Burnham v. S & L Sawmill, Inc
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NO. COA12-1581 NORTH CAROLINA COURT OF APPEALS Filed: 3 September 2013 NICHOLAS BURNHAM, Plaintiff Mecklenburg County No. 11 CVS 6336 v. S&L SAWMILL, INC., RANDY D. MILLER LUMBER CO., INC., and RANDY D. MILLER, JANET B. MILLER, and RYAN MILLER, Individually, and as officers and sole owners of the corporation, Defendants Appeal by plaintiff from orders entered 28 September 2012, 16 October 2012, and 27 November 2012 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 April 2013. Price, Smith, Hargett, Petho & Anderson, by Wm. Benjamin Smith, and the Law Office of Seth Bernanke P.C., by Seth M. Bernanke, for Plaintiff. Templeton & Defendants. Raynor, P.A., by Kenneth R. Raynor, for ERVIN, Judge. Plaintiff Nicholas Burnham appeals from orders entered by the trial court granting summary judgment in favor of Defendants S & L Sawmill, Inc., Randy D. Miller Lumber Co., Inc., Randy D. Miller, Janet B. Miller, and Ryan Miller, denying Plaintiff s -2summary judgment motion, and denying Plaintiff s motion for relief from the trial court s order granting Defendants summary judgment motion.1 On appeal, Plaintiff argues that he forecast sufficient evidence, including an affidavit submitted after the entry of the summary judgment order, to support a determination that he was injured as a proximate result of Defendants negligence and that the trial court s orders should, for that reason, be overturned. After careful consideration of Plaintiff s challenges to the trial court s orders in light of the record and the applicable law, we conclude that the trial court s orders should be affirmed. I. Factual Background A. Substantive Facts Plaintiff began working as a dump truck driver for McGee Brothers Company, Inc., in 2006. employment, Plaintiff loaded In the course and scope of his and brush, logs, and similar materials. transported dirt, gravel, Plaintiff had been taught how to load and operate dump trucks in such a manner as to keep the materials being transported from falling out of the trucks, including 1 how to use binding straps. As part of his job As will be explained in more detail later in this opinion, the motion in question was advanced pursuant to a number of different provisions of the North Carolina Rules of Civil Procedure. However, in the interests of brevity, we will refer to this motion as a motion for relief from the trial court s order throughout the remainder of this opinion. -3responsibilities, Plaintiff was required to ensure that the truck he was operating had been safely loaded, including making sure that binding straps were used to keep loose materials, such as logs, from falling off the truck. According to Plaintiff, one binding strap should be utilized to secure the front end of a load while the other should be utilized to secure the rear of the load. After the truck conduct had been loaded, Plaintiff was required to a walkaround in order to ensure that nothing was protruding from the truck and transported. that In the load addition, on the truck Plaintiff was could be safely responsible for determining if any items in the truck had shifted in transit to such an extent that they would fall when the binding straps were removed. After the straps had been released during the unloading process, Plaintiff would enter the truck and raise the truck bed to the point where the logs rolled out and the load was successfully dumped. The logs sawmills came that from Plaintiff job sites engaging in clearing land. sawmills, including the Sawmill. occasionally at which transported McGee Brothers to was Plaintiff delivered logs to multiple sawmill operated by Defendant S & L Plaintiff was not required to communicate with S & L Sawmill prior to delivering a load of logs; instead, he was -4authorized to simply deliver a load of logs to the S & L Sawmill facility, unload the logs, and receive payment. Upon arriving at S & L Sawmill, Plaintiff would drive his truck onto a scale, enter the office to get a ticket indicating the weight of the truck s load, undo the binding straps which secured the load of logs, and unload the logs. Although Plaintiff would utilize his best efforts to find level ground upon which to unload the logs, he acknowledged being aware that the yard was just dirt and uneven ground all over the place. However, if Plaintiff was uncomfortable with the angle at which he had parked the truck as part of the unloading process, he simply refrained from loosening the binding straps. On 3 April 2008, Plaintiff went to S & L Sawmill for the purpose of unloading a truck full of logs. truck, Plaintiff chose the location at After weighing his which he wished to unstrap his load without having received any specific