Dorothy Smith v. Schlage Lock Company, LLC ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1391
DOROTHY E. SMITH, Individually and as Executrix of the Estate of Julian
Jackson Smith,
Plaintiff - Appellant,
v.
SCHLAGE LOCK COMPANY, LLC,
Defendant - Appellee,
and
AMETEK, INC., sued individually and as successor-in-interest to Haveg Industries,
Inc.; successor-in-interest to Hercules, Inc.; ASTENJOHNSON, INC., f/k/a The
Asten Group; BECHTEL CORPORATION; CATERPILLAR, INC.; CBS
CORPORATION, f/k/a Viacom, Inc., sued as successor-by-merger to CBS
Corporation f/k/a Westinghouse Electric Corporation and as successor-in-interest to
Haveg Industries, Inc.; CHAMPION INTERNATIONAL CORPORATION;
CHAMPLAIN CABLE CORPORATION, f/k/a Hercules, Inc., and as successor-in-
interest to Haveg Industries, Inc.; COLGATE-PALMOLIVE COMPANY;
CUMMINS POWER GENERATION, INC., d/b/a Cummins Onan; FISHER
CONTROLS INTERNATIONAL, LLC; FLOWSERVE CORPORATION, f/k/a
The Duron Company, Inc., sued as successor-by-merger to Durco International and
also sued as successor-in-interest to Anchor Darling Valves f/k/a Darling
Manufacturing; FOSTER WHEELER ENERGY CORPORATION; GENERAL
ELECTRIC COMPANY; THE GORMAN-RUPP COMPANY; GOULDS PUMPS,
INC.; GRINNELL, LLC, d/b/a Grinnell Corp.; HERCULES, INC.; HONEYWELL
INTERNATIONAL, INC., f/k/a Allied-Signal, Inc., sued as successor-in-interest to
Bendix Corporation; INTERNATIONAL PAPER COMPANY; THE NASH
ENGINEERING COMPANY; RILEY POWER, INC., f/k/a Riley Stoker
Corporation, f/k/a D.B. Riley, Inc.; SEQUOIA VENTURES, INC., f/k/a Bechtel
Corporation; WARREN PUMPS, LLC; WESTERN AUTO SUPPLY, d/b/a
Advance Auto Parts; WEYERHAEUSER COMPANY; THE WILLIAM POWELL
COMPANY; SCOTT CO. OF CALIFORNIA; TOMPKINS-BECKWITH, INC.;
INTERNATIONAL BUSINESS MACHINES CORPORATION, d/b/a IBM;
WEATHERLY, INC., sued as successor-in-interest to D.M. Weatherly; FARMERS
CHEMICAL ASSOCIATION, INC.; THE RUST ENGINEERING COMPANY;
BRIGGS & STRATTON CORPORATION; TEXTRON, INC., d/b/a Lycoming
Engines; DAVIS-STANDARD CORPORATION; ANDRITZ, INC., f/k/a Ahlstrom
Machinery, Inc., f/k/a Kamyr, Inc.; DEZURIK, INC., d/b/a Dezurik-Apco
Williametter Eagle, Inc.; CERTAINTEED CORPORATION,
Defendants.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta C. Biggs, District Judge. (1:16-cv-00379-LCB-LPA)
Submitted: December 11, 2020 Decided: January 27, 2021
Before AGEE, WYNN, and QUATTLEBAUM, Circuit Judges.
Affirmed by published per curiam opinion.
Lisa White Shirley, DEAN OMAR BRANHAM SHIRLEY LLP, Dallas, Texas; Janet
Ward Black, WARD BLACK LAW, Greensboro, North Carolina, for Appellant. Michael
W. Drumke, Catherine Basque Weiler, SWANSON, MARTIN & BELL, LLP, Chicago,
Illinois, for Appellee.
2
PER CURIAM:
In 2016, Julian Jackson Smith was diagnosed with mesothelioma, a form of cancer
usually caused by asbestos exposure. He died from the illness the following year.
Before his death, Mr. Smith and his wife, Dorothy Smith, brought this action
alleging that Schlage Lock Co. and dozens of other defendants may have exposed Mr.
