IN THE SUPREME COURT OF NORTH CAROLINA

No. 155PA23

Filed 23 August 2024

DEBRA CULLEN

v.

LOGAN DEVELOPERS, INC.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of 

the Court of Appeals, 289 N.C. App. 1 (2023), vacating and remanding an order entered 

on 14 October 2021 by Judge Henry L. Stevens in Superior Court, Brunswick County. 

Heard in the Supreme Court on 10 April 2024.

Ricci Law Firm, P.A., by Meredith S. Hinton, for plaintiff-appellee.

McAngus Goudelock & Courie, by Jeffery I. Stoddard and Walt Rapp, for 

defendant-appellant.

Ann C. Ochsner and Gabriel E. Zeller for North Carolina Advocates for Justice, 

amicus curiae.

ALLEN, Justice.

The law expects individuals to take reasonable steps to protect themselves 

from open and obvious risks. For this reason, plaintiffs ordinarily cannot recover

damages from defendants who created such risks if the plaintiffs could have avoided 

harm through due regard for their own safety.

Plaintiff Debra Cullen sued defendant Logan Developers, Inc. for injuries she 

sustained when she fell through a hole that defendant had cut into the plywood 
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flooring of plaintiff’s attic to provide access to the home’s air handler. By her own 

admission, plaintiff did not look before she stepped backwards into the hole, even 

though she knew that it was unsafe to walk on any part of the attic that was not 

covered by flooring. Because the hole presented an open and obvious risk and plaintiff 

failed to exercise reasonable care under the circumstances, plaintiff cannot prevail on 

her negligence claim against defendant.

Furthermore, plaintiff’s claim against defendant for gross negligence fails as a 

matter of law. Even if we assume that defendant violated the North Carolina Building 

Code as plaintiff alleges, defendant did not display the conscious disregard for 

plaintiff’s safety necessary to prove gross negligence. The trial court properly granted 

defendant’s motion for summary judgment on all claims, and we therefore reverse the 

decision of the Court of Appeals vacating the trial court’s order.

I. Background

In June 2018, plaintiff and her husband (the Cullens) contracted with 

defendant to build a new home in Southport. During construction, the Cullens rented 

a nearby residence and frequently visited the construction site to check on the status 

of their home and speak with the project superintendent.

Construction included installation of the mechanical air handler for the home’s

heating, ventilation, and air conditioning system. To reach the air handler, which was 

located in the attic, a person had to walk on plywood flooring that ran between rows 

of trusses and was surrounded by insulation. Anyone who stepped off the flooring and 
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onto insulation risked falling through the ceiling.

On 28 December 2018, a mechanical rough-in inspection conducted by a 

Brunswick County building inspector determined that defendant had installed the 

air handler too far from the entrance to the attic. As interpreted by the inspector, the 

North Carolina Building Code required the air handler to be located not more than 

twenty feet from the attic’s entrance.1

To comply with the inspector’s interpretation of the Building Code, defendant 

decided to install a second opening to the attic, this one within twenty feet of the air 

handler. Defendant concluded that the only suitable spot for the second opening was 

in the master bathroom. Installing the second opening—a so-called “scuttle hole”—

entailed cutting a section out of the master bathroom’s ceiling and out of the attic’s 

flooring above it. Defendant filled the gap in the attic’s flooring with insulation. 

Thereafter, the house passed reinspection.

The Cullens disapproved of the scuttle hole in the master bathroom. They had 

expected an entirely smooth ceiling. To resolve the issue, defendant covered the 

scuttle hole’s opening in the master bathroom with drywall, giving it the smooth 

appearance the Cullens wanted. Defendant did not replace the section that had been 

cut out of the attic’s flooring, however, out of concern that doing so would completely

1 The relevant provision is 2018 North Carolina State Building Code: Mechanical Code

§ 306.3 (2018), which states in part: “The passageway shall be not . . . more than 20 feet (6096 

mm) in length measured along the centerline of the passageway from the opening to the 

appliance.”
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close the scuttle hole in violation of the Building Code.

The parties disagree over whether defendant told the Cullens that installing 

the scuttle hole had involved removing a section of the attic’s flooring. Plaintiff insists 

that defendant did not. The project superintendent testified that he took the Cullens 

into the attic, pointed out the missing section, and explained why he was unwilling 

to close the scuttle hole on the attic side.

On 1 May 2019, shortly after the Cullens moved into their home, plaintiff 

entered the attic to take photographs of the attic’s interior. The Cullens had hired a 

handyman and wanted to add more flooring to the attic to increase its storage space.

