Poage v. Cox , 265 N.C. App. 229 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1066
Filed: 7 May 2019
Forsyth County, No. 16 CVS 4863
CHERYL CHRISTINE POAGE, individually and as Executrix of the Estate of
ROBERT BATEMENT POAGE, Plaintiffs,
v.
IRA COX; GAIL COX; and SCHOENEN POOL AND SPA, LLC, Defendants.
Appeal by plaintiffs from order entered 12 June 2018 by Judge Michael L.
Robinson in Forsyth County Superior Court. Heard in the Court of Appeals 5 March
2019.
Fox Rothschild LLP, by Robert H. Edmunds, Jr., Kip David Nelson, and Jules
Zacher, pro hac vice, for plaintiff-appellants.
Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones, for defendant-
appellees Cox.
Robert B. Laws for defendant-appellee Schoenen Pool and Spa, LLC.
TYSON, Judge.
Cheryl Christine Poage appeals the trial court’s order granting summary
judgment to Ira and Gail Cox (“the Coxes”) and Schoenen Pool and Spa, LLC,
(“Schoenen”). We affirm in part, reverse in part, and remand.
I. Background
POAGE V. COX
Opinion of the Court
The Coxes owned a mountain cabin (“the Cabin”) they rented to vacationers.
In July 2009, they installed a hot tub and an adjacent waterfall on their property.
The Coxes had hired Schoenen to maintain, clean, and perform routine service on the
hot tub and waterfall.
Cheryl Poage reserved the Cabin on the Airbnb.com website. Cheryl Poage;
her husband, Robert Poage; and Robert’s two adult sons, Eric and Jason Poage;
stayed at the Cabin from 24 August to 27 August 2015. During their visit, Cheryl
and Robert Poage spent time in and around the hot tub and waterfall. On 29 August
2015, shortly after their visit to the Cabin, Cheryl Poage began experiencing
weakness and fever. Robert Poage began experiencing fever, weakness, chills, and
headache. Cheryl and Robert Poage (“the Poages”) were allegedly diagnosed with
Legionella pneumonia, more commonly known as Legionnaires’ disease, and both
allegedly required hospitalization.
On 10 August 2016, the Poages filed a complaint alleging they had contracted
Legionnaires’ disease after coming into contact with Legionella bacteria in the Coxes
hot tub and waterfall. The Poages asserted claims for negligence against the Coxes
and Schoenen (collectively “Defendants”), and breach of contract against the Coxes.
The Poages alleged, among other things:
15. Defendants Cox owed a duty to their rental customers,
including plaintiffs, to exercise reasonable care in the
operation and maintenance of the rental unit and to keep
the facility in a reasonably safe condition.
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POAGE V. COX
Opinion of the Court
16. Defendants Cox further owed a duty to their rental
customers, including plaintiffs, to warn of hidden perils or
unsafe conditions known by defendants or discoverable by
reasonable inspection.
...
24. It was the duty of Defendant Schoenen [to properly]
maintain the said water feature in a reasonably safe
manner so as not to subject guests and visitors to the
premises, including plaintiffs, to unreasonable risks of
harm.
...
27. Plaintiffs contracted with Defendants Cox for the
rental of defendants’ property for occupancy by plaintiffs.
28. An implied term of the rental contract was that the
rental property would be suitable and safe for normal
occupancy, and that plaintiffs would have the quiet
enjoyment of same.
29. Defendants Cox breached the contract by providing
plaintiffs with a facility that included an unreasonably
dangerous peril, namely the contaminated water feature
described herein.
30. As a proximate result of said defendants’ breach of their
contract with plaintiffs, plaintiffs suffered the injuries and
losses set forth above.
Robert Poage died on 16 December 2016, purportedly for reasons unrelated to
Legionnaires’ disease, and Plaintiff moved to substitute herself for him as executrix
of his estate in the lawsuit. On 14 December 2017, the trial court entered a
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POAGE V. COX
Opinion of the Court
scheduling and discovery consent order, which required the completion of all
discovery by 13 July 2018. The Coxes and Schoenen filed motions for summary
judgment pursuant to North Carolina Rule of Civil Procedure 56 in April 2018. The
parties subsequently submitted briefs, exhibits and deposition transcripts.
A hearing was conducted on Defendants’ motions on 11 June 2018 and the trial
court issued an order granting Defendants’ summary judgment.
The trial court’s summary judgment order stated, in relevant part:
2. During the hearing on Jun 11, 2018, counsel for both
Defendants made oral motions to strike the statements or
affidavits of Carl Fliermans and Jonathan Kornreich.