Smith to asbestos at some point in the past. Relevant to this appeal, the Smiths sued Schlage
Lock on the theory that Mr. Smith inhaled asbestos fibers while working as a pipefitter
during the construction of a Schlage Lock plant in Rocky Mount, North Carolina in 1972.
The district court granted summary judgment to Schlage Lock. We affirm.
I.
Mesothelioma is an aggressive, painful form of cancer that is usually untreatable.
The Smiths’ expert, Dr. Edwin Holstein, explained that mesothelioma in the United States
is almost always caused by the patient’s cumulative exposure to asbestos, though the
latency period is lengthy—thirty to forty years, on average. According to Dr. Holstein,
“there is no known level of asbestos exposure above ambient air levels which has not been
shown to contribute to the development of mesothelioma in a sufficiently large exposed
population.” J.A. 1077. 1 In other words, virtually any asbestos exposure above ambient air
levels can contribute to mesothelioma years down the road. 2 These factors make it difficult
1
Citations to “J.A. __” refer to the Joint Appendix filed by the parties in this appeal.
2
To the extent Dr. Holstein’s opinion is debated in the scientific community, we do
not take a position on that dispute. Nevertheless, because this aspect of Dr. Holstein’s
opinion does not affect our holding here, we assume its veracity for the sole purpose of
resolving this appeal.
3
to determine the precise source or sources of the patient’s cancer-causing asbestos
exposure.
Mr. Smith testified to having been exposed or likely exposed to asbestos multiple
times over the course of his varied career, including experiencing exposure to insulation
that was “more than likely asbestos” during a construction job in 1952; cutting asbestos
siding while building an automotive service station in 1957; and cutting asbestos blocks to
make a gasket during the construction of an Allied Chemical plant in the late 1960s or early
1970s. J.A. 133; see J.A. 160–61, 163, 245, 247–50.
One of Mr. Smith’s jobs during this period was a six-to-nine-month stint assisting
with the construction of the Schlage Lock plant in Rocky Mount. He worked as a pipefitter,
installing steam and cooling-water lines under the direction of Embree Reed, Inc., the
plumbing subcontractor who performed the pipe work at the site. Mr. Smith testified that
every day during several months of that job, insulators cut and applied insulation to the
lines, which created dust that he inhaled. However, he did not know whether that insulation
contained asbestos. 3
After Mr. Smith received his mesothelioma diagnosis in February 2016, the Smiths
brought claims under eight causes of action against numerous defendants in federal district
court. 4 The defendants included the alleged manufacturers of asbestos-containing products
3
If the insulation did contain asbestos, then according to Dr. Holstein’s report, Mr.
Smith was at risk of “bystander” exposure to the asbestos as a pipefitter at the Schlage
Lock plant. J.A. 1086–87.
4
The allegations in the operative complaint are as follows: (I) negligence in
designing, manufacturing, and selling asbestos-containing products; (II) inadequate
4
as well as the alleged owners of the premises on which Mr. Smith claimed to have been
exposed to asbestos. At issue in this appeal is only one claim against one defendant: The
Smiths’ premises-liability claim against Schlage Lock arising from Mr. Smith’s alleged
exposure to asbestos while working at the Rocky Mount facility in the early 1970s. 5
The district court granted summary judgment to Schlage Lock on two independent
bases. Smith v. 3M Co., No. 1:16CV379, 2019 WL 1116718, at *4–5 (M.D.N.C. Mar. 11,
2019). First, the court concluded that there was no evidence in the record to support a
finding that Mr. Smith was exposed to asbestos during his work at the Schlage Lock plant.
Id. Second, the court found that the record did not support a conclusion “that Schlage
[Lock] exercised control over the jobsite or the work conducted by Mr. Smith during the
facility’s construction.” Id. at *5. Mrs. Smith timely appealed both conclusions.
II.
