Opinion
No. 07-311.
Filed February 5, 2008.
New Hanover County No. 04 CVS 1315.
Appeal by third-party plaintiff S ME, Inc. from order entered on or about 12 December 2006 by Judge Paul L. Jones in Superior Court, New Hanover County. Heard in the Court of Appeals 18 September 2007.
Hogue, Hill, Jones, Nash, Lynch, LLP, by Anna J. Averitt, and Johnson Lambeth Brown, by Robert White Johnson, for third-party plaintiff-appellants. Cranfill Sumner Hartzog, LLP, by William W. Pollock, for third-party defendant-appellee.
Third-party plaintiff S ME, Inc. ("S ME") appeals from order granting summary judgment in favor of third-party defendant Concrete Cable Structures, Inc., d/b/a PTI ("CCS"). Because we conclude that S ME has not alleged facts which tend to establish liability on the part of CCS, we affirm.
I. Background
The evidence in the record, with all inferences drawn in favor of S ME, the non-moving party, Griffith v. Glen Wood Co., Inc., ___ N.C. App. ___, ___, 646 S.E.2d 550, 553 (2007), tends to show the following: Plaintiff PVC contracted with BMS to provide architectural services for the construction of a hotel in Wrightsville Beach, New Hanover County (hereinafter "the project" or "the hotel"). BMS subsequently contracted with defendant McKim and Creed, P.A. ("McKim") to be the engineer of record on the project. McKim then contracted with "CCS" to design and oversee installation of a cable support system for the hotel. PVC further contracted with S ME to review the procedure for tensioning the tendons within the support system and to provide data to the architect, BMS, during installation of the support system. The procedure for tensioning the tendons in the support system required each tendon to be stressed, cut, and capped in a timely manner to prevent corrosion.
BMS was not named as a party in this case.
The tensioning procedure was not correctly followed, and some of the tendons remained uncut and uncapped for months after installation. After the hotel was occupied, PVC discovered serious corrosion damage in the cable support system, requiring extensive repairs. As a result of the corrosion damage to the support system for the hotel, PVC filed suit on or about 7 April 2004 against S ME and McKim, alleging negligence and negligent misrepresentation on the part of McKim, and alleging breach of contract, negligence and negligent misrepresentation on the part of S ME. S ME answered on 6 May 2004, denying that it had any duty to PVC beyond its contract, and denying that it had breached any duty under the contract. S ME, included a third-party complaint, arguing that if it was found to be negligent, it was entitled to contribution or indemnity from CCS because CCS had been negligent in designing the cable support system and to contribution or indemnity from Rebarco, Inc., allegedly a subcontractor of CCS. CCS answered the third-party complaint on or about 20 July 2004, denying negligence, and asserting as an affirmative defense that all claims brought by PVC against S ME were based on a contract between PVC and S ME, not in tort, and that S ME therefore had no right to contribution or indemnity from CCS.
CCS moved for summary judgment against S ME on or about 27 February 2006. On 21 March 2006, S ME amended its third-party complaint to add a "Seventh Claim For Relief Against CCS," and agreed to entry of summary judgment against it on all other claims against CCS. The seventh claim for relief alleged that if S ME was negligent in failing to provide timely data, then CCS was negligent in not informing S ME of how often the data needed to be provided.
PVC accepted $975,000 in settlement of its claims against McKim and S ME, jointly and severally, on 20 September 2006. On or about 12 December 2006, the trial court held a hearing on the seventh claim for relief, the only claim against CCS still unresolved, and granted summary judgment in favor of CCS. S ME appeals.
II. Standard of Review
The trial court must grant summary judgment on a party's motion when "there is no genuine issue as to any material fact and . . . any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). On appeal, an order granting summary judgment is reviewed de novo. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004).
Summary judgment is appropriate if: (1) the non-moving party does not have a factual basis for each essential element of its claim; (2) the facts are not disputed and only a question of law remains; or (3) if the non-moving party is unable to overcome an affirmative defense offered by the moving party.
Griffith, ___ N.C. App. at ___, 646 S.E.2d at 554 (internal citations, footnote and quotations omitted).
III. Analysis
CCS argues that S ME's claim for contribution is barred by Land v. Tall House Bldg. Co., 165 N.C. App. 880, 602 S.E.2d 1 (2004), because contribution is only available for joint tort liability, and absent an applicable exception, a tort action does not lie against a party to a contract who simply fails to properly perform the terms of the contract, even if that failure to properly perform was due to the negligent or intentional conduct of that party, when the injury resulting from the breach is damage to the subject matter of the contract. Id. at 883, 602 S.E.2d at 3 (citation omitted). CCS argues that because S ME's liability flows solely from the terms of its contract with PVC, and because none of the exceptions recognized by Ports Authority v. Roofing Co., 294 N.C. 73, 82, 240 S.E.2d 345, 350-51 (1978), are applicable, S ME is not liable in tort to PVC and therefore cannot be a joint tortfeasor as required to maintain an action for contribution, N.C. Gen. Stat. § 1B-1(a) (2005); Kaleel Builders, Inc. v. Ashby, 161 N.C. App. 34, 43, 587 S.E.2d 470, 476 (2003), disc. review denied, 358 N.C. 235, 595 S.E.2d 152 (2004). S ME argues that regardless of the existence of a contract, an engineer may be held liable in tort for breach of professional duty, and therefore its claim for contribution from CCS is not barred by the rule recognized in Land.
