John M. Kirby June 20, 2014

In Burnham v. S&L Sawmill (9/3/2013), the Court of Appeals addressed a "premises liability" case. The Court affirmed a dismissal of the claim.

In this case, the plaintiff was a truck driver who delivered logs to the defendant's (sawmill's) premises. The plaintiff had driven his truck to a spot on the defendant's property to drop the load. He removed the strap at the front of the truck, and then went to the back to remove the second strap. As he removed this 2nd strap, it "snapped" toward him and the logs began to fall off. One log struck him and as a result he is confined to a wheelchair. He sued the defendant for various theories of negligence, including that it failed to comply with OSHA requirements, and that the defendant's work was inherently dangerous. The plaintiff also alleged that the defendant failed to provide the plaintiff with a safe environment, that the defendant had "non-delegable" duties, and that the property was dangerous (e.g. that the ground was not level).

The opinion is difficult to summarize. The first interesting point is that the Court seemingly treated the case as one of premises liability. It stated, "The cases cited in his brief in support of this argument all appear to involve the application of a premises liability theory. Such an approach seems reasonable to us, so we will utilize it in analyzing the validity of this aspect of Plaintiff's challenge to the trial courts order."

In a subsequent portion of the opinion, however, the Court wrote, "Plaintiff has not identified any unreasonable danger arising from the condition of Defendants property, . . . . Although Plaintiff points to the inherent dangers involved in operating a sawmill and to various OSHA regulations applicable to such an operation, he has not established that those dangers arose from the condition of Defendants property rather than from the nature of the activity in which both Defendants and Plaintiff were engaged." The Court thus seemingly reasoned that claims based on the Defendant's violations of OSHA and based on the operation of the sawmill are not "premises liability" claims, and would not be considered. In fact, the scope of a premises liability claim is not clear. Some cases have even applied a premises liability analysis to a case arising from an automobile collision. Brigman v. Fiske-Carter Const. Co., 192 N.C. 791 (1926).

The court wrote, "Plaintiff has not cited any decision of this Court or the Supreme Court holding that a defendant had a duty to take affirmative action to protect an individual who lawfully entered upon the defendant's property from a harm which did not result from the condition of the defendant's property which the defendant had not created and of which the defendant was not aware."

Regarding the plaintiff's claims that the defendant had certain "nondelegable" duties, it is not really clear why this issue was pertinent to the case at all. This doctrine normally applies when there is a third party which creates the hazardous condition, or fails to remedy the condition. This typically applies to conduct that is "intrinsically dangerous." For example, in some instances a landowner can be liable for negligence of a person who cuts trees on his property. Kinsey v. Spann, 139 N.C.App. 370, 376, 533 S.E.2d 487, 492-93 (2000) (cutting and removal of a large tree in close proximity to dwellings and in an area traversed by many people, would probably be sufficiently hazardous). In the Burnham case, however, it is not clear whether a third-party was involved.

In any event, the court rejected this argument because this doctrine applied only to a contractor of the defendant, and not a vendor. "[I]n each of the decisions upon which Plaintiff relies, the defendants had a contractual relationship with an independent contractor and the plaintiff was either the independent contractor with whom the defendant had contracted or the employer of such an independent contractor." The plaintiff's employer ""was nothing more than Defendants seller." "Although a seller (or the employee of a seller) is entitled to the same legal protections which must be afforded to all persons lawfully on the landowners premises, he or she is not entitled to the addition al protections afforded to independent contractors, or their employees, who are hired by the landowner to engage in inherently dangerous activities." It is not clear that this distinction between a contractor and a vendor makes a lot of sense.

That part of the opinion regarding contributory negligence is likewise not entirely clear. This portion of the opinion is arguably dicta because the court had already determined that the Defendant was not liable for the Plaintiff's injuries. The court noted that the plaintiff selected the location to unload the logs and held that there was no doctrine excepting the plaintiff from the doctrine of contributory negligence, and stated, " we see no basis for concluding that Plaintiff's claim could not, at least in theory, be deemed barred by his own negligence. As a result, given that the record contains ample evidence tending to show that, assuming that Defendants were negligent in the manner contended for by Plaintiff, a reasonable person in Plaintiff's position should have been aware of the same risks and taken action to avoid sustaining injury." The court appears to be holding that the plaintiff was contributorily negligent as a matter of law, but this is not entirely clear.

John Kirby has taught courses on premises liability in North Carolina, and has handled many premises liability cases.