Defendants contend that the statements were not timely
served, did not contain necessary attestations, were not
sworn to, or were otherwise procedurally improper and
inadmissible and are thus not properly considered as
evidence with regard to the Motions. The Court in its
discretion denies these motions to strike to the extent they
are based on claimed procedural irregularities and
determines that, for purposes of its consideration of the
Motions, it will consider the statements made by Dr.
Fliermans and Mr. Kornreich. Whether the testimony or
statements within the documents are admissible and
properly considered by the Court, or sufficient in and of
themselves, when combined with other evidence brought
forward by Plaintiffs, to permit Plaintiffs to avoid
summary judgment, is an entirely different and is matter
dealt with hereinbelow.
3. Notwithstanding the Court’s denial of the oral motions
to strike, and based on the Court’s review of the Motions,
its review of the Court file, including the statements
brought forward by Plaintiffs, and its consideration of the
arguments of counsel for the parties, the Court concludes
that Defendants’ motions for summary judgment should be
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POAGE V. COX
Opinion of the Court
granted and Plaintiffs’ claims dismissed.
...
5. It is undisputed as a factual matter that the water in the
water treatment never tested positive for the presence of
legionella bacteria, though the parties disagree as to the
cause of this fact.
...
8. The parties all agree that legionella bacteria is
ubiquitous – it exists throughout nature in greater or lesser
degrees. Notwithstanding this fact, Plaintiffs have come
forward with no objective evidence that the water feature
was contaminated with legionella bacteria at the time
Plaintiffs stayed at the Coxes’ home.
9. Following several years of discovery pursuant to a
discovery scheduling order entered in the case, but before
the deadline for Defendants to designate their expert
witnesses. Defendants filed the Motions, pursuant to Rule
56 of the North Carolina Rules of Civil Procedure, seeking
entry of summary judgment in their favor and dismissing
Plaintiffs’ action for a host of reasons. Defendants contend
that Plaintiffs have failed to come forward with sufficient
admissible evidence to prove either that Defendants
breached a legal duty to Plaintiffs or (in the case of the
Coxes) breached a contract between the Coxes and
Plaintiffs. Defendants further contend that Plaintiffs have
failed to come forward with sufficient admissible evidence
to prove that, even assuming a breach of a duty or contract,
that the alleged breach proximately resulted in Plaintiffs’
illness. Defendants also contends [sic] that Plaintiffs
assumed the risk of illness and were contributorily
negligent by virtue of the fact that they were aware of
irregularities in the water and they were warned not to use
the spa until further notice but used it nonetheless.
...
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POAGE V. COX
Opinion of the Court
13. Having carefully considered the record in this matter,
and having also considered the arguments of counsel for
the parties, the Court concludes that Defendants have
made a sufficient initial showing to shift the burden to
Plaintiffs to come forward with evidence to substantiate
their claims. Further, while there may be in the Court’s
opinion sufficient evidence of negligence or breach of
contract on Defendants’ part, Plaintiffs have nonetheless
failed to come forward with sufficient admissible evidence
to support one or more of their required factual showings
to proceed to trial: (a) that the water feature was
contaminated with legionella bacteria at the time Plaintiffs
stayed at the Coxes’ house; or (b) that Plaintiffs contracted
legionella pneumonia from being in the vicinity of the
water feature.
14. With regard to both factual issues, Plaintiffs have
relied on speculation and conjecture, as opposed to coming
forward with admissible evidence to support their
contentions in two critical regards, Michael L. Silverman’s
statement, dated June 6, 2018, states that:
Based upon my training,
experience and expertise and
based upon my review of the
records listed above, it is my
medical opinion more likely than
not that Mr. and Mrs. Poage
developed Legionella pneumonia
as a result of exposure to the hot
tub and waterfall while staying
at this rental property from
August 24 to August 27, 2015
(Silverman Aff. ¶ 8.)
15. Putting aside the “more likely that not” standard
utilized by Dr. Silverman, rather than “to a reasonable
degree of medical certainty”, the basis for this opinion is set
forth in an earlier paragraph as follows:
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POAGE V. COX
Opinion of the Court
The simple fact that both Mr.
and Mrs. Poage developed
Legionella pneumonia at the
same time in early September
2015, supports the Airbnb home
they stayed as the source as [sic]
the incubation of two to ten days
is consistent with this fact.
(Silverman Aff., ¶4, p. 5)
16. Dr. Silverman’s statement is the only one put forward
by Plaintiffs that purports to provide the vital and
necessary proximate cause link between Defendants’
alleged negligence and Plaintiffs’ claims for illness and
injuries. The Court believes that Dr. Silverman’s
statement does not provide a proper basis for an opinion
satisfying the proof element of proximate causation. The
above quoted language stands for nothing more than that
the timeline in this case is “consistent with” the Poages
having contracted legionella bacteria while at the Coxes’
home. The Court concludes that such a statement does not
satisfy Plaintiffs’ obligation to come forward with
admissible evidence of proximate causation.
