MARTIN v. NORFOLK SOUTHERN RAILWAY COMPANY et al
Filing
263
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 12/31/2018. For the reasons stated herein, IT IS ORDERED that Plaintiff's motion to dismiss (Doc. 117 ) is DENIED and Defendants' mo tions for summary judgment (Docs. 102 , 106 , 108 , 110 , 112 ) are GRANTED. IT IS FURTHER ORDERED that all other outstanding motions (Docs. 146 , 149 , 151 , 152 , 154 , 157 , 159 , 161 , 163 , 165 , 167 , 169 , 171 , 173 , 175 , 176 , 179 , 181 , 183 , 185 , 187 , 188 , 191 , 193 , 194 , 197 , 199 , 201 , 203 , 205 , 207 , 259 , 261 ) are DENIED AS MOOT and this action is DISMISSED WITH PREJUDICE.(Engle, Anita)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL MARTIN,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY; FLATIRON
CONSTRUCTORS, INC.; DOGGETT
CONSTRUCTION COMPANY, INC.;
CHIPANLOG, LLC; CENTRAL
CAROLINA SEEDING, INC.; LOCKE
ROWE, INC.; SMITH-ROWE, INC.;
SMITH-ROWE, LLC; and FLATIRONBLYTHE DEVELOPMENT, a Joint
Venture,
Defendants.
)
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1:16-cv-1191
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, Chief District Judge.
On
the
night
of
February
14,
2015,
Michael
Martin
was
travelling on U.S. Route 29, a four-lane highway in Guilford
County, North Carolina, on his way to repair broken railroad
crossing gates at the behest of his employer, Norfolk Southern
Railway Company (“NSRC”), when a tree from a construction area
adjacent to the highway fell on his vehicle.
Martin sued NSRC and
a number of companies involved with the construction project to
recover for the harm he suffered as a result of the accident.
Before the court are motions for summary judgment by all Defendants
pursuant to Federal Rule of Civil Procedure 56 (Docs. 102, 106,
108, 110, 112), a motion for voluntary dismissal by Martin pursuant
to Federal Rule of Civil Procedure 41(a)(2) (Doc. 117), and various
motions addressing trial issues.
The court held argument on the
dispositive motions on December 7, 2018. For the reasons set forth
below, Martin’s motion to dismiss will be denied, Defendants’
motions for summary judgment will be granted, and all remaining
motions will be denied as moot.
I.
BACKGROUND
A.
Facts
The undisputed facts, taken in the light most favorable to
Martin,
as
the
non-moving
party
on
the
motions
for
summary
judgment, show the following:
Martin, a North Carolina resident, worked for NSRC as a
“signal maintainer.”
(Doc. 109-1 at 8–9.)
That job included
maintenance and repair of the public safety equipment NSRC employs
at railroad crossings, such as the crossing gates that prevent
vehicles from driving over the tracks when a train is passing
through.
(Doc. 107-1 at 2–3, 10–11.)
Although Martin worked
regular hours on weekdays, he was sometimes “on call” on weekends,
meaning that he had to be available to work on signal equipment if
requested by NSRC.
(Doc. 109-1 at 9.)
pickup truck assigned to him by NSRC.
Martin was provided a
(Id. at 10, 15.)
On February 14, 2015 — a Saturday — Martin received a call
from NSRC to repair some railroad crossing equipment.
1 at 6–9.)
(Doc. 107-
While working on repairs to crossing equipment in
2
Reidsville, North Carolina that evening, Martin received another
call
from
NSRC,
this
one
directing
him
to
travel
south
to
Greensboro, North Carolina to repair a broken crossing gate there.
(Id. at 7–9.)
Martin testified that the weather at the time was
“cold” with “periods of wind” or “gusts” that he described as
“strong” and “blowing pretty hard.”
(Doc. 109-1 at 14, 18, 22.)
Although he could not recall whether there was any precipitation
at the time, Martin stated that “to [his] knowledge,” there were
no weather conditions other than wind that would have caused him
any danger.1
(Id. at 15, 19.)
At some time “in the area of maybe 9:00 at night,” as Martin
was traveling down U.S. Route 29 toward Greensboro, a tree fell
into the roadway, striking the top of his truck and injuring him.
(Id. at 11, 16.)
The area adjacent to the road, from which the
tree fell, was undergoing construction as part of a road-widening
project
by
(“NCDOT”).
the
North
Carolina
(Doc. 107-3.)
Department
of
Transportation
Photographs from the scene of the
accident, taken 48 hours afterwards, appear to show that the base
of the tree had originally been situated on the far bank of a small
stream.
(Doc. 116-1.)
According to certified meteorological
records from a nearby weather station in the Greensboro area, the
1
Certified meteorological records from a weather station in the
Greensboro area record no more than “trace” amounts of precipitation
that evening. (Doc. 107-2 at 3–4.)
3
wind speed observed at 7:00 p.m. on February 14, 2015, was 30
m.p.h., and the wind speed observed at 10:00 p.m. was 29 m.p.h.2
(Doc. 107-2 at 6.)
B.
Procedural History
Martin filed his original complaint on September 30, 2016,
bringing a Federal Employers’ Liability Act (FELA) claim against
NSRC and common law negligence claims against several companies
allegedly involved in the nearby road-widening project: Flatiron
Constructors,
Inc.
Company,
(“Doggett”);
(Doc. 1.)
Inc.
(“Flatiron,
and
Inc.”);
Doggett
Chipanlog,
LLC
Construction
(“Chipanlog”).
On February 1, 2017, the court approved the parties’
joint Rule 26(f) report, setting a discovery deadline of February
16, 2018.
(Doc. 28.)
2
In his briefing, Martin states that “[a]ll parties agree there was a
storm with blowing winds of at least 49 miles per hour.” (Doc. 119 at
6.) NSRC objects that it never agreed to any such thing. (Doc. 127 at
3 n.3.) Certified meteorological records from the Greensboro area show
that the highest single wind speed measurement on February 14, 2015 —
taken in 3-second intervals — was 49 m.p.h. (Doc. 109-2 at 3.) Martin’s
statement that winds were “at least” 49 m.p.h. is therefore misleading
at best, since the wind speed did not exceed 49 m.p.h. at any time that
day. More importantly, Martin offers no evidence or reason to believe
that the three-second 49 m.p.h. measurement was taken during the time
he was both working and near the Greensboro area, as opposed to any other
three-second interval over the 24-hour period within which it could have
occurred. The only meteorological evidence tied to the relevant time
Martin was on the road is the record of observations at 7:00 p.m. and
10:00 p.m. of winds around 30 m.p.h. (Id. at 7.) Unfortunately, no
party has provided evidence to aid the court’s interpretation of these
weather records. As a result, it is unclear how long observations were
taken at those times, as well as whether the wind speed given is the
highest observed or merely an average of some number of observations.
Martin’s counsel contended at the hearing on these motions that 30 m.p.h.
would be the “highest” wind speed observed at the weather station at the
relevant times.
4
One year after filing the original complaint, on September 6,
2017, Martin sought, and was granted, permission to file an amended
complaint that added common law negligence claims against several
other companies involved in the road-widening project: Central
Carolina Seeding, Inc. (“Carolina Seeding”); Locke Rowe, Inc.
(“Locke Rowe”); Smith-Rowe, Inc.; Smith-Rowe, LLC (“Smith-Rowe”);
and
Flatiron-Blythe
Blythe”).
(Doc. 35.)
