[Branan’s note: The following article is a summary of a recent case concerning an often-requested topic – premises liability – in my N.C. Cooperative Extension education work with farmers – particularly agritourism operators – and forest land owners. The article is also written as a learning tool on the topic of negligence in my agricultural law course taught on NCSU campus.]

The Fourth Circuit Court of Appeals recently issued an opinion involving premises liability on an operating crop farm. The case – Kritter v. Mooring – was a diversity action applying North Carolina law, and is not considered precedent. The case involving the tragic death of an aerial applicator offers some illustration on North Carolina’s law on landowner and lessee liability regarding invitees, specifically the concept of shared control of a parcel for both farming and hunting.

The Parties

The case involves the fatal helicopter crash flown by an aerial applicator over a field in Wayne County, NC. The parties to the case were:

1. The estate of the deceased aerial applicator, who the Court describes as a “crop duster.” The opinion reveals that this individual was an “experienced agricultural pilot” with more than 19,000 hours flying time (hereafter “the Pilot”, also “the Plaintiff”)
2. The farm operator who leased the farm field (hereafter “the Farmer”) (defendant)
3. The owner of the farm field, a former farmer (hereafter “the Landowner”) (defendant)
4. The chemical applicator company hired by farm operator to address pest infestation (hereafter “the Supplier”) (defendant)
5. The employee hired by the Supplier to contract aerial applications (hereafter “the Employee”) (defendant)

The Facts

The basic facts are as follows: Farmer leased land for row crop production in Wayne County from the Landowner. Due to an infestation of “stink bugs,” Farmer hired Supplier to address the infestation. Supplier assigned this project to Employee, himself a local farmer, which included arranging the aerial applications of Supplier’s proposed solution to the infestation. Employee in turn contracted applicators – including The Pilot – to apply the solution to the field. These applications were made by helicopter.

Though Farmer “leased” the land (the facts do not disclose whether this was a written lease or verbal tenancy agreement), Landowner – themselves a retired farmer – reserved some right of entry to hunt on the leased farm field. For such purpose, Landowner some years prior had affixed a deer stand to an approximately 30 feet high pole. For dove hunting,  Landowner also attached a “dove wire” to the pole and extended it 300 feet to a nearby tree.

In June of 2019 – the year prior to the accident – Supplier through Employee had contracted a different helicopter applicator. That pilot applicator made a pass over the field to check for hazards, then descended to spray. He came suddenly upon the dove wire, and was able to maneuver over it at the last second. The opinion records him as saying this was “pure luck [. . .] just the way the sun was shining.” (While he told a fellow pilot “that one about got me,” he did not reveal the incident to anyone else [i.e. Employee, Farmer, Supplier, etc.]) 

The following season, Farmer again hired Supplier to recommend and coordinate applications, and this time Employee contracted Pilot to make applications. Pilot sent an advance ground crew to locate landing areas, and the ground crew identified the spray areas by GPS on an iPad. Employee offered the crew a visual inspection for potential hazards, but the ground crew declined, and Employee offered no further information. On the day of application, Pilot called Employee just prior to spraying, confirmed spray locations and inquired about hazards. Employee did not mention the dove wire, but did mention the location of nearby residences (to avoid). In making his application pass over the field, Pilot hit the dove wire, which wrapped around the helicopter rotor causing a fatal crash. Pilot’s surviving spouse – as executor of his estate – brought legal action against Supplier, Employee, Landowner, and Farmer.

The Court: Why Federal?

This particular case is a straight common law negligence case, and would normally be tried and appealed through North Carolina’s court system. However, it was tried before the federal Eastern District of North Carolina court in Raleigh under what is known as “diversity jurisdiction.” Under diversity jurisdiction (28 U.S. Code § 1332), a federal court may hear a state law claim – one that does not involve a federal statutory or Constitutional issue – if a) the plaintiff and defendant are domiciled in separate states, and b) the amount in controversy is above $75,000. The Court’s opinion does not reveal the domiciles of plaintiff or the defendants (though Supplier is a national corporation), or whether the case first filed in federal court or was originally filed in county superior court and removed to federal court, which often happens. In a diversity case, the parties proceed under the Federal Rules of Civil Procedure, but the Court applies state statutory and common law to resolve the dispute. The federal District Court will normally – unless waived by the parties – empanel a jury to hear evidence in the case and render a verdict, which may then be appealed to the federal appeals court, in this case the Fourth Circuit Court of Appeals in Richmond, Virginia.

