Tort/Negligence – Contributory Negligence – Fall from Attic – Scuttle Hole ‘Fixed’

Plaintiff forecasted evidence that the contractor who built her home placed an attic scuttle hole in the master bath; plaintiff complained that it was an “eyesore”; the contractor said the scuttle hole would have to remain until the house passed inspection, but he would then “fix” it before closing so she would “never know [the scuttle hole] was there.” After closing on the house, plaintiff was in the attic, stepped backward onto the area where the scuttle hole had been, and fell through the drywall the contractor had used to cover the former scuttle hole. Plaintiff’s forecast of evidence was sufficient to present a jury question as to whether plaintiff knew or should have known there was an unsafe condition in the area where she was walking in the attic.

We vacate the trial court’s grant of summary judgment for the contractor.

Plaintiff’s forecasted evidence, if believed, shows the only time plaintiff walked in the attic prior to the accident was before defendant installed the scuttle hole, and the area where defendant cut the scuttle hole was within the area of what was once a walk space when plaintiff was previously in the attic. Plaintiff explained in her answers to interrogatories that her husband had previously “walked in and saw the hole in the [master bathroom] ceiling. He asked [defendant] what it was. [Defendant] told him not to worry, that they would fix the hole as soon as the inspection was completed. It was our understanding that this was fixed prior to us closing on the house.”

Plaintiff stated she believed this meant defendant would “replace[] the plywood that [defendant] had . . . removed to” cut the scuttle hole. Plaintiff further averred that “[t]he hole was something that [defendant] told us would be fixed prior to us closing on the house.”

These statements create a genuine issue of material fact as to whether plaintiff knew the area remained unsafe such that she was negligent in failing to look out for her safety while walking. The merits of defendant’s affirmative defense and any evidence that plaintiff knew the danger existed present a question of fact for the jury to decide.

Plaintiff also forecasted sufficient evidence of gross negligence. The forecasted evidence contains allegations and averments which, if taken as true, show defendant knew concealing the appearance of the scuttle hole from the side of the master bathroom ceiling violated applicable building code, and otherwise knew concealing the hole posed a hazard, but did it anyway. The forecasted evidence states a claim for gross negligence and raises a genuine issue of material fact whether defendant’s conduct surrounding the scuttle hole amounted to wanton conduct done with conscious or reckless disregard for the safety of others such that it cannot be said defendant was not grossly negligent as a matter of law.

Vacated and remanded.

Cullen v. Logan Developers, Inc. (Lawyers Weekly No. 011-079-23, 16 pp.) (Hunter Murphy, J.) Appealed from Brunswick County Superior Court (Henry Stevens, J.) Meredith Hinton and William Patterson for plaintiff; Jeffery Stoddard for defendant. North Carolina Court of Appeals (unpublished)