Development,
a
Joint
Venture
(“Flatiron-
Pursuant to the parties’ joint request, the
Magistrate Judge extended the discovery deadlines in light of the
newly-added
parties
as
follows:
initial
expert
reports
and
disclosures from Martin were due February 27, 2018; fact discovery
ended on March 29, 2018; and all discovery closed on June 29, 2018.
(Doc. 71.)
On June 15, 2018, Martin again requested a discovery
deadline extension to accommodate disclosure and deposition of
fact and expert witnesses. (Doc. 89.) The Magistrate Judge denied
that motion, noting in a thorough Order that Martin had failed to
demonstrate that the untimeliness of his extension request was
excusable or that he had been diligent in pursuing discovery.
(Doc. 104.)
After the close of discovery, all Defendants filed motions
for
summary
judgment.
(Docs.
102,
106,
108,
110,
112.)
Subsequently, Martin filed a Rule 41(a)(2) motion to voluntarily
dismiss
all
Defendants
“Construction Defendants”).
other
than
(Doc. 117.)
5
NSRC
(together,
the
At the motion hearing on
December 7, 2018, the parties agreed to the dismissal of Chipanlog,
Locke Rowe, and Smith-Rowe, Inc. as improper defendants. Recently,
in preparation for trial, Defendants have filed a joint motion to
bifurcate (Doc. 146), thirty motions in limine (Docs. 149, 151,
152, 154, 157, 159, 161, 163, 165, 167, 169, 171, 173, 175, 176,
179, 181, 183, 185, 187, 188, 191, 193, 194, 197, 199, 201, 203,
205, 207), and a joint motion for a protective order prohibiting
Martin’s de bene esse deposition of treating orthopedic surgeon
Dr. Dahari Brooks (Doc. 259).
Martin has filed a motion for leave
to conduct the de bene esse deposition of Dr. Brooks.
II.
(Doc. 261.)
ANALYSIS
Summary judgment is appropriate “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.”
56(a).
Fed. R. Civ. P.
“A genuine issue of material fact exists ‘if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.’”
Basnight v. Diamond Developers, Inc., 146 F.
Supp. 2d 754, 760 (M.D.N.C. 2001) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
In resolving a motion for
summary judgment, the court views the “evidence in the light most
favorable to the non-moving party, according that party the benefit
of all reasonable inferences.”
Id.
Summary judgment should be
denied “unless the entire record shows a right to judgment with
such clarity as to leave no room for controversy and establishes
6
affirmatively that the adverse party cannot prevail under any
circumstances.”
Guessford v. Pa. Nat’l Mut. Cas. Ins. Co., 983 F.
Supp. 2d 652, 659 (M.D.N.C. 2013) (quoting Campbell v. Hewitt,
Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994)).
A.
NSRC’s Motion for Summary Judgment
1.
Evidentiary Issues
In his response brief, Martin relies heavily on a declaration
by Bryan Shoffner, another NSRC employee tasked with repairing
crossing gates on the night of February 14, 2015.
(Doc. 119-1.)
Shoffner states that he was working in an undisclosed “territory
to the east” of Martin, that it was “raining” and “stormy” that
night as well as “windy,” and that NSRC told him to “load extra
[crossing] gate arms” into his work vehicle in anticipation of
existing crossing gates being compromised by the wind.
2.)
Shoffner also states
that
(Id. at
NSRC “routinely monitors the
weather” and that — after learning that Martin was injured — his
supervisor instructed him to return home “due to the extreme
weather.”
(Id. at 2–3.)
NSRC objects to Shoffner’s declaration
on the ground that Shoffner was never disclosed or mentioned in
discovery,
37(c)(1).
in
violation
(Doc. 127.)
of
Federal
Rule
of
Civil
Procedure
As a result, NSRC argues, the court should
not consider the Shoffner declaration in resolving its motion for
7
summary judgment.3
Rule 37(c)(1) states:
If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is
not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.
Fed. R. Civ. P. 31(c)(1).
In Southern States Rack & Fixture, Inc.
v. Sherwin-Williams Co., 318 F.3d 592 (4th Cir. 2003), the Fourth
Circuit approved the following five factors for use in determining
whether a failure to disclose is “substantially justified” or
“harmless”:
(1) the surprise to the party against whom the evidence
would be offered; (2) the ability of that party to cure
the surprise; (3) the extent to which allowing the
evidence would disrupt the trial; (4) the importance of
the evidence; and (5) the nondisclosing party’s
explanation for its failure to disclose the evidence.
Id. at 597.
Martin’s counsel conceded at the motion hearing that
he did not identify Shoffner under Rules 26(a) or (e) prior to
filing the declaration.
The question is whether his failure to do
so is substantially justified or harmless under the Southern States
factors.
NSRC claims surprise, which is apparent.
Martin failed to
identify Shoffner as part of his Rule 26(a) disclosures on February
3
Local Rule 7.6 permits a moving party to raise an evidentiary objection
in its reply brief, as NSRC did here, rather than file a separate motion
to strike. The same rule allows non-moving parties to file a surreply
addressing the evidentiary objection within seven days. Martin did not
file a surreply.
8
28, 2017, or in his amended disclosures on April 10, 2018.
127-1, 127-2.)
(Docs.
Martin never mentioned Shoffner when NSRC deposed
him or in any other way prior to filing Shoffner’s declaration.
Now that discovery has long since closed, NSRC cannot depose
Shoffner or gather any other evidence pertaining to his declaration
in order to cure its surprise at his late-blooming appearance.
The importance of the Shoffner declaration to Martin is at best
moderate, given that his testimony about the weather on the night
in question is based on his observations in an unknown “territory
to the east,” contains vague and general statements about the
conditions in that other territory (“very stormy, raining, windy”
and “the wind was rocking us hard” (Doc. 119-1 at 2)), and appears
to conflict with certified meteorological records (Doc. 109-2)
from the Greensboro area upon which Martin also seeks to rely.
See also footnote 5, infra.
The explanation provided by Martin’s
counsel at the motion hearing for his failure to disclose Shoffner
— that he simply was not aware of Shoffner until he “went and
started tracking down . . . people so we would have a response” to
NSRC’s summary judgment motion — is inadequate.
Magistrate
Judge’s
prior
order
denying
As noted in the
Martin’s
motion
for
extension of time to complete discovery: “By any calculation, this
case
has
been
allowed
a
discovery
period
beyond
what
would
ordinarily b[e] allowed or contemplated by the Local Rules.” (Doc.
104 at 5–6.)
It was clear from the outset that Martin contended
9
that the weather conditions were an important factor in this case.
The time for “tracking down” fact witnesses had long since passed
by the time NSRC filed its motion for summary judgment, and
Martin’s counsel offered no reason at the hearing why he could not
have located Shoffner earlier.
Considering all the Southern States factors, as well as the
record as a whole, the court finds they weigh strongly against a
finding that Martin’s nondisclosure was “substantially justified”
or “harmless.”4
As a result, the Shoffner declaration will not be
considered for purposes of resolving NSRC’s motion for summary
judgment.5
2.
Merits of Summary Judgment Motion
NSRC argues that “[a]n essential part of Plaintiff’s [FELA]
4
The third Southern States factor — whether “allowing the evidence would
disrupt the trial,” Southern States, 318 F.3d at 597 — does not weigh
against Martin. However, courts need not find that every Southern States
factor weighs against the nondisclosing party if exclusion is otherwise
warranted. See, e.g., Hoyle v. Freightliner, LLC, 650 F.3d 321, 330 &
n.6 (4th Cir. 2011).
5
Even if the court were to consider it, the evidence in the Shoffner
declaration would not save Martin from summary judgment.