17. Similarly, the “statement” by Jonathan Kornreich,
another witness proferred by Plaintiffs as a purported
expert opinion witness, provides, in relevant part (at least
as to the proximate cuase [sic] issue), that:
In this instance, it is clearly
more likely than not that the
chain of failures and disregard of
standard safety practices, both
by Schoenen and Cox, observed
at this property created a
situation in which dangerous
bacteria were permitted to
propogate [sic] and infect an
innocent member of the public.
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POAGE V. COX
Opinion of the Court
(Kornreich statement, p. 4)
18. While it is not at all clear to the Court, to the extent
that “an innocent member of the public” is intended by Mr.
Kornreich to refer to Mr. and/or Mrs. Poage, Mr[.]
Kornreich’s statement provides no information from which
the Court can conclude that his opinion, at least as it
relates to the issue of proximate causation, would be
admissible before a jury. In fact, based on Mr. Kornreich’s
resume attached to his statement, the Court can amply
conclude that he is not competent to render an opinion in
this case with regard to medical causation.
19. In other words, having no objective evidence that
legionella bacteria was present in the Coxes’ water feature,
or that the water in the water feature was the source of
Plaintiffs’ illness, as opposed to any number of other
possible alternative sources, legionella bacteria being
admitted by Plaintiffs to be ubiquitous, Plaintiffs
extrapolate from (a) the fact that the Poages were allegedly
later diagnosed with legionella pneumonia; into a factually
unsupported conclusion that (b) the water feature must
have been contaminated with legionella bacteria and must
have been the source of Plaintiffs’ illness. The Court does
not believe the law of North Carolina permits such a “leap
of faith”. Plaintiffs’ factual assertions are tantamount to
the application of the doctrine of res ipsa loquitur which
has, to the Court’s knowledge, never been applied to a
factual situation such as this. [footnote omitted].
20. Therefore, based on the record before the Court, the
Court concludes that Plaintiffs have failed to come forward
with sufficient admissible evidence to substantiate a claim
that Plaintiffs were injured as a proximate result of
Defendants’ wrongful conduct. As a result of this
fundamental evidentiary failure of proof, the Court
concludes that Motions should be and are hereby granted
and Summary Judgment is hereby entered in Defendants’
favor and against Plaintiffs.
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POAGE V. COX
Opinion of the Court
Cheryl Poage, individually and as executrix of the estate of Robert Poage
(“Plaintiffs”), filed timely notice of appeal to this Court.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2017).
III. 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 [a] party is entitled to a
judgment as a matter of law.” Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247,
249 (2003) (citation and internal quotation marks omitted); see N.C. Gen. Stat. § 1A-
1, Rule 56(c) (2017).
A defendant may show entitlement to summary judgment
by (1) proving that an essential element of the plaintiff’s
case is non-existent, or (2) showing through discovery that
the plaintiff cannot produce evidence to support an
essential element of his or her claim, or (3) showing that
the plaintiff cannot surmount an affirmative defense.
Summary judgment is not appropriate where matters of
credibility and determining the weight of the evidence
exist.
Once the party seeking summary judgment makes the
required showing, the burden shifts to the nonmoving
party to produce a forecast of evidence demonstrating
specific facts, as opposed to allegations, showing that he
can at least establish a prima facie case at trial.
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POAGE V. COX
Opinion of the Court
Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732,
735 (2003) (Tyson, J.) (citations and quotation marks omitted), aff’d per curiam, 358
N.C. 131, 591 S.E.2d 521 (2004). “Evidence presented by the parties is viewed in the
light most favorable to the non-movant.” Summey, 357 N.C. at 496, 586 S.E.2d at 249.
Rule of Civil Procedure 56(e) provides in relevant part: “Supporting and
opposing affidavits [submitted in connection with summary judgment] shall be made
on personal knowledge, shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify to the matters
stated therein.” N.C. Gen. Stat. § 1A-1, Rule 56(e) (2017) (emphasis supplied).
“‘Ordinarily, whether a witness qualifies as an expert is exclusively within the
discretion of the trial judge.’” FormyDuval v. Bunn, 138 N.C. App. 381, 385, 530
S.E.2d 96, 99 (2000) (brackets omitted) (quoting State v. Underwood, 134 N.C. App.