directions from Defendants. without incident He had previously parked in the same spot on multiple occasions and saw no reason believe that it would be unsafe to do so in this instance. to At the time that he selected a place to park, Plaintiff was aware that the ground at that location was fairly, although not completely, level and that the truck would be leaning toward the location at which he would be standing. Although Plaintiff -5could have moved the truck to a location at which the load was not leaning in this manner, he did not do so because of his assumption, based on past experience, that nothing untoward would occur. As he began the unloading process, Plaintiff released the front binding strap without incident. walked around the truck for the At that point, Plaintiff purpose of inspecting the terrain and confirming that the truck was safely positioned. During that process, Plaintiff did not observe that any portion of the load of logs was protruding from the truck so as to be in danger of falling off. strap, however, it As Plaintiff released the second binding snapped out towards him. Although he ducked his head towards the truck in the expectation that a log would fall off of the edge of the truck, Plaintiff s efforts at evading the falling log were unsuccessful. As a result of the injuries that he sustained when the falling log struck him, Plaintiff is now confined to a wheelchair. S & L Sawmill had not acted to provide wheel stops for Plaintiff s use, to check to make sure that the dump truck could be safely unloaded before allowing Plaintiff to release the binding straps, to ensure that Plaintiff was protected by racks or stanchions during the unloading process, or to inquire as to whether Plaintiff was adequately trained to perform the -6unloading that function process. before allowing According to Plaintiff Defendant to Ryan proceed Miller, S with & L Sawmill s Vice President and manager of the facility at which Plaintiff was injured, no one, including drivers employed by McGee Brothers, had ever complained that the dump sites at S & L Sawmill were unsafe or interfered with their ability to unload their dump trucks. In addition, Ryan Miller stated that no one from S & L Sawmill was aware that any condition on Defendants property posed any danger to Plaintiff or other dump truck drivers. B. Procedural History On 30 March 2011, Plaintiff filed a complaint alleging that he had been injured as the result of Defendants ordinary, gross, and willful and wanton negligence and seeking an award of compensatory Plaintiff and asserted regulations which punitive that had damages. Defendants been Among had promulgated other violated by a the things, number of Occupational Safety and Health Administration and that the business in which they were precluded engaged them from was inherently delegating responsibilities to anyone else. 2 any dangerous, of their a fact which safety-related On 16 May 2011, Defendants2 The answer in question was filed on behalf of all Defendants except for Ryan Miller, whom Defendants contended had not been served as of that date. However, Ryan Miller did join -7filed an answer in which they denied the material allegations set out in Plaintiff s complaint and asserted contributory negligence, gross contributory negligence, and negligence on the part of McGee Brothers as affirmative defenses. On 28 June 2012, Defendants filed a motion seeking the entry of summary judgment in their favor on the ground that Plaintiff could not show that Defendants had breached any duty owed towards against him and Defendants negligence. that were the claims barred by that he had Plaintiff s asserted contributory On 10 July 2012, Plaintiff filed a motion seeking the entry of summary judgment in his favor on the issue of whether Defendants activity were sufficient engaged to in preclude an inherently them from dangerous assigning responsibility for their negligence to any other party. September 2012, the trial court entered an order On 28 granting Defendants motion for summary judgment and denying Plaintiff s partial summary judgment motion. On 4 October 2012, Plaintiff filed a motion for relief from the trial court s order pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(2), or, alternatively, for reconsideration of the trial in an amended answer filed on behalf of all Defendants on 15 November 2011 which was substantively identical to the answer filed on behalf of the other Defendants on 16 May 2011. As a result, we will treat the answer filed on 16 May 2011 as having been filed on behalf of all Defendants. -8court s order granting summary judgment in favor of Defendants pursuant to N.C. Gen. Stat. § 1A-1, Rules 52 and 59, on the basis of alleged newly discovered evidence set out in