As noted,
Shoffner’s weather-related observations fail to provide sufficient
evidence to create a genuine issue of material fact as to the severity
of the weather in Martin’s territory. His statement that NSRC instructed
him to return home after it learned Martin was injured (Doc. 119-1 at
2) is not relevant to whether NSRC had been negligent in sending Martin
out in the first place, and any attempt to use this fact for that purpose
would likely be precluded as a subsequent remedial measure under Federal
Rule of Evidence 407.
Finally, his statements that NSRC “routinely
monitors the weather” and “was aware of the impending storm as
[Shoffner’s] supervisor had instructed [him] to load extra gate arms
onto [his] truck” (id. at 2–3) fail to create a material issue of breach
of a duty on NSRC’s part for merely requesting that an employee travel
a four-lane public highway on a windy night.
10
claim is the element of foreseeability,” and that the meager
evidence marshaled by Martin
is insufficient to show that a
reasonable employer in NSRC’s place would have known that periodic
windy conditions made it unsafe to drive on a public highway.
(Doc. 109 at 4–7, 10–13.)
Martin, in the one page or less of legal
argument he devotes to the merits of NSRC’s summary judgment
motion, makes the conclusory statement that NSRC’s “choice to put
employees on the road, and more particularly the reasonableness of
that choice,” is a question to be resolved by the jury.
(Doc. 119
at 7–8.)
The text of FELA, in pertinent part, reads as follows:
Every common carrier by railroad while engaging in
commerce between any of the several States or
Territories . . . shall be liable in damages to any
person suffering injury while he is employed by such
carrier in such commerce . . . for such injury or death
resulting in whole or in part from the negligence of any
of the officers, agents, or employees of such carrier
. . . .
45 U.S.C. § 51.6
The language “injury or death resulting in whole
or in part from the [railroad’s] negligence” in § 51 amounts to a
6
FELA also makes railroads liable for injuries resulting from “any
defect or insufficiency, due to [the railroad’s] negligence, in [the
railroad’s] cars, engines, appliances, machinery, track, roadbed, works,
boats, wharves, or other equipment.”
45 U.S.C. § 51.
While Martin
initially appeared to base his FELA claim against NSRC at least partially
on alleged defects in the vehicle NSRC provided him, see (Doc. 35 ¶ 47
(“NSRC . . . provid[ed] Plaintiff with a truck with defective airbags”)),
he has since abandoned that theory, see (Doc. 119 at 5 (“Plaintiff is
making no allegations regarding the operation or failure of operation
of the vehicles [sic] airbags.”)).
11
relaxation of the common-law negligence element of causation.7 See
Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994); Rogers
v. Missouri Pac. R.R. Co., 352 U.S. 500, 506 (1957) (“Under this
statute the test of a jury case is simply whether the proofs
justify with reason the conclusion that employer negligence played
any part, even the slightest, in producing the injury or death for
which damages are sought.”).8
However low the causation standard, “the plaintiff still
carries the burden of proving some act of negligence by the
[railroad],” Deans v. CSX Transp., Inc., 152 F.3d 326, 330 (4th
Cir. 1998). The standard for what constitutes an act of negligence
under
FELA
is
the
same
as
that
under
the
common
law:
“the
employer’s liability is to be determined under the general rule
which
defines
negligence
circumstances.”
as
the
lack
of
due
care
under
the
Tiller v. Atl. Coast Line R.R. Co., 318 U.S. 54,
67 (1943); see also Gottshall, 512 U.S. at 544 (“[U]nless they are
expressly
rejected
principles]
are
in
the
entitled
text
to
of
great
the
statute,
weight.”).
[common-law
Therefore,
“[r]easonable foreseeability of harm is an essential ingredient of
FELA negligence.”
Brown v. CSX Transp., Inc., 18 F.3d 245, 249
7
FELA also expressly repudiates certain common-law negligence defenses
such as assumption of the risk and the fellow-servant rule. 45 U.S.C.
§§ 53–55.
8
Further, railroad companies cannot delegate their duty to provide
employees with a safe place to work. Brown v. CSX Transp., Inc., 18
F.3d 245, 249 (4th Cir. 1994).
12
(4th Cir. 1994); see also id. (“[R]ailroad employers are not the
insurers of their employees.” (citing Inman v. Baltimore & Ohio
R.R. Co., 361 U.S. 138, 140 (1959))).
In general, “the existence of transient conditions created by
the weather do not, standing alone, create liability under FELA.”
Borum v. Grand Trunk W. R.R., Inc., 659 F. Supp. 2d 853, 857 (E.D.
Mich. 2009).
As the North Carolina Supreme Court has observed in
assessing a FELA claim, “[a] railroad must operate its trains
through fair weather and foul, and cannot stop all switching
operations until all . . . storms are over, if it is efficiently
to operate its business.”
(N.C. 1957).
Bennett v. S. Ry. Co., 96 S.E.2d 31, 38
The issue in this case is not whether “transient”
weather conditions have a controlling categorical status — counsel
for NSRC admitted at the motion hearing that there could certainly
be some weather conditions severe enough to create foreseeable
dangers to NSRC employees.
Instead, the issue is simply whether
the record contains evidence on which a jury could find that NSRC
was negligent.
The unfortunate fact here for Martin is that, in the paucity
of evidence he has offered, he has failed to create a genuine issue
of material fact that his injury was foreseeable to NSRC. Although
he offers speculation that NSRC received daily weather forecasts
and therefore had “some type of idea what’s going to happen” with
the weather, Martin is unable to say what the weather forecast was
13
for
the
day
in
question
or
whether
portrayed the conditions that evening.
the
forecast
accurately
(Doc. 109-1 at 20.)
The
record is barren of any evidence of what NSRC knew or would have
known about the weather prior to Martin’s injury.
Although Martin
testified that he had on multiple prior occasions notified his
supervisor when he felt that the weather conditions might make
working unsafe, he did not report anything of the kind on the
evening he was injured.
(Id. at 25.)
Even assuming that NSRC had perfect knowledge of the weather
conditions at the time Martin was injured, which — according to
undisputed weather records from the Greensboro area — included
winds of up to 30 m.p.h. (Doc. 109-2 at 7),9 there is no evidence
in the record that such weather normally creates any danger of
trees falling onto large public interstate highways and striking
passing vehicles, much less evidence that NSRC knew or should have
known of such a danger.
30
m.p.h.
winds
are
There is no evidence in the record that
unusual
or
cause
heightened
danger
to
motorists; in fact, the certified weather records show that winds
in Greensboro reached or exceeded 30 m.p.h. on eight different
days in February 2015 alone.
(Doc. 109-2 at 3.)
Absent evidence
to the contrary, which is not in this record, NSRC is entitled to
rely on the reasonable assumption that large, interstate highways
9
Martin offers no certified weather records.
offered by NSRC and co-Defendants.
14
The only records are
like U.S. Route 29 are properly maintained by the appropriate
authorities, such that motorists are not endangered by roadside
trees being knocked down on them by 30 m.p.h. winds.
Martin
himself does not claim that he believed at the time that the wind
made it unsafe to drive, and he testified that the wind was only
“period[ic]” and “might have not been blowing” as hard in some
areas or at some times.
(Doc. 109-1 at 14, 25.)
He also reports
that he did not see a single downed tree on the night in question,
other than the one that struck his vehicle.
(Id. at 18.)
As evidence of NSRC’s knowledge of the alleged severity of
the wind, Martin relies on his statement that there were “double
the usual rate of [crossing gate] failures” during a 33-hour period
from February 14–15, 2015, which he attributes to the “storm.”
(Doc. 119-2 at 2.)