The Trial Court: No Evidence Reaches a Jury

After close of case discovery – the process by which both parties request the other for certain evidence – both plaintiff and defendants parties moved for summary judgement, a motion that requests the trial judge to render judgement as a matter of law based whether the gathered evidence rises to meet the elements of the legal claim, or whether it is conclusive as to statutory or common law defenses available to a defendant. In this case, Pilot’s estate representative moved for summary judgment for negligence, which the judge denied. The defendants Farmer and Landowner moved for summary judgement on the contention that the hazard posed by the dove wire was not reasonably foreseeable – a key element in a negligence claim. In granting their motion, the judge reasoned that Landowner (a former farmer) and Farmer were farmers, not pilots, and therefore could not appreciate the risk. (Landowner and Farmer also claimed a defense of contributory negligence, see below.) The judge also granted Supplier’s and Employee’s motions for summary judgement, stating that there was no recognizable legal claim to hold them liable in this negligence case. Defendants also claimed – as a defense – that Pilot’s death was “incident to his work.” (also see below)  (District Court case citation: Kitter v. Mooring, 712 F. Supp. 3d 684, 703–06 [E.D.N.C. 2024]). Pilot’s estate appealed the judge’s summary judgement rulings.

The Appeal: Did the Trial Judge Deny Plaintiff a Jury?

As noted above, a federal court in a diversity action applies state substantive law, and sometimes the state’s procedural law where relevant. It can be said that in a trial court, judgement is rendered on the actions of the parties, whereas in an appeals court judgement is rendered on the actions of the trial judge. To that end the Circuit Court applied North Carolina case law standards for when a trial judge may grant a summary judgement motion, stating: “North Carolina’s courts have repeatedly held that ‘issues of negligence are not ordinarily susceptible to summary disposition,’ citing Cone v. Watson, 736 S.E.2d 210, 212 (N.C. Ct. App. 2012) and other cases. The Court further noted that “[e]ven where there is no substantial dispute as to what occurred, it usually remains for the jury to apply the appropriate standard of care [for negligence] to the facts of the case,” citing Mozingo by Thomas v. Pitt Cnty. Mem’l Hosp., Inc., 400 S.E.2d 747, 750 (N.C. Ct. App. 1991), aff’d, 415 S.E.2d 341 (N.C. 1992). In other words, in North Carolina the essential elements of negligence cases must be met or denied according to the facts, which are properly decided by a jury.

The Analysis Part One: The Landowner, Farmer and Premises Liability

The Court noted the elements of a successful claim for negligence as: (1) a legal duty owed by the defendant to the plaintiff; (2) a breach of that legal duty; and (3) injury proximately caused by the breach. (There is a fourth: the existence and extent of damages, which must also be proven by facts of the extent of injury, and what compensation will make the plaintiff economically whole.) In the appeal, only the first element – the legal duty – was at issue. The trial judge effectively denied a jury’s determination of this element by deciding the case before the jury could hear the evidence as to whether the facts supported such a duty of care. Likewise, whether the deceased Pilot was contributorily negligent is also a question that must be decided by the jury after review of the evidence.

As to the first negligence element, the legal duty owed is a function of the law concerning premises liability in North Carolina. The law of premises liability holds that “landowners have a ‘nondelegable duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.’ (Court’s citation Asher v. Huneycutt, 876 S.E.2d 660, 667 [N.C. Ct. App. 2022]). Reasonable care “requires that the landowner not unnecessarily expose a lawful visitor to danger and give warning of hidden hazards of which the landowner has express or implied knowledge.” (Court’s citation Shepard v. Catawba Coll., 838 S.E.2d 478, 486 [N.C. Ct. App. 2020].) Such reasonable care requires that a landowner “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.” (Court’s citation Martishius v. Carolco Studios, Inc., 542 S.E.2d 303, 308 [N.C. Ct. App. 2001]). 