We review the district court’s grant of summary judgment de novo, “drawing all
reasonable inferences in favor of the non-moving party.” Emmons v. City of Chesapeake,
982 F.3d 245, 250 (4th Cir. 2020) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
product design or formulation; (III) breach of the implied warranty of merchantability; (IV)
negligence, negligent retention, and negligent supervision related to the use of asbestos in
construction or building maintenance; (V) gross negligence and willful, wanton, and
reckless conduct in using, selling, or manufacturing asbestos-containing products; (VI)
false representation regarding the dangers of asbestos exposure; (VII) failure to warn of the
dangers of asbestos exposure; and (VIII) premises liability.
5
The district court granted summary judgment to Schlage Lock on all eight claims.
Smith v. 3M Co., No. 1:16CV379, 2019 WL 1116718, at *1 (M.D.N.C. Mar. 11, 2019).
Mrs. Smith has clarified that she “did not assert, or at least did not maintain, any other
claims against Schlage [Lock] other than premises liability.” Reply Br. at 3. Accordingly,
only Count VIII is relevant to this appeal.
5
248–50 (1986)). “Summary judgment is appropriate where there is no dispute of material
fact and judgment is proper as a matter of law.” Id.Of course, “[u]nsupported speculation is not sufficient to defeat a summary
judgment motion.” CTB, Inc. v. Hog Slat, Inc., 954 F.3d 647, 659 (4th Cir. 2020) (quoting
Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)). And the moving
party need not necessarily “produce evidence showing the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Rather, “the burden on
the moving party may be discharged by ‘showing’—that is, pointing out to the district
court—that there is an absence of evidence to support the nonmoving party’s case.” Id.;
see also Cray Commc’ns, Inc. v. Novatel Comput. Sys., Inc., 33 F.3d 390, 393 (4th Cir.
1994) (“[U]nder Celotex, the moving party on a summary judgment motion need not
produce evidence, but simply can argue that there is an absence of evidence by which the
nonmovant can prove his case.” (internal quotation marks omitted)).
“Because this case invokes our diversity jurisdiction, we apply controlling state law
on settled issues and predict how the state’s highest court would rule on unsettled issues.”
Young v. Equinor USA Onshore Props., Inc., 982 F.3d 201, 206 (4th Cir. 2020). If the
state’s highest court “has spoken neither directly nor indirectly on the particular issue
before us,” decisions from the state’s intermediate appellate courts “constitute the next best
indicia of what state law is, although such decisions may be disregarded if the federal court
is convinced by other persuasive data that the highest court of the state would decide
otherwise.” McKiver v. Murphy-Brown, LLC, 980 F.3d 937, 964 (4th Cir. 2020) (internal
6
quotation marks omitted) (quoting Priv. Mortg. Inv. Servs., Inc. v. Hotel & Club Assocs.,
Inc., 296 F.3d 308, 312 (4th Cir. 2002)).
III.
The district court granted summary judgment for Schlage Lock first and foremost
based on the lack of evidence that Mr. Smith was exposed to asbestos at the Schlage Lock
site which later caused his mesothelioma. We agree.
North Carolina has not articulated a clear framework for analyzing asbestos
premises liability claims. But it appears undisputed that, in order to establish causation,
North Carolina law requires actual exposure to asbestos. See Wilder v. Amatex Corp., 336
S.E.2d 66, 68 (N.C. 1985) (“We agree . . . that at trial plaintiff’s evidence must demonstrate
that he was actually exposed to the alleged offending products.”); see also Jones v. Owens-
Corning Fiberglas Corp. & Amchem Prods., Inc., 69 F.3d 712, 716 (4th Cir. 1995) (finding
that under North Carolina law, a “plaintiff in a personal injury asbestos case must prove
more than a casual or minimum contact with the product containing asbestos” (internal
quotation marks omitted)); Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162–
63 (4th Cir. 1986) (“To support a reasonable inference of substantial causation from
circumstantial evidence, there must be evidence of exposure to a specific product on a
regular basis over some extended period of time in proximity to where the plaintiff actually
worked.”); Whitehead v. Air & Liquid Sys. Corp., No. 1:18CV91, 2020 WL 2523169, at
*2 (M.D.N.C. May 18, 2020) (“To prevail in an asbestos-related product-liability action
under North Carolina law, a plaintiff must establish that he was actually exposed to the
alleged offending products.” (footnote omitted) (internal quotation marks omitted)); Gore
7
v. Air & Liquid Sys. Corp., No. 5:16-CV-716-BR, 2018 WL 4558182, at *3 (E.D.N.C.
