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Copeland v. Amward Homes of N.C., Inc.

Court of Appeals of North Carolina

January 7, 2020

WILLIAM EVERETT COPELAND IV and CATHERINE ASHLEY F. COPELAND, Co-Administrators of the ESTATE OF WILLIAM EVERETT COPELAND, Plaintiffs,
v.
AMWARD HOMES OF N.C., INC., CRESCENT COMMUNITIES, LLC; and CRESCENT HILLSBOROUGH, LLC, Defendants.

          Heard in the Court of Appeals 12 February 2019.

          Appeal by plaintiffs from order entered 7 May 2018 by Judge W. Osmond Smith III in Orange County No. 17 CVS 162 Superior Court.

          Edwards Kirby, LLP, by David F. Kirby and William B. Bystrynski, and Holt Sherlin LLP, by C. Mark Holt and David L. Sherlin, for plaintiffs-appellants.

          Cranfill Sumner & Hartzog LLP, by Susan K. Burkhart and F. Marshall Wall, for defendants-appellees.

          DIETZ, Judge.

         Five-year-old Everett Copeland died after an overloaded dump truck rolled away and struck him as he played near his home. The dump truck was left unattended, with its engine running and without wheel chocks, at a home construction site up a hill from the Copeland's home.

         This case screams of negligence-by the dump truck driver, by the company that operated the dump truck, perhaps even by the general contractor responsible for supervising the operation. This appeal involves none of those parties.

         This case concerns negligence claims against the real estate developer who designed the planned community where the accident occurred. The Copelands argue that the developer-although it sold the lots to independent builders to handle construction-retained a duty to develop a safety plan, sequence the project to minimize harm from construction accidents, and conduct inspections of builders' progress.

         Most of the Copelands' theories of legal duty are barred by settled tort principles established by our Supreme Court. A real estate developer, like anyone else, may hire a contractor to perform a service such as building a home, and has no duty to supervise that contractor's work. Woodson v. Rowland, 329 N.C. 330, 350, 407 S.E.2d 222, 234 (1991). Similarly, a real estate developer, like anyone else, has no duty to imagine all of the harms that might be caused by other people's negligence and then to take precautionary steps to avoid those harms. Chaffin v. Brame, 233 N.C. 377, 380, 64 S.E.2d 276, 279 (1951).

         Still, as explained below, the Copelands have advanced a theory of legal duty that survives summary judgment under these principles. They have forecast evidence that this development occurred on unusually steep, hilly terrain; that the construction would involve heavy equipment and materials; that there were foreseeable risks of roll-aways during construction; and that a reasonably prudent developer would take steps to sequence construction or grade the area in advance to avoid foreseeable harm caused by these construction accidents. There are genuine issues of material fact on this theory of duty and we therefore reverse and remand for further proceedings on this legal claim.

         Facts and Procedural History

         The following recitation of facts represents the Copelands' version of events, viewed in the light most favorable to them. As the non-movant at the summary judgment stage, this Court must accept the Copelands' evidence as true. See Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000).

         In 2013, Defendants Crescent Communities, LLC and Crescent Hillsborough, LLC, to which we refer collectively as "Crescent," began developing a residential planned community known as Forest Ridge. Crescent purchased more than 100 acres of steep, hilly land as the future site of the development.

         Crescent recorded the necessary instruments to subdivide the site and create applicable covenants and declarations typical of planned communities. The company then sold lots to builders, who constructed homes consistent ...


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