However, even were the court to assume that
the gate failure rate was this high prior to the accident on the
evening of February 14, 2015, that NSRC would have known about the
elevated gate failure rate before sending Martin out to work, and
that the cause of the elevated gate failure rate was wind, Martin
offers no link between winds sufficient to cause higher-thannormal levels of crossing gate failure and winds sufficient to
blow large trees onto the highway.10
10
In his affidavit, Martin states that — in lieu of sending him to repair
the crossing gates — NSRC could have used “flagmen” at crossings to allow
trains to proceed through crossings despite damaged crossing gates.
(Doc. 119-2 at 2.) He therefore argues that NSRC had a “reasonably safe
15
In sum, Martin has not forecast evidence on which a jury could
determine that his accident was foreseeable to NSRC.11 As a result,
NSRC’s motion for summary judgment will be granted.
B.
Martin’s Rule 41(a)(2) Motion to Dismiss
Martin moves to dismiss without prejudice his claims against
the Construction Defendants — who had allegedly conducted some
operations in the area of the tree that fell — pursuant to Federal
Rule of Civil Procedure 41(a)(2).
(Doc. 117.)
All Construction
alternative available” for operating its trains that did not involve
sending Martin out to fix crossing gates.
(Doc. 119 at 7.)
To the
extent this discussion is offered to support an argument that NSRC was
negligent under FELA for sending Martin out to fix crossing gates when
it could have used flagmen instead, it is unavailing. As an initial
matter, it is pure speculation that flagmen standing at crossings would
be any safer from alleged wind dangers than signal maintainers travelling
on public highways. Moreover, even if flagmen would be safer, the Fourth
Circuit has been clear that the question in FELA cases is “whether the
Railroad . . . exercised reasonable care for the safety of [the
plaintiff], not whether the Railroad could have employed a safer method
for” getting the job done. Stillman v. Norfolk & W. Ry. Co., 811 F.2d
834, 838 (4th Cir. 1987) (affirming district court’s “exclu[sion] as
irrelevant” the plaintiff’s testimony pertaining to a “safer,
alternative way” of working on railroad cars that would have presumably
prevented the plaintiff’s injury).
11
The court further notes — as discussed in more detail herein — that
Martin does not proffer any admissible evidence of why the tree fell,
let alone evidence that wind caused the tree to fall. And if the wind
was not a cause of the tree falling, Martin is left with mere “but for”
causation: had NSRC not called him in to work, his truck would not have
been struck by a falling tree on the highway.
Low as the causation
standard may be for FELA cases, it requires the existence of some nonspeculative evidence — beyond pure “but for” evidence — that the
plaintiff’s injury was caused in some part by the alleged dangerous
condition. See CSX Transp., Inc. v. McBride, 564 U.S. 685, 703–04 (2011)
(explaining that the dissent’s fears of “juries . . . award[ing] damages
in far out ‘but for’ [causation] scenarios” were unrealistic, since
“judges would have no warrant to submit such cases to the jury” under
even the relaxed FELA causation standard).
16
Defendants oppose the motion at this stage of the proceedings.
Dismissal under Rule 41(a)(2) should not be denied unless the
non-moving party is “unfairly prejudiced.”
Davis v. USX Corp.,
819 F.2d 1270, 1273 (4th Cir. 1987); see Dean v. WLR Foods, Inc.,
204 F.R.D. 75, 77 (W.D. Va. 2001) (“In considering prejudice, the
primary
focus
of
the
court
should
be
the
interests
of
the
defendant.”), aff’d sub nom. Dean v. Gilmer Indus., Inc., 22 F.
App’x 285 (4th Cir. 2001).
In making this determination, district
courts typically consider the following four factors:
(1) the opposing party’s effort and expense in preparing
for trial; (2) excessive delay or lack of diligence on
the part of the movant; (3) insufficient explanation of
the need for a dismissal; and (3) the present stage of
the litigation, i.e., whether a dispositive motion is
pending.
Hobbs v. Kroger Co., No. 98-1831, 1999 WL 156045, at *1 (4th Cir.
Mar. 23, 1999) (unpublished table decision) (citing Phillips USA,
Inc. v. All-flex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996);
Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987));
accord Miller v. Terramite Corp., 114 F. App’x 536, 539 (4th Cir.
2004) (unpublished).12
Each will be considered, as well as any
other factor that is relevant.
12
The Fourth Circuit has recognized that its “jurisprudence on the issue
of what constitutes sufficient prejudice to a nonmovant to support denial
of a motion for voluntary dismissal under Rule 41(a)(2) is not free from
ambiguity.” Howard v. Inova Health Care Servs., 302 F. App’x 166, 179
(4th Cir. 2008) (unpublished).
While not precedential, unpublished
decisions of the Fourth Circuit are valuable for their persuasive
reasoning and are cited herein for that limited purpose. See Collins
v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006).
17
At
the
motion
hearing,
counsel
for
the
Construction
Defendants roughly estimated their costs at around $2,000 apiece
for deposition transcripts and for the mediator.
Counsel for
Carolina Seeding estimated its costs at a “couple thousand” higher,
given that the company had retained an expert arborist.
All
Defendants
the
have
of
course
been
through
the
entirety
of
discovery process and have produced and received thousands of pages
of documents.
These efforts and expenses are a factor, but they
are not high for a typical civil case.
See (Doc. 104 at 5 n.3).
This factor is essentially neutral.13
As to the second factor — whether there has been “excessive
delay or lack of diligence on the part of the movant” — Martin’s
bald assertion that there has been no lack of diligence is not
supported by the record and fails to acknowledge the court’s
previous findings.
As the Magistrate Judge noted in her order
denying Martin’s motion for extension of time to complete discovery
(Doc. 104), Martin filed his complaint on September 30, 2016.
Martin’s first discovery deadline gave him over a year to conduct
discovery, and the court later extended that deadline when Martin
added new defendants (Carolina Seeding; Locke Rowe; Smith-Rowe,
Inc.; Smith-Rowe; and Flatiron-Blythe) to the original group of
13
Martin’s Rule 41(a)(2) motion became ripe for decision on September
26, 2018. Of course, each Defendant has since engaged in significant
case preparation, including readiness for trial, which the court has not
considered.
18
Construction Defendants (Flatiron, Inc.; Doggett; and Chipanlog).
In
all,
Martin
had
approximately
14
months
to
conduct
fact
discovery, which the court noted was “[b]y any calculation . . .
a discovery period beyond what would ordinarily b[e] allowed or
contemplated by the Local Rules.”
(Id. at 5–6.)
Martin was given
nearly 13 months to conduct his initial expert discovery, plus an
additional month after Defendants’ expert deadline in which to
conduct rebuttal expert discovery.
(Id. at 2; Doc. 71.)
Despite
allegedly insisting on establishing separate deadlines for expert
discovery (Doc. 104 at 3 n.2), Martin did not retain a single
expert.14
His fact discovery appears to be limited to sending some
written discovery and taking photographs of the accident site.
(Doc. 104 at 4–5; Doc. 101 at 3.)
After the 14-month fact discovery period had passed, Martin
“untimely
served
depositions.”
Defendants
with
(Doc. 104 at 2.)
Notice
of
Rule
30(b)(6)
Defendants moved for protective
orders, and Martin withdrew his deposition notices and noted his
intent to move for a second discovery extension.
(Id.; Doc. 87.)
A motion for extension of the fact discovery period would have
already been untimely when Martin expressed his intent to file it,
but Martin delayed several weeks further, eventually filing it two
14
Martin does appear to intend to rely on the testimony of his treating
physician for damages.
19
and one-half months after the fact discovery period had ended.15
(Doc. 104 at 2.)
