Opinion
No. COA10-887
Filed 3 May 2011 This case not for publication
Appeal by Plaintiffs from an order entered 4 March 2010 by Judge Dennis J. Winner in Buncombe County Superior Court. Heard in the Court of Appeals 14 December 2010.
Hyler Lopez, P.A., by Robert J. Lopez, for Plaintiff Appellants. Baucom, Claytor, Benton, Morgan Wood, P.A., by Rex C. Morgan, for Defendant Appellees.
Buncombe County Nos. 08-CVS-06291, 08-CVS-06294.
Plaintiffs appeal from a trial court order granting summary judgment in favor of two Defendants in a negligence cause of action. Because no genuine issues of material fact remain in dispute, we affirm the trial court's order.
On 3 December 2005, Plaintiffs, Hulin K. Treadway and his wife, Latrecia Treadway, were participating in the 25th Annual Smoky Mountain Toy Run in Buncombe County, North Carolina. The Smoky Mountain Toy Run was a motorcycle parade in the City of Asheville designed to raise donations for the Salvation Army. The parade "traveled along Highway US 70 from the Kerfott manufacturing plant parking lot in Black Mountain to the center of downtown Asheville." The motorcyclists participating in the parade traveled in a "continuous flow," disregarding traffic signals and maintaining a reasonable distance from other parade participants. Local law enforcement officials were positioned to block intersections along the parade route to ensure the safety of local drivers and parade participants. Plaintiff, Hulin Treadway participated in the parade as a driver and his wife, Plaintiff Latrecia Treadway, rode along as his passenger. As Plaintiffs traveled along the parade route, a vehicle driven by Defendant, Susanna Krammer Diez, pulled out from an intersection into the parade path. Unable to avoid Defendant Diez's vehicle, Plaintiffs' motorcycle collided with the automobile. Plaintiffs allege that they suffered a number of serious injuries as a result of the collision.
Shortly before the collision, Defendant Diez had been at the intersection waiting for the parade to pass in order to return home. A law enforcement official was positioned at the intersection to prevent vehicles from entering into the parade route. After a number of motorcycles passed, the officer got into his vehicle and left. Apparently operating under the belief that the parade had reached its conclusion, Defendant Diez waited for the traffic light to turn green and pulled out into the road. A few seconds later, Plaintiffs collided with Defendant Diez.
The Smoky Mountain Toy Run was organized by Defendants, Gene Lummus and Gene Lummus Harley Davidson, Inc. (Lummus Defendants). Gene Lummus had been organizing the Toy Run in association with his Harley Davidson dealership for several years. Typically, Gene Lummus would secure the date and location for the annual Toy Run by filing the necessary permit applications with the City of Asheville. Prior to the 25th annual Toy Run event Defendant filed a "Special Events Permit Application" with the City of Asheville. The application filed with the City contained an indemnification clause requiring the Lummus Defendants to "indemnify, defend and save the City harmless from any . . . and all claims or suits for damages . . . for personal injury" arising from the parade.
On 2 January 2009, Plaintiffs each filed separate negligence actions against Defendants. On 9 November 2009, the Lummus Defendants filed a motion for summary judgment as to Plaintiffs' negligence claims against them. The trial court granted the Lummus Defendants' motion by order filed on 4 March 2010. Plaintiffs appeal from the trial court's order arguing that the trial court erroneously granted the Lummus Defendants' motion for summary judgment. Because Plaintiffs only appeal from the trial court order dismissing their complaint as to the Lummus Defendants, the sole issue on appeal is whether the trial court erred in determining that no genuine issues of material fact remained with respect to Plaintiffs' negligence claims against the Lummus Defendants.
The trial court's order only disposes of Plaintiffs' negligence action with respect to the Lummus Defendants; therefore, we must first determine whether the trial court's order is appropriately before our Court for review.
"In general, only final orders and judgments may be appealed." J B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 4, 362 S.E.2d 812, 814 (1987). "`A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.'" Id. (quoting Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950)). In contrast, "[a]n interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Id. at 4, 362 S.E.2d at 814-15. Typically, an interlocutory order is not appropriate for immediate appellate review by this Court. N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995).
Our Courts recognize an exception to the general rule and will review an appeal from an interlocutory order:
(1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C. R. Civ. P. 54(b) or (2) "if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review." Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695 (1996), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997) (citations omitted); Anderson v. Atlantic Casualty Ins. Co., 134 N.C. App. 724, 518 S.E.2d 786 (1999); N.C. Gen. Stat. § 1-277 (1999); N.C. Gen. Stat. § 7A-27 (1999).
Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000).
"A substantial right is generally something that does — or at least could-affect the on-going proceedings; it is something that goes to the very heart of the matter." Hoke Cty. Bd. of Educ. v. State, 198 N.C. App. 274, 278, 679 S.E.2d 512, 516, disc. review denied, 363 N.C. 653, 686 S.E.2d 515 (2009). "Essentially a two-part test has developed the right itself must be substantial and the deprivation of that substantial right must potentially work injury to plaintiff if not corrected before appeal from final judgment." Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). The determination as to whether the trial court's order prejudices a substantial right held by a party is made upon a case-by-case basis. Walden v. Morgan, 179 N.C. App. 673, 677, 635 S.E.2d 616, 620 (2006). Our Courts have recognized that while the avoidance of a single trial is not a substantial right, "the possibility of undergoing a second trial affects a substantial right when the same issues are present in both trials, creating the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue." Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982).
Here, the trial court's summary judgment order is interlocutory because while the trial court's order dismisses Plaintiffs' claims as to the Lummus Defendants, Plaintiffs' claims with respect to the other Defendants remain for trial. However, despite appealing from an interlocutory order, the trial court's order affects a substantial right and is therefore appropriate for immediate appellate review. Plaintiff filed negligence actions against all the Defendants arising from the same set of factual circumstances. In their numerous complaints, Plaintiffs generally alleged that Defendants' negligent actions all contributed to the Plaintiffs' injuries. Notably, Plaintiffs allege that both the Lummus Defendants and the Buncombe County Sheriff's Department failed to secure the intersection at which the accident occurred. To what degree, if any, Defendants were responsible for Plaintiffs' injuries will be a common issue in the actions that remain for trial. Because jurors could reach differing results as to who was responsible for securing the intersection, the trial court's order affects a substantial right and is ripe for immediate appellate review.
Standard of Review
It is well established that a trial court order granting a defendant's motion for summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. sect; 1A-1, Rule 56(c) (2009). The party moving for summary judgment bears the burden of establishing the lack of any triable issue of fact. Goynias v. Spa Health Clubs, Inc., 148 N.C. App. 554, 555, 558 S.E.2d 880, 881, aff'd per curiam, ___ N.C. App. ___, 569 S.E.2d 648 (2002).
The moving party may meet its burden by establishing: "(1) that an essential element of the non-moving party's claim is nonexistent; (2) that discovery indicates the non-moving party cannot produce evidence to support an essential element of his claim; or (3) that an affirmative defense would bar the claim." CIM Ins. Corp. v. Cascade Auto Glass, Inc., 190 N.C. App. 808, 811, 660 S.E.2d 907, 909 (2008). "[T]he trial judge must view the presented evidence in a light most favorable to the nonmoving party." Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001).
Typically, an order granting a motion for summary judgment is not appropriate in a negligence action. Vassey v. Burch, 301 N.C. 68, 73, 269 S.E.2d 137, 140 (1980). However, summary judgment may be appropriate in negligence cases where "the moving party carries his initial burden of showing the nonexistence of an element essential to the other party's case and the non-moving party then fails to produce or forecast at hearing any ability to produce at trial evidence of such essential element of his claims." DiOrio v. Penny, 331 N.C. 726, 729, 417 S.E.2d 457, 459 (1992).
I.
On appeal, citing the indemnification agreement signed by the Lummus Defendants, Plaintiffs first contend that because the "Lummus Defendants agreed to be responsible for damage or injury" occurring as a result of the parade, the Lummus Defendants are liable for Plaintiffs' personal injuries. We disagree.
"Indemnity contracts are entered into to save one party harmless from some loss or obligation which it has incurred or may incur to a third party." Kirkpatrick Assoc. v. Wickes Corp., 53 N.C. App. 306, 308, 280 S.E.2d 632, 634 (1981). When interpreting the terms of an indemnification provision, the ordinary rules of construction apply and courts must give effect to the intent of the parties at the time they entered into the contract. Schenkel Shultz, Inc. v. Hermon F. Fox Assocs., 362 N.C. 269, 273, 658 S.E.2d 918, 921 (2008); see Mayo v. N.C. State Univ., 168 N.C. App. 503, 508, 608 S.E.2d 116, 120 ("[w]ith all contracts, the goal of construction is to arrive at the intent of the parties when the contract was issued."), aff'd per curiam, 360 N.C. 52, 619 S.E.2d 502 (2005). Courts will construe indemnity contracts to
cover [only] losses, damages, and liabilities which reasonably appear to have been within the contemplation of the parties, but it cannot be extended to cover any losses which are neither expressly within its terms nor of such character that it can reasonably be inferred that they were intended to be within the contract.