an attached affidavit executed by Gary Fisher, an S & L Sawmill employee, in which Mr. Fisher described steps that he had been instructed to take by Defendants in instances involving apparently unsafe loads of logs for the purpose of stabilizing the load in question. On 16 October 2012, the trial court entered an order denying Plaintiff s motion for relief from its earlier order. On 27 November 2012, the trial court entered an amended order, which contained findings of fact and conclusions of law, denying Plaintiff s motion for relief from the trial court s earlier order. Defendant noted an appeal to this Court from the 28 September 2012, 16 October 2012, and 27 November 2012 orders. II. Legal Analysis A. Summary Judgment Order In his brief before this Court, Plaintiff argues that the trial court erred by granting summary judgment in Defendants favor on the grounds that the record reflected the existence of numerous issues of material fact concerning the extent to which Defendants were engaged in an inherently dangerous activity, the extent to which Defendants operated the sawmill in a negligent manner, and the extent to which Plaintiff s claim was barred by -9contributory Plaintiff s negligence. challenges We to the do not trial believe court s that summary any of judgment order have merit. 1. Standard of Review Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. 1A-1, Rule 56(c). N.C. Gen. Stat. § Thus, this Court must determine, on the basis of the materials presented to the trial court, whether there is any genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Coastal Plains Util., Inc. v. New Hanover Cty., 166 N.C. App. 333, 340, 601 S.E.2d 915, 920 (2004) (citing Oliver v. Roberts, 49 N.C. App. 311, 314, 271 S.E.2d 399, 401 (1980), cert. denied, __ N.C. __, 276 S.E.2d 283 (1981). In doing so, this Court must view the presented evidence in a light most favorable to the nonmoving party. Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001) (citing Coats v. Jones, 63 N.C. App. 151, 154, 303 S.E.2d 655, 657, aff d, 309 N.C. 815, 309 S.E.2d 253 (1983)). A trial court s grant of summary judgment receives de novo review on appeal . . . . Sturgill v. Ashe Mem l Hosp., -10Inc., 186 N.C. App. 624, 626, 652 S.E.2d 302, 304 (2007), disc. review denied, 362 N.C. 180, 658 S.E.2d 662 (2008). Under a de novo standard of review, this Court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal. State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quoting In re Appeal of The Greens of Pine Glen Ltd. P ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)) (internal quotation marks omitted). 2. Substantive Legal Analysis a. Negligence In order for a negligence claim to survive summary judgment, the plaintiff must forecast evidence tending to show (1) that defendant failed to exercise proper care in the performance of a duty owed plaintiff; (2) the negligent breach of that duty was a proximate cause of plaintiff s injury; and (3) a person of ordinary prudence should have foreseen that plaintiff s injury was probable under the circumstances. Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630-31 (2000), aff d, 353 N.C. 445, 545 S.E.2d 210 (2001) (per curiam) (citations omitted). Although Plaintiff argues at length that he sustained an injury as a result of Defendants negligence, he has not clearly stated in his brief the nature of the duty that he believes to have been owed to him by Defendants. However, the cases cited in his brief in support of this argument all -11appear to theory. involve the application of a premises liability 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 court s order. The ultimate issue which must be decided in evaluating the merits of a premises liability claim is determining whether Defendants breached the duty to exercise reasonable care in the maintenance of visitors. Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998). their premises for the protection of lawful In order to prove a defendant s negligence, a plaintiff must show that the defendant either (1) negligently created the condition causing the injury, or (2) negligently failed to correct the condition after actual or constructive notice of its existence. Fox v. PGML, LLC, __ N.C. App. __, __, 744 S.E.2d 483, 485 (2013) (quoting Roumillat v. Simplistic Enterprises, (1992)). Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342-43 A landowner is under no duty to protect a visitor against dangers either known or so obvious and apparent that they reasonably may be expected to be discovered . . . [and] need not warn of any apparent hazards or circumstances of which the invitee has equal or superior knowledge. Von Viczay, 140 N.C. App. at 739, 538 S.E.2d at 631 (2000) (quoting Jenkins v. Lake Montonia Club, Inc., 125 N.C. App. 102, 105, 479 S.E.2d -12259, 262 (1997)) (citations omitted). However, [i]f a reasonable person would anticipate an unreasonable risk of harm to a visitor on his property, notwithstanding the lawful visitor s knowledge of the danger or the obvious nature of the danger, the landowner has a duty to take precautions to protect the lawful visitor. Martishius v. Carolco Studios, Inc., 142 N.C. App. 216, 223, 542 S.E.2d 303, 308 (2001), aff d, 355 N.C. 465, 562 S.E.2d 887 (2002). After carefully reviewing the record, we have been unable to find any record evidence tending to show that Defendants either created the condition which caused Plaintiff s injury or failed to correct such a condition after notice of its existence. A careful examination of Plaintiff s argument with respect to the negligence issue indicates that his claim is predicated on the theory that Defendants had a duty to take affirmative action to ensure that he unloaded the logs which he was transporting on behalf of McGee Brothers to the S & L Sawmill in a safe manner. For example, Plaintiff argues that Defendants were negligent because they failed to ensure that a knuckle boom was used to stabilize the load on Plaintiff s dump truck prior to the loosening of the binding straps or failed to take other steps to ensure the safety of the manner in which employees of other entities, such as Plaintiff, unloaded their -13vehicles. Although Plaintiff directs our attention to a number of cases in support of his contention that Defendants could be held liable on the basis of the theory which he espouses, each of them involves a situation in which the plaintiff was injured as the result of a condition which existed upon the defendant s property, Newton v. New Hanover County Board of Education, 342 N.C. 554, 556-57, 467 S.E.2d 58, 61 (1996) (involving a situation in which a police officer responding to a call at a school fell on a stairway); Martishius, 142 N.C. App. at 218-22, 562 S.E.2d 305-07 (involving made plaintiff at contact with a a power situation line in which which the crossed the defendant s property), or which resulted from affirmative action which the defendant took in a negligent manner. Cowan v. Laughridge Constr. Co., 57 N.C. App. 321, 322-23, 291 S.E.2d 287, 288-89 (1982) (involving a situation in which the plaintiff fell on an inadequate ramp which had been constructed by the defendants).3 decision 3 of In this other Court words, or the Plaintiff Supreme has Court not cited holding any that a Although a number of the decisions upon which Plaintiff relies were decided prior to the Supreme Court s decision in Nelson, which eliminated the common law trichotomy governing the duties owed by landowners to persons who came on their property in favor of a unitary negligence standard applicable to all persons lawfully on the premises, we see no need to consider whether any of these decisions would come out differently under our current approach to premises liability given our belief that such an undertaking would not make a difference in the outcome we reach in this case. -14defendant 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. As a result, we will evaluate the validity of the trial court s decision to grant summary judgment in Defendants favor utilizing the traditional standard applicable in premises liability cases. The first problem with Plaintiff s claim, when evaluated in accordance with the liability cases, is applicable that he principles has never governing established premises that his injuries resulted from any condition that existed on Defendants property. Although Plaintiff points to evidence that the place at which he sought to unload his dump truck was uneven, the record does not contain any indication that this condition in any way contributed to the fact that a log fell from the dump truck and landed binding strap. on Plaintiff when he loosened the second In addition, even if the uneven condition of the location at which Plaintiff attempted to unload the logs from his dump truck did, in fact, contribute to his injuries, the nature of the condition in question was just as apparent to Plaintiff as it was to Defendants, and yet he proceeded attempt to unload his dump truck at that location. to Moreover, -15the undisputed evidence in the record establishes that Plaintiff, rather than Defendants, selected the exact location at which the dump truck was to be unloaded and that nothing about the manner in which the logs were loaded on the dump truck indicated that there was any risk that they would fall, facts which deprived Defendants of any opportunity to warn Plaintiff of the danger that he faced. Finally, Plaintiff has not identified any unreasonable danger arising from the condition