533, 541, 518 S.E.2d 231, 238 (1999)). “The determination of the admissibility of
expert testimony is within the sound discretion of the trial judge and will not be
disturbed on appeal absent abuse of discretion.” Braswell v. Braswell, 330 N.C. 363,
377, 410 S.E.2d 897, 905 (1991). “[T]o survive defendants’ motion for summary
judgment . . . plaintiff must allege a prima facie case of negligence—defendants owed
plaintiff a duty of care, defendants’ conduct breached that duty, the breach was the
actual and proximate cause of plaintiff’s injury, and damages resulted from the
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POAGE V. COX
Opinion of the Court
injury.” Lamm v. Bissette Realty, 327 N.C. 412, 416, 395 S.E.2d 112, 115 (1990)
(citation omitted).
“Summary judgment is seldom appropriate in a negligence action.” Hamby v.
Thurman Timber Co., LLC, __ N.C. App. __, __, 818 S.E.2d 318, 323 (2018) (citation
omitted). “Our standard of review of an appeal from summary judgment is de novo[.]”
In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v.
Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)).
IV. Discovery Period
Plaintiffs argue the trial court prejudicially erred by considering and granting
Defendants’ motions for summary judgment before the discovery period had ended.
We disagree.
Ordinarily it is error for a court to hear and rule on a
motion for summary judgment when discovery procedures,
which might lead to the production of evidence relevant to
the motion, are still pending and the party seeking
discovery has not been dilatory in doing so. However, [a]
trial court is not barred in every case from granting
summary judgment before discovery is completed.
Patrick v. Wake Cty. Dep’t of Human Servs., 188 N.C. App. 592, 597, 655 S.E.2d
920, 924 (2008) (citations and quotation marks omitted) (alteration in original). “A
trial court’s granting summary judgment before discovery is complete may not be
reversible error if the party opposing summary judgment is not prejudiced.” Hamby
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POAGE V. COX
Opinion of the Court
v. Profile Prod., LLC, 197 N.C. App. 99, 113, 676 S.E.2d 594, 603 (2009) (citations
omitted).
Plaintiffs were not awaiting any responses to interrogatories or the production
of any further evidence at the time the trial court heard the motions. Plaintiffs had
not requested any additional depositions. Plaintiffs never argued before the trial
court that additional discovery was needed to challenge or delay ruling upon
Defendants’ summary judgment motions.
Plaintiffs have failed to demonstrate they were prejudiced by the trial court
considering and ruling upon Defendants’ summary judgment motions before the
discovery period had ended. See id. Plaintiffs’ argument is without merit and
overruled.
V. Plaintiffs’ Experts
Plaintiffs submitted expert-prepared materials in response to Defendants
motions for summary judgment. One was the affidavit of Dr. Carl Fliermans, Ph.D,
and another was a report authored by Jonathan Kornreich. Defendants argue Dr.
Fliermans’s affidavit and Kornreich’s report should not be considered in determining
whether summary judgment is proper because they do not constitute sworn
testimony.
Defendants made oral motions to strike Dr. Fliermans’s affidavit and
Kornreich’s report at the trial court’s hearing on their motions for summary judgment
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POAGE V. COX
Opinion of the Court
in part, on the basis these expert materials were not sworn testimony. The trial
court’s order granting summary judgment to Defendants states, in relevant part:
“The Court in its discretion denies these motions to strike to the extent they are based
on claimed procedural irregularities[.]” Defendants assert this Court should not
consider Dr. Fliermans’s affidavit and Kornreich’s report because of procedural
irregularities, but do not reference or cross-appeal the trial court’s denial of their
motions to strike.
“We review the trial court’s ruling on [a] motion to strike [an] affidavit for
abuse of discretion.” Blair Concrete Servs., Inc. v. Van-Allen Steel Co., 152 N.C. App.
215, 219, 566 S.E.2d 766, 768 (2002). Defendants do not argue the trial court abused
its discretion or otherwise erred by denying their motions to strike. Based upon
Defendants failure to cross-appeal from or argue the trial court abused its discretion
by denying their motions to strike, we find their purported arguments that this Court
should not consider Dr. Fliermans’s affidavit or Kornreich’s report are waived and
subject to dismissal. See High Rock Lake Partners, LLC v. N. Carolina Dep’t of
Transp., 234 N.C. App. 336, 341, 760 S.E.2d 750, 754 (2014) (finding the appellants
argument that the trial court erred by denying their motion for attorney’s fees was
waived when appellants failed to argue the trial court abused its discretion).
VI. Negligence
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POAGE V. COX
Opinion of the Court
Plaintiffs next argues genuine issues of material fact on their negligence claim
precludes summary judgment.
“To recover damages for actionable negligence, plaintiff must establish (1) a
legal duty, (2) a breach thereof, and (3) injury proximately caused by such breach.”
