CHERYL CHRISTINE POAGE, individually and as Executrix of the Estate of ROBERT BATEMENT POAGE, Plaintiffs,
IRA COX; GAIL COX; and SCHOENEN POOL AND SPA, LLC, Defendants.
in the Court of Appeals 5 March 2019.
by plaintiffs from order entered 12 June 2018 by Judge
Michael L. Robinson in Forsyth County Superior Court No. 16
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.
B. Laws for defendant-appellee Schoenen Pool and Spa, LLC.
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.
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.
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
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
. . .
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
29. Defendants Cox breached the contract by providing
plaintiffs with a facility that included an unreasonably
dangerous peril, namely the contaminated water feature
30.As a proximate result of said defendants' breach of
their contract with plaintiffs, plaintiffs suffered the
injuries and losses set forth above.
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
hearing was conducted on Defendants' motions on 11 June
2018 and the trial court issued an order granting
Defendants' summary judgment.
trial court's summary judgment order stated, in relevant
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
. . .
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
. . .
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
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),
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