While in the attic, plaintiff stepped into the scuttle hole, falling through the 

master bathroom’s ceiling and onto the bathroom floor. The fall left plaintiff with a 

concussion, a broken heel on her right foot, and a broken thumb. It also aggravated 

preexisting back injuries.

Plaintiff later testified that she understood when she entered the attic that it 

was unsafe to step off the flooring and onto insulation. Although plaintiff denied 

remembering exactly how she fell, both she and Mr. Cullen concluded that she must 

have stepped backwards into the scuttle hole. Plaintiff admitted that nothing would 

have prevented her from seeing the insulation covering the scuttle hole if she had 

looked before she stepped.

On 16 July 2020, plaintiff filed suit against defendant in the Superior Court, 

Brunswick County, alleging claims of negligence and gross negligence based on the 
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“dangerous condition of the attic floor.” The parties engaged in discovery, after which 

defendant filed a motion for summary judgment on the grounds that (1) plaintiff’s 

own negligence in stepping backwards into the scuttle hole barred plaintiff’s 

negligence claim and (2) plaintiff had not set forth facts sufficient to establish gross 

negligence.

On 14 October 2021, the trial court granted defendant’s summary judgment 

motion. The court ruled that plaintiff had “clearly contributed to her accident and the 

injuries she sustained by failing to keep a proper lookout for her own safety while 

stepping backwards and off the plywood walking path in the attic and into an area 

that she knew was unsafe.” The trial court further determined that “insufficient facts” 

existed to support a claim of gross negligence.

The Court of Appeals vacated the trial court’s summary judgment order. Cullen 

v. Logan Devs., Inc., 289 N.C. App. 1, 12 (2023). On the issue of contributory 

negligence, the appellate court held that “the evidence [viewed] in the light most 

favorable to [p]laintiff . . . create[s] a genuine issue of material fact as to whether 

[p]laintiff knew the [scuttle hole] area [in the attic] remained unsafe such that she 

was negligent in failing to look out for her safety while walking.” Id. at 7. Similarly, 

the Court of Appeals held that the trial court should not have granted defendant 

summary judgment on plaintiff’s gross negligence claim because “[t]he forecasted 

evidence . . . contains allegations and averments which, if taken as true, show 

[d]efendant knew concealing the appearance of the scuttle hole from the side of the 
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master bathroom ceiling violated applicable building code, and otherwise knew 

concealing the hole posed a hazard, but did it anyway.” Id. at 11.

Defendant subsequently filed a petition for discretionary review with this 

Court pursuant to N.C.G.S. § 7A-31. We allowed the petition.

II. 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.” N.C.G.S. § 1A-1, Rule 56(c) (2023). “The summary 

judgment standard requires the trial court to construe evidence in the light most 

favorable to the nonmoving party[,]” in this case, plaintiff. Draughon v. Evening Star 

Holiness Church of Dunn, 374 N.C. 479, 482 (2020). “We review de novo an appeal of 

a summary judgment order. When reviewing a matter de novo, this Court considers 

the matter anew and freely substitutes its own judgment for that of the lower courts.” 

N.C. Farm Bureau Mut. Ins. Co. v. Herring, 385 N.C. 419, 422 (2023) (internal 

quotation marks and citations omitted).

III. Plaintiff’s Contributory Negligence

“Negligence is the failure to exercise proper care in the performance of a legal 

duty which the defendant owed the plaintiff under the circumstances surrounding 

them.” Moore v. Moore, 268 N.C. 110, 112 (1966). Contributory negligence is a defense 

to negligence claims. The defense arises from the duty that the law imposes on us all 
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to take reasonable care to protect ourselves. Draughon, 374 N.C. at 480.

With certain exceptions, contributory negligence will bar a plaintiff’s 

negligence claim if the defendant shows that the plaintiff could have avoided injury 

by exercising reasonable care for the plaintiff’s own safety.2 Sorrells v. M.Y.B. Hosp.

Ventures of Asheville, 332 N.C. 645, 648 (1992); Holderfield v. Rummage Brothers

Trucking Co., 232 N.C. 623, 625 (1950). Significantly, “the existence of contributory 

negligence does not depend on [the] plaintiff’s subjective appreciation of danger; 

rather, contributory negligence consists of conduct which fails to conform to an 

objective standard of behavior—the care an ordinarily prudent person would exercise 

under the same or similar circumstances to avoid injury.” Smith v. Fiber Controls 

Corp., 300 N.C. 669, 673 (1980) (internal quotation marks and citation omitted).

