Patrick Flanagan and Mica Worthy (Defense Counsel), and Jaye Bingham-Hinch (Appellate Attorney) obtained summary judgment and dismissal of a complex construction case with recent affirmation on appeal to the N.C. Court of Appeals. CSH represented the commercial developer in the matter, one of several Defendants named in the lawsuit.

Plaintiffs claimed significant damages from a series of floods that occurred in 2013 during historical rainfall and widespread flooding in Watauga County. Plaintiffs alleged violations of the N.C. Sedimentation Pollution Control Act, trespass to real property, private nuisance, punitive damages, unfair and deceptive trade practices, and in the alternative negligence. The punitive damages and unfair and deceptive trade practices claims were dismissed in early stages of the litigation.

Partner Mica Worthy diligently worked with defense experts including a civil engineer and an environmental expert, who took core samples, inspected the surrounding areas, analyzed water flow patterns and topography, studied NC DOT records and prior flooding events complained of by Plaintiffs before the development activities by the Defendant commercial developer. Ultimately, the experts determined that the Defendant commercial developer’s activities did not cause the flooding events experienced by Plaintiffs, and defense counsel filed a Motion for Summary Judgment.

The trial court entered orders granting the Defendants’ Motions for Summary Judgment upon hearing oral arguments. Plaintiffs’ counsel appealed the dismissal alleging the trial court erred by failing to rely upon the lay witnesses’ personal observations of flooding on their property. The Court of Appeals addressed the issue of whether Plaintiffs failed to raise an issue of material fact on the proximate cause issue, an essential element in Plaintiffs’ case. The Court of Appeals held that because of the multiple complex factors, various sources of water runoff as well as evidence of prior flooding on the properties, the trial court did not err in concluding that Plaintiffs could not raise a genuine issue of material fact without introducing expert testimony, and summary judgment was affirmed.

Had the Defendant commercial developer not prevailed on the Motion for Summary Judgment, litigation would have required testimony in open court as to the construction practices and erosion control efforts of the commercial developer, and Plaintiffs’ allegations of substantial damages from the flooding. However, the Court gave the expert testimony the appropriate weight in the case due to the complex nature of the flooding events and construction activities, and found in the client’s favor.


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