Sept. 21, 2018) (“In North Carolina, a plaintiff in a personal injury asbestos case[ ] must
prove more than a casual or minimum contact with the product containing asbestos . . . .
Instead, the plaintiff must present evidence of exposure to a specific product on a regular
basis over some extended period of time in proximity to where the plaintiff actually
worked.” (internal quotation marks omitted)); Agner v. Daniel Int’l Corp., No. CIV
3:98CV220, 2007 WL 57769, at *4 (W.D.N.C. Jan. 5, 2007) (“[I]n any asbestos case, a
plaintiff must (1) identify an asbestos-containing product for which a defendant is
responsible, (2) prove that he has suffered damages, and (3) prove that defendant’s
asbestos-containing product was a substantial factor in causing his damages.” (internal
quotation marks omitted)). Bearing this exposure requirement in mind, we turn to the
evidence here.
When Schlage Lock moved for summary judgment, it first pointed to Mrs. Smith’s
lack of evidence regarding exposure, including Mr. Smith’s admission he had no
knowledge that asbestos was even used at the plant. That alone could be enough to
“discharge[]” Schlage Lock’s burden as the moving party. Celotex, 477 U.S. at 325.
But Schlage Lock did more than merely point to Mrs. Smith’s lack of evidence—it
also put forth its own evidence showing there was no asbestos at the plant. Ms. Gladys
Thomas, Schlage Lock’s corporate representative, testified she spent “somewhere between
175 and 200 total hours” reaching out to former employees as well as searching for and
reviewing documents relating to the plant, including those related to asbestos, industrial
hygiene, construction, building specification, and contracts. J.A. 663.
8
As part of her search, Ms. Thomas contacted an employee at the plant to inquire
whether he knew of the existence of additional records about the plant. The employee could
not find any records for the plant, but said “that there wasn’t any asbestos in the building.”
J.A. 673. Unable to find documentary proof of that, Ms. Thomas searched through the
North Carolina Department of Environmental Control for asbestos survey records. Ms.
Thomas also looked for any general records for the plant on file with the State of North
Carolina but found none, including no records of asbestos abatement. She also provided
testimony that the plant
was built in 1972 as part of another project where another facility was built
in 1976. So we have a ’72 and [a] ’76. Both plant layouts, structure, design,
were similar. One was in North Carolina, and one was in Colorado.
We believed the buildings were spec’d to be asbestos free on purpose.
There is documentation for the Colorado site. There is an asbestos survey.
We don’t have asbestos in any of the insulation . . . at that facility. . . . [F]or
whatever reason, the documents for North Carolina are not available.
J.A. 681.
Lastly, Schlage Lock provided an asbestos sampling summary that indicated two
samples of insulation from the plant tested negative for asbestos. Ms. Thomas testified the
insulation samples were taken from areas near original piping, and the pipes showed no
signs of alterations since 1972. This meant that she “ha[d] no reason to believe that” the
tested insulation was not original. J.A. 817.
In sum, Schlage Lock not only pointed to Mrs. Smith’s lack of evidence of
causation, but also put forth affirmative evidence that there had never been asbestos at the
plant.
9
Mrs. Smith, in response, cited two pieces of evidence in an effort to create a genuine
issue of material fact on causation. First, Mrs. Smith pointed to “Mr. Smith’s testimony
that he was constantly present when insulators cut and installed pipe insulation on steam
and water lines throughout the building, . . . and . . . that he inhaled the dust created by such
work.” J.A. 1287–88 (internal quotation marks omitted). Second, she referred to the report
of her expert, Dr. Holstein, that stated:
In most of the[] locations [where Mr. Smith worked as a pipefitter], insulators
were followed closely by the pipefitters, insulating the pipes that had just
been installed by the pipefitters. In addition, the pipefitters were often
engaged in running pipes either to or from major pieces of equipment such
as boilers, evaporators and turbines. Mr. Smith was frequently exposed to
asbestos from the work of insulators on these large pieces of equipment as
he carried out his work on the incoming and outgoing pipes. The insulation
materials from at least 1968 to 1972 on new construction would have been
asbestos-containing, including both chrysotile and amosite asbestos. In
many locations, asbestos-containing insulation products would have
continued being used until old inventory was consumed.
