Opinion
Case No. 5:22-CV-00243-M
2024-01-16
Lynne E. KRITTER, as Executor of the Estate of Eugene John Kritter, III, and Kritter Cropdusting, Inc., Plaintiffs, v. Brent MOORING, as Administrator CTA of the Estate of Murry Rayborn Daw; Daw Farms, Inc.; Nutrien Ag Solutions, Inc.; and William Jordan Elmore, Defendants.
Walter Thompson Comerford, Jr., Raleigh, NC, John Chilson, Zachary Morgan Harris, Comerford Chilson & Moser, LLP, Winston-Salem, NC, for Plaintiffs. Glenn A. Barfield, Haithcock, Barfield, Hulse & Kinsey, PLLC, Goldsboro, NC, Jay C. Salsman, Angela Sheets, Harris, Creech, Ward & Blackerby, P.A., New Bern, NC, for Defendant Brent Mooring. Donald E. Clark, Jr., Donald E. Clark, Jr., Attorney at Law, PLLC, Goldsboro, NC, for Defendant Daw Farms, Inc. Chris Kelly, Gallivan, White & Boyd PA, Charlotte, NC, Luke Westerman, Paul J. Lopach, Bryan Cave Leighton Paisner, LLP, Denver, CO, for Defendants Nutrien Ag Solutions, Inc., William Jordan Elmore.
Walter Thompson Comerford, Jr., Raleigh, NC, John Chilson, Zachary Morgan Harris, Comerford Chilson & Moser, LLP, Winston-Salem, NC, for Plaintiffs.
Glenn A. Barfield, Haithcock, Barfield, Hulse & Kinsey, PLLC, Goldsboro, NC, Jay C. Salsman, Angela Sheets, Harris, Creech, Ward & Blackerby, P.A., New Bern, NC, for Defendant Brent Mooring.
Donald E. Clark, Jr., Donald E. Clark, Jr., Attorney at Law, PLLC, Goldsboro, NC, for Defendant Daw Farms, Inc.
Chris Kelly, Gallivan, White & Boyd PA, Charlotte, NC, Luke Westerman, Paul J. Lopach, Bryan Cave Leighton Paisner, LLP, Denver, CO, for Defendants Nutrien Ag Solutions, Inc., William Jordan Elmore.
ORDER
RICHARD E. MYERS II, CHIEF UNITED STATES DISTRICT JUDGE
This matter comes before the court on three motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, filed respectively by Defendant Brent Mooring [DE 49], Defendants Nutrien Ag Solutions, Inc. and William Jordan Elmore [DE 54], and Defendant Daw Farms, Inc. [DE 63], one motion for partial summary judgment filed by Plaintiffs Lynne E. Kritter and Kritter Cropdusting, Inc. [DE 56], and three motions in limine pursuant to Rules 702 and 704 of the Federal Rules of Evidence, filed respectively by (all) Defendants jointly [DE 45; DE 47] and Plaintiffs [DE 53]. For the reasons that follow, Defendants' motions for summary judgment are granted, Plaintiffs' motion for partial summary judgment is denied, and the motions in limine are denied as moot.
I. Factual Background
A tragic, and fatal, helicopter crash gave rise to this action. In the crash, a cropdusting
helicopter struck a wire that had been installed above a farm field. The parties disagree about who, if anyone, was legally responsible for keeping the helicopter from striking the wire.
First, a brief summary of the relevant parties is warranted. Eugene Kritter ("Kritter") owned and operated Kritter Cropdusting, an agricultural company that primarily engaged in the aerial application of pesticides. DE 58-8 at 1. Kritter is now deceased, and survived by his wife Lynne, who is executor of his estate. DE 1 at 1. Murry Rayborn Daw ("Rayborn") owned certain land (the "subject field" or the "subject property") on which the relevant incidents occurred. DE 51-1 at 2. Rayborn is also deceased; Brent Mooring is his adopted son and administrator of Rayborn's estate. Id. Rayborn leased the subject property to Daw Farms, Inc. DE 51-2 at 2. Paul Daw ("Paul"), Rayborn's nephew, and Delanor Daw ("Delanor"), Rayborn's brother and Paul's father, own and operate Daw Farms. Id.; DE 58-5 at 22-23. Daw Farms hired Nutrien Ag Solutions, Inc. ("Nutrien"), an agricultural chemical company, to apply pesticides to the land it leased from Rayborn. DE 58-4 at 38. William Jordan Elmore ("Elmore") was a crop consultant employed by Nutrien who acted as the point of contact for Daw Farms. Id. Elmore, in turn, arranged for Kritter Cropdusting to apply Nutrien's chemicals to Daw Farms' fields. DE 58-6 at 77-78. Kritter flew the helicopter for Kritter Cropdusting. DE 58-8 at 1.
Because several Daws are involved in this matter, the court will refer to them by their preferred given names.
All pin cites to materials in the record will refer to the page numbers that appear in the footer appended to those materials upon their docketing in the CM/ECF system, and not to any internal pagination (such as this deposition transcript) which blends Roman and Arabic numerals.
Rayborn owned property in Wayne County, North Carolina, from 2005 until (his death in) November 2020. DE 51-1 at 2. From 2005 until approximately 2012, he farmed the land. Id. Rayborn also hunted on the land; in one of his fields, he implanted a large pole, and affixed a deer stand to that pole. DE 51-3 at 6. The pole was approximately 32 feet tall, and the deer stand was attached to the pole roughly ten feet above the ground. DE 51-4 at 3.
Rayborn also hunted doves in this field. To facilitate this activity, he attached a wire to the pole in the field and ran that wire to a tree that bordered the east region of the field. See DE 51-3 at 6-7. Doves would land on the wire and could then be hunted. DE 58-4 at 68. The wire was approximately 3/16-inch thick, DE 51-11 at 6, and spanned a distance of 265 feet, DE 51-4 at 3.
The wire was attached to the pole near its top, but the wire was not taut. See id. Therefore, the wire started at a height of approximately 31 feet, but bowed to a height of 21 feet, then rose again as it approached the tree line. See id. at 5; DE 58-4 at 71-72. At the relevant time, the field was used to grow corn, which reached a height of six to eight feet. DE 58-4 at 72. As such, at its lowest point, the dove wire would hang 13-15 feet above the tops of the corn.
Rayborn may have installed the wire as early as 2000. See DE 58-4 at 75 (deposition testimony from Paul that that Rayborn installed the wire 20 years before the helicopter crash); DE 58-5 at 69 (deposition from Delanor suggesting that the wire was affixed 20 to 25 years before the crash). But the wire likely had not been used to hunt doves for at least a decade before the crash. DE 58-5 at 77. From 2013-2015, Rayborn leased the subject property to an entity named Howell Farming. DE 51-1 at 3. Howell Farming used the land for farming. Id. Then, in 2016, Rayborn leased the property to Daw Farms. Id. There was no written lease agreement. DE 58-5 at 16. Daw Farms also used the land for farming. DE 58-4 at 18.
Notwithstanding the oral lease of the subject field to Daw Farms, Rayborn retained some control over his property. See id. at 75 (deposition testimony from Paul indicating that Rayborn was "very particular about his hunting land and fields"). For example, to access the subject field, one needed to pass through a locked gate, for which Rayborn held the key. DE 58-5 at 90-91; DE 58-4 at 114; DE 58-6 at 33. Additionally, although Paul and Delanor knew about the deer stand and the dove wire, they did not have permission to modify or remove them from the field. DE 58-4 at 109-10.
