{ "id": 8521559, "name": "JIMMY C. BRITT, Plaintiff v. AMERICAN HOIST & DERRICK COMPANY and RAY ALDEN, Defendants and Third-Party Plaintiffs v. MILLER BUILDING CORPORATION, Third-Party Defendant and Fourth-Party Plaintiff v. GOODYEAR MECHANICAL CONTRACTING COMPANY, INCORPORATED, Fourth-Party Defendant", "name_abbreviation": "Britt v. American Hoist & Derrick Co.", "decision_date": "1990-02-20", "docket_number": "No. 895SC432", "first_page": "442", "last_page": "446", "citations": [ { "type": "official", "cite": "97 N.C. App. 442" } ], "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": "190 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575872, 8575883, 8575917, 8575859, 8575898 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0623-02", "/nc/281/0623-03", "/nc/281/0623-05", "/nc/281/0623-01", "/nc/281/0623-04" ] }, { "cite": "188 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "14 N.C. App. 609", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551756 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/14/0609-01" ] }, { "cite": "268 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "300 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564292 ], "year": 1980, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0651-01" ] }, { "cite": "218 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "381-82" } ], "opinion_index": 0 }, { "cite": "288 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568529 ], "year": 1975, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0375-01" ] }, { "cite": "329 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724648, 4719920, 4726261, 4722874, 4721598 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0506-04", "/nc/313/0506-03", "/nc/313/0506-05", "/nc/313/0506-01", "/nc/313/0506-02" ] }, { "cite": "322 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "607" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 592", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525985 ], "year": 1984, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0592-01" ] }, { "cite": "266 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "appeal of indemnity issue does not ripen until conclusion of underlying action" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 187", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548833 ], "year": 1980, "pin_cites": [ { "parenthetical": "appeal of indemnity issue does not ripen until conclusion of underlying action" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0187-01" ] }, { "cite": "290 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "596" } ], "opinion_index": 0 }, { "cite": "305 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572803 ], "year": 1982, "pin_cites": [ { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0603-01" ] }, { "cite": "381 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "year": 1989, "opinion_index": 0 }, { "cite": "376 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1989, "pin_cites": [ { "page": "490" }, { "page": "491" }, { "page": "492" }, { "page": "492" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 20", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527773 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "24" }, { "page": "24" }, { "page": "26" }, { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0020-01" ] } ], "analysis": { "cardinality": 500, "char_count": 10050, "ocr_confidence": 0.753, "pagerank": { "raw": 1.10557368627794e-07, "percentile": 0.5694801125471022 }, "sha256": "e783b8dfc147876499fd59e78a0150e80b2c066110ffacf7c8449a8f119c34a7", "simhash": "1:23e0ed6712bfab64", "word_count": 1591 }, "last_updated": "2023-07-14T17:09:00.422652+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Eagles and Parker concur." ], "parties": [ "JIMMY C. BRITT, Plaintiff v. AMERICAN HOIST & DERRICK COMPANY and RAY ALDEN, Defendants and Third-Party Plaintiffs v. MILLER BUILDING CORPORATION, Third-Party Defendant and Fourth-Party Plaintiff v. GOODYEAR MECHANICAL CONTRACTING COMPANY, INCORPORATED, Fourth-Party Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nThis appeal arises out of a civil action in which plaintiff Jimmy C. Britt (Britt) sought damages from defendants American Hoist & Derrick Company (AmHoist) and Ray Alden (Alden) for personal injuries allegedly sustained from defendants\u2019 negligence. The defendants brought Miller Building Corporation (Miller) into the action as a third-party defendant, and Miller brought Goodyear Mechanical Contracting Company, Inc. (Goodyear) into the action as a fourth-party defendant. The trial court granted the motions for summary judgment of Miller and Goodyear. The defendants AmHoist and Alden appeal the grant of summary judgment in favor of Miller.