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Deitz v. Jackson

Filed: May 18, 1982.

BAXTER ERNEST DEITZ
v.
WILLIAM E. JACKSON, D/B/A W. E. JACKSON CONSTRUCTION COMPANY; RAY COLEMAN; AND AMERICAN CONSTRUCTION, INC.; AND SYNTEK CORPORATION



Appeal by plaintiff from Snepp, Judge. Order entered 8 May 1981 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 10 March 1982.

Hedrick, Judge. Judge Vaughn concurs. Chief Judge Morris dissents.

Hedrick

"A complaint is deemed sufficient to withstand a motion to dismiss under Rule 12(b)(6) where no insurmountable bar to recovery appears on the face of the complaint and the complaint's allegations give adequate notice of the nature and extent of the claim." Presnell v. Pell, 298 N.C. 715, 719, 260 S.E.2d 611, 613 (1979). "A claim for relief should not suffer dismissal unless it affirmatively appears that plaintiff is entitled to no relief under any state of facts which could be presented in support of the claim." Presnell v. Pell, supra at 719, 260 S.E.2d at 613.

With respect to the allegations contained in "Count Four" of plaintiff's amended complaint, defendants argue that dismissal was proper in that a general contractor's negligence in hiring an independent contractor to perform construction work is not actionable; alternatively, defendants argue that even if such negligence were actionable, dismissal was proper in that "plaintiff's Complaint neglects to allege those facts demonstrating defendants' failure to exercise reasonable care in hiring" the independent contractor.

In determining whether there is any cause of action for the negligent hiring of an independent contractor, the following statement from Page v. Sloan, 12 N.C. App. 433, 439, 183 S.E.2d 813, 817, cert. allowed, 279 N.C. 727, 184 S.E.2d 886 (1971), affirmed, 281 N.C. 697, 190 S.E.2d 189 (1972), is controlling:

The general rule is that an employer or contractee is not liable for the torts of an independent contractor committed in the performance of the contracted work. . . . However, a condition prescribed to relieve an employer from liability for

the negligent acts of an independent contractor employed by him is that he shall have exercised due care to secure a competent contractor for the work. Therefore, if it appears that the employer either knew, or by the exercise of reasonable care might have ascertained that the contractor was not properly qualified to undertake the work, he may be held liable for the negligent acts of the contractor. . . . "An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons."

Hence, a general contractor may be subject to liability for an injury done to a plaintiff as a proximate result of the general contractor's negligence in hiring an independent contractor to perform construction work.

The next inquiry is whether plaintiff's "Count Four" was subject to dismissal for insufficiently pleading the facts constituting defendants' alleged negligent hiring of an independent contractor. A motion to dismiss under Rule 12(b)(6) may not be successfully interposed to a complaint which was formerly labeled a "defective statement of a good cause of action;" for such complaint, other provisions of Rule 12, the rules governing discovery, and the motion for summary judgment provide procedures adequate to supply information not furnished by the complaint. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). "Detailed fact pleading is not required." North Carolina National Bank v. Wallens, 31 N.C. App. 721, 722, 230 S.E.2d 690, 691 (1976). In the present case, "Count Four" of plaintiff's complaint alleges that defendants had a duty to hire competent construction companies on plaintiff's jobsite, that defendants breached such duty by negligently hiring an incompetent construction company, and that as a proximate result thereof, plaintiff was injured. Although the specific facts constituting the manner in which defendants were negligent in their hiring of a construction company were not alleged, such specificity was not required where, as here, the complaint sufficiently apprised defendants of the events that produced the claim and of what the claim was. "Count Four" discloses no insurmountable bar to recovery and gives defendants adequate notice of the

nature and extent of a legally recognized claim; hence, dismissal of plaintiff's "Count Four" was improper. See Presnell v. Pell, supra.

With respect to "Count Five" of plaintiff's amended complaint, we turn to the law on an employer's liability for the torts of an independent contractor in the conduct of peculiarly risky activities. "[W]here it is reasonably foreseeable that harmful consequences will arise from the activity of . . . [an independent] contractor unless precautionary methods are adopted, the duty rests upon the employer to see that these precautionary measures are adopted and he cannot escape liability by entrusting this duty to the independent contractor." Dockery v. World of Mirth Shows, Inc., 264 N.C. 406, 410, 142 S.E.2d 29, 32 (1965); see also Evans v. Elliott, 220 N.C. 253, 17 S.E.2d 125 (1941); Cole v. City of Durham, 176 N.C. 289, 97 S.E. 33 (1918). This rule imposes liability on an employer for the negligent torts of independent contractors performing, for the employer, an activity which would result in harmful consequences unless proper precautions are taken; the liability is imposed on the employer "since public policy fixes him with a non-delegable duty to see that the precautions are taken." Evans v. Elliott, supra at 259, 17 S.E.2d at 129. "'[T]he cases of ...


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