Jury to decide duty to warn in deadly helicopter crash

A jury must decide whether a farm owner, the company which leased part of the farm, an agricultural company and a crop consultant had a duty to warn a helicopter pilot who died after colliding with a steel wire while crop dusting, the 4th U.S. Circuit Court of Appeals has held.

Having found that they owed no duty to warn the pilot or modify the steel wire, the district court granted summary judgment to the defendants. The court also refused to find that the pilot was contributorily negligent or apply the “incident to the work undertaken exception.”

But U.S. Circuit Court Judge Nicole G. Berner concluded that “material questions of fact remain” about whether the steel wire was a foreseeable danger for which the appellees owed a duty to warn the pilot, even though they had never given such a warning in the past.

“Simply because no injury occurred previously does not necessarily absolve [the appellees] of liability here,” Berner said. “A previously neglected duty – if one existed – cannot insulate a potential tortfeasor from liability.”

Joined by Judges G. Steven Agee and Julius N. Richardson, Berner vacated the lower court’s findings of summary judgment and remanded Kritter, et al., v. Mooring, et al. (VLW 025-2-250).

Surprising pushback

Winston-Salem attorneys John Chilson and W. Thompson Comerford Jr. with Comerford Chilson & Moser represented the claimants. The attorneys said they were “surprised by the defendants’ pushback” in what they thought was “a pretty simple, straightforward” negligence case.

“I’m confident that it was a surprise to defense counsel, as well,” Comerford told Virginia Lawyers Weekly. “It’s axiomatic that negligence cases are almost always poor candidates for summary judgment.”

Chilson analogized the defendants’ argument that it was impossible to foresee the danger on a large farm to the failed defense that a big box store was too large to keep free from hazards. He also clarified that the steel wire was a mere three-sixteenths of an inch thick. The defendants’ petition for en banc review is currently under consideration, according to one of the plaintiffs’ attorneys.

Attorneys for the defendants did not respond to requests for comment.

The dove wire

Murry Rayborn Daw owned land in Wayne County, North Carolina where he hunted and farmed. Rayborn constructed a 30-foot-high deer stand from which he attached a thin steel wire to a tree 300 feet away to attract doves.

Rayborn leased a portion of his land — which included the deer stand and wire — to Daw Farms but retained the right to hunt on the parcel. Daw Farms engaged Nutrien Ag Solutions to handle crop dusting for stinkbugs and hired William Jorden Elmore as a crop consultant to hire pilots.

In 2019, one of the pilots hired by Elmore barely avoided running into the dove wire but never informed anyone about the danger. Next year, Elmore hired Eugene Kritter, an experienced helicopter pilot who owned and operated Kritter Cropdusting.

When asked by Kritter whether there was anything he needed to be aware of on the farm, Elmore pointed out a nearby housing development but never mentioned the dove wire. Kritter surveyed the land from the air before beginning to crop dust. Flying low to crop dust, Kritter’s helicopter collided with the dove wire and he was killed in the resulting crash. Kritter Cropdusting and Kritter’s estate sued Rayborn, Daw Farms, Elmore and Nutrien for negligence. All parties moved for summary judgment.

The district court held that neither Rayborn nor Daw Farms owed a duty of care to remove or modify the dove wire or to warn Kritter of its existence. The court also found that Nutrien and Elmore owed Kritter no duty of care under any theory of liability.

Kritter and the pilot’s estate appealed.

Foreseeability

The North Carolina Court of Appeals held in Martishius v. Carolco Studios, Inc., that landowners must “take reasonable precautions to ascertain the condition of the property and to either make it reasonably safe or give warnings as may be reasonably necessary to inform the [lawful] visitor of any foreseeable danger.”

That court later held in McCorkle v. N. Point Chrysler Jeep, Inc., that an independent contractor or subcontractor who enters to premises at the request of an owner or occupier is considered a lawful visitor who is owed a duty of reasonable care.

Berner said Rayborn and Daw Farms were required “to take reasonable precautions, ascertain the condition of the property, and either make the property reasonably safe or give warnings as may be reasonably necessary to inform Nutrien or Kritter of any foreseeable danger.”

But Rayborn and Daw Farms contended that as farmers, not helicopter pilots, they could not reasonably have foreseen the hazard that a dove wire would pose to Kritter.

“Under North Carolina negligence law, however, the issue of foreseeability turns on the particular facts of each case,” Berner wrote. “At summary judgment, it was sufficient for Kritter to put forward evidence sufficient for a reasonable jury to find that, upon exercising reasonable care, Rayborn and Daw Farms ‘should have foreseen that some injury would result.’”

