NO. COA14-70

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

FRANKENMUTH INSURANCE, as subrogee 

of Catawba Country Club,

Plaintiff,

v. Catawba County

No. 11 CVS 689

CITY OF HICKORY, a North Carolina 

Municipal Corporation, and MORGAN 

FIRE & SAFETY, INC., a North 

Carolina Corporation d/b/a UNIFOUR 

FIRE & SAFETY,

Defendants.

Appeal by plaintiff from order entered 14 May 2013 by Judge 

Timothy S. Kincaid in Catawba County Superior Court. Heard in 

the Court of Appeals 6 May 2014.

Dean Gibson Hofer & Nance, PLLC, by Jeremy S. Foster, for 

plaintiff-appellant.

Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch and 

Patrick H. Flanagan, for defendant-appellee City of 

Hickory. 

HUNTER, Robert C., Judge.

Frankenmuth Insurance (“plaintiff”), as a subrogee of 

Catawba Country Club (“the Club”), appeals from an order 

granting the City of Hickory’s (“defendant’s”) motion for 

summary judgment on plaintiff’s negligence claim. On appeal, 

plaintiff argues that the trial court erred by entering summary 
-2-

judgment in favor of defendant because genuine issues of 

material fact existed as to whether: (1) defendant negligently 

operated its municipal water system, and (2) the Club was 

contributorily negligent in its installation of sprinkler system 

pipes. 

After careful review, we affirm the trial court’s order. 

Background

On 5 July 2009, a water pipe leading to the Club’s 

sprinkler system burst, causing damage to the clubhouse. The 

Club was insured by plaintiff, which filed this action against 

defendant as the Club’s subrogee. In the complaint, plaintiff 

alleged that defendant’s negligent care of the municipal water 

system, specifically in allowing unreasonably high water 

pressure to build up in the pipes, was the proximate cause of 

the damage. 

In 2000, the Club hired Crawford Sprinkler Company 

(“Crawford”) to install a sprinkler system on its grounds. 

Defendant sent members of its Fire Prevention Office to the site 

to measure the water pressure of the area. The standing water 

pressure was 180 pounds per square inch (“psi”). Kevin Greer 

(“Greer”), the Assistant Public Services Director for defendant, 

testified during deposition that 180 psi was not an uncommon 
-3-

standing water pressure in that service area. The average 

citywide standing water pressure was 115 to 120 psi, with some 

areas in the system attaining pressures of 230 to 240 psi. 

It is undisputed that Crawford designed a sprinkler system 

that called for eight-inch ductile iron pipes to be used 

throughout, given the 180 psi standing water pressure at the 

Club. However, Crawford actually installed six-inch PVC piping 

instead. Greer explained in his testimony that piping comes in 

two forms—PVC and ductile iron. PVC piping has two different 

pressure ratings—Class 150 psi and Class 200 psi; ductile iron 

comes in Class 250 psi and Class 350 psi. The ductile iron 

pipes are designed to constantly withstand standing water 

pressures within their class range, but they can also handle 

pressure surges of two-and-a-half times the class rating so long 

as the surges are not prolonged or sustained. 

Stephen Busic (“Busic”), the Club’s General Manager, 

testified during deposition that soon after installation of the 

sprinkler system, the Club had continual problems with water 

pressure. According to Busic, the PVC pipes burst six times due 

to excess water pressure from 2000 through July 2009, with the 

sixth burst forming the basis of this action. One of these 

bursts occurred on 27 July 2007. Morgan Fire & Safety, doing 
-4-

business as Unifour Fire & Safety (“Unifour”), repaired this 

break in the line and replaced a three-foot section of the PVC 

pipe with ductile iron. One of Unifour’s employees testified 

during deposition that it replaced the PVC piping with ductile 

iron because ductile iron is stronger than PVC. 

The flooding that forms the basis of this action occurred 

on 5 July 2009. Martin Chang (“Chang”), plaintiff’s expert 

witness, visited the Club on 15 July 2009 to investigate the 

cause of the fracture. Chang was a forensic engineer; he 

received a bachelor’s and master’s degree in textile engineering 

but had no experience in designing or running a municipal water 

system. After speaking with Busic and examining the site, Chang 

determined that: (1) a longitudinal fracture was found on the 

six-inch PVC pipe, indicating stress produced by internal 

pressure; (2) the fire sprinkler pressure gauge failed at a 

pressure greater than 300 psi; and (3) the cause of the failure 

was excessive water pressure from defendant’s water supply and 

potentially a sudden surge in water pressure. Chang noted 

triangular fractures in the ductile iron reducers, but admitted 

that he could not rule out mechanical mistakes made during 

excavation of the pipe as the cause of the fractures. Greer 

agreed with Chang’s assessment that the longitudinal fracture 
-5-

was caused by internal pressure. However, he developed the 

opinion that the cause of the fracture was due to inferior 

piping material, given that the six-inch PVC pipes actually 

installed were of lesser strength than the minimum Class 250 psi 

eight-inch ductile iron pipes that were called for in Crawford’s 

plan. 