The court denied his motion not only because he
failed to show excusable neglect as to his untimely-filed motion,
but also because he “failed to demonstrate that he ha[d] diligently
pursued discovery” during the generous period allotted him.
at 4.)
(Id.
On Martin’s own admission, the total evidence he compiled
during the entire extended discovery period was “nothing more than
jumbled contract documents and photographs.”
(Doc. 101 at 3.)
On this record of untimely filings and minimal discovery
effort, Martin now asserts nevertheless that he has “attempted to
progressively move this case forward.”
(Doc. 118 at 4.)
The
primary effort in this regard appears to have been his amendment
of the complaint to add certain of the Construction Defendants to
those named in the original complaint.
But this happened nearly
a year before his motion for a voluntary dismissal, and it is his
claims against all the Construction Defendants that Martin now
contends is the reason for dismissal, citing alleged difficulties
the jury might have in distinguishing the standards for his FELA
and common-law negligence claims.
Martin gives no reason why it
took him two years to conclude that his FELA and common-law
negligence claims would work jury confusion if tried together, and
the court cannot think of a convincing one.
15
Martin’s lack of
Martin requested further fact discovery and further expert discovery.
(Doc. 89.) The latter request was timely; the former request was not.
20
diligence weighs heavily against his Rule 41(a)(2) motion.
Cf.
Paturzo v. Home Life Ins. Co., 503 F.2d 333, 336 (4th Cir. 1974)
(affirming denial of a voluntary dismissal where the plaintiff
would, in a successive case, “obtain those rights he had forfeited
[in the initial case] through his own lack of diligence”).16
The third factor -- Martin’s “explanation of the need for a
dismissal” -- is equally unpersuasive.
As noted, Martin litigated
both his FELA and common-law negligence claims from the outset for
nearly two years before filing the instant motion, even adding
more negligence claims a year in.
The court is skeptical that
Martin identified his juror-confusion argument only after all
Defendants filed their motions for summary judgment.
Either way,
any perceived need for dismissal on this basis falls away now that
the only FELA claim in the case is being dismissed.
only
Martin’s
possibility
standards.
common-law
of
juror
negligence
confusion
as
claims
to
the
and
This leaves
obviates
applicable
any
legal
The insufficiency of Martin’s explanation of his need
for dismissal weighs heavily against his Rule 41(a)(2) motion.
The
fourth
and
final
factor
16
concerns
the
stage
of
the
As this district has previously noted, “occasional lack of diligence”
in a case — at least when paired with a “relative[ly] timel[y]” Rule
41(a)(2) motion — is not a strong reason to deny the motion. Haynes v.
Genuine Parts Co., No. 13CV615, 2015 WL 8484448, at *5–6 (M.D.N.C. Dec.
9, 2015) (emphasis added); see also Davis, 819 F.2d at 1275 (noting that
the mere “possibility that the plaintiff will gain a tactical advantage
over the defendant in future litigation will not serve to bar a second
suit”). In the instant case, little about Martin’s prosecution of the
case — including his Rule 41(a)(2) motion — has been timely.
21
litigation
pending.”
—
specifically,
“whether
Hobbs, 1999 WL 156045, at *1.
a
dispositive
motion
is
Little analysis is needed
here, as Martin filed his voluntary dismissal motion after five
motions for summary judgment were already pending.
In his initial
brief, Martin waives off these dispositive motions as “simply
technical based requests for relief.”
(Doc. 118 at 5.)
of summary judgment is a ruling on the merits.
A grant
Further, all
Defendants rest their motions on insufficient record evidence
against them — not some sort of legal or procedural technicality.
In his reply brief, Martin alters his approach, relying on an
Eleventh Circuit case for the proposition that there is “no per se
rule that the pendency of a summary judgment motion precludes a
district court from granting a Rule 41(a)(2) voluntary dismissal.”
(Doc. 130 at 3 (citing Pontenberg v. Boston Sci. Corp., 252 F.3d
1253 (11th Cir. 2001)).)
This is certainly true,17 but Martin’s
argument is irrelevant to the court’s analysis here.
The court is
not hewing to any per se rule, but is instead weighing a number of
factors of which the pendency of summary judgment motions is only
one.
Although
the
existence
of
17
Defendants’
previously-filed
Indeed, Martin had no need to look to the Eleventh Circuit for the
proposition he urges, as the Fourth Circuit has also held that “the mere
filing of . . . a motion for summary judgment could not, without more,
be a basis for refusing to dismiss without prejudice.” Andes v. Versant
Corp., 788 F.2d 1033, 1036 n.4 (4th Cir. 1986); but see Howard, 302 F.
App’x at 179–80 (highlighting “ambiguity” in the way the Fourth Circuit
has weighed the pendency of summary judgment motions in the Rule 41(a)(2)
analysis).
22
summary judgment motions would not itself be sufficient to deny
Martin’s Rule 41(a)(2) motion, it does weigh against Martin’s
motion.
Considering all these factors as well as the record as a
whole, the court finds that Martin’s lack of diligence, his
insufficient explanation of the need for a dismissal, the pendency
of dispositive motions, as well as the stage of the proceedings —
taken collectively — counsel against granting his Rule 41(a)(2)
motion.18
See Howard v. Inova Health Servs., 302 F. App’x 166, 180
18
At the motion hearing, Martin rested his Rule 41(a)(2) argument on
Bradley v. Baxter Healthcare Corp., No. 1:10cv230, 2011 WL 4595798
(W.D.N.C. Sept. 6, 2011), adopted by 2011 WL 4595216 (W.D.N.C. Sept. 30,
2011). In Bradley, the magistrate judge recommended that the plaintiff’s
Rule 41(a)(2) motion be granted despite pending summary judgment motions
and the plaintiff’s untimely filing because the defendants had incurred
few costs and because the plaintiff had “set forth a valid reason for
seeking a voluntary dismissal.” Id. at *2. That “valid reason,” wrote
the magistrate judge, was that the plaintiff “face[d] the entry of
summary judgment in favor of Defendants because of his failure to obtain
an expert.” Id. Bradley’s reasoning is unpersuasive in the context of
the present case. Bradley’s conclusion that avoiding an imminent defeat
at summary judgment was a “valid reason” for voluntary dismissal
conflicts with a number of cases in which this and other district courts
in the Fourth Circuit — and even the Fourth Circuit itself, in
unpublished cases — have found that “a motion to voluntarily dismiss
under Rule 41(a)(2) should be denied when a plaintiff seeks to circumvent
an expected adverse result” in a dispositive motion. Nesari v. Taylor,
806 F. Supp. 2d 848, 861 (E.D. Va. 2011); see, e.g., Skinner v. First
Am. Bank of Va., No. 93-2493, 1995 WL 507264, at *2 (4th Cir. Aug. 28,
1995) (unpublished table decision) (“[D]enial of voluntary dismissal is
appropriate where summary judgment is imminent.” (quoting Davis, 819
F.2d at 1274)); St. Clair v. Gen. Motors Corp., 10 F. Supp. 2d 523, 531
(M.D.N.C. 1998) (denying Rule 41(a)(2) motion because, inter alia, it
was filed “in direct response” to defendant’s motion for summary judgment
and plaintiff was “attempt[ing] to avoid the adverse consequences of his
own failure to comply with the deadlines originally set out in the Joint
Rule 26(f) Report”). Moreover, more recent cases from the same district
that issued Bradley appear to have abandoned its reasoning. See Walker
v. Queens Gap Mountain, LLC, No. 1:10–cv–00290–MR–DCK, 2013 WL 5492519,
23
(4th Cir. 2008) (unpublished) (“Given the stage of the litigation,
[the
plaintiff’s]
insufficient
explanation
for
a
voluntary
dismissal, and his lack of diligence . . . the district court did
not abuse its discretion in finding a ‘sufficient basis’ to deny
[the plaintiff’s] motion to dismiss without prejudice.” (quoting
Andes v. Versant Corp., 788 F.2d 1033, 1036–37 (4th Cir. 1986)));
see also Francis v. Ingles, 1 F. App’x 152, 154 (4th Cir. 2001)
(“Considering plaintiff’s lack of diligence, noncompelling reason
for the dismissal, and inconvenience dismissal would have imposed
on the defendant in this case, we find that the district court did
not abuse its discretion by denying plaintiff’s [Rule 41(a)(2)]
motion.”).