Because Rayborn and Daw Farms were aware of the dove wire and knew that pilots fly low over fields when crop dusting, Berner found that a jury could reasonably conclude that they should have foreseen the danger the dove wire posed to Kritter.

“On the other hand, the facts before this court do not establish that the danger posed by the dove wire was foreseeable as a matter of law,” the judge noted, adding that a “fair-minded jury could reasonably conclude that it was not.”

Thus, summary judgment was “equally inappropriate” for Kritter because the facts were in dispute or more than one inference could be drawn from the evidence.

Berner also rejected Rayborn’s argument that his lease to Daw Farms absolved him of a legal duty to Kritter.

Looking to Franklin Drug Stores, Inc., v. Gur-Sil Corp., the judge said “that where a landowner retains partial control over a leased property, the landowner remains liable for injuries to third parties if the injury is caused by conditions under the landowner’s control.”

“Under such circumstances, control over specific conditions on property can be shared by landlord and tenant,” she explained. “At least for summary judgment purposes, it is sufficient that a reasonable jury could conclude that Rayborn would owe a legal duty to Kritter for conditions on the parcel over which he retained control, including the dove wire.”

Undertaking liability

Whereas Elmore was acting within the scope of his employment with Nutrien at all relevant times, Berner held that Nutrien was vicariously liable for Elmore’s actions under the doctrine of respondeat superior.

But the question remained whether Elmore owed Kritter a duty of care to warn him about the dove wire.

“North Carolina’s doctrine of ‘undertaking liability’ provides that a person owes a duty to ‘exercise that degree of care for the safety of others that a reasonably prudent person would exercise under the same circumstances,’” Berner said, citing Bogle v. Duke Power Co.

“For an undertaking arising out of a contractual relationship, there is an obligation to exercise reasonable care as would be expected within the scope of the act agreed to be done,” the judge pointed out.

As a crop consultant for Nutrien, Elmore had “an obligation to exercise the ‘ability, skill, and care customarily used’ by crop consultants when engaging a pilot to crop dust fields,” Berner wrote.

Kritter specifically asked Elmore about potential hazards, but Elmore only warned him about a nearby housing development. Claiming their role was limited to scheduling and identification of fields, Nutrien and Elmore argued that they have never warned pilots about hazards.

But Berner said that a “previously neglected duty — if one existed — cannot insulate a potential tortfeasor from liability.”

And while a jury could reasonably conclude that Elmore had a legal duty to warn Kritter of reasonably foreseeable hazards, the judge said a question of fact remained as to whether the risk posed by the dove wire was reasonably foreseeable to Elmore.

Contributory negligence

When uncontroverted facts objectively establish that the plaintiff encountered an open and obvious risk, it is appropriate for North Carolina courts to find as a matter of law that the defendant had no duty to warn the plaintiff or that the claim is barred by contributory negligence.

“Reasonable people are assumed, absent a diversion or distraction, to be vigilant in the avoidance of injury when faced with a known and obvious danger,” Berner said, noting that contributory negligence was ordinarily a jury question.

The judge credited evidence that a prior pilot narrowly avoided the dove wire and that Kritter’s expert reconstruction showed that he could not have seen the wire with enough time to evade it.

“This expert evidence establishes, at a minimum, that a factual dispute exists as to whether Kritter could have seen the dove wire while operating the helicopter and thus whether he could be found contributorily negligent,” Berner said.

Alternatively, a reasonable jury could conclude that Kritter was contributorily negligent.

“Indeed, Kritter was aware of the deer stand pole, and a jury could reasonably infer that the presence of the dove wire would have been obvious,” she said. “That is a factual determination, however.” The district court correctly rejected summary judgment on this issue.

Nor was Berner persuaded that Kritter’s negligence claim failed where the crash resulted from a danger that was incident to work undertaken as an independent contractor. That argument “misapprehends North Carolina law.”

“In North Carolina, an owner or occupier of land who relinquishes control and possession of property to an independent contractor also relinquishes the duty of care to the independent contractor who is exercising control and possession, but only with respect to ‘dangers which may be incident to the work undertaken by the independent contractor,’” Berner wrote.

But here, Kritter neither possessed nor controlled any party of Rayborn’s parcel while he was crop dusting, and he played no role in hanging the dove wire. “Therefore, the dove wire was in no way ‘incident to’ Kritter’s work as a crop duster,” the judge concluded.