In sum, a landowner has a responsibility to know their real property, to inspect it and determine if its conditions pose a danger to those they invite onto their property. The Court noted that such invitees include independent contractors and subcontractors who enter the property, citing McCorkle v. N. Point Chrysler Jeep, Inc., 703 S.E.2d 750, 752 (N.C. Ct. App. 2010).

The “heart” of reasonable care, noted the Court, is foreseeability: whether a condition of the land can foreseeably cause injury to an invitee. As noted above, the trial court accepted Landowner and Farmer’s argument that – as farmers and not helicopter pilots – they could not reasonably foresee that the dove wire posed a danger to someone flying over the property; the foreseeability of such danger depended on the experience and training of a pilot, not a farmer. In rejecting this argument, the Court said that North Carolina law does not require that a defendant anticipate the “exact form” of potential injury, but only that some injury might result. (Court’s citation: Foster v. Winston-Salem Joint Venture, 281 S.E.2d 36, 40 [N.C. 1981]). To reach its conclusion as to Farmer, the Court noted that Farmer was aware of the dove wire as the user of the property, and otherwise was familiar with the low-flying nature of aerial application having previously hired applicators and observed their flying. Whether such facts of their knowledge established reasonable foreseeability should have been a job for the jury. Likewise, Landowner was certainly aware of the dove wire, indeed may have installed it. For their part, Landowner contended that Farmer – as lessee of the farm parcel – had stepped into their shoes exercising dominion and control over the parcel, which would normally the lessor from negligence liability. However, the Court noted the fact that Landowner still retained access to the parcel for hunting, sharing control with Farmer in some measure, and it was therefore the jury’s responsibility to establish whether such access amounted to control sufficient to establish knowledge and the foreseeable danger of the dove wire. (Farmer testified in discovery that they did not have permission from the Landowner to remove the dove wire.) Thus, it was for the jury to decide whether this amounted to sufficient control of the premises to arise to the duty to warn Pilot.

The Analysis Part Two: The Supplier, Employee and the Undertaking Liability Doctrine

Arguably a degree removed from control (and knowledge) of the premises – apart from its agronomic needs – were the chemical Supplier and its Employee. Plaintiff’s theory of liability for these dependents is called undertaking liability. As the Court described: “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 reasonable (sic) prudent person would exercise under the same circumstances.” (citing Bogle v. Duke Power Co., 219 S.E.2d 308, 310 [N.C. Ct. App. 1975]). Because Supplier’s and Employee’s connection to the accident was contractual, the plaintiff would need to establish a genuine jury question of whether Employee’s professional conduct was reasonable (effectively, to produce evidence of the “ability, skill, and care customarily used [in hiring aerial applicators]”). This itself required the plaintiff to establish a connection between the professional service being provided (agricultural pest control by aerial application) and a reasonable standard of hazard warning customary to that service, specifically by providing evidence of such standard. 

The evidence supporting this connection came from deposition testimony provided by another aerial applicator, whom the Court calls a “pilot and crop dusting expert.” The expert’s testimony was that “[Pilot] reasonably relied on [Employee] to warn him about hidden hazards and that such reliance conformed with industry standards, and that the pre-flight briefing [noted in facts above] was “consistent with how a reasonable and experienced agricultural pilot would identify hazards.” The Court noted that Pilot did specifically ask about hazards, and Employee’s statement about the nearby residential houses – but not the dove wire – as hazards was responsive to this question, and that it would be up to a jury to decide whether omission of the dove wire warning was reasonable. (Court cites Jones v. Douglas Aircraft Co., 112 S.E.2d 257, 260 [N.C. 1960] for reference)

The Court rejected Supplier/Employee’s assertion that their contract was limited to simply hiring the aerial applicator and showing them where to apply the product, also rejecting their assertions that in their contract service they do not warn of flight hazards and that no accidents had occurred in the past. Thus, it should be the jury’s – not the trial judge’s – prerogative to determine if such a self-limitation of service and failure to warn was reasonable under industry standards of engaging aerial application in an advised agronomic (pest) solution. While a lack of past accidents may be relevant, this is up to the jury to decide whether reliance on such a history was reasonable.