Petty v. Cranston Print Works, 243 N.C. 292, 298, 90 S.E.2d 717, 721 (1956) (citation
omitted). Our Supreme Court has held that negligence is the “failure to exercise that
degree of care which a reasonable and prudent person would exercise under similar
conditions. A defendant is liable for his negligence if the negligence is the proximate
cause of injury to a person to whom the defendant is under a duty to use reasonable
care.” Hart v. Ivey, 332 N.C. 299, 305, 420 S.E.2d 174, 177-78 (1992) (citation
omitted).
A. Duty
With regards to the Coxes, Plaintiffs have forecasted evidence to establish a
genuine issue of material fact with respect to the element of duty of care.
Our Supreme Court has held that landowners owe a “duty to exercise
reasonable care in the maintenance of their premises for the protection of lawful
visitors.” Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998). “Whether
a landowner’s care is reasonable is judged against the conduct of a reasonably
prudent person under the circumstances.” Kelly v. Regency Ctrs. Corp., 203 N.C. App.
339, 343, 691 S.E.2d 92, 95 (2010). The Coxes’ counsel conceded at the summary
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POAGE V. COX
Opinion of the Court
judgment hearing before the trial court that the Coxes, and their cabin, were subject
to the Vacation Rental Act, N.C. Gen. Stat. §§ 42A-1 to 42A-40. Pursuant to the
Vacation Rental Act, “A landlord of a residential property used for a vacation rental
shall[,]” among other things:
(2) Make all repairs and do whatever is reasonably
necessary to put and keep the property in a fit and habitable
condition.
(3) Keep all common areas of the property in safe condition.
(4) Maintain in good and safe working order and
reasonably and promptly repair all electrical, plumbing,
sanitary, heating, ventilating, and other facilities and
major appliances supplied by him or her upon written
notification from the tenant that repairs are needed.
N.C. Gen. Stat. § 42A-31 (2017) (emphasis supplied).
The Vacation Rental Act further provides that “[t]hese duties shall not be
waived[.]” Id. Plaintiffs’ forecast of evidence could support a conclusion that the
Coxes leased their cabin as a vacation rental to the Poages; that the hot tub and
waterfall were not safe for tenant occupancy; and that the Coxes breached their
statutory duty to “do whatever is reasonably necessary to put and keep the property
in a fit and habitable condition.” Id.
“A violation of the duty to maintain the premises in a fit and habitable
condition is evidence of negligence.” Brooks v. Francis, 57 N.C. App. 556, 559, 291
S.E.2d 889, 891 (1982).
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POAGE V. COX
Opinion of the Court
With regard to Schoenen owing the Poages a duty of care:
Privity of contract is not required in order to recover
against a person who negligently performs services for
another and thus injures a third party. There is a duty to
protect third parties where a reasonable person would
recognize that if he does not use ordinary care and skill in
his own conduct, he will cause damages or injury to the
person or property of the other.
Westover Products, Inc. v. Gateway Roofing, Inc., 94 N.C. App. 63, 67, 380
S.E.2d 369, 372 (1989) (emphasis supplied).
Here, it is undisputed the Poages were invitees and renters of the Coxes who
stayed at the cabin from the 25 to 27 August 2015.
The Coxes argue they delegated any duty they may have owed the Poages to
Schoenen, by hiring them “as the experts to maintain” the hot tub and waterfall.
Amy Schoenen Avery (“Avery”), the owner of Schoenen, answered in her
response to Plaintiffs’ interrogatories that “she was never advised the Cox property
was leased to tenants.” Avery testified in her deposition that if she had known the
cabin was being rented, Schoenen would have utilized the maintenance procedures
that are suitable for a commercial hot tub. Gail Cox testified that from when she
initially hired Schoenen to service the hot tub and waterfall, she let Avery know that
they were renting the cabin.
Presuming arguendo, the Coxes could delegate their common law duty of
reasonable care and their statutory duties under the Vacation Rental Act to
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POAGE V. COX
Opinion of the Court
Schoenen, genuine issues of material fact exist regarding whether the Coxes
delegated their duties to Schoenen. The difference between Gail Cox and Avery’s
testimony with regards to whether Avery knew the Cabin was being rented to third-
parties creates a genuine issue of material fact, which precludes summary judgment
on this issue.
B. Breach
Plaintiffs argue sufficient evidence creates a question of material fact of
whether Defendants breached their duty of care. We agree.
The Division of Public Health of the North Carolina Department of Health and
Human Services (“DHHS”) conducted an investigation of the Coxes’ Cabin, including
the hot tub and waterfall, following notification that the Poages were hospitalized for
Legionnaires’ disease.
Following this investigation by DHHS, Drs. Jessica Rinsky and Zachary Moore
prepared a final report dated 24 November 2015 (“the Rinsky Report”).