Daw Farms has operated since approximately 2005. Id. at 11. The operation grows sweet potatoes, soybeans, cotton, peanuts, corn, and wheat. Id. at 18. For as long as it has been in business, Daw Farms has dealt with stinkbug infestations. See id. at 19 (Paul testifying that stinkbugs began affecting cotton crop in late 1990's, and eventually other crops as well).
Remedying a stinkbug infestation often entails aerial application of pesticides to the infested crops. Id. at 21-22; see also DE 58-5 at 34-35. Daw Farms has hired professional pilots to conduct these aerial applications numerous times over the years. See id.; see also DE 58-5 at 34-35. Until 2019, those applications were made exclusively by fixed-wing aircraft. See id. Then, in June 2019, Daw Farms needed to spray its corn crop on the subject property with pesticides to address another stinkbug infestation. DE 58-4 at 24.
For this task, Daw Farms hired Nutrien, a chemical company, which in turn employed Elmore. Id. at 24-25. Elmore was local to the area and had previously seen the subject corn field once before, in 2016. DE 58-6 at 35. Elmore was riding in a combine in an adjacent field for several minutes, and saw what he thought was a telephone pole and attached power line in the corn field. Id. At that time, Elmore was helping his father with a project, and was not engaged in work for Nutrien. DE 58-5 at 46-47.
Nutrien provided the agricultural chemicals, but did not conduct the aerial application. DE 58-4 at 25. Instead, Nutrien arranged for a third party, Richard Wheeler, to apply the pesticides. Id. at 25-26. Wheeler used a helicopter for this task. DE 55-15 at 27.
Prior to the June 2019 spraying operation, Wheeler met with Elmore, who explained which fields needed to be sprayed. Id. at 72. They did not discuss the deer stand or the dove wire. DE 58-6 at 44-45; DE 55-15 at 72-73. Before beginning the aerial application, Wheeler performed a reconnaissance flight over the field. DE 55-15 at 76. He did not observe any apparent obstacles. Id. at 78.
Aerial applicators fly just above the level of the target crops. See id. at 29. As Wheeler dropped in to begin spraying the field, the sun was shining on the dove wire such that he could see it just in time to "hop[ ] over it." Id. at 79 (Wheeler describing avoidance of wire as "99 [percent] pure luck"). After his near collision with the dove wire, Wheeler continued and ultimately completed the aerial application. Id. at 88. He never told Elmore, Daw Farms, or Rayborn about the incident. Id. at 89-90. Daw Farms subsequently hired Nutrien to apply pesticides to its corn crop in 2020. DE 58-4 at 38. Their total acreage for the 2020 spraying operation was approximately 700 acres. Id. at 43. Elmore again acted as Daw Farms' point of contact with Nutrien. Id. at 45. For the 2020 cropdusting operation, Nutrien and Elmore arranged for Kritter Cropdusting to spray the subject property. DE 58-6 at 77-78.
Kritter Cropdusting was an established operation and Kritter was an experienced pilot, with over 19,000 hours of flight time on his record. DE 58-7 at 3. He had encountered wires in the past while cropdusting. DE 62-8 at 58. In fact, just the prior year, Kritter had struck a power line during a cropdusting operation in North Carolina but sustained only a minor injury. See DE 58-12 at 72-76. As a matter of course, he reminded his ground crew to be on the lookout for wires in fields. See id. at 98-99; DE 62-8 at 58-60. According to one of his ground crew members, farmers "never" warned Kritter about the presence of wires. DE 62-8 at 60.
The day before the planned cropdusting operation, John Anderson, a crew member for Kritter Cropdusting, met with Elmore. DE 58-6 at 82-83. Anderson asked that Elmore identify landing zones around the subject property so that Kritter could refuel over the course of the operation the following day. Id. at 84; see also DE 62-7 at 75, 80-81. Anderson also informed Elmore that, when Kritter arrived the next day, he would have an iPad and that Elmore should identify the fields to be sprayed with pins on the iPad. Id. at 84-85. Anderson did not make any inquiry as to potential hazards in any of the fields to be sprayed, and Elmore did not volunteer any such information. DE 58-6 at 160-61. Further, Anderson did not meet with Rayborn or anyone from Daw Farms. DE 62-7 at 88.
The next day, June 18, 2020, Kritter flew from Virginia to the subject property in Wayne County. DE 58-6 at 87; see also DE 62-7 at 110-11. Kritter and Elmore then met for the first time, and Elmore added pins to Kritter's iPad to identify the fields to be sprayed, as well as landing zones. Id. at 88-89. They did not discuss the deer stand or the dove wire. See id. at 92. Kritter did not meet with Rayborn or anyone from Daw Farms. DE 58-4 at 30-31.
Prior to the spraying operation, Kritter conducted several "flyovers" of the subject field. DE 58-8 at 1. Elmore was not present. DE 58-6 at 99. Nor were Rayborn, Paul, or Delanor. DE 51-1 at 3; DE 58-4 at 48; DE 58-5 at 61. Kritter was able to observe the pole and the affixed deer stand. DE 58-12 at 131. His crew was positioned adjacent to the field and could also see the pole. Id. There is no evidence in the record that Kritter, or any of his crew members, saw the dove wire. See id.
After the surveillance flyovers, Kritter landed at a landing zone to refuel and load the pesticides onto the helicopter. Id. at 132. He then then began the spraying operation. DE 58-8 at 1. Kritter was operating the helicopter approximately 3-5 feet above the level of the corn, which was roughly 6-feet tall. Id. During his second pass over the field, Kritter was flying the helicopter in a northerly direction when he struck the dove wire. Id. He did not survive the crash. Id.
II. Procedural History
Plaintiffs initiated this negligence action against Defendants on June 17, 2022. DE 1. The Complaint contends that Rayborn and Daw Farms, as owner and occupier of the subject property, breached their duty of care to Kritter by failing to maintain the premises in a safe condition and by failing to warn Kritter of the dove wire.
Id. at 7-9. The Complaint asserts a similar negligence claim against Elmore, id. at 9-11, and further alleges that Nutrien is liable for Elmore's conduct, id. at 11-12. The Complaint also contends that Nutrien was independently negligent. Id. at 12-14. Finally, the Complaint alleges that Defendants were grossly negligent, and engaged in a joint enterprise. Id. at 14-16. Plaintiffs seek compensatory and punitive damages. Id. at 16-18.
After the close of discovery, all parties moved for summary (or partial summary) judgment. DE 49; DE 54; DE 56; DE 63. Plaintiffs responded to Defendants' motions, DE 81; DE 83; DE 86, and (two) Defendants responded to Plaintiffs' motion, DE 72; DE 77. The motions are fully briefed and ready for decision. See DE 89; DE 90; DE 91.
III. Legal Principles
a. Summary Judgment Standards
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine question of material fact exists where, after reviewing the record as a whole, a court finds that a reasonable jury could return a verdict for the nonmoving party." Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012). At this stage, the court must not "weigh the evidence and determine the truth of the matter but [merely] determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining the existence of a genuine issue of material fact, the court "draw[s] all reasonable inferences in favor of the non-moving party." Emmons v. City of Chesapeake, 982 F.3d 245, 250 (4th Cir. 2020).