J.A. 1056 (emphasis added).
But even viewing this evidence in the light most favorable to Mrs. Smith, as we
must, it does not create a genuine issue of material fact as to whether Mr. Smith was
exposed to asbestos at the plant. First, while Mr. Smith stated he believed he may have
been exposed, he nevertheless conceded he had no idea if the insulation used at Schlage
Lock contained asbestos. Certainly, Mr. Smith’s belief without more is insufficient. E.g.,
Arbogast v. A.W. Chesterton Co., 197 F. Supp. 3d 807, 813 (D. Md. 2016) (“[B]are beliefs
that [the plaintiff] personally was exposed to asbestos . . . . [, even alongside evidence]
[t]hat some . . . products may have had asbestos in them[,] simply is not enough evidence
to create a genuine dispute of material fact . . . .”).
10
That leaves only the expert report to create a genuine dispute. Dr. Holstein’s report
is filled with red flags, first among them, his qualifications. Dr. Holstein described himself
as a medical doctor specializing in asbestos-related diseases. Nevertheless, he provided
expert opinion testimony on mid-twentieth-century plant construction and material science,
asserting that “the insulation materials from at least 1968 to 1972 on new construction
would have been asbestos-containing.” J.A. 1056.
Excepting that red flag, he failed to cite any facts or data related to the specific plant
in question in the formulation of his opinion, apart from the year it was built. Nowhere
does Dr. Holstein indicate he examined the corporate records of Schlage Lock or the plant
itself. He cannot have considered the deposition testimony of Ms. Thomas or the report
related to the samples of insulation, as both postdated his report. In fact, Dr. Holstein was
not provided with, and therefore did not consider, Mr. Smith’s medical records. Instead,
Dr. Holstein’s report states only that he considered Mr. Smith’s deposition testimony and
the Smiths’ litigation statements and documents. In spite of these limitations, Dr. Holstein
concluded that in his opinion, “Mr. Smith’s cumulative exposures to asbestos while
working on the premises of Schlage Lock constituted a substantial factor in the causation
of his malignant mesothelioma.” J.A. 1057–58.
Experts cannot base their opinions on speculation. Oglesby v. Gen. Motors Corp.,
190 F.3d 244, 250 (4th Cir. 1999). Yet, that appears to be exactly what Dr. Holstein did.
He offered an opinion based on general information about the use of asbestos in
construction in the late 1960s and early 1970s without considering any facts pertaining to
Mr. Smith or the plant at issue. That alone would be questionable. But here, the information
11
from Schlage Lock all suggested asbestos was not used in the construction of the plant and
had not been added since. Dr. Holstein’s failure even to consider the actual evidence in the
case is textbook speculation. So, the district court properly disregarded it. Woolard v.
Carrier Corp., No. 1:18CV410, 2020 WL 2572278, at *3–4 (M.D.N.C. May 21, 2020)
(finding evidence that plaintiff believed he was exposed to asbestos through the
defendant’s products along with expert testimony that had plaintiff been exposed, such
exposure would have increased his risk of mesothelioma, was insufficient to give rise to
dispute of material fact as to causation); see also Dash v. Mayweather, 731 F.3d 303, 324
(4th Cir. 2013) (finding expert report could not “create a genuine issue of material fact
through mere speculation or the building of one inference upon another” (quoting Stone v.
Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997))).
Because Mrs. Smith failed to create a genuine dispute of material fact that Mr. Smith
was actually exposed to asbestos at the Schlage Lock plant, the district court properly
granted summary judgment to Schlage Lock.
IV.
We further agree with the district court that, even if Mr. Smith had been exposed to
asbestos at the Schlage Lock site, Schlage Lock cannot be held liable for any related
injuries because the exposure arose incident to his work for an independent contractor.