of Defendants property, like the overhanging power lines at issue in Martishius. Although Plaintiff points to dangers involved in operating a sawmill and regulations applicable to established that dangers those such an to operation, arose from the the inherent various OSHA he has not condition of Defendants property rather than from the nature of the activity in which both Defendants and Plaintiff were engaged. As a result, Plaintiff s contention that the trial court erred by finding that Defendants had not violated any negligence-based duty which they owed to him has no merit. b. Non-Delegable Duties Secondly, Plaintiff argues that Defendants owed him a nondelegable duty to provide him with a safe working environment due to the inherently dangerous nature of the Plaintiff was performing on Defendants property. work that According to -16Plaintiff, Defendants owed him a duty to provide him with a safe working environment regardless of the fact that he was employed by McGee Brothers rather than Defendants because of the nondelegable nature of that duty. We do not find Plaintiff s argument persuasive. According to well-established North Carolina law, one who employs an independent contractor is not liable for the independent contractor s negligence ; however, if the work to be performed ultrahazardous by the independent or (2) inherently contractor dangerous, is and either the (1) employer either knows or should have known that the work is of that type, liability may attach despite the independent contractor status. Kinsey v. Spann, 139 N.C. App. 370, 374, 533 S.E.2d 487, 491 (2000) (quoting Woodson v. Rowland, 329 N.C. 330, 350, 407 S.E.2d 222, 234 (1991)) (quotation marks and citations omitted). As a result, [w]here a landowner hires an independent contractor to perform an inherently dangerous activity, and the owner knows or should know of the circumstances creating the danger, the owner has the nondelegable duty to the independent contractor s employees to exercise due care to see that . . . [these employees are] provided a safe place in which to work and [that] proper safeguards against any incident to the work [are in place]. dangers as might be Dunleavy v. Yates Constr. -17Co., 106 N.C. App. 146, 153, 416 S.E.2d 193, 197 (quoting Cook v. Morrison, 105 N.C. App. 509, 517, 413 S.E.2d 922, 927 (1992)) (first alteration in original) (quotation marks omitted), disc. review denied, 332 N.C. 343, 421 S.E.2d 146 (1992). At the conclusion of a summary of a number of decisions rendered by this Court, Plaintiff states in his brief that: [t]he consistency of the holdings stated above is that each property owner or general contractor who accepted workers on their property failed to act to protect the safety of those employees when the property owner or the general contractor had displayed years of understanding of the worksite and obvious understanding of the risk imposed upon the individual who was hurt. However, the decisions upon which Plaintiff relies sustain the claim which he has advanced in this case. do not In each of the decisions upon which Plaintiff relies, the non-delegable duty imposed upon the defendant landowners or general contractors did not arise merely because of their understanding of the worksite or the fact that the defendant property owner or general contractor . . . accepted workers on their property. Instead, in each of the decisions upon which Plaintiff relies, the defendants independent had contractor a contractual and the relationship plaintiff was with either an the independent contractor with whom the defendant had contracted or the employer of such an independent contractor. -18A person is an independent contractor of a landowner if he or she is a party to a contract involving the performance of work on behalf of or at the behest of the landowner and for the landowner s benefit in circumstances such that the contractor, rather than the landowner, controls the manner in which the job in question is performed. See Bryson v. Gloucester Lumber Co., 204 N.C. 664, 665-66, 169 S.E. 276, 276 (1933) (holding that an independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the orders or control of the person for whom he does it, and may use his own discretion in matters and things not specified ); Black s Law Dictionary 785 (8th ed. 2004) (defining independent contractor as [o]ne who is entrusted to undertake a specific project but who is left free to do the assigned work and to choose the method for accomplishing it ); Restatement (Second) of contractor Agency as a § 2(3) person (1958) who (defining contracts with an independent another to do something for him but who is not controlled by the other nor subject to the other s right to control with respect to his physical conduct