Whether the trial court properly granted defendant’s motion for summary 

judgment on plaintiff’s negligence claim turns on whether plaintiff was contributorily 

negligent as a matter of law. See Mark W. Morris, North Carolina Law of Torts

§ 19.20[1][c][iv] (3d ed. 2023) (“[I]t is rare that the court will decide the issue of 

contributory negligence . . . as a matter of law. But when the plaintiff’s evidence fails 

to raise any issue of material fact and the evidence of contributory negligence is 

uncontradicted, summary judgment for the defendant is appropriate.”).

2 The last clear chance doctrine offers one such exception. It allows a contributorily 

negligent plaintiff to recover when “the conduct of [the] defendant[,] after his negligence and 

the plaintiff’s contributory negligence have had their play, still leav[es] the defendant time 

and opportunity to avoid the injury notwithstanding what both parties have previously done, 

or failed to do.” McMillan v. Horne, 259 N.C. 159, 160 (1963). 
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“[O]ur case law has made it clear that when the condition that allegedly caused 

the injury, viewed objectively, is open and obvious, judgment as a matter of law is 

appropriate.” Draughon, 374 N.C. at 482–83. “A condition is open and obvious if it 

would be detected by ‘any ordinarily intelligent person using his eyes in an ordinary 

manner.’ ” Id. at 483 (quoting Coleman v. Colonial Stores, Inc., 259 N.C. 241, 242 

(1963) (per curiam)).

We recently dealt with an instance of contributory negligence in the context of 

an open and obvious condition. In Draughon, the plaintiff helped carry a casket up a 

set of stairs and into a church. Id. at 480. “[W]atch[ing] the doorway instead of where 

he was stepping[,] [the plaintiff] tripped near the top of the steps, fell into the church 

building, and was injured.” Id. The top step was covered with a layer of brick that 

raised it several inches higher than the other steps. Id. at 481. The plaintiff sued the 

church, alleging among other things that it had “failed to keep its premises in a 

reasonably safe condition and failed to warn [the] plaintiff of a dangerous and 

defective condition on the property.” Id. at 482. In concluding that the trial court had 

properly granted the church’s motion for summary judgment, this Court explained: 

“The distinct height and appearance of the step, the clear visibility of the set of stairs, 

and plaintiff’s previous experience walking down the set of stairs show that a 

reasonable person in [the] plaintiff’s position would have been aware of the step’s 

condition and taken greater care.” Id. at 485.

Plaintiff tries to distinguish her case from Draughon by noting that the 
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Draughon plaintiff “had walked down the steps just before his accident.” Id. at 486. 

Because he had just used the stairs, the Draughon plaintiff had a chance to appreciate 

the danger posed by the top step before he walked up the steps while carrying the 

casket. But here, according to plaintiff, she “had not walked in the attic after 

[d]efendant cut a hole in the walkway and had no way of knowing that [d]efendant 

had done so.”

The problem with plaintiff’s distinction is that the outcome in Draughon did 

not depend on the Draughon plaintiff’s earlier descent of the church steps. We clearly 

indicated that the descent was an additional—not essential—basis for our decision:

Because the condition of the top step would be open and 

obvious to a reasonable person, [the] defendant had no duty 

to warn [the] plaintiff. Similarly, because [the] plaintiff, 

after his previous descent of the steps, did not heed the risk 

obviously presented by the distinct appearance of the top 

step, and because he carried the casket while walking 

sideways without looking at the steps, his own negligence 

contributed to his fall.

Id. at 487 (emphasis added).

The first sentence of the above quotation demonstrates that our holding in 

Draughon rested on the open and obvious condition of the top step. Although this 

Court pointed to the plaintiff’s earlier descent of the steps as further support for our 

contributory negligence determination, id., we did not hold that a plaintiff must have 

prior knowledge of an open and obvious risk for the defense of contributory negligence 

to apply. Indeed, such a holding would have been at odds with our precedents. See, 

e.g., Benton v. United Bank Bldg. Co., 223 N.C. 809 (1944) (applying the “open and 
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obvious” principle without reference to whether the plaintiff had previously visited 

the store where she fell).

Plaintiff also tries to distinguish this case from Draughon by denying that the 

scuttle hole presented an open and obvious risk. She observes that the attic had only 

a single light bulb and one window. Plaintiff further asserts that the scuttle hole “was 

filled in with a piece of batt insulation in the attic, which was flush with the walkway, 

making it indiscernible.” At a minimum, plaintiff contends, whether the scuttle hole 

presented an open and obvious risk was a question for the jury, not the trial court.

This argument fails for two reasons. First, plaintiff’s assertion that the batt 

insulation effectively camouflaged the scuttle hole appears to be a fresh allegation. 