Under North Carolina law, landowners owe a duty of reasonable care to all lawful
visitors. Nelson v. Freeland, 507 S.E.2d 882, 892 (N.C. 1998). Landowners’ duty of care
extends to lawfully present independent contractors and their employees. McCorkle v. N.
Point Chrysler Jeep, Inc., 703 S.E.2d 750, 752 (N.C. Ct. App. 2010). Here, there is no
12
dispute that Schlage Lock owned the land in question or that Mr. Smith was lawfully
present on the land.
Nevertheless, “control is a prerequisite of liability.” Wilkerson v. Norfolk S. Ry. Co.,
566 S.E.2d 104, 111 (N.C. Ct. App. 2002) (quoting Mack v. Marshall Field & Co., 12
S.E.2d 235, 237 (N.C. 1940)). “[I]n the absence of control, there is no duty.” Lampkin ex
rel. Lampkin v. Hous. Mgmt. Res., Inc., 725 S.E.2d 432, 435 (N.C. Ct. App. 2012)
(collecting cases). North Carolina case law suggests that “the rebuttable ‘presumption [is]
that possession’”—and with it, liability—“‘is in him who has the true title.’” Petty v. City
of Charlotte, 355 S.E.2d 210, 213 (N.C. Ct. App. 1987) (alteration in original) (quoting
Memory v. Wells, 87 S.E.2d 497, 500 (N.C. 1955)). In other words, Petty put the burden
on the defendant landowner to establish that another entity in fact had “exclusive dominion
and control of the defective” aspect of the property. Id. (internal quotation marks omitted).
But the “general rules on the tort liability of owners and occupiers of land to invitees
. . . do not apply to the actual work undertaken by independent contractors and their
employees.” Cook v. Morrison, 413 S.E.2d 922, 926 (N.C. Ct. App. 1992) (emphasis
added); see also McCorkle, 703 S.E.2d at 753 (“This caveat that liability of owners and
occupiers of land does not extend to the actual work undertaken by independent contractors
and their employees has been recognized and accepted by numerous other jurisdictions, as
well as by scholars.”). Generally speaking, “an owner or occupier of land who hires an
independent contractor is not required to provide employees of the independent contractor
a safe place to work nor is he required to take proper safeguards against dangers which
13
may be incident to the work undertaken by the independent contractor.” Cook, 413 S.E.2d
at 926 (emphasis added) (citing Brown v. Texas Co., 76 S.E.2d 45, 46–47 (N.C. 1953)).
Mr. Smith testified that Schlage Lock produced locks. The Smiths do not contend,
and the record does not suggest, that Schlage Lock had any expertise in building
construction. Additionally, “[t]he record shows that in 1972, Mr. Smith was employed by
Embree Reed, Inc., a plumbing subcontractor, to perform pipe installation” at Schlage
Lock’s new Rocky Mount plant. Smith, 2019 WL 1116718, at *4. Mr. Smith testified
directly to that fact, explaining that Embree Reed paid his wages and told him what to do
at the Schlage Lock site. When asked if he ever saw a Schlage Lock employee at the site,
Mr. Smith stated only that he “[m]ay have.” J.A. 554. And he testified that, as far as he
knew, Schlage Lock “just contracted out [the construction] and said [we] want this facility
built.” Id.At the summary judgment stage, the non-movants—here, the Smiths—are entitled
to any reasonable inferences that may be drawn in their favor. Emmons, 982 F.3d at 250.
But here, the only reasonable inference arising from the record is that Schlage Lock did
not perform the construction itself, and instead hired contractors to build the plant and
simply “hand [Schlage Lock] the keys” of the completed building. J.A. 799. Any notion
that Schlage Lock itself built the plant is “[u]nsupported speculation” that cannot defeat
summary judgment. CTB, 954 F.3d at 659. Accordingly, Schlage Lock satisfied its burden
to demonstrate that another entity had control over the relevant portion of the work site by
pointing to the undisputed fact that Schlage Lock engaged a contractor, Embree Reed, to
complete the pipefitting work.
