Fussell v. North Carolina Farm Bureau Mutual Insurance

BRYANT, Judge

dissenting.

The majority reverses the trial court’s judgment dismissing plaintiff’s negligence claim against the Town of Apex, holding that plaintiff’s allegations are sufficient to state a claim of negligence. Because I am unable to find any North Carolina case law that would expand a water company’s duty of reasonable care to require that it shut off the water supply to a building if, after turning the water supply on, an employee notices that the meter is running, I respectfully dissent.

As stated by the majority, plaintiff’s negligence complaint must allege, among other things, the existence of a legal duty or standard of care owed to the plaintiff by the defendant in order to withstand a motion to dismiss. Sterner v. Penn, 159 N.C. App. 626, 629, 583 S.E.2d 670, 673 (2003). However, the majority’s reliance upon City of Denton v. Gray, 501 S.W.2d 151 (Tex. Civ. App. 1973) to establish the existence of defendant’s legal duty to shut off the water supply to plaintiff’s home is misplaced. Although Denton does involve facts substantially similar to the present case (the water company was owned and operated by the city; the city was asked to turn the water to plaintiff’s house on; when the city employee turned the water on, he noticed the water meter was running, indicating water was running in the home; the employee did not turn the water off, but left the water running; the home was subsequently flooded), the Texas Court’s holding was based primarily on substantial evidence that the City had established “a custom or practice in connection with turning on water service to residences” that

(a) someone must be at the residence, or, (b) the house must be unlocked so a City employee can enter and see if there are open faucets or other water leaks, or (c) in the absence of both of the above, the City employee who is' connecting the service is to watch the water gauge to see if it stops registering water flowing through the meter after enough water has flowed through the meter to fill the bathroom commodes. If it does not stop registering within such time, then he is to disconnect the water service.

Id. at 152. This custom or practice was evidence of a standard of care, and the facts show that the City had not complied with the standard of care when turning the water on to the plaintiff’s house. The Texas Court affirmed the judgment against the City and concluded that the evidence of the City’s custom “was admissible” and “proof of conformance with the custom is some proof of due care and proof of non-conformance with it is proof of negligence.” Id. at 154.

In the present case, there is no evidence that the Town of Apex has established a custom that requires someone to be home, or an employee to check the home to ensure that no spigots were left running, or to turn off the water if the water meter is running when the water supply is being turned on. In the absence of evidence of such custom and in the absence of a legal duty to shut off the water, plaintiff’s claim must fail.

The majority also cites to Graham v. N.C. Gas Co., 231 N.C. 680, 685, 58 S.E.2d 757, 761 (1950), in support of its holding that plaintiff’s complaint stated a sufficient claim for negligence. However, Graham is distinguishable from the present case. In Graham, a gas company was held to have breached its duty of care when an employee failed to shut off the gas supply to a house after he realized the meter was running and gas was being released into the home. Our Supreme Court noted that North Carolina law recognizes that gas is a very dangerous substance and due to its nature, a gas company’s duty of reasonable care requires that if an employee

becomes aware that such gas is escaping from the gas fixtures on the premises into the building, it becomes the duty of the gas company to shut off the gas supply until the further escape of gas from the fixtures can be prevented, even though the fixtures do not belong to the company and are not in its charge or custody. If the gas company continues to transfer gas to the fixtures on the premises after it learns that the gas is escaping therefrom, it does so at its own risk, and becomes liable for any injury proximately resulting from its act in so doing.

Id. at 685, 58 S.E.2d at 762 (1950).

Because no North Carolina case law expands a water company’s duty of care to require the water company to ensure that after the water supply to a building has been turned on, the water is not running in the building or, if the water is running, someone is present in the building, plaintiff has not alleged the existence of trial court should be affirmed.