Nevertheless, "[t]he mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. To that point, a party's "[u]nsupported speculation is not sufficient to defeat a summary judgment motion," Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987), and any inference drawn in the non-movant's favor must not be "so tenuous that it rests merely upon speculation and conjecture," CTB, Inc. v. Hog Slat, Inc., 954 F.3d 647, 658 (4th Cir. 2020) (quoting Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241 (4th Cir. 1982)).
With those principles in mind, the moving party ultimately need not "produce evidence showing the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rather, "the burden on the moving party may be discharged by showing ... that there is an absence of evidence to support the non-moving party's case." Id. (internal quotation marks omitted). When the movant does so, the burden shifts to the nonmovant to "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted). A showing of specific facts requires "cit[ation] to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1)(A). The existence of "some metaphysical doubt as to the material facts [does not suffice]." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348.
b. North Carolina Negligence Law
"Because federal jurisdiction in this matter rests in diversity, [this court's] role is to apply the governing state law,"
which is, in this case, that of North Carolina. Stahle v. CTS Corp., 817 F.3d 96, 99-100 (4th Cir. 2016) (internal footnote omitted). Under North Carolina law, "[t]he elements of negligence are duty owed by defendants to plaintiffs and nonperformance of that duty proximately causing plaintiffs' injury." Royal v. Armstrong, 136 N.C. App. 465, 469, 524 S.E.2d 600, 602 (2000); Camalier v. Jeffries, 340 N.C. 699, 706, 460 S.E.2d 133, 136 (1995) ("It is well established that in order to prevail in a negligence action, plaintiffs must offer evidence of the essential elements of negligence: duty, breach of duty, proximate cause, and damages."). "[W]here there are no genuine issues of material fact and the plaintiff fails to show one of the elements of negligence," summary judgment is warranted. Lavelle v. Schultz, 120 N.C. App. 857, 859, 463 S.E.2d 567, 569 (1995).
A premises liability claim is a distinct species of negligence claim that addresses the duty of care owed by an owner or occupier of land to visitors. See Thomas v. Weddle, 167 N.C. App. 283, 290, 605 S.E.2d 244, 248 (2004); Bolick v. Bon Worth, Inc., 150 N.C. App. 428, 430, 562 S.E.2d 602, 604 (2002). In that regard, landowners and land-occupiers possess a nondelegable "duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors." Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998). When a negligence claim involves premises liability, "a plaintiff must show that the defendant either (1) negligently created the condition causing the injury, or (2) negligently failed to correct the condition after actual or constructive notice of its existence." Burnham v. S & L Sawmill, Inc., 229 N.C. App. 334, 340, 749 S.E.2d 75, 80 (2013) (internal quotation mark omitted). Landowners who lease their property to third parties still "owe[ ] a duty to [lawful visitors] for conditions over which [they] retain[ ] control." Holcomb v. Colonial Assocs., L.L.C., 358 N.C. 501, 508, 597 S.E.2d 710, 715 (2004); see also Lampkin ex rel. Lampkin v. Hous. Mgmt. Res., Inc., 220 N.C. App. 457, 461, 725 S.E.2d 432, 435 (2012) (holding that landowner's duty "coincides exactly with the extent of the landowner's control of his property").
Here, Rayborn is the owner, Daw Farms is the occupier, and Kritter is the visitor.
An owner or occupier's duty "requires that [they] not unnecessarily expose a lawful visitor to danger and give warning of hidden hazards of which [they have] express or implied knowledge." Shepard v. Catawba Coll., 270 N.C. App. 53, 64, 838 S.E.2d 478, 486 (2020). This duty also means that they must "make a reasonable inspection to ascertain the existence of hidden dangers." McCorkle v. N. Point Chrysler Jeep, Inc., 208 N.C. App. 711, 714, 703 S.E.2d 750, 752 (2010); see also Lorinovich v. K Mart Corp., 134 N.C. App. 158, 161, 516 S.E.2d 643, 645 (1999) (holding that owner or occupier must "either make [property] reasonably safe or give warnings as may be reasonably necessary to inform the [visitor] of any foreseeable danger").
Importantly, though, this duty of ordinary care "does not require perfect prescience." Fussell v. N. Carolina Farm Bureau Mut. Ins. Co., 364 N.C. 222, 226, 695 S.E.2d 437, 440 (2010). Neither are owners and occupiers "insurers of their premises." Nelson, 349 N.C. at 632, 507 S.E.2d at 892. Put another way, the mere fact of injury on one's property "would not be sufficient evidence to hold the defendant guilty of negligence taken by itself." Ricks v. Atl. Coast Line R. Co., 173 N.C. 696, 91 S.E. 363, 364 (1917). Thus, North Carolina premises liability law does not require "owners and occupiers of land to undergo unwarranted burdens in maintaining their premises." Nelson, 349 N.C. at 632, 507 S.E.2d at 892. Rather, their duty "extends only to causes of injury that were reasonably foreseeable and avoidable through the exercise of due care." Fussell, 364 N.C. at 226, 695 S.E.2d at 440. The requirement of reasonable foreseeability ensures that courts and juries do not "judge people's actions based on '20-20 hindsight,'" because negligence analysis involves determining "whether a person's actions were reasonable in light of the circumstances at the time of the actions." Pintacuda v. Zuckeberg, 159 N.C. App. 617, 623, 583 S.E.2d 348, 352 (2003) (emphasis added), rev'd on other grounds, 358 N.C. 211, 593 S.E.2d 776 (2004).
An owner or occupier's duty of care to lawful visitors is also subject to several exceptions. First, they "do[ ] not have to warn [a lawful visitor] of apparent hazards." Jenkins v. Lake Montonia Club, Inc., 125 N.C. App. 102, 105, 479 S.E.2d 259, 262 (1997). Second, they need not warn "of a condition of which the [lawful visitor] has equal or superior knowledge." Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 66, 414 S.E.2d 339, 344 (1992), abrogated on other grounds by Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998). Third, and related to the first two exceptions, "[t]he doctrine of contributory negligence will preclude a defendant's liability if the visitor actually knew of the unsafe condition or if a hazard should have been obvious to a reasonable person." Allsup v. McVille, Inc., 139 N.C. App. 415, 416, 533 S.E.2d 823, 824 (2000), aff'd, 353 N.C. 359, 543 S.E.2d 476 (2001).
As previously noted, "[a]ctionable negligence presupposes the existence of a ... duty ... imposed by law." Pinnix v. Toomey, 242 N.C. 358, 362, 87 S.E.2d 893, 897 (1955). Because such a duty is imposed by law, the question of "[w]hether a defendant owes a plaintiff a duty of care is a question of law." Davidson v. Univ. of N. Carolina at Chapel Hill, 142 N.C. App. 544, 552, 543 S.E.2d 920, 925 (2001). Questions of law are to be resolved by the court. Mozingo by Thomas v. Pitt Cnty. Mem'l Hosp., Inc., 101 N.C. App. 578, 588, 400 S.E.2d 747, 753 (1991), aff'd, 331 N.C. 182, 415 S.E.2d 341 (1992). On the other hand, if "there are disputed issues of material fact on the question of duty, th[e] matter cannot be resolved at summary judgment." Copeland v. Amward Homes of N.C. Inc., 269 N.C. App. 143, 150, 837 S.E.2d 903, 908 (2020).