The Rinsky Report stated, in relevant part:
Division of Public Health and Burke County
Environmental Health staff identified hot tub and
waterfall maintenance practices that may have provided
conditions conducive for Legionella growth, including a
lack of continual disinfection of the spa; periods where the
waterfall system did not continuously flow; water
stagnation between rentals; and, a lack of continual
disinfection of the waterfall system.
....
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POAGE V. COX
Opinion of the Court
[E]nvironmental health staff noted hot tub and waterfall
maintenance practices that did not meet recommendations
for Legionella control.
In addition to the Rinsky Report, Plaintiffs submitted the report of Jonathan
Kornreich (“Kornreich Report”). Jonathan Kornreich previously owned a pool
construction and maintenance company. Kornreich’s report compared the
maintenance practices performed at the Cabin to recommended industry standards
and best practices. Kornreich’s report states, in relevant part:
a. Equipment: The [hot tub] relied on an alternative
sanitization device [Nature2 Sticks] which is not meant to
be a primary and sole system. There was no provision made
to create a sanitizer residual. This could have been
accomplished easily and with very little cost through use of
a chlorine or bromine floater, although the owner noted
that renters were found to have removed the floater. In
that case an inline feeder should have been installed. Had
an inline feeder been installed, a sanitizer residual could
have been automatically maintained. A lack of residual
sanitizer combined with warm spa water created conditions
which were ideal for the propagation of bacteria, including
legionella.
b. Maintenance: Maintenance was provided by a
professional swimming pool service company. According to
their records, the chemical parameters were out of range
on numerous occasions between June 2 and September 1,
the dates for which we have records. Of the 14 service calls
documented during that time, at no time were the water
parameters within the “ideal range” as determined by the
ANSI standard or within the range identified by the
Nature2 manufacturer as correct operating parameters for
their product. In one instance (July 8), the pH was at the
maximum limit and the alkalinity was near the minimum
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POAGE V. COX
Opinion of the Court
limit. On that day a calculation of the Lanelier Saturation
Index (as required when water is outside the ideal range)
would have almost certainly found the water to be out of
balance, although a failure to keep accurate records makes
a retrospective calculation impossible.
When water chemistry parameters are outside the ideal
range, the efficacy of sanitizers is diminished and
pathogens are able to live and reproduce unhindered.
Because of the lack of residual sanitizer, bacteria such as
Legionella can become established in the water and create
a biofilm. Biofilm bacteria may take a disinfectant level
100 times higher in concentration as well as vigorous
scrubbing to remove.
...
Further, there is no record of the waterfall having been
drained, cleaned, sanitized or scrubbed. It is again more
likely than not that a colony of Legionella would have been
able to propagate in the waterfall and infected anyone
nearby through aerosolized droplets containing the
bacteria.
...
In this instance, it is clearly more likely than not that the
chain of failures and disregard of standard safety practices,
both by Schoenen and Cox, observed at this property created
a situation in which dangerous bacteria were permitted to
propagate[.] [Emphasis supplied].
In addition to Kornreich’s report, Plaintiffs also submitted the affidavit of their
expert witness, Dr. Carl Fliermans, who possesses a Ph.D. in microbiology and has
conducted ecological research on Legionella bacteria since 1977. Dr. Fliermans stated
in his affidavit, in relevant part, that it was “more likely than not”:
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Opinion of the Court
The maintenance of this hot tub and water feature were
not conducted in a proper way to prevent the growth,
dissemination and infectivity of the Legionella bacterium
to susceptible individuals2 [sic].
...
During the month of August, maintenance was performed
on the spa and water feature on a weekly basis. Generally,
two (2) ounces of granular chlorine were scattered into the
spa pool area which contained 900 gallons of water. Such
an addition is inadequate to affect the Legionella
bacterium. Legionella is associated with biofilms in nature
and those biofilms protect the bacterium from the action of
the biocide. Doses of biocide need to exceed 10-30 ppm for
shock chlorination to be effective.
...
The lack of a chlorine residual as specified by CDC, is to be
between 2-4 ppm for a maintenance level of chlorine to
provide a safe operation of a hot tub. This level was never
achieved in this facility with 2 ounces of chlorine granules.
The absence of chlorine in a hot tub makes the hot tub with
its warm waters and organic loading, a breeding ground for
Legionella. [Emphasis supplied]
With regard to the waterfall, Avery testified that there were periods where the
waterfall system was not continuously circulating. According to Avery, the waterfall
would occasionally run out of water from evaporation and remain stagnant for
extended periods of time. Avery further testified “[M]y industry doesn’t have
standards for waterfalls. They’re ornamental. They’re not for swimming or bathing. I
didn’t test the water in the waterfall.” (emphasis supplied). Avery agreed with the
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Opinion of the Court
Rinsky Report’s results that stagnant water in the waterfall may have been conducive
to the growth of Legionella bacteria.