Dixie Container Corp. v. Dale, 273 N.C. 624, 627, 160 S.E.2d 708, 711 (1968) (internal quotation marks omitted). The indemnity clause of a contract must be read in relation to all other provisions of the agreement. Id. "A contract that is plain and unambiguous on its face will be interpreted by the court as a matter of law." Schenkel, 362 N.C. at 273, 658 S.E.2d at 921.
In Dixie Container., our Court had an opportunity to examine a set of facts and circumstances similar to those presented in this case. There, the defendant construction company contracted with a property owner to construct an addition to an industrial building. Dixie Container, 273 N.C. at 625, 160 S.E.2d at 709. The plaintiff occupied the industrial building as a tenant, leasing it from the property owner. Id. During construction of the addition, defendant's employees caused a fire resulting in $163,266.95 in damages to the plaintiff. Id. The construction contract signed by the defendant and the property owner contained a provision requiring defendant to indemnify the property owner and the plaintiff from all damages from performance of the contract. Id.
On appeal, citing the indemnity provision, plaintiff argued that the defendant was absolutely liable for plaintiff's damages. Id. at 627, 160 S.E.2d at 711. After review of the entire contract, our Court disagreed and held that "defendant only bound itself to reimburse plaintiff for any damages it became obligated to pay third persons as a result of defendant's activity on the leased premises." Id. at 628, 160 S.E.2d at 711. Our Court reasoned that because the defendant expressly agreed to be held liable for damages suffered by the property owner in another provision of the contract, if the parties intended for this same provision to extend to plaintiff, they would have expressly included it in the agreement. Id.
In Michael v. Huffman Oil Co., our Court was again tasked with construing the terms of an indemnification agreement. 190 N.C. App. 256, 661 S.E.2d 1 (2008), disc. review denied, 363 N.C. 129, 673 S.E.2d 360 (2009). There, the plaintiffs filed a wrongful death action against the defendants arising from the death of two subcontractors on a construction project. Id. at 259, 661 S.E.2d at 4. The plaintiffs argued that they were the direct beneficiaries of an indemnification agreement between the City of Burlington and the contractors, subcontractors, and engineers on the construction project. Id. at 269, 661 S.E.2d at 10. On appeal, our Court held that the indemnification provision did not entitle the plaintiffs to recover direct damages from the City of Burlington. Id. at 270, 661 S.E.22d at 11. Citing Dixie Container, our Court reasoned that while the contract required the City of Burlington to indemnify the plaintiffs against the claims of third parties, the direct damages sought by the plaintiffs were not expressly provided in the indemnification clause and could not be inferred from a reasonable reading of the entire contract. Id.
In this case, the indemnity provision only provided for the Lummus Defendants' indemnification of the City of Asheville for amounts paid to third parties arising from injury or loss caused by the parade. On 1 December 2004, the Lummus Defendants executed a "Special Events Permit Application." Amongst other provisions, the application contained an indemnification clause stating:
Permittee hereby assumes all risks incident to or in connection with the permitted activity and shall be solely responsible for damage or injury, of whatever kind or nature, to person or property, directly or indirectly arising out of or in connection with the permitted activity or the conduct of the Permittee's operation. Permittee hereby expressly agrees to indemnify, defend and save the City harmless from any penalties for violation of law, ordinance, or regulation affecting its activity and from any and all claims or suits for damages or losses (including, but not limited to, [attorney's] fees and other litigation expenses) for personal injury and for property damage directly or indirectly arising out of or in connection with the permitted activity or conduct of its operation or resulting from the negligence or intentional acts or omissions of Permittee or its officers, agents and employees.
The City of Asheville and the Lummus Defendants were the only parties to the application. When read for its plain meaning, it is clear that the Lummus Defendants agreed to indemnify and defend the City of Asheville from damage or suits arising from the parade. Nowhere in the indemnity provision, or throughout the remainder of the application, do the Lummus Defendants agree to be held directly liable to Plaintiffs for injuries arising from the parade. Moreover, there is no language in the permit application from which we could infer that the parties to the permit application intended the Lummus Defendants to be directly liable to Plaintiffs for acts of negligence. The indemnification provision did not obligate the Lummus Defendants to be directly responsible for Plaintiffs' injuries arising from the parade. Plaintiffs also argue that the Lummus Defendants contractually agreed to be held directly liable for their injuries arising from the parade by agreeing to purchase insurance coverage for the parade. Because Plaintiffs were not a party to the insurance contract, and for the reasons discussed above, we disagree with Plaintiffs' assertion.