Noting that Employee was also a farmer, the Court found it relevant that as such, the Employee would have personal experience with how aerial applications were performed – often just above “the tops of the crops” – and that Employee was a professional agronomic advisor to other farms (also prescribing aerial application), and had earlier testified (in deposition) that he had observed crop dusting “his whole life.” Indeed, the Court notes that he observed Pilot’s own flying on the day of the accident (presumably with enough time to warn). Finally, Employee had testified that he had personally observed the pole and dove wire. As the court summed up: “[A] jury could reasonably infer that [Employee] should have foreseen the danger that the dove wire would pose to [Pilot] while crop dusting.”

Supplier is responsible for the Employee’s professional actions under the doctrine of respondeat superior (“Let the master answer”), a well-established principle that an employer is responsible for the actions of its employee within latter’s scope of work (Court’s citation: Gordon v. Garner, 493 S.E.2d 58, 63 [N.C. Ct. App. 1997]). Supplier admitted in discovery that Employee was acting within their scope of work; therefore Supplier is liable in the event the proximate cause of the accident was Employee’s unreasonable exercise of their work.

Court’s Analysis Part Three: Contributory Negligence and “Incident to Work Undertaken”

Regarding Defendants’ defense that Pilot was also at fault in the fatal crash, the Court stated: “North Carolina’s law of contributory negligence provides that when ‘uncontroverted facts viewed from an objective standpoint establish that the plaintiff encountered an open and obvious risk, it is appropriate for courts to find as a matter of law that the defendant had no duty to warn the plaintiff or that the plaintiff’s claim is barred by contributory negligence.’” (Court citing Draughon v. Evening Star Holiness Church of Dunn, 843 S.E.2d 72, 76 [N.C. 2020]). In other words, the doctrine of contributory negligence holds that if a plaintiff contributed to the circumstances causing their injury through their own negligence – i.e. falling below an established level of reasonable conduct, which would include ignoring an obvious hazard – the plaintiff may not recover damages, even though the defendant is found to be negligent. The defendants argued that the dove wire was an “open and obvious risk” and that Pilot should have anticipated or personally discovered its existence. 

The Court rejected this argument as legally determinative, and that it was for a jury to decide whether Pilot should have anticipated the risk (noting that in North Carolina, juries normally decide the question of contributory negligence.) Significant to the Court was the fact that the aerial applicator hired in 2019 had made flying visual inspections of the field and did not notice the dove wire, only to avoid the wire at the last moment by chance visibility from the sun’s angle. Also significant was a reconstruction of the accident performed by an expert witness using a drone, which “showed that, given the helicopter’s speed, [Pilot] could not have seen the roughly quarter inch diameter wire with ‘enough time to begin maneuvering the craft before he reached the cable’s location.’” Again, a jury should have been allowed to view this evidence and make its own interpretation of whether the dove wire was an open and obvious hazard that Pilot was unreasonable in failing to appreciate its risk.

The Court reasoned that the other defense – that the accident resulted from “danger incident to the work undertaken” – was a misapplication of North Carolina law. This doctrine requires that the contractor take possession and control of the parcel in performance of the contract, and that the danger be limited to dangers which arise in contractor’s performance of the contract. The Court reasoned that Pilot’s contract with Supplier – for performing low level passes above the parcel – did not arise to the level of control of the parcel, and further, that the Pilot did not erect the pole or string the dove wire as part of his contract. (Court’s citation: Cf. Cook v. Morrison, 413 S.E.2d 922, 926 [N.C. Ct. App. 1992]).

Commentary: Imagine the Worst Case Scenario

Reported negligence cases are always in some measure helpful to owners and operators of rural lands in agricultural and forest management use. Both uses often require employment of contractors and subcontractors for matters of professional judgement and execution of task, who by contract terms may or may not take possession and control of the parcel to perform their services. Further, the case illustrates that one’s knowledge of their land should be somewhat thorough, and some imagination should be deployed in assessing whether certain features – natural and otherwise – may cause injury and death in a variety of imagined scenarios.