She did not argue the batt insulation issue to the trial court or the Court of Appeals, 

and we find nothing in the record that supports her contention. “[T]he law does not 

permit parties to swap horses between courts in order to get a better mount in the 

Supreme Court.” Weil v. Herring, 207 N.C. 6, 10 (1934).

Second, plaintiff’s claim that poor lighting and the batt insulation made the 

scuttle hole hard to see is contradicted by plaintiff’s own testimony. During her 

deposition, plaintiff admitted under oath that she would have seen the scuttle hole

had she looked: “If I had [looked toward the scuttle hole], I would have seen insulation 

and I would not have stepped in it.” Likewise, plaintiff expressly denied that the hole 

was hidden or that anything blocked it from view. The summary judgment standard 

requires us to examine the evidence in the light most favorable to plaintiff; it does 
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not oblige us to ignore the parts of plaintiff’s testimony that torpedo her argument.

Despite her admission that the scuttle hole was plainly visible, plaintiff argues 

that she acted reasonably under the circumstances in stepping backwards in the attic 

without checking behind her. According to plaintiff, defendant never told her that the 

scuttle hole’s installation had involved the removal of a section from the attic’s 

flooring. She further contends that, even if she had known about the missing section, 

defendant’s promise to repair the master bathroom’s ceiling left her with no reason 

to suppose that the attic’s flooring remained dangerous. Plaintiff directs our attention 

to her testimony that she had visited the attic perhaps twice before defendant 

installed the scuttle hole. Her familiarity with the attic’s original condition, she 

maintains, left her without any reason to believe that a gap existed in the flooring.

Consistent with Coleman v. Colonial Store, Inc., we reject plaintiff’s contention 

that she acted reasonably by stepping backwards in the attic without looking. The

customer in Coleman tripped over a metal screen as he turned to his right 

immediately after exiting the supermarket. 259 N.C. at 242. Shaped like a right 

triangle, the metal screen was fastened to the wall of the store and was “about four 

and a half or five feet high, about eight inches wide at the top, and about thirty-four 

inches wide at the bottom.” Id. Although the screen was plainly visible through the 

glass of the exit door, “[t]here was nothing there to call [the customer’s] attention to 

the metal screen.” Id. The customer had visited the store previously but “in leaving 

had turned to his left” and “[i]n so doing . . . had not noticed the screen.” Id. The 
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customer admitted that he was not looking where he was going at the time of his fall.

Id.

In affirming the trial court’s order dismissing the customer’s negligence 

lawsuit against the supermarket, this Court remarked that “[t]he metal screen at the 

exit door was obvious to any ordinarily intelligent person using his eyes in an

ordinary manner.” Id. We concluded that the customer’s “evidence plainly show[ed] 

[that] he failed to exercise ordinary care for his own safety.” Id. at 243.

Like the customer in Coleman, plaintiff did not look where she was stepping 

and was injured by an open and obvious condition. If anything, plaintiff had more 

reasons than the Coleman customer to watch where she was going. Storefronts are 

not usually perilous environments, but plaintiff knew that she could fall through the 

ceiling if she stepped off the plywood and onto any area covered by insulation.

Moreover, just as the Coleman customer’s previous familiarity with the store did not 

excuse him from looking where he was going, plaintiff’s prior visits to the attic did 

not relieve her of the obligation to watch her step.

Plaintiff argues that precedents from the Court of Appeals support her 

position. We find those cases materially distinguishable. For example, plaintiff points 

to Duval v. OM Hospitality, LLC, 186 N.C. App. 390 (2007). There, a woman and her 

husband had to make their way down an unlit stairwell to exit a motel. 186 N.C. App. 

at 391. The stairwell was unlit “because a light timer which controlled the light . . . 

had been deactivated.” Id. As the couple descended the stairs, the woman tripped and 
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fell, injuring herself. Id. She later testified that the stairwell “was so dark that [she] 

could not see the steps.” Id. The woman sued the motel, but the trial court granted 

summary judgment in favor of the motel on contributory negligence grounds. Id. at 

392. The Court of Appeals reversed, opining that

a jury could also find that [the woman] acted reasonably in 

using the stairwell since she was not aware of another way 

out and because she used proper care in descending the 

dark stairs, carefully and slowly, holding the railing, and 

having her husband ahead of her feeling for the steps, but 

fell nonetheless.

Id. at 396.

It seems obvious to us that Duval is not on point. The woman in Duval moved 

forward cautiously but could not see where she was going through no fault of her own. 

Here, even if we assume she was moving slowly, plaintiff did not see the scuttle hole 

because she stepped backwards without looking.

