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Cook v. Morrison3/3/1992
GREENE, Judge.
Plaintiff appeals from an order entered 12 February 1991 granting defendant-David Osteen's motion for summary judgment.
Viewed in the light most favorable to the plaintiff, the evidence produced at the summary judgment hearing tends to show the following: In December, 1986, David Osteen (defendant) bought a piece of real estate located in Henderson County, North Carolina now known as the Sunny Pines Subdivision. Sometime in the early months of 1987, the defendant decided to develop the land. Although the defendant held a residential contractor's license, he was a truck driver by trade. He had never built a house as a general contractor, other than his own home, and when he built his own home, he had nothing to do with installing the septic system. Furthermore, the defendant did not know how to dig a trench or install a sewer system.
To begin developing his property, the defendant had an engineer design a sewer system for his property. He then entered into an oral contract with James Morrison (Morrison), the sole proprietor of Morrison Construction and Septic Tank Company (Morrison Company), to install the sewer system on the defendant's property at a cost of $3.40 per foot. The system was to consist of a treatment plant and sewer lines. Morrison ordered the materials needed for the job , and Morrison Company began working on about 1 July 1987. Morrison supplied the equipment needed for the job. Although Morrison could not recall whether he had the authority under the contract to hire employees for the job, he testified that he normally used his own employees to install sewer systems, and for this job, he hired several employees. One of his employees was Everett Cook (Cook). No one besides Morrison instructed Morrison's employees as to what they were to do and how they were to do it. The only people that the defendant had on the job site were the defendant's son and a friend of his son. They helped carry pipe and retrieve materials for Morrison's employees. Neither Morrison nor the defendant paid these people for their help. During the time period of this job, Morrison submitted bids for other projects for septic tank installation. With regard to the other jobs Morrison had at this time, he, not the defendant, decided when his crew would work at the defendant's property and when they would work elsewhere. To the best of the plaintiff's knowledge, however, Cook worked only on this job site.
The defendant visited the site about every other day usually during his lunch hour to check on Morrison's progress. Occasionally, the defendant gave instructions and made suggestions to Morrison about the work related to engineering requirements as set out in the blueprints for the sewer system, including the need for a certain piece of equipment, where to start, where to place the treatment plant, where to place the manholes, and how much dirt had to be on top of the pipe. Morrison, however, was in charge of digging the trench and installing the sewer system.
On 4 August 1987, Cook and two other employees were working in a newly excavated trench which was approximately twenty-six feet long, five feet wide, and thirteen feet deep when part of the trench collapsed killing Cook. The walls of the trench were vertical and had not been shored, sloped, braced, or otherwise supported to prevent a collapse. Furthermore, material removed from the trench was stored about six inches from the edge of the trench. The North Carolina Department of Labor cited Morrison for violations of the Occupational Safety and Health Act because of the absence of proper support for the walls of the trench and because of the closeness to the edge of the trench of the material re
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