IV. Analysis
a. Brent Mooring and Daw Farms
The court will consider Mooring and Daw Farms' motions in tandem because Rayborn and Daw Farms, as owner and occupier of the subject premises, possessed largely coextensive duties of care to lawful visitors such as Kritter. Mooring and Daw Farms primarily argue that Plaintiffs' negligence claim should fail because neither Rayborn nor Daw Farms owed a duty to Kritter as it relates to the dove wire because they are non-pilot lay-persons who "could not appreciate or understand what might constitute a hazard to a pilot." DE 52 at 10; see also DE 64 at 8-9. In response, Plaintiffs argue that Rayborn and Daw Farms should have appreciated the risk posed by the dove wire because they were experienced farmers who had used cropdusters in the past. DE 81 at 9; DE 83 at 16-17.
The court finds that Rayborn and Daw Farms' duty of care as owner and occupier of land did not extend to removing, modifying, or warning of the dove wire because the risk that wire posed to Kritter
was not reasonably foreseeable to them. The wire, as recounted previously, was suspended between 20 and 30 feet in the air. DE 51-4 at 3; DE 51-11 at 11. As a result, the wire could only pose a risk to a slight subset of lawful visitors. See 14 C.F.R. § 137.49 (permitting agricultural aircraft to operate "below 500 feet above the surface"). Given the infrequency with which a lawful visitor could interact with the dove wire, the record is unsurprisingly devoid of any direct evidence that the Daws appreciated that the wire could pose a hazard to Kritter. See DE 58-4 at 109 (testimony from Paul that he "didn't know [the wire] was a hazard"); Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548.
To that point, Rayborn, Paul, and Delanor are farmers, not pilots. DE 58-4 at 78; DE 58-5 at 9. One of Kritter's crew members testified that farmers "never" warned Kritter about the presence of wires on their properties, notwithstanding that Kritter encountered them in his work with some regularity. See DE 62-8 at 60; see also DE 58-12 at 98-99. This testimony corroborates the notion that laypersons are ill-equipped to ascertain what constitutes a hazard to a pilot engaged in a specialized occupation such as cropdusting.
Several other points bolster this conclusion. First, Wheeler, the pilot for the 2019 operation, testified that "99 percent of the population live[ ] their li[ves] with two feet on the ground. And if their tractor is not running into it, if their trucks aren't running into it, it — it doesn't stick out as an obstacle or a hazard to them." DE 62-5 at 54. And one of Plaintiffs' experts agreed that pilots have more knowledge about aerial hazards than laypersons. DE 59-12 at 159. This expert added that "anybody associated with aerial application knows that any wires are a hazard," but that a non-pilot may not be aware that wires are difficult for pilots to see because they "would [not] know much about the backdrop." Id. at 180-81. As it relates to the dove wire here, the expert further recounted that because "a co[ ]mbine could go underneath it, [the Daws] didn't consider it a farming hazard." Id. at 181. Taken together, this pilot testimony, like that of Kritter's crew member, further supports the point that aerial hazards to cropdusting professionals are not reasonably foreseeable to laypersons. See Fussell, 364 N.C. at 226, 695 S.E.2d at 440.
Further, Defendants cite a panoply of federal regulations and materials regarding pilot and aircraft safety. See DE 60 at 12-20; DE 52 at 10 (incorporating by reference those arguments in DE 60); DE 64 at 16-21. Many of these materials cite general propositions around aircraft safety that do not meaningfully impact the court's analysis. However, one Federal Aviation Administration Advisory Circular, FAC 61-134, instructs pilots of low-flying aircraft to avoid "depending upon untrained people to provide important flight data." DE 60-1 at 7. "Pilots are bound by 14 C.F.R. § 61.105(a) to be familiar with the information contained in [FAA Advisory Circulars]." Dyer v. United States, 832 F.2d 1062, 1069 (9th Cir. 1987). This federal guidance to pilots of low-flying aircraft, which in effect admonishes them to avoid reliance on laypersons for important flight data, provides further evidence that the Daws, as laypersons, should not be reasonably expected to anticipate what constitutes a hazard to a pilot.
Lastly, the court considers particularly relevant the fact that in 2019, for the first time, Daw Farms hired (through Nutrien) a pilot to apply pesticides to the subject corn field. DE 58-4 at 24. That pilot also used a helicopter. DE 55-15 at 27. Although the pilot had a near collision with the dove wire, he ultimately completed the aerial application and never told Elmore,
Daw Farms, or Rayborn about the incident. Id. at 88-90. As such, the Daws would have had no reason to suspect that the dove wire posed an unreasonable risk of harm to Kritter in 2020.
This concept of notice (or lack thereof) deserves brief further discussion because litigation involving aircraft collisions with wires is common. Based on its review of cases across jurisdictions, the court observes a unifying principle: that whether construction or maintenance of an inconspicuous wire amounts to negligence often turns (at least in part) on the extent to which the constructor either has notice that the wire has previously posed a risk to aircraft, see, e.g., Lee v. Farmer's Rural Elec. Co-op. Corp., 245 S.W.3d 209, 218 (Ky. Ct. App. 2007); Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 156 (Mo. 2000); McCauley v. United States, 470 F.2d 137, 138 (9th Cir. 1972); Mills v. Orcas Power & Light Co., 56 Wash.2d 807, 355 P.2d 781, 787-88 (1960); Yoffee v. Pennsylvania Power & Light Co., 385 Pa. 520, 542, 123 A.2d 636 (Pa. 1956), or does not have such notice, see, e.g., Poelstra v. Basin Elec. Power Co-op., 545 N.W.2d 823, 827 (S.D. 1996); Baine v. Oklahoma Gas & Elec. Co., 850 P.2d 346, 348 (Okla. Ct. App. 1992); Florida Power & Light Co. v. Lively, 465 So. 2d 1270, 1274 (Fla. Dist. Ct. App. 1985); Walker v. Texas Elec. Serv. Co., 499 S.W.2d 20, 26 (Tex. Civ. App. 1973); Gunn v. Edison Sault Elec. Co., 24 Mich.App. 43, 179 N.W.2d 680, 682-83 (1970). The importance of notice to the landowner also features prominently in North Carolina's common law. See Burnham, 229 N.C. App. at 340, 749 S.E.2d at 80; see also Asher v. Huneycutt, 284 N.C. App. 583, 593, 876 S.E.2d 660, 669 (2022) (holding that landlord was not negligent in maintaining steps in garage because previous tenants had used steps without reporting any issues); Thomas v. Weddle, 167 N.C. App. 283, 290, 605 S.E.2d 244, 249 (2004) (finding storeowner not negligent when pet kitten attacked patron because kitten was not inherently dangerous and storeowner had no advance knowledge of danger kitten would pose).
When a federal court sitting in diversity is tasked with discerning interpretation of North Carolina law, "[i]f there are no governing opinions from the Supreme Court of North Carolina, the court may consider the ... practices of other states." Barlean's Organic Oils, LLC v. Am. Cultivation & Extraction Servs., LLC, No. 1:22-CV-00555, 2023 WL 3689529, at *5 (M.D.N.C. May 26, 2023).
Taken together, the court concludes that (1) the lack of direct evidence of Defendants' appreciation of the risk, (2) the testimony from Wheeler, (3) the testimony from one of Plaintiffs' experts, (4) the testimony from one of Kritter's crew members, (5) the FAA guidance to pilots to avoid reliance on laypersons, (6) the (apparently) uneventful 2019 pesticide application to the subject field, and (7) the importance of notice in wire-strike jurisprudence collectively provides compelling evidence that the risk posed by the dove wire was not reasonably foreseeable to Rayborn or Daw Farms. See Fussell, 364 N.C. at 226, 695 S.E.2d at 440.