Viewed in the light most favorable to Plaintiffs, Plaintiffs have presented
sufficient evidence showing genuine issues of material fact exist with regard to
Defendants breaching their duty of care.
C. Proximate Cause
Plaintiffs argue they have presented sufficient evidence to create a genuine
issue of material fact of whether Defendants’ negligence proximately caused them to
contract Legionnaires’ disease to overcome Defendants’ motions for summary
judgment. We agree.
“[T]he test of proximate cause is whether the risk of injury, not necessarily in
the precise form in which it actually occurs, is within the reasonable foresight of the
defendant.” Shelton v. Steelcase, Inc., 197 N.C. App. 404, 431-32, 677 S.E.2d 485, 504
(2009) (citation omitted).
[I]t is only in exceptional cases, in which reasonable minds
cannot differ as to foreseeability of injury, that a court
should decide proximate cause as a matter of law.
[P]roximate cause is ordinarily a question of fact for the
jury, to be solved by the exercise of good common sense in
the consideration of the evidence of each particular case.
Williams v. Carolina Power & Light Co., 296 N.C. 400, 403, 250 S.E.2d 255,
258 (1979) (emphasis supplied) (citation and quotation marks omitted).
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Opinion of the Court
Defendants argue Plaintiffs are unable to establish any genuine issue of
material fact to show causation, because tests of the hot tub and waterfall were
negative for Legionella bacteria. Contrary to Defendants’ arguments, it is well-
settled that a plaintiff need not establish direct evidence of proximate causation.
“Direct evidence of negligence is not required; it may be inferred from the attendant
facts and circumstances.” Greene v. Nichols, 274 N.C. 18, 22, 161 S.E.2d 521, 524
(1968). “Actual causation may be proved by circumstantial evidence[.]” Collins v.
Caldwell Furniture Co., 16 N.C. App. 690, 694, 193 S.E.2d 284, 286 (1972) (citation
omitted).
Ten samples were collected from the hot tub and waterfall on 30 September
2015 by the Burke County Health Department staff, over a month after the Poages
visited the Cabin. These ten samples returned negative test results for Legionella
bacteria. Following Plaintiffs’ stay at the cabin, but before the Coxes were notified of
Plaintiffs’ diagnoses with Legionnaires’ disease, Schoenen drained and cleaned the
hot tub. Dr. Rinsky of DHHS testified in her deposition that Schoenen’s draining and
cleaning on 1 September 2015, irrespective of any chemical sanitation of the hot tub,
would have affected the ability of a test to return positive results for Legionella.
After DHHS and the Burke County Health Department were notified of
Plaintiffs’ contracting Legionnaires’ disease, Stacie Rhea of DHHS instructed the
Coxes on 23 September 2015 to drain and disinfect the hot tub and waterfall and
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Opinion of the Court
hyperchlorinate the hot tub. This sanitization of the hot tub and waterfall was
conducted by Schoenen on an undetermined date before test samples were taken by
the Burke County Health Department on 30 September 2015.
Dr. Zackary Moore, a medical doctor employed by DHHS, stated in his
deposition that “The [Poages] were interviewed to look -- to inquire about other
sources of air exposure or water exposure, and none were identified aside from the
hot tub and waterfall at the rental house.” He further stated that he “inquired about
other sources of aerosolized water beyond the rental house, but none were identified
so no other sources were considered further.” “[T]he onset of illness in both cases
meant that their time at the rental home would have been during . . . the likely
exposure period.”
Plaintiff’s expert Dr. Fliermans testified in his affidavit, in relevant part:
Schoenen Pool & Spa, LLC serviced the facility in question
and has been shown by [the] John Kornreich Affidavit[] not
to adequately treat the hot tub and water feature to
prevent the Legionella bacterium from growing.
...
On August 25, the Schoenen Pool & Spa, LLC company
according to the sparse records treated the hot tub with 4
ounces, of granular chlorine. No chlorine measurements
were made in the field and none were recorded in the
maintenance records. If this had been a shock chlorine
treatment, then the Poage party would not have been able
to enter the hot tub because of safety considerations. Thus,
it was not a shock chlorination treatment that requires
chlorine levels in excess of 20 ppm for an extended period
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Opinion of the Court
of time. It is my opinion that the addition of 4 ounces of
granular chlorines was effective in disturbing the biofilm
in which the Legionella resided and may have exacerbated
conditions to which the Poage’s party were exposed. If
appropriate water samples had been taken and
appropriately tested at that time, it is my opinion Legionella
would have been detected to be present in the samples.
...
Based upon my training and research on the ecology of
Legionella it is my professional opinion that more likely
than not the opinions rendered above are true and correct.