After making insurance payouts to the Club, plaintiff 

brought this action against defendant and Unifour. It alleged 

that Unifour was liable for the damages, in part, because it 

“[n]egligently failed to recommend removal of the six-inch PVC 

pipe and . . . replacement with eight-inch ductile iron pipe for 

the entire distance between the pit and the clubhouse.” 

Plaintiff alleged that defendant was negligent when it: (1) 

“negligently failed to ensure that the water pressure in its 

municipal water supply did not exceed reasonable levels”; (2) 

“negligently failed to correct the layout of its municipal water 

distribution system with a ‘loop’ system to protect residents at 

the terminal ends against excess pressures, water hammer, and 

shock waves within the water distribution system”; and (3) 

“negligently failed to recommend or install a pressure-relieving 

device to prevent damage from excess water pressures.” 
-6-

Defendant and Unifour filed motions for summary judgment in 

April 2013. Both parties were awarded summary judgment in May 

2013. Plaintiff timely appealed from both orders granting 

summary judgment but subsequently withdrew its appeal as to 

Unifour. 

Discussion

I. Summary Judgment for Defendant

Plaintiff argues that summary judgment was inappropriate 

where genuine issues of material fact existed as to whether: (1) 

defendant was negligent in its operation of the municipal water 

system, and (2) plaintiff was contributorily negligent. Because 

plaintiff has failed to carry its burden of establishing a 

standard of care for defendant’s alleged professional 

negligence, we affirm the trial court’s order granting summary 

judgment in defendant’s favor. 

“This Court reviews orders granting summary judgment de 

novo.” Foster v. Crandell, 181 N.C. App. 152, 164, 638 S.E.2d 

526, 535 (2007). Summary judgment is appropriate “only when the 

record shows 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.” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 

576 (2008) (internal quotation marks omitted). The burden of 
-7-

proof rests with the movant to show that summary judgment is 

appropriate. Development Corp. v. James, 300 N.C. 631, 637, 268 

S.E.2d 205, 209 (1980). We review the record in the light most 

favorable to the non-moving party. Caldwell v. Deese, 288 N.C. 

375, 378, 218 S.E.2d 379, 381 (1975). 

Because “the standard of reasonable care should ordinarily 

be applied by the jury under appropriate instructions from the 

court,” summary judgment is rarely an appropriate remedy in 

cases of negligence or contributory negligence. Thompson v. 

Bradley, 142 N.C. App. 636, 641, 544 S.E.2d 258, 261 (2001)

(internal quotation marks omitted). However, summary judgment 

is appropriate in a cause of action for negligence where “the 

forecast of evidence fails to show negligence on defendant’s 

part, or establishes plaintiff’s contributory negligence as a 

matter of law.” Stansfield v. Mahowsky, 46 N.C. App. 829, 830, 

266 S.E.2d 28, 29 (1980). “[A] [p]laintiff is required to offer 

legal evidence tending to establish beyond mere speculation or 

conjecture every essential element of negligence, and upon 

failure to do so, [summary judgment] is proper.” Young v. Fun 

Services-Carolina, Inc., 122 N.C. App. 157, 162, 468 S.E.2d 260, 

263 (1996) (internal quotation marks omitted). 
-8-

Although the complaint states only a claim for 

“negligence,” this cause of action is actually one for 

“professional negligence” because plaintiff is alleging 

negligent performance by defendant in its professional capacity 

as the operator of a municipal water system. See Michael v. 

Huffman Oil Co., 190 N.C. App. 256, 271, 661 S.E.2d 1, 11 (2008) 

(characterizing negligence action brought against the City of 

Burlington for failure to warn, failure to investigate, and 

negligent misrepresentation as professional negligence where the 

defendant was installing a potable waterline). Defendant 

admitted in its answer that it “has all of the corporate powers 

as set forth in [the North Carolina General Statutes for 

municipal corporations][.]” When a municipal corporation 

operates a system of waterworks and sells water for private 

consumption and use, “it is acting in its proprietary or 

corporate capacity and is liable for injury or damage resulting 

from such operation to the same extent and upon the same basis 

as a privately owned water company would be.” Mosseller v. 

Asheville, 267 N.C. 104, 107, 147 S.E.2d 558, 561 (1966). 

In a professional negligence action, the plaintiff bears 

the burden of showing: “(1) the nature of the defendant’s 

profession; (2) the defendant’s duty to conform to a certain 
-9-

standard of conduct; and (3) a breach of the duty proximately 

caused injury to the plaintiffs.” Huffman Oil Co., Inc., 190 

N.C. App. at 271, 661 S.E.2d at 11 (emphasis and internal 

quotation marks omitted). “Where common knowledge and 

experience of the jury is [not] sufficient to evaluate 

compliance with a standard of care,” the plaintiff is required 

to establish the standard of care through expert testimony. Id. 