14
Moreover, Mr. Smith’s injuries are alleged to have arisen incident to that work. 6 As
the district court noted, “[a]lthough Mr. Smith did not work directly with insulation, he
testified that there were insulators working on the jobsite who installed and cut insulation,
within close proximity” and that “the cutting of insulation created dust that he inhaled.”
Smith, 2019 WL 1116718, at *4. Thus, even if Mr. Smith’s injuries were caused by inhaling
asbestos fibers at the Rocky Mount site, those injuries arose incident to his employment by
Embree Reed, and Schlage Lock cannot be held liable for them. See Cook, 413 S.E.2d at
926.
To be sure, there are two exceptions to North Carolina’s independent-contractor
rule. First, the person or entity who employs an independent contractor—here, the
landowner, Schlage Lock—may be held liable for the independent contractor’s negligence
if “the employer retains the right to control the manner in which the contractor performs
his work.” Woodson v. Rowland, 407 S.E.2d 222, 234 (N.C. 1991); see Denny v. City of
Burlington, 70 S.E. 1085, 1087 (N.C. 1911) (noting that the employer of the contractor can
be held liable if he or she “retain[s] the right to direct and control the time and manner of
executing the work or . . . interfer[es] with the contractor and assum[es] control of the work,
or of some part of it” (quoting 1 John D. Lawson, Rights, Remedies, and Practice § 299
(1889))); see also Commee v. Nucor Corp., 173 F. App’x 209, 212 (4th Cir. 2006) (per
curiam) (collecting cases). Second, an employer necessarily retains control when it hires
an independent contractor “to perform an inherently dangerous activity” because, in such
6
The Smiths allege as much in their complaint.
15
a case, the employer cannot delegate away “the duty to provide for the safety of others.” 7
Woodson, 407 S.E.2d at 235; see also Denny, 70 S.E. at 1087.
Mrs. Smith has not contended that Mr. Smith was engaged in anything other than
“ordinary building construction work,” which is not inherently dangerous under North
Carolina law. 8 Copeland v. Amward Homes of N.C., Inc., 837 S.E.2d 903, 906 (N.C. Ct.
App.) (citing Vogh v. F. C. Geer Co., 88 S.E. 874, 876 (N.C. 1916)), review allowed by
851 S.E.2d 360 (N.C.), and review allowed by No. 56PA20, 2020 WL 7482966, at *1 (N.C.
Dec. 15, 2020); see also Smith, 2019 WL 1116718, at *3 n.5 (collecting cases). Thus, she
can avoid summary judgment only by pointing to facts showing that there is a genuine
7
The Court of Appeals of North Carolina has pointed out that, “[a]lthough the
‘inherently dangerous’ analysis may apply to premises liability,” the case giving rise to that
exception was “a case dealing with master-servant liability . . . , and not with premises
liability.” McCorkle, 703 S.E.2d at 753 n.3 (citing Brown, 76 S.E.2d at 46–47). However,
this Court has previously applied the exception in the context of premises liability. See
Commee, 173 F. App’x at 211 (“This general rule applies with equal force regardless of
whether we treat [the defendant] as a landowner or a general contractor.”). For purposes of
this analysis, we assume that the exception can apply in a premises-liability action.
8
It appears that the involvement of asbestos-containing materials can render
construction work inherently dangerous under North Carolina law, though this is a fact-
specific inquiry. See Wagers v. SGL Carbon, LLC, No. CIV.A. 2:10-02916, 2011 WL
1337154, at *6 (E.D. Pa. Apr. 6, 2011) (noting that “[n]o North Carolina court has
determined whether the use of asbestos-containing materials qualifies [as an] inherently
dangerous activity as a matter of law,” and citing Schenk v. HNA Holdings, Inc., 613 S.E.2d
503, 507 (N.C. Ct. App. 2005), in which the issue was submitted to the jury as a question
of fact). But Mrs. Smith makes no argument on appeal that the work implicated here was
inherently dangerous, so we do not consider the question further. See Suarez-Valenzuela v.