A genuine issue of material fact exists as to whether Legionella bacteria was
present in the Coxes’ hot tub or waterfall, and whether bacteria from the hot tub or
waterfall caused Plaintiffs to contract Legionnaires’ disease. This is based, in part,
upon: (1) Dr. Fliermans’s opinion Legionella bacteria would have been detected in the
hot tub when Plaintiffs used it; (2) the proximity in time to Plaintiffs’ use of the hot
tub and their diagnoses with Legionnaires’ disease; (3) both Plaintiffs contracting
Legionnaires’ disease within the exposure period; and (4) the expert opinions of Dr.
Fliermans and Kornreich that the maintenance standards utilized by Schoenen were
inadequate to have kept Legionella from contaminating the hot tub and waterfall. See
Williams, 296 N.C. at 403, 250 S.E.2d at 258.
D. Injury
Plaintiffs argue they have presented sufficient evidence to establish genuine
issues of material fact with regard to the Poages’ injuries. We agree.
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Opinion of the Court
Schoenen argues that Plaintiffs have failed to produce evidence to show Cheryl
Poage was diagnosed with Legionnaires’ disease. Neither Defendant challenges on
appeal that Robert Poage was diagnosed with Legionnaires’ disease.
Viewing the evidence in the light most favorable to Plaintiffs, sufficient
evidence forecasts that Cheryl Poage was diagnosed with Legionnaires’ disease. Both
Dr. Zachary Moore, and Dr. Michael Silverman, an infectious disease expert, testified
that Cheryl Poage was diagnosed with Legionnaires’ disease by means of a urine
antigen test ordered by Novant Health Forsyth Medical Center, where she was
hospitalized.
Plaintiffs met their burden to produce evidence showing a genuine issue of
material fact exists with regard to the element of injury. Viewed in the light most
favorable to Plaintiffs, their evidence tends to show the Poages were hospitalized for
Legionnaires’ disease, they incurred medical expenses, and they experienced pain
and suffering as a result of the disease.
Plaintiffs’ evidence establishes a genuine issue of material fact exists with
respect to the Poages’ injuries resulting from Legionnaires’ disease.
VII. Breach of Contract
In addition to negligence, Plaintiffs asserted a claim for breach of contract
against the Coxes. The motion for summary judgment the Coxes filed with the trial
court challenged all of Plaintiffs’ claims, including breach of contract. The trial
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Opinion of the Court
court’s summary judgment order does not specifically address Plaintiffs’ breach of
contract claim, but the trial court granted summary judgment to Defendants on all of
Plaintiffs’ claims.
Plaintiffs do not specifically address their breach of contract claim in their
appellate brief. The Coxes argue in their appellee brief that Plaintiffs have failed to
forecast sufficient evidence of breach of contract. In their reply brief, Plaintiffs do not
present an argument with respect to breach of contract, but assert the issue is “not
ripe and should be remanded to the trial court for consideration in the first instance.”
Although the trial court’s summary judgment order does not specifically
mention the breach of contract claim, the Coxes’ motion for summary judgment
requested summary judgment on all of Plaintiffs’ claims, and the Coxes argued before
the trial court that summary judgment on the breach of contract claim should be
granted. The trial court’s summary judgment order granted summary judgment to
Defendants on all of Plaintiffs’ claims. Based upon this Court’s de novo standard of
review of orders granting summary judgment, Plaintiffs’ contention that the Coxes’
arguments concerning breach of contract are not ripe is without merit. See In re Will
of Jones, 362 N.C. at 573, 669 S.E.2d at 576.
Plaintiffs have failed to preserve or argue why the trial court’s summary
judgment order should be reversed with respect to their breach of contract claim.
“Issues not presented in a party’s brief, or in support of which no reason or argument
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Opinion of the Court
is stated, will be taken as abandoned.” N.C. R. App. P. 28(b)(6). Plaintiffs have
abandoned any arguments they may have asserted with respect to their breach of
contract claim. See id. The trial court’s summary judgment order is affirmed to the
extent the trial court granted summary judgment to the Coxes on Plaintiffs’ breach
of contract claim.
VIII. Conclusion
Viewed in the light most favorable to Plaintiffs, Plaintiffs’ forecast of evidence
establishes genuine issues of material fact exist on all elements of their negligence
claims against Defendants. Plaintiffs abandoned any argument that the trial court’s
order should be reversed to the extent the trial court granted summary judgment to
the Coxes on Plaintiffs’ breach of contract claim. The trial court’s summary judgment
order is affirmed with respect to Plaintiffs’ breach of contract claim, reversed with
respect to Plaintiffs’ negligence claims against both Defendants, and is remanded for
trial on Plaintiffs’ negligence claims. It is so ordered.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Judges DIETZ and BERGER concur.
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