On the other side of the ledger, it is true that Rayborn, Paul, and Delanor had used cropdusters in the past. DE 58-4 at 21-22; see also DE 58-5 at 34-35. But there is scant evidence in the record to suggest that they had observed these crop-dusting operations with sufficient regularity to appreciate that the dove wire would have posed a hazard to Kritter. The Daws farmed hundreds if not thousands of acres of land; meaningful observation of crop-dusting operations would have been physically impossible. See id. at 94 (Paul testifying, in context of 2020 spraying operation,
that "[n]o human being can physically [scout 700 acres]").
As for record evidence that the Daws actually observed cropdusters as they operated, Paul testified that he watched the 2019 cropdusting operation "for a little bit." Id. at 28. And Delanor testified that he once saw a fixed-wing cropduster flying so low over a row of crops that it "had beans on [its] wheels." DE 58-5 at 50. The Daws took no part in planning the 2020 cropdusting operation beyond identifying the fields to be sprayed. Id. at 55. And none of them were present to observe the 2020 cropdusting operation. DE 51-1 at 3; DE 58-4 at 48; DE 58-5 at 61. Those facts (among others) distinguish this case from Martishius v. Carolco Studios, where the defendant landowner was aware that the plaintiff was constructing a movie set in close proximity to its power lines, "inspected [the] activities every day[,] and was on the scene when the holes were dug to insert telephone poles within a foot or two of the power lines." Martishius v. Carolco Studios, Inc., 142 N.C. App. 216, 224, 542 S.E.2d 303, 308 (2001), aff'd, 355 N.C. 465, 562 S.E.2d 887 (2002).
At this stage, the court draws inferences in Plaintiffs' favor, but those inferences must be reasonable. Emmons, 982 F.3d at 250. An inference from the limited testimony cited above that Paul or Delanor possessed sufficient knowledge of helicopter cropdusting mechanics (such as the height and direction that Kritter would fly over the subject field in 2020) to impose on them a duty of care as it relates to the dove wire would be "so tenuous that it rests merely upon speculation and conjecture." CTB, Inc., 954 F.3d at 658. The court may not draw such a tenuous and unreasonable inference in Plaintiffs' favor.
Further, Plaintiffs contend that Rayborn "knew that crop dusters flew low to the ground and would be in direct conflict with his cable." DE 81 at 9. But Plaintiffs cite no evidence to support this contention, and a party opposing summary judgment must present "specific facts," Matsushita, 475 U.S. at 587, 106 S.Ct. 1348, by directing the court to "particular parts of materials in the record," Fed. R. Civ. P. 56(c)(1)(A), not by merely offering "unsupported speculation," Felty, 818 F.2d at 1128.
In sum, "after reviewing the record as a whole, [the] court finds that a reasonable jury could [not] return a verdict for [Plaintiffs]." Dulaney, 673 F.3d at 330. On the issue of the Daws' duty to Kritter as landowner and land-occupiers, Plaintiffs' evidence is limited to the Daws' knowledge of the existence of the dove wire and Kritter's collision with the same. But, as detailed previously, their knowledge of the wire's existence cannot fairly be equated with reasonable foreseeability of harm, and the fact of injury on one's property "would not be sufficient evidence to hold the defendant guilty of negligence taken by itself." Ricks, 173 N.C. at 696, 91 S.E. at 364. Because "[t]here are no genuine issues of material fact and [P]laintiff[s] fail[ed] to show one of the elements of negligence, [duty]," summary judgment is warranted. Lavelle, 120 N.C. App. at 859, 463 S.E.2d at 569.
Several other arguments briefed by the parties deserve mention. First, Mooring contends that Rayborn also had no duty to warn Kritter of the dove wire because it was open and obvious, and because Kritter had equal or superior knowledge of it. DE 52 at 10-13. Daw Farms makes the same argument, DE 64 at 8, and further asserts that Kritter was contributorily negligent, id. at 16-21. The court can consider these arguments together, for a "defendant has no duty to warn of an open and obvious condition
because a plaintiff is [contributorily] negligent if he fails to reasonably adjust his behavior in light of an obvious risk." Draughon v. Evening Star Holiness Church of Dunn, 374 N.C. 479, 483, 843 S.E.2d 72, 76-77 (2020).
Based on the available record, the court cannot conclude that the dove wire was an open and obvious condition to Kritter. As noted previously, the wire was only 3/16 of an inch thick. DE 51-11 at 6. An expert report further observes that the wire was "weathered from exposure to the elements." DE 55-8 at 5. The signatories of that report conducted an accident reconstruction, using a drone and camera that emulated human vision. See id. at 9-10. They concluded that, given Kritter's likely rate of speed in the helicopter, he would not have seen the wire with "enough time to begin maneuvering the craft before he reached the cable's location." Id. at 12-13. Further, the fact that Kritter conducted several flyovers of the subject field, but apparently did not see the wire, substantiates that the wire was not open and obvious to him. See DE 58-8 at 1. The cases cited as support by Defendants involved pedestrians tripping over items such as steps, curbs, and mechanic's equipment. See, e.g., Draughon, 374 N.C. at 485, 843 S.E.2d at 78; Currin v. Rex Healthcare, Inc., 232 N.C. App. 521, 757 S.E.2d 526 (2014); Holland v. Malpass, 266 N.C. 750, 752, 147 S.E.2d 234, 237 (1966). Kritter's helicopter was moving significantly faster than a pedestrian, and the dove wire was less conspicuous then a curb, step, or jack. See generally DE 55-8. Those cases, therefore, do not support the notion that the dove wire was an open or obvious condition.
Because the dove wire was not open and obvious, Kritter did not have "equal or superior knowledge" of the wire as Defendants. See Von Viczay v. Thorns, 140 N.C. App. 737, 739, 538 S.E.2d 629, 631 (2000), aff'd, 353 N.C. 445, 545 S.E.2d 210 (2001). Daw Farms contends that Kritter had equal or superior knowledge of the dove wire because "he knew about [them] and had encountered them before." DE 64 at 21. But whether Kritter generally possessed greater knowledge of a certain category of hazard relates to foreseeability of harm, not to whether a specific hazard (the dove wire in the subject field) was open and obvious to him.
On that point, Daw Farms' argument that Kritter was contributorily negligent falls short, but the court does consider that argument as further support for its finding that the danger posed by the dove wire was not reasonably foreseeable to Daw Farms or Rayborn. By all accounts, Kritter conducted his pre-flight due diligence in accordance with industry standards. See, e.g., DE 62-6 at 27-29; DE 55-15 at 76-77; DE 55-20 at 168; DE 55-17 at 225. That pre-flight due diligence did not uncover the existence of the dove wire, and "the law does not require a person to shape his behavior by circumstances of which he is justifiably ignorant." Shelton v. Steelcase, Inc., 197 N.C. App. 404, 424, 677 S.E.2d 485, 499 (2009). Even so, the record reflects that Kritter knew wires posed a hazard to his work, had regularly encountered them in the past, had struck one as recently as 2019, and operated in an industry in which his clients never warned him about their presence. See DE 62-8 at 58-60; DE 58-12 at 72-76, 98-99.