II.
Plaintiffs also argue that there is a genuine issue of material fact as to whether the Lummus Defendants breached the duty of care that arose from undertaking the Toy Run event. We disagree.
"The essential elements of any negligence claim are the existence of a legal duty or standard of care owed to the plaintiff by the defendant, breach of that duty, and a causal relationship between the breach of duty and certain actual injury or loss sustained by the plaintiff." Peace River Electric Cooperative v. Ward Transformer Co., 116 N.C. App. 493, 511, 449 S.E.2d 202, 214 (1994). The "breach" element of a negligence action may be established by showing "that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff, under the circumstances in which they were placed. . . ." Mattingly v. R.R., 253 N.C. 746, 750, 117 S.E.2d 844, 847 (1961). "The law imposes upon every person who enters upon an active course of conduct the positive duty to exercise ordinary care to protect others from harm. . . ." Council v. Dickerson's, Inc., 233 N.C. 472, 474, 64 S.E.2d 551, 553 (1951). "The duty of ordinary care is no more than a duty to act reasonably. The duty does not require perfect prescience, but instead extends only to causes of injury that were reasonably foreseeable and avoidable through the exercise of due care." Fussell v. N.C. Farm Bureau Mut. Ins. Co., 364 N.C. 222, 226, 695 S.E.2d 437, 440 (2010). "The breach of duty may be by negligent act or a negligent failure to act." Dunning v. Warehouse Co., 272 N.C. 723, 725, 158 S.E.2d 893, 895 (1968).
In this case, Plaintiffs argue that the Lummus Defendants breached the duty of ordinary care by not organizing traffic control and providing minimal instructions to parade participants. When viewed in a light most favorable to Plaintiffs, a review of the record evidence reveals that Plaintiffs have failed to demonstrate that the Lummus Defendants had either the duty or the authority to supervise the Sheriff's department in the details of the traffic control.
In order to survive summary judgment, Plaintiffs would be required to demonstrate that the Lummus Defendants had legal authority to direct or control the law enforcement officers who were conducting traffic control or that the Lummus Defendants were vicariously liable for any negligence of the law enforcement officers. Plaintiffs essentially argue that the Lummus Defendants had a duty to supervise the law enforcement officers. Plaintiffs contend that "[t]he evidence in the light most favorable to the Plaintiffs shows that the Lummus Defendants merely let the Buncombe County Sheriff's Department know of the parade and obtained their commitment to provide law enforcement. The Lummus Defendants took no action to determine the level of law enforcement and the extent of their involvement. Of even more importance, the Lummus Defendants' instructions and warnings given to the participants as to their conduct was [sic] very minimal." Defendants note that Plaintiffs complaint alleges that the law enforcement officers were "employees and/or agents of the Lummus Defendants, and that any negligence of the traffic control officers should be imputed to said Defendants" but that Plaintiffs have not forecast any "evidence of any contractual or employment relationship between the Buncombe County Sheriff's Department and the Lummus Defendants." We agree that Plaintiffs have forecast neither evidence of any duty of the Lummus Defendant beyond arranging for the appropriate law enforcement agencies to perform the traffic control for the parade nor any basis for vicarious liability for the negligence of the law enforcement officers, if any.
It appears that the Buncombe County Sheriff's Department was responsible for monitoring the intersection at which Plaintiffs' injury occurred. Before the Toy Run event, the Buncombe County Sheriff's Department evaluated safety concerns with the proposed parade route, and chose officers to work at the parade. There is no evidence suggesting that once the Lummus Defendants filed their applications with the city, that they were permitted to instruct the Sheriff's department on how to conduct traffic control at the parade, or which officers to use. The record suggests that the specific manner in which the Sheriff's department conducted traffic control was decided internally.
As Plaintiffs have failed to demonstrate that the Lummus Defendants had any duty beyond that of securing traffic control for the parade, which was provided by the Buncombe County Sheriff's department, Plaintiffs cannot show that the Lummus Defendants' actions were negligent.
Affirmed.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).