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Poage v. Cox

Court of Appeals of North Carolina

May 7, 2019

CHERYL CHRISTINE POAGE, individually and as Executrix of the Estate of ROBERT BATEMENT POAGE, Plaintiffs,
v.
IRA COX; GAIL COX; and SCHOENEN POOL AND SPA, LLC, Defendants.

          Heard in the Court of Appeals 5 March 2019.

          Appeal by plaintiffs from order entered 12 June 2018 by Judge Michael L. Robinson in Forsyth County Superior Court No. 16 CVS 4863.

          Fox Rothschild LLP, by Robert H. Edmunds, Jr., Kip David Nelson, and Jules Zacher, pro hac vice, for plaintiff-appellants.

          Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones, for defendant-appellees Cox.

          Robert B. Laws for defendant-appellee Schoenen Pool and Spa, LLC.

          TYSON, JUDGE.

         Cheryl Christine Poage appeals the trial court's order granting summary judgment to Ira and Gail Cox ("the Coxes") and Schoenen Pool and Spa, LLC, ("Schoenen"). We affirm in part, reverse in part, and remand.

         I. Background

         The Coxes owned a mountain cabin ("the Cabin") they rented to vacationers. In July 2009, they installed a hot tub and an adjacent waterfall on their property. The Coxes had hired Schoenen to maintain, clean, and perform routine service on the hot tub and waterfall.

         Cheryl Poage reserved the Cabin on the Airbnb.com website. Cheryl Poage; her husband, Robert Poage; and Robert's two adult sons, Eric and Jason Poage; stayed at the Cabin from 24 August to 27 August 2015. During their visit, Cheryl and Robert Poage spent time in and around the hot tub and waterfall. On 29 August 2015, shortly after their visit to the Cabin, Cheryl Poage began experiencing weakness and fever. Robert Poage began experiencing fever, weakness, chills, and headache. Cheryl and Robert Poage ("the Poages") were allegedly diagnosed with Legionella pneumonia, more commonly known as Legionnaires' disease, and both allegedly required hospitalization.

         On 10 August 2016, the Poages filed a complaint alleging they had contracted Legionnaires' disease after coming into contact with Legionella bacteria in the Coxes hot tub and waterfall. The Poages asserted claims for negligence against the Coxes and Schoenen (collectively "Defendants"), and breach of contract against the Coxes. The Poages alleged, among other things:

15. Defendants Cox owed a duty to their rental customers, including plaintiffs, to exercise reasonable care in the operation and maintenance of the rental unit and to keep the facility in a reasonably safe condition.
16. Defendants Cox further owed a duty to their rental customers, including plaintiffs, to warn of hidden perils or unsafe conditions known by defendants or discoverable by reasonable inspection.
. . .
24. It was the duty of Defendant Schoenen [to properly] maintain the said water feature in a reasonably safe manner so as not to subject guests and visitors to the premises, including plaintiffs, to unreasonable risks of harm.
. . .
27. Plaintiffs contracted with Defendants Cox for the rental of defendants' property for occupancy by plaintiffs.
28. An implied term of the rental contract was that the rental property would be suitable and safe for normal occupancy, and that plaintiffs would have the quiet enjoyment of same.
29. Defendants Cox breached the contract by providing plaintiffs with a facility that included an unreasonably dangerous peril, namely the contaminated water feature described herein.
30.As a proximate result of said defendants' breach of their contract with plaintiffs, plaintiffs suffered the injuries and losses set forth above.

         Robert Poage died on 16 December 2016, purportedly for reasons unrelated to Legionnaires' disease, and Plaintiff moved to substitute herself for him as executrix of his estate in the lawsuit. On 14 December 2017, the trial court entered a scheduling and discovery consent order, which required the completion of all discovery by 13 July 2018. The Coxes and Schoenen filed motions for summary judgment pursuant to North Carolina Rule of Civil Procedure 56 in April 2018. The parties subsequently submitted briefs, exhibits and deposition transcripts.

         A hearing was conducted on Defendants' motions on 11 June 2018 and the trial court issued an order granting Defendants' summary judgment.