With those considerations in mind, pre-flight inquiry by an aerial applicator of pesticides as to the presence of wires appears prudent, and the record does not indicate that Kritter made such an inquiry.
The National Transportation Safety Board Preliminary Report of the accident states that Kritter "met with the landowner to discuss the scope of work and any potential hazards." DE 58-8 at 1 (emphasis added). But that statement is inconsistent with the rest of the record: Kritter met with Elmore, who did not own any of the land to be sprayed in 2020. See DE 58-6 at 23. Kritter did not meet with the Daws. DE 58-4 at 30-31. And the record lacks any evidence that Kritter discussed potential hazards with Elmore. DE 58-6 at 92.
Notwithstanding that lack of inquiry, the court does not find that Kritter was contributorily negligent as a matter of law, based both on the consensus testimony that he engaged in appropriate due diligence, and because negligence analysis, including contributory negligence analysis, should not be influenced by the benefit of "20-20 hindsight." Pintacuda, 159 N.C. App. at 623, 583 S.E.2d at 352.
Nevertheless, this case embodies a classic information gap that the expert is best positioned to address: Kritter knew wires posed a danger, but did not know of this particular wire. Daw Farms and Rayborn knew of this particular wire, but did not know that it would pose a danger to Kritter. Kritter was the expert in the transaction, and so the burden of ensuring the safety of the transaction should fall to him. See McKinney v. Greater Gethsemane Afr. Methodist Episcopal Zion Church of Charlotte, N.C., Inc., 234 N.C. App. 665, 763 S.E.2d 17 (table), 2014 WL 2993982 at *3 (affirming summary judgment in favor of defendant landowner after tree cutter fell from ladder in part on trial court's finding that landowner was not "aware of the danger involved in removing the tree limb" and tree cutter "w[as] experienced with such tasks"). Thus, although the court concludes that Kritter was not contributorily negligent, it does find that his expertise, as compared to the Daws' status as non-pilots, better positioned him to address risks inherent in his profession and supports a finding that the risk posed by the dove wire was not reasonably foreseeable to the Daws.
Lastly, the parties disagree as to whether the independent contractor exception should apply. Compare DE 52 at 13-16, with DE 81 at 16-18; compare also DE 64 at 7-9, with DE 83 at 9-11. In certain circumstances, where "a landowner relinquishes control and possession of property to a contractor, the duty of care, and the concomitant liability for breach of that duty, are also relinquished and should shift to the independent contractor who is exercising control and possession." McCorkle, 208 N.C. App. at 715, 703 S.E.2d at 753. Phrased another way, the landowner need not provide "proper safeguards against dangers which may be incident to the work undertaken by the independent contractor." Smith v. Schlage Lock Co., LLC, 986 F.3d 482, 490 (4th Cir. 2021) (quoting Cook v. Morrison, 105 N.C. App. 509, 515, 413 S.E.2d 922, 926 (1992)).
The cases involving the independent contractor exception are not directly on point, because they all involve injuries that resulted from a contractor's interaction with a condition that served some function in the work undertaken by the contractor. For example, in McCorkle, the plaintiff, a painting subcontractor for a construction project, fell in a stairway in a newly constructed building when a temporary handrail in that building broke. McCorkle, 208 N.C. App. at 712, 703 S.E.2d at 751. In Cook, the plaintiff was installing a septic system on the defendant's property when a trench he had excavated for that task collapsed. Cook, 105 N.C. App. at 512, 413 S.E.2d at 924. And in Smith, the plaintiff was allegedly exposed to asbestos while working as a pipefitter during construction
of a plant for the defendant. Smith, 986 F.3d at 485.
Unlike the injury-causing conditions in those cases, the dove wire served no purpose in Kritter's aerial application of pesticides to Daw Farms' fields. It was purely a non-functional obstacle. However, those cases, as well as others cited therein, are helpful to the court's analysis on the issue of foreseeability of injury because they reiterate the principle that landowners "usually hire[ ] an independent contractor because of the contractor's expertise in the type of work involved." Jones v. Chevron U.S.A., Inc., 718 P.2d 890, 895 (Wyo. 1986) (cited approvingly in McCorkle). As the Fourth Circuit in Smith similarly explained, the defendant in that case "produced locks" and did not "ha[ve] any expertise in building construction." Smith, 986 F.3d at 490. Or, as the court recounted in Cook, the defendant "had never built a house" and "did not know how to dig a trench." Cook, 105 N.C. App. at 516, 413 S.E.2d at 926.
Courts have also presented differing views as to whether the independent contractor exception applies when the landowner exercises no control over the work, see Cook, 105 N.C. App. at 515, 413 S.E.2d at 926; Smith, 986 F.3d at 490; Wagers v. SGL Carbon, LLC, No. 2:10-CV-02916, 2011 WL 1337154, at *4 (E.D. Pa. Apr. 6, 2011) (applying North Carolina law), or retains no control over the injury-causing condition, see McCorkle, 208 N.C. App. at 716, 703 S.E.2d at 753. When the injury-causing condition is a component of the work undertaken by the contractor, this distinction makes little difference. But where, as here, the dove wire did not serve Kritter's task, the distinction is material. Rayborn had no control over Kritter's work, and did not even know it was taking place, DE 51-1 at 3, but he retained complete control over the deer stand and dove wire, DE 58-4 at 109-10. Given the varying articulations of the exception, as well as its application in factually dissimilar circumstances, the court does not find it should apply as a matter of law.
Likewise here, Rayborn, Paul, and Delanor were farmers. See DE 58-5 at 9. They were not pilots and had no input on the manner in which Kritter conducted his work. See DE 58-4 at 78. Daw Farms hired Kritter to perform a task that they could not. As such, although the court would not find as a matter of law that the independent contractor exception applies in this case, Defendants' lack of expertise in the work undertaken by Kritter, as well as their lack of control over his work, both are factors that support the court's finding that the risk posed to Kritter by the dove wire was not reasonably foreseeable to them.
In sum, the court finds that no reasonable juror could find that Rayborn or Daw Farms were negligent, because the risk posed by the dove wire was not reasonably foreseeable to them. Because that risk was not reasonably foreseeable, their duty of care as landowner and land-occupiers did not extend to removing, modifying, or warning of it. See Fussell, 364 N.C. at 226, 695 S.E.2d at 440. The court will therefore grant Mooring and Daw Farms' motions for summary judgment.
Because of the disposition of the negligence claim as to these Defendants, the court likewise finds that these Defendants are entitled to summary judgment on the issue of gross negligence and punitive damages.
b. Nutrien & Elmore
Nutrien and Elmore also move for summary judgment. DE 54. Their arguments, like those of Mooring and Daw Farms, center on their duty of care. See generally DE 60. In that regard, they contend that they owed no duty to Kritter because (1) they were not the landowner, id. at 9-11, (2) their role was limited to supplying chemicals and scheduling the aerial application, id. at 11-12, (3) Kritter was a professional pilot, id. at 12-20, and (4) they
were unaware of the dove wire, id. at 20-22. Plaintiffs oppose each of these arguments. DE 86 at 10-19.
As an initial matter, the court finds that Plaintiffs' negligence claim against Nutrien and Elmore does not sound in premises liability. A premises liability claim addresses a landowner or landoccupier's duty of care to a lawful visitor. See Shepard, 270 N.C. App. at 59, 838 S.E.2d at 483. Nutrien and Elmore were not owners or occupiers of the subject field.