\nAmHoist entered into a contract with Miller to convert a building into an AmHoist manufacturing facility. Goodyear was a subcontractor of Miller. On 15 October 1985 Britt was employed by Goodyear to work at the AmHoist facility being converted by Miller. Britt and another Goodyear employee, Michael A. Burton, were operating a manlift while another Goodyear employee, Dennis Bossinger, served as a lookout from the ground nearby. In the same area where Britt and Burton were elevated in the manlift, an AmHoist employee, Alden, was operating a pendant crane. The crane struck the manlift basket allegedly causing injuries to Britt.\nAfter being sued by Britt, AmHoist asserted a third-party action for contribution and indemnity against Miller, claiming that Miller was either negligent in its supervision or operation of the work site or that a provision of the construction contract between AmHoist and Miller required Miller to indemnify AmHoist for any liability.\nThe issues presented are: I) whether this interlocutory appeal involves potential harm to a substantial right of the appellants as to (A) the negligence claim or (B) the indemnity claim; and II) whether an issue of material fact as to Miller\u2019s negligence was presented such as to preclude the trial court\u2019s grant of summary judgment for Miller.\nI\nA summary judgment which does not dispose of the case is interlocutory, and immediate appeal lies only in two events. \u201cFirst, if there has been a final disposition of at least one but fewer than all claims, the final disposition of those claims may be appealed if the trial judge in addition certifies that there is no just reason to delay the appeal. N.C.G.S. \u00a7 1A-1, Rule 54(b) (1988).\u201d Davidson v. Knauff Ins. Co., 93 N.C. App. 20, 24, 376 S.E.2d 488, 490, review denied, 324 N.C. 577, 381 S.E.2d 772 (1989). Since the trial judge here did not provide certification, we look to the second avenue of appeal which arises out of the pertinent provisions of \u00a7 1-277 (1983) and \u00a7 7A-27(b) (1986). \u201cInterlocutory appeals are most commonly allowed under Sections 1-277 and 7A-27(d) if delaying the appeal will prejudice any substantial rights.\u201d 93 N.C. App. at 24, 376 S.E.2d at 491. We now must determine whether delaying the appeal here will prejudice any substantial rights.\nA\nDelaying the appeal of the denial of AmHoist\u2019s claim against Miller affects a substantial right \u201cif there are overlapping factual issues between the claim determined [here the AmHoist claim against Miller] and any claims which have not yet been determined [the Britt claim against AmHoist].\u201d 93 N.C. App. at 26, 376 S.E.2d at 492. In the claim appealed Miller alleges contributory negligence of Britt, and in the remaining claim AmHoist alleges the contributory negligence of Britt. These common allegations of negligence present common factual issues and should be determined by the same jury. Otherwise there exists the possibility that different juries addressing the same issue would reach inconsistent verdicts. See Green v. Duke Power Co, 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982).\nB\nOur finding that the negligence claim is immediately appealable does not mandate that all other issues in the claim determined are appealable. See Davidson, 93 N.C. App. at 27, 376 S.E.2d at 492. Each issue should be determined on its own merits. Id. Therefore, we address separately whether the trial court\u2019s entry of summary judgment for Miller on the indemnity claim affects a substantial right. We determine there exist no common factual issues in the claim determined and the claim remaining since indemnity is not an issue in Britt\u2019s claim against AmHoist. See Cook v. Export Leaf Tobacco Co., 47 N.C. App. 187, 266 S.E.2d 754 (1980) (appeal of indemnity issue does not ripen until conclusion of underlying action).\nII\nWe must now determine whether summary judgment was properly granted on the issue of Miller\u2019s negligence. AmHoist argues that evidence was forecast from which a jury could find Miller either engaged in a negligent act causing the incident at issue or may be found liable as a result of negligence imputed to it from Goodyear. The burden of establishing the lack of a genuine issue of material fact lies upon the movant. Boyce v. Meade, 71 N.C. App. 592, 593, 322 S.E.2d 605, 607 (1984), disc. rev. denied, 313 N.C. 506, 329 S.E.2d 390 (1985). The movant, Miller, produced evidence tending to show that the incident could have been caused by the negligence of either AmHoist employee Alden, the plaintiff, or by another of Goodyear\u2019s employees. Furthermore, Miller produced evidence tending to show that none of Miller\u2019s employees were in the vicinity at the time of the incident or affected the incident in any manner. Miller also showed that it did not train Britt and that it was not involved in directing Goodyear\u2019s operations. Since \u201cmovant\u2019s forecast, considered alone . . . [is] such as to establish his right to judgment as a matter of law,\u201d Caldwell v. Deese, 288 N.C. 375, 379, 218 S.E.2d 379, 381-82 (1975), the non-moving party \u201cmust in turn either show that a genuine issue of material fact exists for trial or must provide an excuse for not so doing.