in the performance of the undertaking ). The record contains no indication that either Plaintiff or McGee Brothers had Defendants. an independent contractor relationship with Instead of entering upon Defendants property for -19the purpose of performing work at that location for Defendants benefit, Plaintiff was delivering a load of logs to be sold to S & L Sawmill. more than In light of that fact, McGee Brothers was nothing Defendants seller. Although a seller (or the employee of a seller) is entitled to the same legal protections which must be landowners afforded premises, to all persons lawfully on the or she is entitled to the he not additional protections afforded to independent contractors, or their employees, who are hired by the landowner to engage in inherently dangerous activities. As a result, Plaintiff s challenge to the trial court s order predicated on the theory that Defendants owed Plaintiff a non-delegable duty to provide him with a safe working environment necessarily fails. 3. Contributory Negligence Finally, Plaintiff argues that his claim should deemed barred on contributory negligence grounds. not be According to the argument advanced in his brief, Plaintiff contends that the record reveals the existence of a genuine issue of material fact concerning the extent to which he was contributorily negligent given that Plaintiff had the least experience of anyone -20involved in this case in safely unbinding logs. Once again, we conclude that Plaintiff s argument lacks merit.4 According to well-established North Carolina law, a plaintiff cannot recover if he, too, was negligent where that negligence was a proximate cause of his injuries. Muteff v. Invacare Corp., __ N.C. App. __, __, 721 S.E.2d 379, 384, disc. review denied, 365 N.C. 566, 724 S.E.2d 533 (2012). existence of contributory plaintiff s subjective contributory negligence conform to ordinarily similar an consists person circumstances does appreciation objective prudent negligence to of standard would avoid not depend of danger; conduct which of under injury. on [a] rather, fails to care an the same or Duval v. OM behavior the exercise [T]he Hospitality, LLC., 186 N.C. App. 390, 395, 651 S.E.2d 261, 265 (2007) (quoting Smith v. Fiber Controls Corp., 300 N.C. 669, 670, 268 S.E.2d 504, 507 (1980)) (quotation marks omitted). In seeking to persuade us that his claim was not barred by the doctrine of contributory negligence, Plaintiff relies on this Court s holding in Cook v. Export Leaf Tobacco Co., 50 N.C. App. 89, 272 S.E.2d 883 (1980), disc. review denied, 302 N.C. 4 We are aware that, having failed to find that the record evidence provided any basis for finding Defendants liable to Plaintiff, we need not address the issue of contributory negligence. As a result, our discussion of the contributory negligence issue should be understood as an alternative basis for upholding the trial court s order. -21396, 279 S.E.2d 350 (1981). In Cook, the plaintiff, who was employed by an independent contractor that had been hired to perform maintenance work on the defendant s building, was injured when a portable elevator furnished by the defendant for the plaintiff s use fell into a parking lot while plaintiff was standing upon it. 50 N.C. App. at 91 272 S.E.2d at 885-86. The record evidence tended to show that, while the defendant had informed the plaintiff s employer that the elevator needed certain repairs, it later told the plaintiff that the problem had been fixed. Id. at 93, 272 S.E.2d at 887. Although the requisite repairs had not been performed, the defendant ordered the plaintiff to make certain repairs that required the use of the elevator. As a result, this Court held that: [u]nless a condition is so obviously dangerous that a man of ordinary prudence would not have run the risk under the circumstances, conduct which otherwise might be pronounced contributory negligence as a matter of law is deprived of its character as such if done at the direction or order of defendant. Id. at 96, 272 S.E.2d at 888. Based upon this language, we believe that the essence of Plaintiff s position with respect to the contributory negligence issue is that his claim should not be barred on contributory negligence grounds on the theory that Defendants directed him to engage in conduct which was so -22obviously dangerous that his own negligence should be overlooked. The facts at issue here are materially different from those at issue in Cook. As an initial matter, instead of being an independent contractor or contractor, Plaintiff was premises the in capacity the employee of an an independent lawfully simply of on Defendants employee of a seller. In addition, Plaintiff was not instructed by Defendants as to where or how to unload the logs that had been