Holder, 714 F.3d 241, 248 (4th Cir. 2013) (noting that an appellant’s failure to raise an
issue in its opening brief with supporting citations “triggers abandonment of that claim on
appeal” (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999))
(citing Fed. R. App. P. 28(a))); cf. Carlson v. Bos. Sci. Corp., 856 F.3d 320, 325 (4th Cir.
2017) (“The responsibility to comb through the record in search of facts relevant to
summary judgment falls on the parties—not the court.”).
16
dispute as to whether Schlage Lock otherwise maintained “the right to direct and control
the time and manner of executing the work” it hired Embree Reed (and through it, Mr.
Smith) to perform. Denny, 70 S.E. at 1087. This she cannot do.
As the district court noted, the only evidence in the record regarding Schlage Lock’s
control over the work site suggested that Schlage Lock had relinquished control to its
contractors. Smith, 2019 WL 1116718, at *5. Mr. Smith testified that Embree Reed was his
employer, paid his wages, and told him what to do, whereas Schlage Lock did not tell him
what to do. Id. He also testified that he “[m]ay have” seen a Schlage Lock employee, but
never spoke to one. Id. There are no facts from which we may draw a reasonable inference
that Schlage Lock retained control over the plumbing work that Embree Reed had
contracted to perform.
Both this Court and North Carolina courts have declined to find control even where
much more compelling evidence of potential forms of control was available. See, e.g.,
Commee, 173 F. App’x at 213 (declining to find control where the defendant “maintained
a supervisory presence on the site and retained the right to inspect [the contractor]’s work,
materials, and equipment” and “retained oversight over safety measures”); Denny, 70 S.E.
at 1087 (declining to find control where the defendant’s engineer “was present now and
then when the work was going on” and “made a suggestion . . . as to how some of it should
be done”); cf. Hooper v. Pizzagalli Constr. Co., 436 S.E.2d 145, 149 (N.C. Ct. App. 1993)
(“The record indicates that [the general contractor] had a general supervisory role, but did
not interfere with [the subcontractor]’s work or any part of its work so as to retain control
and thereby make itself liable.”).
17
Mrs. Smith argues that summary judgment is inappropriate because Schlage Lock
has failed to produce a contract showing that it relinquished control of the premises. We
disagree. As noted, there is no dispute that Embree Reed was an independent contractor
and that it, not Schlage Lock, was the entity in charge of the plumbing work. And while a
contract can provide helpful evidence regarding the question of whether the landowner
retained control over the contractor’s work, see, e.g., McCorkle, 703 S.E.2d at 754, North
Carolina courts do not always review the contract between the entities in analyzing this
question. Rather, they look to factors like whether the entity that employed the contractor
had personnel at the site and what role such personnel played. E.g., Denny, 70 S.E. at 1086–
87 (declining to “set out” the terms of the written contract in its opinion “as [the court]
deem[ed] it unnecessary to do so,” and instead analyzing the question of control through
the lens of “the evidence in th[e] case”—namely, witness testimony regarding the presence
of the landowner’s employee at the site); cf. McCorkle, 703 S.E.2d at 754 (relying on
similar evidence in addition to analyzing the contract).
We conclude that the independent-contractor exception to landowner liability
applies here. The facts viewed in the light most favorable to the Smiths show that Mr.
Smith was employed by an independent contractor and, incident to that work, breathed in
dust alleged to contain asbestos. And there is no evidence that Schlage Lock directed the
work of that or any other independent contractor on the site. Therefore, the district court
properly granted summary judgment to Schlage Lock.
18
V.
It appears that Mr. Smith was exposed to asbestos multiple times, and that exposure
almost certainly caused the terrible disease that led to his death. But we must agree with
the district court that Schlage Lock is not a proper defendant for pursuing damages related
to that harm. The Smiths failed to produce evidence that Mr. Smith was exposed to asbestos
at the Schlage Lock construction site. And even if he was, under North Carolina law,
Schlage Lock cannot be held liable for harms arising from such exposure, as it was incident
to his work for an independent contractor. Accordingly, we affirm the district court’s grant
of summary judgment to Schlage Lock.
AFFIRMED
19