To avert prejudice to Defendants, the motion will be
denied.
C.
Construction Defendants’ Motions for Summary
Judgment
The remaining Construction Defendants, and their roles visà-vis the road-widening project, are as follows: Flatiron-Blythe
at *5 (W.D.N.C. Oct. 1, 2013) (writing that a suspected attempt to
“seek[] a dismissal to circumvent an expected adverse result” was “an
improper purpose” for voluntary dismissal under Rule 41(a)(2)); Black
v. Parsons, No. 3:12–cv–286–RJC, 2013 WL 566856, at *3 (W.D.N.C. Feb.
13, 2013). Finally, even if the court were to find Bradley persuasive,
it would not aid Martin.
Martin has been very specific about his
rationale for dismissing the case, and — according to him — it has
nothing to do with the pending summary judgment motions. Instead, he
cites only to potential jury confusion, and at the hearing disavowed any
need for expert testimony.
(Doc. 118 at 5 (stating that he seeks
voluntary dismissal “[t]o avoid confusion and the opportunity for
inconsistent verdicts”).) Given the court’s finding above that — on the
current facts — this is not a sufficient reason for voluntary dismissal,
Bradley and cases like it are distinguishable.
24
was the general contractor, pursuant to a contract with NCDOT, for
the road-widening project.
(Doc. 102-1 at 1–2.)
Construction Defendants were subcontractors.
The other
Carolina Seeding
subcontracted with Flatiron-Blythe to provide “erosion control
services.”
(Id. at 2.)
Doggett subcontracted with Flatiron-
Blythe to “perform . . . the removal of trees and stumps.”
107-3 at 1.)
(Doc.
Smith-Rowe subcontracted with Doggett to “cut some
trees in the area of the accident.”
(Doc. 110-2 at 2.)
Martin does not mention Flatiron, Inc.’s role in the project,
and Flatiron, Inc. states (in combined briefing with FlatironBlythe, collectively the “Flatiron Defendants”) that it “had no
role or involvement in the Project” at all.
Martin
neither
differentiates
briefing.
acknowledges
between
(Doc. 122.)
the
Flatiron,
two
(Doc. 113 at 8–9.)
Inc.’s
Flatiron
argument
Defendants
in
nor
his
The only evidence in the record pertaining
in any way to either of the Flatiron Defendants is what the
Defendants themselves provide in their motions, and nothing in
that evidence points toward any involvement by Flatiron, Inc. in
the road-widening project.
As a result, there is no genuine issue
of material fact with respect to Flatiron, Inc., and its motion
for summary judgment will be granted on that basis.
This leaves Martin’s negligence claims against
Blythe,
Carolina
Seeding,
Doggett,
and
Smith-Rowe.
FlatironThese
Defendants generally make the same overarching argument: that
25
Martin has failed to adduce any evidence that could establish that
any Construction Defendant had a duty of care to him, that any
Construction Defendant violated any duty of care that might have
existed, and/or that any such violation caused Martin’s injuries.
(Docs. 103, 107, 111, 113.)
In his response briefing, as to Flatiron-Blythe, Doggett, and
Smith-Rowe,
Martin
appears
(Docs. 120, 121, 122.)19
not
to
argue
ordinary
Instead, he argues that felling trees
near a highway is an inherently dangerous activity.
4–5.)
negligence.
(Doc. 122 at
Next, he argues that the Construction Defendants should
have known their activities were dangerous (id. at 5–6.), and that
it was foreseeable that the tree’s position on the bank of a stream
would cause it to fall onto the roadway.
As a result, he argues,
Flatiron-Blythe, Doggett, and Smith-Rowe’s “fail[ure] to either
redirect the water from the root system of the offending tree or
cut down that tree so that it would not be undermined”20 constitutes
a failure to take necessary and reasonable precautions.
6–7.)
(Id. at
As to causation, Martin argues that his post-accident
19
Martin’s arguments in response to the summary judgment motions by
Flatiron-Blythe, Doggett, and Smith-Lowe are largely identical.
For
readability purposes, citations will be made to only one brief rather
than all three.
20
At times, Martin has hinted that the very existence of the stream is
the fault of the Construction Defendants; at the motion hearing, Martin’s
counsel represented that he believed the stream was “caused by the
construction.” There is no evidence in the record to support such pure
speculation, and therefore any claim based on that allegation would fail.
26
viewing of the scene as well as post-accident photographs amount
to competent evidence that the tree’s roots were undermined and
that this caused the tree to fall.
Finally, as an alternative
theory, Martin argues that Flatiron-Blythe, Doggett, and SmithRowe are liable under a specific line of North Carolina doctrine
recognizing liability for injuries caused by a “natural condition”
of land “near a public highway” when the “possessor of land” does
not exercise reasonable care to prevent the harm.
(Id. at 8–9.)
As to Carolina Seeding, Martin’s one-page response brief appears
to argue only that Carolina Seeding’s expert report is inadmissible
and that there exists a genuine issue of material fact with respect
to causation. See (Doc. 115 at 2 (“[T]here remains a genuine issue
of material fact as to whether the soil erosion efforts employed
by [Carolina Seeding] contributed to the falling of the tree in
question.”)).
In North Carolina, inherently dangerous activity claims are
a means of defeating the “general rule . . . that one who employs
an
independent
contractor
contractor’s acts.”
is
not
liable
for
the
independent
Reynoso v. Mallard Oil Co., 732 S.E.2d 609,
611 (N.C. Ct. App. 2012).
In other words, whether or not an
activity is inherently dangerous has no bearing on the independent
contractor’s duties; rather, it bears on whether the independent
contractor’s employer is permitted to delegate its duty of care to
the independent contractor.
See Kinsey v. Spann, 533 S.E.2d 487,
27
491 (N.C. Ct. App. 2000) (noting that “the employer has a nondelegable duty for the safety of others” as to an inherently
dangerous
activity
claim).
An
inherently
dangerous
activity
claim, then, can only be made out against employers of independent
contractors, and only negligence by the employer is relevant to
such a claim. See id. (writing that, “[w]ith respect to negligence
claims based upon inherently dangerous activities,” North Carolina
“courts have clarified that it is the negligence of the employer,
not the independent contractor, that must be considered”).21
An inherently dangerous activity claim has four elements:
First, the activity must be inherently dangerous.
Second, at the time of the injury, the employer either
knew, or should have known, that the activity was
inherently dangerous.
Third, the employer failed to
take the necessary precautions to control the attendant
risks.
And fourth, this failure by the employer
proximately caused injury to plaintiff.
Id. at 492 (citations omitted).
inherently
dangerous
activity
claim
The third element of an
—
whether
the
defendant
“failed to take the necessary precautions to control the attendant
risks” — is merely the traditional “reasonable care” standard drawn
from ordinary negligence principles.