Ports Authority recognized the following exceptions to the general rule that failure to perform the terms of a contract does not give rise to a tort action:
(1) The injury, proximately caused by the promisor's negligent act or omission in the performance of his contract, was an injury to the person or property of someone other than the promisee.
(2) The injury, proximately caused by the promisor's negligent, or wilful, act or omission in the performance of his contract, was to property of the promisee other than the property which was the subject of the contract, or was a personal injury to the promisee.
(3) The injury, proximately caused by the promisor's negligent, or wilful, act or omission in the performance of his contract, was loss of or damage to the promisee's property, which was the subject of the contract, the promisor being charged by law, as a matter of public policy, with the duty to use care in the safeguarding of the property from harm, as in the case of a common carrier, an innkeeper or other bailee.
(4) The injury so caused was a wilful injury to or a conversion of the property of the promisee, which was the subject of the contract, by the promisor.
Ports Authority, 294 N.C. at 82, 240 S.E.2d at 350-51 (internal citations omitted).
As an initial matter, we must determine if S ME's third-party claim is barred by Land. We conclude that it is not. An engineer may be held liable in tort for breach of professional duty, even if its work is pursuant to a contract with the injured party and the injury suffered is to property which is the subject matter of the contract. See Associated Indus. Contr'rs, Inc. v. Fleming Eng'g, Inc., 162 N.C. App. 405, 590 S.E.2d 866 (2004), aff'd, 359 N.C. 296, 608 S.E.2d 757 (2005). Though professional negligence was not expressly recognized as an exception by Ports Authority, Ports Authority acknowledged "[i]t may well be that this enumeration of [exceptions] in which a promisor has been held liable in a tort action by reason of his negligent, or wilful, act or omission in the performance of his contract is not all inclusive." 294 N.C. at 82-83, 240 S.E.2d at 351 (emphasis added).
While we conclude that Land is not apposite to the case sub judice, and therefore S ME has overcome the affirmative defense of CCS, this does not mean that CCS was not otherwise entitled to a judgment as a matter of law. S ME still is required to allege facts and forecast evidence in support of each element of its claim to survive summary judgment. Griffith, ___ N.C. App. at ___, 646 S.E.2d at 554.
In an action for contribution, "[t]he burden is on the tortfeasor seeking contribution to show that the right exists, and to allege facts which show liability to the injured party as well as a right to contribution." State Farm Mut. Ins. Co. v. Holland, 324 N.C. 466, 470, 380 S.E.2d 100, 103 (1989) (internal citations omitted). S ME has alleged that CCS is liable to PVC for negligence, and therefore a joint tortfeasor from whom S ME is entitled to contribution. In order to show that CCS is liable to PVC for negligence, and therefore a joint tortfeasor whose "negligent or wrongful acts [were] united in time or circumstance [with the acts of S ME] such that the two acts constitute[d] one transaction . . . caus[ing] a single injury" to PVC, id., S ME must allege facts and forecast evidence which shows "(1) the applicable standard of care; (2) breach of that standard [by CCS]; (3) proximate cause; and (4) damages." Noell v. Kosanin, 119 N.C. App. 191, 193, 457 S.E.2d 742, 744 (1995); Garrett v. Overman, 103 N.C. App. 259, 262, 404 S.E.2d 882, 884, disc. review denied, 329 N.C. 787, 408 S.E.2d 519 (1991); see also Clemmons v. King, 265 N.C. 199, 202, 143 S.E.2d 83, 86 (1965) (reversing award of contribution where the original defendant did not allege facts sufficient to show the third-party's negligence). The evidence in the record regarding the standard of care and breach of that standard, viewed in the light most favorable to S ME, tends to show the following: The engineer of record for a project has a non-delegable responsibility for ensuring that data relevant to the elongation of tendons is reviewed on a timely basis. The duties of an engineer are wholly defined by contract, except where the life and safety of the public is endangered, or where there is the risk of death or serious injury. Other evidence in the record indicates that the contractor is responsible, not the engineer, for inspecting the finishing of the tendons of a cable support system. There is no other evidence in the record which indicates the standard of care to be used to determine the liability of CCS.
Generally, a surveyor or civil engineer is required to exercise that degree of care which a surveyor or civil engineer of ordinary skill and prudence would exercise under similar circumstances, and if he fails in this respect and his negligence causes injury, he will be liable for that injury. . . . Ordinarily, expert testimony is required to establish the standard of care.
Associated Indus. Contr'rs, 162 N.C. App. at 410, 590 S.E.2d at 870 (internal citations and quotation marks omitted).
The record contains no evidence which tends to show that CCS was the engineer of record or the contractor for the project. There is no evidence that the life and safety of the public was endangered. In sum, S ME has not forecast evidence of any duty that CCS owed to PVC, or any evidence that CCS breached any duty that it owed to PVC. Consequently, S ME has not met its burden of showing that CCS has liability in tort to PVC. Therefore, we conclude that S ME has not shown that CCS is a joint tortfeasor from which S ME could pursue a claim for contribution. Accordingly, we hold that the trial court did not err when it granted summary judgment in favor of CCS. The order of the trial court granting summary judgment in favor of CCS is therefore affirmed.
Affirmed.
Chief Judge MARTIN and Judge ARROWOOD concur.
Report per Rule 30(e).