“The standard of care provides a template against which the 

finder of fact may measure the actual conduct of the 

professional. The purpose of introducing evidence as to the 

standard of care in a professional negligence lawsuit is to see 

if this defendant’s actions lived up to that standard[.]” 

Associated Indus. Contr’rs, Inc. v. Fleming Eng'g, Inc., 162 

N.C. App. 405, 410, 590 S.E.2d 866, 870 (2004) (internal 

quotation marks omitted), aff'd, 359 N.C. 296, 608 S.E.2d 757 

(2005). If the plaintiff fails to establish the proper standard 

of care through expert testimony in a professional negligence 

claim, summary judgment for the defendant is proper. Huffman 

Oil Co., 190 N.C. App. at 271, 661 S.E.2d at 11.

This Court has previously held that the “common knowledge” 

exception to the requirement that the standard of care be 

established by expert testimony applies either when the actions 
-10-

are “of such a nature that the common knowledge of laypersons is 

sufficient to find the standard of care required, a departure 

therefrom, or proximate causation.” Associated Indus. 

Contractors, Inc., 162 N.C. App. at 411, 590 S.E.2d at 871. In 

Associated Indus. Contractors, Inc., this Court held that a 

surveyor’s actions fell within the “common knowledge” exception 

because a trier of fact could adequately determine whether the

surveyor correctly measured ninety-degree angles in its design 

of a rectangular building site. Id. at 411-12, 590 S.E.2d at 

871. It noted that “where . . . the service rendered does not 

involve esoteric knowledge or uncertainty that calls for the 

professional’s judgment, it is not beyond the knowledge of the 

jury to determine the adequacy of the performance.” Id. 

(citation and quotation omitted). 

Here, plaintiff asserted that defendant was negligent in 

three ways: (1) failing to ensure that water pressure did not 

exceed reasonable levels; (2) failing to install a “loop” system 

in its municipal water distribution system to prevent excessive 

pressures at the terminal ends of the water line; and (3) 

failing to install or recommend that the Club install a 

pressure-relieving device. Unlike the measuring of ninetydegree angles in Associated Indus. Contractors, Inc., the 
-11-

alleged wrongdoing of defendant here required the exercise of 

professional judgment regarding a “reasonable” level of water 

pressure in a municipal water system, the skill needed to 

install a “loop” system, and the expertise to install or 

recommend installing a pressure-relieving device at the terminal 

ends of the system. Because these claims could not be properly 

evaluated with the “common knowledge and experience” of the 

jury, plaintiff bore the burden of producing expert testimony to 

establish the proper standard of care to which defendant should 

have been held. See Huffman Oil Co., Inc., 190 N.C. App. at 

271, 661 S.E.2d at 11. 

Plaintiff failed to meet this burden. Chang, plaintiff’s 

sole expert witness, specifically testified that he had not 

studied defendant’s facility, did not know what type of water 

distribution system defendant used, had no experience in 

designing or running a municipal water system, and did not know 

of anything defendant may have done to create an increase in 

water pressure. Busic, the Club’s General Manager, testified 

that he had no experience or training in the field of plumbing

at all. Although Chang and Busic testified that the six-inch 

PVC pipe installed by Crawford burst due to internal pressure, 

neither could identify what a reasonable municipal corporation 
-12-

providing water to the Club would do given the facts of this 

case. Nor could they identify any action taken by defendant 

that might have caused a sudden increase in water pressure. 

Thus, plaintiff essentially argues that because defendant 

could have prevented the six-inch PVC piping erroneously 

installed into the Club’s sprinkler system from bursting, they 

necessarily breached a duty owed to the Club by failing to do 

so. However, absent expert testimony establishing the standard 

of care that defendant owed the Club, plaintiff failed to 

provide a context to assess whether defendant’s conduct differed 

from what it should have done. See Associated Indus. 

Contractors, Inc., 162 N.C. App. at 410, 590 S.E.2d at 870. 

Thus, by leaving the standard of care unresolved, plaintiff 

failed to “offer legal evidence tending to establish beyond mere 

speculation or conjecture every essential element of 

negligence[.]” Fun Services-Carolina, Inc., 122 N.C. App. at 

162, 468 S.E.2d at 263. In other words, “without evidence of 

the applicable standard of care, [plaintiff] [has] failed to 

establish a prima facie claim for professional negligence.” 

Huffman Oil Co., 190 N.C. App. at 272, 661 S.E.2d at 11-12.

Accordingly, summary judgment for defendant was proper, and we 

need not address defendant’s alternative argument on appeal—that 
-13-

plaintiff was contributorily negligent. Id.; see also Huffman 

Oil Co., 190 N.C. App. at 271, 661 S.E.2d at 11 (holding that 

summary judgment in favor of the defendant City of Burlington 

was proper where the plaintiff failed to provide expert 

testimony establishing the applicable standard of care). 

Conclusion

Because plaintiff failed to establish a standard of care in 

its professional negligence claim, we affirm the trial court’s 

grant of summary judgment in defendant’s favor. 

AFFIRMED.

Judges McGEE and ELMORE concur.