S.E.2d 222, 234
(N.C. 1991)
Woodson v. Rowland, 407
(stating that, as to inherently
21
Although there was historically some confusion in North Carolina courts
about this issue, it has become clear in more recent years that
inherently dangerous activity claims are direct claims against the
employer, rather than vicarious claims based on some underlying
negligence by the independent contractor.
See Kinsey, 533 S.E.2d at
491.
28
dangerous activities, “taking the necessary safety precautions can
demonstrate reasonable care protecting the responsible party from
liability under a negligence standard” and that “[l]iability for
injuries caused by such activities is not strict, but is based on
negligence”).22
Separately from all this, North Carolina law provides that “a
landowner has a duty to exercise reasonable care regarding natural
conditions on his land which lies adjacent to a public highway in
order to prevent harm to travelers using the highway.”
Gibson v.
Hunsberger, 428 S.E.2d 489, 492 (N.C. Ct. App. 1993).
Although
some North Carolina courts refer to liability for the “landowner”
in discussing this doctrine, other courts have used “the term
‘landowner’ . . . [to] refer[] to both owners and occupiers of
land” in treating premises liability claims.
Nelson v. Freeland,
507 S.E.2d 882, 883 n.1 (N.C. 1998) (emphasis added) — and the
doctrine itself is an “adopt[ion]” of the rules laid out in parts
of the Second Restatement of the Law of Torts, which uses the
phrase “possessor of land.”
Gibson, 428 S.E.2d at 491 (emphasis
added). Finally, the landowner, occupier, or possessor “is subject
to liability only if he had actual or constructive notice of a
dangerous natural condition.”
Id. at 492.
22
Under North Carolina law, “inherently dangerous” activities — which
impose only a duty of reasonable care — are distinguishable from
“ultrahazardous” activities, for which there is strict liability.
Woodson, 407 S.E.2d at 234–35.
29
As an initial matter, Martin’s inherently dangerous activity
arguments as to Smith-Rowe are clearly inapposite, since the facts
do not show (nor does Martin allege) that Smith-Rowe employed an
independent contractor.
This of course does not mean that Smith-
Rowe cannot be sued for its allegedly negligent acts, but only
that such a suit would sound in ordinary negligence.
See Evans v.
Elliott, 17 S.E.2d 125, 129 (N.C. 1941) (“The contractor may, of
course, be liable for the same want of due care in not taking the
necessary precautions, for the omission of which the employer
becomes liable; but as to the employer . . . public policy fixes
him with a non-delegable duty to see that the precautions are
taken.”).
Concerning Flatiron-Blythe and Doggett, who are at least
entities against which an inherently dangerous activity claim
might be brought, the court is unpersuaded that the activity at
issue here is actually inherently dangerous.
Martin’s argument
turns on the observation made in Kinsey v. Spann, 533 S.E.2d 487
(N.C. Ct. App. 2000) that “although tree felling in a rural,
forested area is not inherently dangerous, a jury could conclude
that performing such work in a populated urban area . . . is
inherently dangerous.”
Id. at 492 (citation omitted); accord
Evans, 17 S.E.2d at 129–30 (remarking, in dicta, that “the cutting
and removal of a large tree in close proximity to dwellings and in
an area traversed by many people would probably be sufficiently
30
hazardous as to require precautions”).
But Martin was not injured
as a result of the felling of a tree by any Defendant.
Instead,
as Martin himself puts it, “[i]t was defendants’ failure to remove
the tree” that comprises the negligent action (or nonaction) in
this case.23
(Doc. 122 at 7.)
Martin cites no North Carolina case
supporting the theory that mere decisions about whether a tree
should or should not be felled constitute an inherently dangerous
activity, and the court is unconvinced that North Carolina courts
would so hold were the issue to come before them.
The risk of
harm that makes tree felling in populated areas an inherently
dangerous activity is the possibility that the tree being cut down
might land on someone — this is the factual scenario underlying
Kinsey.
Thus, as Kinsey makes clear, “tree felling” in this
context refers to “[c]utting and removing a tree.”
S.E.2d at 492 (quoting Evans, 17 S.E.2d at 129).
Kinsey, 533
On this logic,
“tree felling” — for purposes of the inherently dangerous activity
analysis
—
untouched.
does
not
encompass
the
decision
to
leave
a
tree
As a result, Martin’s inherently dangerous activity
arguments fail as to all Construction Defendants against whom they
are raised.
23
As noted elsewhere, Martin also argues that one or more of the
Construction Defendants could have “controll[ed]” the nearby stream “in
a way to preserve the stability of the tree,” and that this failure to
act was negligent. (Doc. 122 at 8.) This theory implicates actions or
nonactions even more distant from “tree felling” than the decision not
to fell a tree.
31
As to Martin’s claim based on “possessor of land adjacent to
a public highway” doctrine, the court is unconvinced that the
Construction Defendants
—
each of whom was hired to perform
specific tasks on the land — are or were “possessor[s] of land” in
the sense relevant to this theory of liability.
Carolina
cases
dealing
with
this
doctrine
are
The only North
cases
against
defendants who had legal rights to the land, meaning owners or
parties who had rented the land from an owner.
See Gibson, 428
S.E.2d at 490–91; Wallen v. Riverside Sports Ctr., 618 S.E.2d 858,
860 (N.C. Ct. App. 2005).
It is true that the North Carolina
Supreme Court has held in the attractive nuisance context that a
party, although “not a possessor of the construction site,” could
still be held liable “subject to the same rules of liability which
define the duty of the landowner” for harm resulting from its
“creat[ion
of]
a
condition
upon
the
land
on
behalf
of
the
possessor” when the party knows or should know that children are
likely to trespass and be injured.
Broadway v. Blythe Indus.,
Inc., 326 S.E.2d 266, 269–70 (N.C. 1985).
However, even assuming
the North Carolina Supreme Court would extend this same “possessor
of land” reasoning from the attractive nuisance context to the
“possessor of land adjacent to a public highway” context, that
reasoning would still not apply to the Construction Defendants.
This is because the harm that befell Martin was not the result of
a Construction Defendant’s “creat[ion of] a condition upon the
32
land,” Broadway, 326 S.E.2d at 270, but rather a result of their
alleged failure to address a pre-existing condition on the land.
Martin himself points out that the tree came into existence long
before the Construction Defendants’ arrival on the scene (Doc. 122
at 6), and (as noted in footnote 20, supra) there is no evidence
in the record that the stream is manmade or — if so — that the
Construction Defendants created it.
This leads the court to the
conclusion that the Construction Defendants could not be liable
under any “possessor of land” theory in the first place.
Moreover, regardless of whether Martin’s claims against any
of
the
remaining
Construction
Defendants
sound
in
inherently
dangerous activity doctrine, “possessor of land adjacent to a
public highway” doctrine, or ordinary negligence,24 all such claims
24
As to Carolina Seeding’s motion for summary judgment, Martin’s onepage response brief — containing only a short “Introduction” and
“Conclusion” — does not make any argument as to inherently dangerous
activity or “possessor of land adjacent to a public highway.” (Doc.
115.)
Instead, it only attacks Carolina Seeding’s expert report and
argues that there remains a genuine issue of material fact as to
causation. (Id.) The court construes Martin’s claim against Carolina
Seeding as one for ordinary negligence. Martin’s argument that Carolina
Seeding’s expert report is inadmissible rests on the theory that, because
the expert (James R. Hopp) based his report on “the same photographs to
be reviewed by a jury,” the expert must not have employed any
“specialized scientific knowledge or methodology.” (Doc. 115 at 2.) As
an initial matter — and as the court discusses more fully below — it is
beyond the ken of the jury to divine what caused the tree to fall based
on Martin’s post-accident photographs.