\u201d City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 654, 268 S.E.2d 190, 193 (1980). Since AmHoist produced no evidence of any negligent act or omission of Miller, summary judgment for Miller as to Miller\u2019s actual negligence was properly granted.\nSummary judgment was also properly granted as to potential liability of Miller imputed by law. As a matter of law, Miller cannot be held liable for the negligence of an employee of its subcontractor Goodyear, if there is no evidence of Miller\u2019s control of Goodyear\u2019s operations. See Rivenbark v. Atlantic States Const. Co., 14 N.C. App. 609, 188 S.E.2d 747, cert. denied, 281 N.C. 623, 190 S.E.2d 471 (1972). Here Miller produced evidence that it was not in control of the subcontractor\u2019s activities, and thus the subcontractor was independent. Since AmHoist did not come forward with evidence tending to prove that Miller controlled Goodyear and its employees, the negligence of Goodyear or its employees could not be imputed to Miller.\nThe appeal as to the enforceability of the indemnity clause is dismissed, and the summary judgment on Miller\u2019s negligence is affirmed.\nAffirmed in part, dismissed in part.\nJudges Eagles and Parker concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Anderson, Cox, Collier & Ennis, by Henry L. Anderson, Jr. and R. Alfred Patrick, for defendants and third-party plaintiff-appellants American Hoist and Derrick Company and Ray Alden.", "Marshall, Williams, Gorham & Brawley, by William Robert Cherry, Jr., for third-party defendant and fourth-party plaintiff-appellee Miller Building Corporation." ], "corrections": "", "head_matter": "JIMMY C. BRITT, Plaintiff v. AMERICAN HOIST & DERRICK COMPANY and RAY ALDEN, Defendants and Third-Party Plaintiffs v. MILLER BUILDING CORPORATION, Third-Party Defendant and Fourth-Party Plaintiff v. GOODYEAR MECHANICAL CONTRACTING COMPANY, INCORPORATED, Fourth-Party Defendant\nNo. 895SC432\n(Filed 20 February 1990)\n1. Appeal and Error \u00a7 6.2 (NCI3d)\u2014 summary judgment on negligence claim appealable \u2014 summary judgment on indemnity claim not appealable\nDefendant AmHoist could properly appeal summary judgment on its negligence claim against third party defendant Miller, though the appeal was interlocutory, since in the claim appealed, third party defendant Miller alleged plaintiff\u2019s contributory negligence; in the remaining claim defendant alleged plaintiffs contributory negligence, and these common allegations of negligence presented common factual issues which should be determined by the same jury. However, the trial court\u2019s entry of summary judgment for third party defendant on the indemnity claim did not affect a substantial right, as there existed no common factual issues in the claim determined and the claim remaining, since indemnity was not an issue in plaintiff\u2019s claim against defendant AmHoist.\nAm Jur 2d, Appeal and Error \u00a7 104.\n2. Negligence \u00a7 30.1 (NCI3d)\u2014 injuries on construction job \u2014 summary judgment for builder proper\nIn an action to recover for injuries sustained on a construction job, the trial court properly entered summary judgment for third party defendant builder on the issue of negligence where the builder offered evidence tending to show that the incident giving rise to the injury could have been caused by the negligence of an employee of defendant AmHoist, the plaintiff, or an employee of a subcontractor; none of the builder\u2019s employees were in the vicinity at the time of the incident or affected the incident in any manner; defendant builder had not trained plaintiff who worked for the subcontractor; and defendant builder was not involved in directing the subcontractor\u2019s operations.\nAm Jur 2d, Building and Construction Contracts \u00a7\u00a7 132, 134, 144.\n3. Master and Servant \u00a7 33 (NCI3d) \u2014 negligence of subcontractor \u2014 no imputation to contractor\nThe negligence of a subcontractor and its employees could not be imputed to the contractor where there was no evidence that the contractor controlled the subcontractor\u2019s operations.\nAm Jur 2d, Building and Construction Contracts \u00a7\u00a7 132, 134, 144.\nAPPEAL by defendants and third-party plaintiffs American Hoist & Derrick Company and Ray Alden from order entered 7 December 1988 by Judge James D. Llewellyn in New HANOVER Superior Court. Heard in the Court of Appeals 18 October 1989.\nAnderson, Cox, Collier & Ennis, by Henry L. Anderson, Jr. and R. Alfred Patrick, for defendants and third-party plaintiff-appellants American Hoist and Derrick Company and Ray Alden.\nMarshall, Williams, Gorham & Brawley, by William Robert Cherry, Jr., for third-party defendant and fourth-party plaintiff-appellee Miller Building Corporation." }, "file_name": "0442-01", "first_page_order": 470, "last_page_order": 474 }