North Carolina law does recognize a theory of premises liability based on a duty of care owed from a general contractor to its subcontractors. See, e.g., McCorkle, 208 N.C. App. at 713, 703 S.E.2d at 752; Langley v. R.J. Reynolds Tobacco Co., 92 N.C. App. 327, 329, 374 S.E.2d 443, 445 (1988); Wellmon v. Hickory Const. Co., 88 N.C. App. 76, 80, 362 S.E.2d 591, 593 (1987); Cowan v. Laughridge Const. Co., 57 N.C. App. 321, 324, 291 S.E.2d 287, 289 (1982). But those cases have exclusively arisen in the construction context, see generally id., and Plaintiffs do not develop any argument that such a theory should be applied in the factual circumstances present here, see DE 86 at 14 (merely arguing that theory applies because Elmore and Nutrien "invit[ed Kritter] onto Daw Farms' land"). Not only did Nutrien and Elmore exercise significantly less control over the subject field than a general contractor over a job site, see DE 58-6 at 33, but Kritter's injury did not result from a condition created by Nutrien or Elmore; that distinction differentiates this case from those involving general contractors and subcontractors. See, e.g., McCorkle, 208 N.C. App. at 713, 703 S.E.2d at 752 (plaintiff fell in stairway after temporary handrail built by defendant collapsed); Langley, 92 N.C. App. at 330, 374 S.E.2d at 445 (injury due to fall through canopy that defendant damaged then placed plywood over); Wellmon, 88 N.C. App. at 81, 362 S.E.2d at 593 (plaintiff injured when welding near barrel of flammable sealant that defendant had left in the middle of jobsite for several weeks); Cowan, 57 N.C. App. 321, 325, 291 S.E.2d 287, 290 (plaintiff injured in fall from ramp that defendant constructed on jobsite). In short, extending a premises liability claim to the relationship between an agricultural chemical company that schedules a cropdusting and an aerial applicator of those chemicals is unwarranted.
Plaintiffs' alternative theory of liability is that Nutrien and Elmore engaged in an undertaking, coordinating a crop-dusting operation, and therefore assumed a duty to ensure that operation was completed in a safe manner. See DE 86 at 10-13. This theory likewise lacks merit and is factually unsupported by the record.
Undertaking liability imposes a duty of ordinary care upon those who "enter[ ] upon an active course of conduct." Davidson & Jones, Inc. v. New Hanover Cnty., 41 N.C. App. 661, 666, 255 S.E.2d 580, 584 (1979). For example, an architect "is required to exercise the ability, skill, and care customarily used by architects upon such projects." Id. at 667, 255 S.E.2d at 584. And a surveyor or civil engineer must "exercise that degree of care which a surveyor or civil engineer of ordinary skill and prudence would exercise under similar circumstances." Id. at 668, 255 S.E.2d at 585. Or, articulated more generally, a professional engaged in an occupation possesses a duty to "exercise his best judgment in the performance of work for which his services are engaged, within the limits of such calling." Firemen's Mut. Ins. Co. v. High Point Sprinkler Co., 266 N.C. 134, 140, 146 S.E.2d 53, 59 (1966) (emphasis added). Simply put, the common law requires those who set out to complete a particular task to exercise due care in completing that task. See Davidson & Jones, 41 N.C. App. at 666, 255 S.E.2d at 584. But the law does not require them to "exceed the limits of [their] calling." Firemen's Mutual, 266 N.C. at 140, 146 S.E.2d at 59. To that point, a newspaper company does not have a duty to treat as confidential a customer's "stop delivery" requests because that company's "course of conduct... was newspaper delivery and stopping that delivery while [customers] were on vacation." Lambeth v. Media Gen., Inc., 167 N.C. App. 350, 353, 605 S.E.2d 165, 168 (2004).
Here, application of the foregoing principles leads the court to conclude that Nutrien and Elmore's undertaking did not extend to inspecting the fields to be sprayed or warning Kritter of any potential hazards in fields that they were under no obligation to inspect and in fact could not inspect. Nutrien and Elmore were responsible for providing the agricultural chemicals, scheduling the cropdusting operation, and identifying the fields to be sprayed. See DE 58-6 at 52 (testimony from Elmore that the level of service he provided to Daw Farms "was basically just deliver seed, and chemicals, and fertilizer to their operation"), 79 (recounting that, once Kritter Cropdusting agreed to spray the fields, Elmore "didn't have any direction or information [from them] until the day before the spraying operation occurred"), 84 (discussing pre-flight conversation with Kritter's crew member, wherein crew member asked for identification of fields and landing zones). Daw Farms did not hire Nutrien or Elmore to inspect its fields. DE 58-4 at 54. In fact, many of Daw Farms' fields were gated, and Elmore did not have access to them. Id. at 111; DE 58-6 at 33-34. And Paul described the task of physically inspecting 700 acres of mature corn fields as one that "[n]o human being can physically do." Id. at 94.
Plaintiffs fight this conclusion with a series of assertions, few of which find evidentiary support in the record. For example, Plaintiffs contend that "Elmore voluntarily made himself the sole link between the farmers and the pilot through which any and all critical information would flow." DE 86 at 11. Plaintiffs continue by asserting that Kritter was "forced to rely upon Elmore to provide the necessary information to complete the operation safely," and that he never had "the opportunity to speak with any representative of Daw Farms." Id. But the deposition testimony cited to support those contentions only establishes that Elmore was the point of contact between Daw Farms and Kritter, not that the parties intentionally aligned themselves in a way so as to preclude Kritter's access to the Daws. See DE 58-4 at 29 (Paul's testimony that Elmore "was going to arrange everything"); DE 58-5 at 59 (Delanor's testimony that information from Daw Farms to Kritter "went through [] Elmore"); DE 58-6 at 163 (Elmore's testimony that he was unaware of any contact between Daw Farms and Kritter). To infer from that testimony that Kritter was somehow forbidden from contacting the Daws as he prepared for the 2020 spraying operation, and required to interact only with Elmore, would be "so tenuous that it rests merely upon speculation and conjecture." CTB, Inc., 954 F.3d at 658. The court will not draw such an inference in Plaintiffs' favor. See Emmons, 982 F.3d at 250.
Plaintiffs further argue, without citation to the record, that Kritter and his crew "relied upon [ ] Elmore to be familiar with the fields to be sprayed, and to provide them with what they needed to accomplish the operation safely." DE 86 at
12. In that sense, Plaintiff's argument is facially consistent with a theory of undertaking liability because "[c]ases involving whether a professional owes a duty of care to a third party are often analyzed based on negligent misrepresentation." Lamb v. Styles, 263 N.C. App. 633, 641, 824 S.E.2d 170, 177 (2019). Negligent misrepresentation involves justifiable reliance by a party "to his detriment on information prepared without reasonable care by one who owed the relying party a duty of care." Raritan River Steel Co. v. Cherry, Bekaert & Holland, 322 N.C. 200, 206, 367 S.E.2d 609, 612 (1988). In Lamb, for example, North Carolina's Court of Appeals held that a land surveyor owed no duty of care to an adjoining landowner who relied on an erroneous survey conducted for the landowner's neighbor because the surveyor conducted the survey for the neighbor and did not intend for the landowner to rely upon it. Lamb, 263 N.C. App. at 642, 824 S.E.2d at 177; see also Davidson & Jones, 41 N.C. App. at 667, 255 S.E.2d at 584 (analyzing whether contractor could rely upon soil and subservice report that architect prepared for county).