Thus, the very premise of
Martin’s objection to Mr. Hopp’s report is mistaken; Martin’s invitation
to have the jury speculate as to the cause of the accident does not
create a genuine dispute of material fact.
Moreover, even if the
photographs were competent jury evidence as to causation, that fact has
no bearing on whether Mr. Hopp employed “specialized scientific
knowledge” in reviewing the photographs and arriving at a conclusion.
33
necessarily
fail
because
Martin
has
not
forecast
competent
evidence on which a jury could find that the alleged dangerousness
of the tree was known to the Construction Defendants. See Woodson,
407 S.E.2d at 238 (employer only liable in the inherently dangerous
activity context “if it knew of the circumstances creating the
danger”); Gibson, 428 S.E.2d at 492 (possessors of land only liable
if they had “actual or
constructive notice
of the dangerous
condition”); Fussell v. N.C. Farm Bureau Mut. Ins. Co., Inc., 695
S.E.2d 437, 440 (N.C. 2010) (“The duty [of ordinary care] does not
require perfect prescience, but instead extends only to causes of
injury that were reasonably foreseeable . . . .”).
Martin’s only
evidence of the tree’s condition at or before the time of the
accident — as well as his only evidence of the Construction
Defendants’ knowledge of the tree’s condition at or before the
time of the accident — is a set of photographs taken after the
accident and Martin’s own affidavit based on a post-accident
viewing of the scene.
(Docs. 122-2, 122-4.)
The photographs show
Mr. Hopp is a registered arborist with many decades of experience, not
only in the general field of tree appraisal but also with similar
equipment to that used by Carolina Seeding. (Docs. 102-2, 102-3.) That
Mr. Hopp would be able to provide an expert opinion about the capacity
of that equipment to harm tree roots of the size visible in the
photographs is likely, regardless of what conclusions a layperson would
be able to draw based on the same photographs.
See Md. Cas. Co. v.
Therm-O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998) (per curiam) (“All
Daubert demands is that the trial judge make a ‘preliminary assessment’
of whether the proffered testimony is both reliable (i.e. based on
‘scientific knowledge’) and helpful (i.e. of assistance to the trier of
fact in understanding or determining a fact in issue).”).
34
the tree at issue fallen across the stream from what was apparently
its prior position on or near the far bank of the stream.
122-2.)
(Doc.
In his affidavit, Martin states that he visited the site
“[a] few days after” the accident and observed the fallen tree.
(Doc. 121-4 at 1.)
Martin observed that “[t]he base of the tree
was immediately adjacent to the running water at the bottom of the
gully,” and he speculated that the “water was running under where
the roots would have been if the tree was standing upright,
effectively undercutting the soil that should have been supporting
the tree.”
(Id. at 2.)
None of this evidence shows that the tree actually constituted
a dangerous condition prior to the accident, much less that the
Construction Defendants had actual or constructive notice that it
was dangerous.
Evidence that the base of the fallen tree appears
to have been situated on the bank of a stream does not equate to
evidence that such a position put the tree in danger of falling
onto the roadway, and Martin has produced no evidence as to what
might make the tree’s (or any tree’s) position dangerous. Further,
Martin’s speculation about where the roots “would have been” before
the accident is just that: speculation.
The court is certainly
unable to tell from the post-accident photographs whether the
tree’s roots — ripped out of the ground as the tree fell — might
have been undermined in their prior position before the accident,
or whether the extent of any prior “undercutting” of the roots
35
rose to the level of creating a real danger.
Martin did not
witness the tree prior to the accident, and he has introduced no
evidence from any other witness prior to the accident.
He has not
deposed anyone, nor has he introduced any other evidence of what
the Construction Defendants knew or did not know about the tree.
He also does not profess any special knowledge or training that
would support his speculation about the dangerousness of the tree’s
position prior to the accident.
As a result, Martin has not put
forward sufficient evidence under any of his theories on which a
jury could find that his injury was foreseeable to any of the
Construction Defendants.
Cf. Gibson, 428 S.E.2d at 492 (finding,
as a matter of law, that the fact that a tree had been leaning
towards the road prior to falling on the road did not constitute
“evidence [that] would have put a reasonable landowner on notice
that a dangerous condition existed,” especially when no one “who
observed the tree prior to its fall thought it was necessary to
report” the tree as a potential danger).
What’s more, as the foregoing discussion implies, Martin’s
lack of non-speculative evidence as to the condition of the tree
also
dooms
his
claims
as
to
the
element
of
causation.
As
previously noted, no one witnessed the tree fall, and the only
evidence of what may have caused it to fall consists of wind speed
records, post-accident photographs, and Martin’s speculation that
the wind, in conjunction with the nearby stream “undercutting” the
36
tree’s roots, caused the tree to fall.
But as other courts have
pointed out, the “average lay person is not capable of discerning
when a leaning tree may create a dangerous situation requiring an
emergency response and whether the likelihood of the tree falling
is
related
to
the
circumstances.”
condition
of
the
tree
.
.
.
or
other
Katkish v. District of Columbia, 763 A.2d 703,
706 (D.C. 2000).
In North Carolina, as in most jurisdictions,
“expert testimony is generally required when the standard of care
and
proximate
cause
are
matters
involving
knowledge beyond the ken of laymen.”
S.E.2d 286, 289 (N.C. Ct. App. 1981).
highly
specialized
Smithers v. Collins, 278
Despite a generous and once-
extended period in which to produce expert testimony, Martin has
produced none, leaving the lay jury to engage in pure speculation
about what factor or combination of factors may have caused the
tree to fall.
This is insufficient to survive summary judgment.
See Ross v. Fed. Deposit Ins. Corp., 625 F.3d 808, 817 (4th Cir.
2010) (“To survive summary judgment, the non-movant must bring
forth
‘fact-specific
establishing
the
cause
and
of
not
merely
her
injury.”
speculative’
(quoting
evidence
Driggers
v.
Sofamor, S.N.C., 44 F. Supp. 2d 760, 765 (M.D.N.C. 1998))).
In conclusion, Martin has failed to forecast evidence making
the application of inherently dangerous activity or “possessor of
land adjacent to a public highway” doctrine applicable to any of
the Construction Defendants, and he has further failed to forecast
37
evidence as to notice, foreseeability, or causation as to either
of these theories or as to an ordinary negligence theory.
As a
result, the Construction Defendants’ motions for summary judgment
will be granted.
D.
Remaining Motions
In recent weeks, Defendants have filed a large number of
motions relating to the upcoming trial.
(Docs. 146, 149, 151,
152, 154, 157, 159, 161, 163, 165, 167, 169, 171, 173, 175, 176,
179, 181, 183, 185, 187, 188, 191, 193, 194, 197, 199, 201, 203,
205, 207, 259, 261.)
As the court is entering summary judgment in
favor of Defendants on all claims, these motions will be denied as
moot.
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that Martin’s motion to dismiss (Doc.
117) is DENIED and Defendants’ motions for summary judgment (Docs.
102, 106, 108, 110, 112) are GRANTED.
IT IS FURTHER ORDERED that all other outstanding motions
(Docs. 146, 149, 151, 152, 154, 157, 159, 161, 163, 165, 167, 169,
171, 173, 175, 176, 179, 181, 183, 185, 187, 188, 191, 193, 194,
197, 199, 201, 203, 205, 207, 259, 261) are DENIED AS MOOT and
this action is DISMISSED WITH PREJUDICE.
/s/
Thomas D. Schroeder
United States District Judge
December 31, 2018
38
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