Tort/Negligence – Premises Liability – Contractor – Subcontractor – Duty of Owner – Contract

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McCorkle v. North Point Chrysler Jeep, Inc. (Lawyers Weekly No. 10-07-1221, 10 pp.) (Linda Stephens, J.) Appealed from Guilford County Superior Court (Edwin G. Wilson, J.) N.C. App. Click here for the full text of the opinion.

Holding: A property owner’s duty of reasonable care shifted by contract to the general contractor during construction of a building on the owner’s property. Since the property owner did not owe the plaintiff a duty of reasonable care, the trial court did not err by granting summary judgment in the property owner’s favor, and dismissal of the plaintiff’s suit against the property owner, with prejudice, was appropriate.

Facts

The defendant-property owner entered into a contract with the third-party defendant-contractor under which the contractor would serve as general contractor for the construction of a new building on the property owner’s land. The contractor was responsible for job-site safety and the supervision of any subcontractors needed to carry out the construction project.

The contractor hired the third-party defendant-subcontractor as a painting subcontractor. Plaintiff was employed by the subcontractor as a painter and worked on the project.

Plaintiff was walking down a stairway in the new building when a handrail broke. He fell and twisted his back. The broken handrail had been installed by a fabricator who supplied the handrail to the contractor. The contractor stated that the railing was temporary and was supported by a temporary brace welded to the handrail.

Plaintiff filed suit, alleging that the property owner was negligent in failing to keep the construction site in a reasonably safe condition. The property owner answered and filed a third-party complaint against the contractor and the subcontractor. The property owner moved for summary judgment. The trial court granted the motion and dismissed plaintiff’s suit with prejudice.

Plaintiff appealed.

Analysis

The issue here is whether the property owner breached a duty owed to plaintiff. Plaintiff alleged that the property owner owed him a duty of care based on its status as a landowner and plaintiff’s status as a lawful visitor.

An independent contractor and his employees who go upon the premises of an owner, at the owner’s request, are lawful visitors and are owed a duty of due care. A subcontractor is considered a lawful visitor, and thus is owed the duty of reasonable care, with respect to both a general contractor and the landowner.

The duty of care includes the obligation to exercise ordinary care to furnish reasonable protection against the consequences of hidden dangers known, or which ought to be known, to the proprietor and not to the contractor or his servants. The duty also requires a landowner, as well as a general contractor, to make a reasonable inspection to ascertain the existence of hidden dangers.

Citing Cook v. Morrison, 105 N.C. App. 509 (1992), the property owner argued that its duty as landowner did not extend to the work undertaken by independent contractors such that it had no duty to inspect the construction site.

It is clear that, contractually, the contractor was in control of the construction site. We conclude that the property owner was not in possession and control of the construction site such that it would be improvident to impose the duty of reasonable care and inspection on it.

The duty of reasonable care, initially borne by the property owner as owner and possessor of the construction site premises, had shifted away from it at the time of plaintiff’s accident such that the property owner was not required to inspect the construction site for hidden dangers.

We conclude that the property owner did not owe a duty of reasonable care to plaintiff and that summary judgment was properly entered for the property owner.

Affirmed.