "file_name": "0321-01", "first_page_order": 351, "last_page_order": 356 }