However, there can be no justifiable reliance where there is no reliance. And here, the record does not reflect that Kritter or his crew relied upon Elmore or Nutrien to identify hazardous conditions in the subject field. When Elmore met with Anderson, Kritter's crew member, the day before the operation, Anderson asked that Elmore identify the fields to be sprayed and landing zones; no inquiry was made as to potential hazards. DE 58-6 at 82-85; DE 62-7 at 75, 80-81. Elmore reportedly offered to drive Anderson around some of the fields to be sprayed, but Anderson declined that offer. Id. at 84-85. The next day, when Kritter arrived, Elmore marked the fields to be sprayed on Kritter's iPad, but Kritter never asked about hazards. Id. at 88-90. Plaintiffs' unsupported assertion that Kritter and his crew relied upon Nutrien and Elmore to inform them as to aerial hazards in the subject fields "is not sufficient to defeat a summary judgment motion." Felty, 818 F.2d at 1128. On the topic of reliance, one final piece of evidence in the record warrants discussion: Elmore's reported knowledge of the dove wire. As noted previously, Elmore worked near (though not in) the subject field on one occasion, four years prior to Kritter's accident. See DE 58-6 at 35. He was riding in a combine and saw what he thought was "a line and telephone pole" in the subject field, but "didn't really pay it no attention really." Id. From that limited exposure to the dove wire, and limited testimony, Plaintiffs contend that Elmore (and, by extension, Nutrien) "knew the cable had been installed across Rayborn's Field" and knew that Kritter would fly "right where the cable was strung." DE 86 at 4-5; see also id. at 7 (asserting that, despite this knowledge, Elmore "did not mention the wire's presence"), 8 (averring that Elmore "did not mention the wire" to any of Kritter's crew), 8 (describing as "undisputed that Jordan Elmore knew that the wire was hanging across Rayborn's Field"), 13 (stating that, notwithstanding his knowledge of the wire, Elmore "instructed [] Kritter to spray Rayborn's Field without providing him any warning about the wire").
The only evidence in the record that Kritter potentially asked Elmore about hazards in the subject field is a 4:48pm telephone call from Kritter to Elmore that reportedly occurred while Kritter was refueling. See DE 58-14. One of Kritter's crew members testified that he could hear Kritter on phone and recalled that Kritter asked Elmore if there was anything he "need[ed] to be aware of on this farm." DE 59-10 at 127. The crew member indicated that he interpreted this question to relate to potential hazards in the field. See id. However, the record provides a different context for that call. Just prior to the 4:48pm call, Kritter was in the process of spraying another one of Daw Farms' fields that was located near a housing subdivision. DE 53-6 at 103. The field spanned a ditch, and north of the ditch the field narrowed and was surrounded on three sides by the subdivision. Id. Kritter wanted to know whether he needed to spray the narrow northern portion of the field, likely because there was a risk of the pesticides drifting into the subdivision. See DE 58-14. Elmore recalled that he missed a call from Kritter, and then received a text message from him — that recollection is consistent with the record, which reflects a text message and call from Kritter to Elmore at 4:35pm. See id.; see also DE 59-14. Elmore testified that he and Kritter then spoke on the phone (the 4:48pm phone call), and Elmore informed Kritter that he did not have to spray the narrow northern portion of the field that was surrounded by the subdivision. See DE 58-14; DE 59-14; DE 58-6 at 103-04. Elmore testified that this was his only conversation with Kritter other than the pre-flight briefing and that Kritter never asked him about hazards. DE 58-6 at 92. Moreover, Kritter had sprayed several fields before the subject field, and his call log does not reflect any other phone calls to Elmore, undercutting the theory that Kritter called Elmore to inquire as to hazards before spraying each field. Thus, consideration of the entire record demonstrates that the 4:48pm phone call related to a different field, not the subject field. See DE 59-14. Even assuming Kritter's question was intended to address hazards in the subject field, there is no evidence that Elmore made any assurances to Kritter that the field was free of hazards. See DE 59-10 at 127; DE 58-6 at 92. In short, to find justifiable reliance, the court would have to infer that (1) the phone call addressed the subject field (and disregard the contradictory record evidence referenced above), (2) Elmore interpreted Kritter's question to relate to hazards (notwithstanding his testimony to the contrary), (3) Elmore then informed Kritter that there were no hazards in the subject field, and (4) Kritter then relied on Elmore's assurances. This highly speculative chain of supposition is insufficient to create a genuine issue of material fact.
Even if the court were to infer that Elmore's passing glance at the subject field and dove wire (no doubt, one of countless fields in which Elmore worked) several years prior to the accident was sufficient to establish that he had actual or constructive notice of the wire, the issue is a red herring because (1) the record does not reflect that Kritter or any of his crew ever inquired as to hazards in the subject field (or any other field), see supra n.8, and (2) there is no evidence in the record from which the court could conclude that Nutrien and Elmore's undertaking included providing unsolicited warnings to Kritter about hazards. To reiterate, Nutrien and Elmore were responsible for providing the agricultural chemicals, scheduling the cropdusting operation, and identifying the fields to be sprayed. See DE 58-6 at 52, 79, 84. Unlike McCorkle, a case relied upon by Plaintiffs, Nutrien and Elmore were not responsible for "job site safety and the supervision of any [other] contractors needed to carry out the [cropdusting] project." McCorkle, 208 N.C. App. at 712, 703 S.E.2d at 751.
Because the record lacks evidence from which a reasonable factfinder could conclude that Nutrien and Elmore's undertaking extended to inspecting the fields for aerial hazards, or that Kritter and his crew justifiably relied on any representation from Elmore regarding hazards, Nutrien and Elmore have shown entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Because of the disposition of the negligence claim as to these Defendants, the court likewise finds that these Defendants are entitled to summary judgment on the issue of gross negligence and punitive damages.
c. Plaintiffs' Motion
Plaintiffs also move for partial summary judgment as to all Defendants on the issue of liability. DE 56. The court has concluded that no Defendant owed Kritter a duty of care as it pertains to the dove wire, for the reasons discussed previously. Therefore,
Plaintiffs have not shown entitlement to judgment as a matter of law, and their motion is denied.
d. Motions in Limine
Plaintiffs and Defendants also filed several motions in limine, seeking to strike certain expert testimony and/or exclude certain testimony from trial. DE 45; DE 47; DE 53. In light of the dispositions of the summary judgment motions, the motions in limine are denied as moot.
The court did not rely on any expert testimony that was subject to a motion in limine for purpose of this order.
V. Conclusion
"Negligence is not presumed simply because an accident has occurred." Cowan, 57 N.C. App. at 323, 291 S.E.2d at 289. In the present case, a tragic accident occurred, but the record reflects a lack of evidence from which a reasonable juror could conclude that any Defendant owed Kritter a duty of care to remove, modify, or warn of the dove wire. The risk posed by that wire was not reasonably foreseeable to the Daws, and the imposition of such a duty would exceed Nutrien and Elmore's undertaking. In the absence of evidence establishing a duty of care, there is no genuine dispute as to any material fact and Defendants are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Accordingly, the court GRANTS Defendants' summary judgment motions [DE 49; DE 54; DE 63], DENIES Plaintiffs' partial summary judgment motion [DE 56], and DENIES AS MOOT the motions in limine [DE 45; DE 47; DE 53].
SO ORDERED this 16th day of January, 2024.