transported on the dump truck he was operating. Instead, the undisputed record evidence establishes that Plaintiff selected the location at which the truck was to be unloaded and never asked for any assistance in carrying out that responsibility. sort of As a result, the principle enunciated in Cook simply has no application in this case. Although the decisions of this Court and the Supreme Court have recognized that a plaintiff s contributory negligence does not bar recovery in certain instances, e.g., Yancey v. Lea, 354 N.C. 48, 51, [c]ontributory 550 S.E.2d negligence 155, is not 157 a (2001) bar to (holding a that plaintiff s recovery when the defendant s gross negligence, or willful or wanton conduct, is a proximate cause of the plaintiff s injuries ), Plaintiff has not forecast evidence tending to show -23that any such exception exists here. For that reason, 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 Plaintiff s avoid sustaining final challenge injury. to the Thus, we trial conclude court s that summary judgment order lacks merit. B. Motion for Relief From Order Secondly, Plaintiff contends that the trial court erred by denying his motion for relief from judgment on the grounds that Mr. Fisher s affidavit5 created a genuine issue of material fact sufficient to preclude the trial court from granting Defendants summary judgment motion. 5 We disagree. In his affidavit, Mr. Fisher asserted that he had been employed at S & L Sawmill, that one of his duties was to operate a front end loader with a grapple hook attachment, that Ryan Miller and other S & L Sawmill personnel had instructed him to assist in the unloading of trucks, and that, if either Mr. Fisher or Ryan Miller observed that the load on a particular truck appeared to be unsafe, he would use the grapple hook to cover the truck s load during the unbinding process. In addition, Mr. Fisher asserted that he sometimes got after drivers who had loaded the logs too high. Although Mr. Fisher had been present at the S & L Sawmill on the date of Plaintiff s injury, he had not been in a position to ascertain whether Plaintiff s load of logs had a dangerous appearance and did not express an opinion concerning that issue. -24A challenge to a trial court s decision to grant or deny a motion for relief from judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) or a motion for a new trial or other relief pursuant to N.C. Gen. Stat. § 1A-1, Rules 52 and 59, is reviewed under an abuse of discretion standard. See Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 116 (2006) (stating that, [a]s with Rule 59 motions, the standard of review of a trial court s denial of Assuming, a Rule without 60(b) in any motion way is abuse deciding, of discretion ). that the other prerequisites for an award of relief of the nature sought by Plaintiff have been satisfied, we are unable to conclude that the trial court abused its discretion by denying Plaintiff s motions given our determination that the trial court correctly concluded that consideration of Mr. Fisher s affidavit would not have changed the outcome with respect to Defendants summary judgment motion. The essential thrust of Mr. Fisher s affidavit was that he had, on his own initiative or at the direction of Defendants, taken affirmative action to ensure that trucks delivering loads to S & L Sawmill were unloaded safely in the event that anyone observed that the items to be unloaded were situated in such a manner as to create a danger to those involved in the unloading process. However, neither Mr. Fisher nor anyone else testified -25that anything about the appearance of the load which Plaintiff brought to S & L Sawmill suggested that the load created a danger to anyone. information establish contained that responsibility unloading In for that of that Fisher s had fact, even affidavit assumed if the sufficed an to affirmative Plaintiff s duty that safety during the only in event that arose Plaintiff s load the was in an unsafe The record does not, as we understand it, contain any such evidence. contained Mr. ensuring observed condition. in Defendants process, Defendants light in Defendants Mr. As a result, given that the information Fisher s summary judgment affidavit motion does should not suggest have been that denied, rather than allowed, we conclude that the trial court did not abuse its discretion by denying Plaintiff s motions for relief from the trial court s order. III. Conclusion Thus, for the reasons set forth above, we conclude that none of Plaintiff s challenges to the trial court s orders have merit. As a result, the trial court s orders should be, and hereby are, affirmed. AFFIRMED. Judges ROBERT C HUNTER and STROUD concur.
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