         The trial court's summary judgment order stated, in relevant part:

2. During the hearing on Jun 11, 2018, counsel for both Defendants made oral motions to strike the statements or affidavits of Carl Fliermans and Jonathan Kornreich. Defendants contend that the statements were not timely served, did not contain necessary attestations, were not sworn to, or were otherwise procedurally improper and inadmissible and are thus not properly considered as evidence with regard to the Motions. The Court in its discretion denies these motions to strike to the extent they are based on claimed procedural irregularities and determines that, for purposes of its consideration of the Motions, it will consider the statements made by Dr. Fliermans and Mr. Kornreich. Whether the testimony or statements within the documents are admissible and properly considered by the Court, or sufficient in and of themselves, when combined with other evidence brought forward by Plaintiffs, to permit Plaintiffs to avoid summary judgment, is an entirely different and is matter dealt with hereinbelow.
3.Notwithstanding the Court's denial of the oral motions to strike, and based on the Court's review of the Motions, its review of the Court file, including the statements brought forward by Plaintiffs, and its consideration of the arguments of counsel for the parties, the Court concludes that Defendants' motions for summary judgment should be granted and Plaintiffs' claims dismissed.
. . .
5. It is undisputed as a factual matter that the water in the water treatment never tested positive for the presence of legionella bacteria, though the parties disagree as to the cause of this fact.
. . .
8. The parties all agree that legionella bacteria is ubiquitous - it exists throughout nature in greater or lesser degrees. Notwithstanding this fact, Plaintiffs have come forward with no objective evidence that the water feature was contaminated with legionella bacteria at the time Plaintiffs stayed at the Coxes' home.
9. Following several years of discovery pursuant to a discovery scheduling order entered in the case, but before the deadline for Defendants to designate their expert witnesses. Defendants filed the Motions, pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, seeking entry of summary judgment in their favor and dismissing Plaintiffs' action for a host of reasons. Defendants contend that Plaintiffs have failed to come forward with sufficient admissible evidence to prove either that Defendants breached a legal duty to Plaintiffs or (in the case of the Coxes) breached a contract between the Coxes and Plaintiffs. Defendants further contend that Plaintiffs have failed to come forward with sufficient admissible evidence to prove that, even assuming a breach of a duty or contract, that the alleged breach proximately resulted in Plaintiffs' illness. Defendants also contends [sic] that Plaintiffs assumed the risk of illness and were contributorily negligent by virtue of the fact that they were aware of irregularities in the water and they were warned not to use the spa until further notice but used it nonetheless.
. . .
13.Having carefully considered the record in this matter, and having also considered the arguments of counsel for the parties, the Court concludes that Defendants have made a sufficient initial showing to shift the burden to Plaintiffs to come forward with evidence to substantiate their claims. Further, while there may be in the Court's opinion sufficient evidence of negligence or breach of contract on Defendants' part, Plaintiffs have nonetheless failed to come forward with sufficient admissible evidence to support one or more of their required factual showings to proceed to trial: (a) that the water feature was contaminated with legionella bacteria at the time Plaintiffs stayed at the Coxes' house; or (b) that Plaintiffs contracted legionella pneumonia from being in the vicinity of the water feature.
14. With regard to both factual issues, Plaintiffs have relied on speculation and conjecture, as opposed to coming forward with admissible evidence to support their contentions in two critical regards, Michael L. Silverman's statement, dated June 6, 2018, states that:
Based upon my training, experience and expertise and based upon my review of the records listed above, it is my medical opinion more likely than not that Mr. and Mrs. Poage developed Legionella pneumonia as a result of exposure to the hot tub and waterfall while staying at this rental property from August 24 to August 27, 2015 (Silverman Aff. ¶ 8.)
15. Putting aside the "more likely that not" standard utilized by Dr. Silverman, rather than "to a reasonable degree of medical certainty", the basis for this opinion is set forth in an earlier paragraph as follows:
The simple fact that both Mr. and Mrs. Poage developed
Legionella pneumonia at the same time in early September 2015, supports the Airbnb home they stayed as the source as [sic] the incubation of two to ten days is consistent with this fact. (Silverman Aff., ¶4, p. 5)
16.Dr. Silverman's statement is the only one put forward by Plaintiffs that purports to provide the vital and necessary proximate cause link between Defendants' alleged negligence and Plaintiffs' claims for illness and injuries. The Court believes that Dr. Silverman's statement does not provide a proper basis for an opinion satisfying the proof element of proximate causation. The above quoted language stands for nothing more than that the timeline in this case is "consistent with" the Poages having contracted legionella bacteria while at the Coxes' home. The Court concludes that such a statement does not satisfy Plaintiffs' obligation to come forward with admissible evidence of proximate causation.
17. Similarly, the "statement" by Jonathan Kornreich, another witness proferred by Plaintiffs as a purported expert opinion witness, provides, in relevant part (at least as to the proximate cuase [sic] issue), that:
In this instance, it is clearly more likely than not that the chain of failures and disregard of standard safety practices, both by Schoenen and Cox, observed at this property created a situation in which dangerous bacteria were permitted to ...

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