Cullen v. Logan Developers, Inc.    

Plaintiff was injured when she fell through a “scuttle hole” cut into the walkway in the attic of her new home. The builder covered the opening in the attic with batt insulation level with the flooring, which differed from the blown insultation in areas of the attic with no plywood flooring. While in the attic deciding where to add additional plywood flooring, Plaintiff stepped onto the portion of the walkway that had been cut to create the scuttle hole and fell through the ceiling.

The trial court granted summary judgment for the builder, holding both that Plaintiff was contributorily negligent and that Defendant was not grossly negligent. The Court of Appeals reversed in a 3-0 opinion, but the Supreme Court granted Defendant’s PDR.

In its filings before the Court, Defendant has sought to create the appearance of a disparity between the summary judgment standard applied by the Court of Appeals and that applied by the Supreme Court. Specifically, Defendants have contended that although the Court of Appeals uses language to the effect that summary judgment is “rarely appropriate” in negligence cases or is appropriate “only in exceptional negligence cases,” that the Supreme Court has held that courts should merely be “hesitant” to grant summary judgment in negligence cases.

The NCAJ brief demonstrates that the standard applied by the Court of Appeals is the same standard which has been applied by both that court and the Supreme Court for decades, and that the Supreme Court should resist Defendant’s invitation to unnecessary judicial activism to rewrite this time-honored standard.