Viewed in the light most favorable to plaintiff, the evidence shows that she

failed to exercise reasonable care for her own safety in the attic. By her own 

admission, plaintiff understood that the attic was dangerous and could have avoided 

falling by looking before she stepped backwards. The trial court correctly determined 

that plaintiff was contributorily negligent, and the Court of Appeals erred in vacating 

the trial court’s order granting summary judgment for defendant on plaintiff’s 

negligence claim.

IV. Plaintiff’s Claim for Gross Negligence

“Contributory negligence is not a bar to a plaintiff’s recovery when the 
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defendant’s gross negligence . . . is a proximate cause of the plaintiff's injuries.” 

Yancey v. Lea, 354 N.C. 48, 51 (2001). Thus, although it defeats her negligence claim, 

plaintiff’s contributory negligence does not prevent her from pursuing her claim 

against defendant for gross negligence. Like the trial court and the Court of Appeals, 

we proceed to the merits of plaintiff’s gross negligence claim. 

This Court has sometimes found it difficult to distinguish between negligence 

and gross negligence in practice. See Hinson v. Dawson, 244 N.C. 23, 27–28 (1956) 

(“When an injury is caused by negligence, any attempt to differentiate variations from 

slight to gross is fraught with maximum difficulty.”). Nonetheless, “the difference 

between ordinary negligence and gross negligence is substantial.” Yancey, 354 N.C. 

at 53. Whereas ordinary negligence involves inadvertence or carelessness, we have 

used the term gross negligence “in the sense of wanton conduct.” Id. (quoting Hinson, 

244 N.C. at 28). “An act is wanton when it is done of wicked purpose, or when done 

needlessly, manifesting a reckless indifference to the rights of others.” Foster v. 

Hyman, 197 N.C. 189, 191 (1929).

Plaintiff argues that “defendant willfully violated the building code and 

consciously disregarded plaintiff’s safety.” According to plaintiff, defendant created a 

dangerous condition by leaving the scuttle hole open in the attic and not alerting

plaintiff of the peril.

As plaintiff acknowledges, the Court of Appeals has opined that a Building 

Code violation without more does not qualify as gross negligence. Bashford v. N.C. 
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Licensing Bd. for Gen. Contractors, 107 N.C. App. 462, 467 (1992). We agree that such 

a violation does not automatically constitute gross negligence because it is not 

necessarily the product of a bad purpose or reckless indifference to the rights of 

others. Consequently, even if we assume that defendant violated the Building Code 

by closing the scuttle hole on the master bathroom side, this fact alone does not 

establish that summary judgment for defendant was improper. The question is 

whether there is evidence that defendant acted with a bad purpose or with reckless 

indifference to plaintiff’s rights.

Construed in the light most favorable to plaintiff, the evidence yields the 

following details. Defendant installed the scuttle hole to comply with the county 

inspector’s interpretation of the Building Code. Plaintiff did not know that defendant 

had cut a section out of the attic’s flooring as part of the installation. Defendant 

subsequently closed the hole on the master bathroom side in response to the Cullens’ 

unhappiness over the ceiling’s appearance. Defendant did not clearly communicate 

its actions to plaintiff, who believed that the scuttle hole was entirely gone. The 

scuttle hole on the attic side was filled with insulation that plaintiff would have seen 

had she looked before stepping backwards.

On these facts, a jury could conclude that defendant violated the Building Code 

by closing the scuttle hole entrance in the master bathroom. Jurors could also find 

that defendant created a risk to plaintiff by failing to explain that the scuttle hole 

remained open in the attic.
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Yet these facts do not demonstrate that defendant acted for some bad purpose, 

nor do they reflect a reckless indifference to the rights of others. Rather, they show 

that defendant made a thoroughly unwise—and unsuccessful—attempt to balance 

the competing priorities of customer satisfaction and Building Code compliance. 

Moreover, while plaintiff might have escaped injury if defendant had clearly informed 

her of the missing section in the attic’s flooring, the scuttle hole presented essentially

the same risk—the risk of falling through the ceiling—as the other parts of the attic 

that were covered with insulation instead of plywood. The insulation covering the 

scuttle hole was plainly visible and served as a warning not to step there. Defendant 

did not evince reckless indifference in assuming that plaintiff would heed that 

warning. 

Plaintiff cannot show that defendant’s conduct went beyond mere carelessness 

and rose to the level of wantonness. Defendant was therefore entitled to summary 

judgment as a matter of law on plaintiff’s gross negligence claim.

V. Conclusion

For the reasons set out above, the trial court properly granted defendant’s 

motion for summary judgment on plaintiff’s claims of negligence and gross 

negligence. Accordingly, we reverse the decision of the Court of Appeals and reinstate 

the trial court’s summary judgment order.

REVERSED.