Edwards Kirby Appeal May Expand Developer Liability in Construction Site Accidents

Feb 07, 2020

A Court of Appeals victory secured by Edwards Kirby Attorneys David F. Kirby and Bill Bystrynski could have a major impact on North Carolina cases involving victims who wish to hold real estate developers and other parties liable in premises and construction accident cases.

The decision – filed January 7, 2020 in the Court of Appeals of North Carolina – concerns the case of Copeland v. Crescent Communities, LLC et al., a wrongful death lawsuit brought by the family of a five-year-old boy who was struck and killed by an overloaded dump truck while playing outside his home in the Forest Ridge neighborhood of Orange County. The dump truck had been left unattended with its engine running and without wheel chocks on a steep hill, and nearly missed several other children while rolling downhill onto the family’s property.

Visit North Carolina Lawyers Weekly for its article on the decision.

Real Estate Developers, Duty of Care & Construction Accidents

While the tragic accident raises questions about the negligence of various parties – including the dump truck driver, its operator, and the general contractor in charge of the project – the appeal concerns negligence claims against the real estate developer who designed and planned the residential community where the accident occurred.

After the lower court ruled in favor of the real estate developer – which claimed it lacked the authority and legal duty to ensure safe construction at home sites it sold to independent builders who would handle home construction – Attorneys David Kirby and Bill Bystrynski appealed, arguing that the developer still retained a duty to develop a safety plan, sequence the project to minimize harm from construction accidents, and conduct inspections of builders’ progress.

To support the claims, Attorneys David Kirby and Bill Bystrynski presented evidence showing:

  • The development occurred on unusually steep, hilly terrain;
  • Construction of homes would require at least some lots to be individually graded prior to home building with heavy equipment and materials;
  • There were foreseeable risks of roll-aways during construction; and
  • A reasonably prudent developer would take steps to sequence construction or grad in the area in advance to avoid foreseeable injuries caused by construction accident.

Because the developer did not sequence the construction of the residential community, allowing uphill lots to be built before downhill ones, it was argued, the family moved into a home while some lots uphill had yet to be graded, ultimately contributing to the fatal accident. The accident occurred when a subcontractor employed by the home builder began grading work on a lot uphill from the family’s home, on sloping terrain facing the home, with the use of a dump truck and heavy excavating equipment. The dump truck rolled down hill, striking and killing the 5-year-old. Our team worked closely with experts who testified that roll-away accidents were a well-known risk in the industry, and that a reasonably prudent developer would take steps to address it.

The real estate developer contended that North Carolina law does not impose a duty to anticipate the negligence of others, and that its control over construction work was limited to aesthetic issues alone.

The Opinion
In its published opinion, the North Carolina Court of Appeals grappled with limited case law and the fact that North Carolina Courts have historically ruled against expanding legal duties and liability of property owners and general contractors who hire independent contractors to perform work on their behalf. However, it ultimately ruled summary judgment had been improperly granted, and reversed and remanded the case to the lower court.

Although the Court rejected arguments that the developer had a duty to inspect or monitor the site, or to take precautions against negligent construction work (as N.C. law imposes no duty for anticipating others’ negligence), it did affirm that the developer had a duty to sequence construction or conduct mass grading.

As the opinion states:

“We agree that the Copelands have forecast evidence creating a genuine issue of material fact on this theory of duty. They put forth experts who testified in depositions that there are various ‘hazards’ and ‘risks’ associated with roll-away equipment on hilly construction sites. Those experts testified that the risks of rollaway accidents are known in the planned development industry. They also testified that a reasonably prudent developer would undertake a ‘safety analysis’ or ‘hazard analysis’ and take steps such as sequencing development or conducting mass grading to eliminate the risk of injury from these roll-away accidents.”

If these facts were true, the opinion states, “it would be sufficient to impose a duty of care.”

Far-Reaching Implications: A Case Worth Watching

Although the appellate court was careful to not expand the law – as such a power belongs to the state Legislature and Supreme Court – the ruling could have a far-reaching impact on imposing liability against owners, developers, and general contractors for the negligent conduct of independent contractors in premises liability and construction accident cases. As North Carolina Lawyers Weekly notes:

“Copeland raises as many questions as it appears to answer. In the coming years, attorneys across the state will be watching closely.”

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