STATE OF NORTH CAROLINA [|| °]N THE GENERAL COURT OF JUSTICE COUNTY OF CATAWBA Ii APA 21 PSUPERIOR COURT DIVISION 22-CVS-804 CITY OF HICKORY, Plaintiff, v. COMPLAINT NEILL GRADING AN CONSTRUCTION COMPANY, INC.| DANE CONSTRUCTION, INC. anc WESTERN WOOD STRUCTURES] INC, Defendants. NOW COMES, the City of Hickory (‘Plaintiff’), complaining of Defendants Neill Grading and Construction Company, Inc., Dane Construction, Inc., and Western Wood Structures, Inc. (collectively referred to herein as “Defendants’), alleging and complaining of the Defendants as follows: NATURE OF THE ACTION ‘The action arises out of the catastrophic collapse of the arches spanning the Rudy Wright Bridge in the City of Hickory that occurred 18 February 2022. The nature and purpose of this action is to recover from the Defendants damages that have been and will continue to be incurred by the City of Hickory as a result of the arch collapse, PARTIES 1. ‘The Plaintiff, the City of Hickory, is a North Carolina municipal corporation organized and existing pursuant to North Carolina General Statutes Section 160A-1 et. seq. Pursuant to N.C, Gen. Stat. § 160A-11, Plaintiff is a municipal corporation which may sue and be sued.2. Defendant Neill Grading and Construction Company, Inc. (“Neill”) is a North Carolina corporation that, at all timés relevant hereto, was authorized to and did conduet business in Catawba County, North Carolina and the City of Hickory, North Carolina. 8. At all times relevant hereto, and currently, Neill’s principal office is in Catawba County, North Carolina and the City of Hickory, North Carolina. 4. Defendant Dane Construction, Inc. (“Dane”) is a North Carolina corporation that, at all times relevant hereto, was authorized to and did conduct business in Catawba County, North Carolina and the City of Hickory, North Carolina. 5. Western Wood Structures, Inc. (“Western Wood”) is an Oregon corporation. At all times relevant hereto, Western Wood was authorized to and did conduct business in Catawba County, North Carolina and the City of Hickory, North Carolina. ISDU! ON 6. Subject matter jurisdiction over this cause and personal jurisdiction over the Defendants is conferred upon this Court under and by virtue of N.C. Gen. Stat. §§ 1-75.4, 74-240, and 7A-243. 7. Venue for this cause is properly laid in this Court pursuant to and in aceordance with N.C. Gen. Stat. §§ 1-76, 1-79, 1-80, and 1-82. 8, Allconditions precedent to bringing this action have been performed or have oceurred, and the action is brought prior to the expiration of any time limitations, including statutes of repose and/or limitations (if applicable). 9. The City of Hickory approved initiating this action. FACTUAL ALLEGATIONS ‘The Arches Collapse 10. This action arises out of and relates to the project for the construction of the City of Hickory’s “City Walk” (the “Project”).11. The Project involves the construction of a city walk along main avenue from 9th Street Northwest through downtown Hickory to the Lenoir-Rhyne University (the “City Walk”). 12, The Project included the design and construction of an Iconic Bridge over North Carolina Highway 127, which consisted of a pedestrian bridge (the “Rudy Wright Bridge”) across N.C. 127 underneath an arch system made primarily of Pacific Douglas Fir treated glulam beams (generally, the “Arches”). 13. The Arches and the Rudy Wright Bridge run parallel to both the NCDOT’s Main Avenue bridge (‘the Main Avenue Bridge”) and a Norfolk Southern bridge (the “Railway Bridge”), both of which span N.C. 127. 14, The Rudy Wright Bridge is special to the community and was named for the former Mayor Rudy Wright, who died in 2017. Mayor Wright is credited for fostering and supporting the city’s bond projects, including this Project. 15. ‘The Arches were not only meant to highlight the Rudy Wright Bridge, but also to be iconic in their own right, with lighted, wooden arches spanning 178 fect across N.C. 127 and rising some 60 feet above the members of the public walking on the Rudy Wright Bridge. 16. Instead, the Arches catastrophically failed in the early hours of 18 February 2022, collapsing onto the adjacont Main Avenue Bridge and below onto N.C. 127 (the “Incident”). The History of the Project 17. The history of the Project shows that responsibility for the design, fabrication, and installation of the Arches flowed through a series of subcontractors. 18. ‘The Project was put out for bid and ultimately awarded to Neill as the general contractor on or about 14 August 2019. 19. Neill executed a contract for construction of the Project, which was approved and executed by the City of Hickory (the “Contract”). 20. The Contract, including all applicable terms, is incorporated by reference as if fully set forth herein.21. Neill subcontracted the design, fabrication, and installation of the Arches to Dane. 22. Dane, in turn, engaged Western Wood to design and fabricate the Arches. 23, Work on the Project began on or around 1 October 2019. 24, The Arches were designed by Western Wood from the Fall of 2019 through January 2020, after which Western Wood's Chief Engineer and President affixed his professional seal/stamp as a licensed, North Carolina, professional engineer to the design (the “Arch Designs"). 25. ‘The Arches were fabricated and delivered to the Project no earlier than the weekend of 20 March 2021 26. The first set of Arches were installed the weekend of 20 March 2021. 27, The second set of Arches were set to be raised during the weekend of 17 April 2021, but Western Wood had to come to the Project to repair and re-inspect the second set of Arches to ensure they were safe before final installation. 28. Ultimately, the Arches were raised and that portion of the City Wall, including the Rudy Wright Bridge underneath the Arches, was opened to the public in or around December of 2021. ‘The City of Hickory’s Damages 29. As noted above, the Arch catastrophically failed in the early hours of 18 February 2022, collapsing onto the adjacent Main Avenue Bridge and below onto N.C, 127. 30. ‘The Incident caused N.C. 127 to be shut down for hours while debris was cleared. 31. The Main Avenue Bridge remained closed until early morning on 7 March 2022 while the remnants of the Arches were hauled away. 32. ‘The Incident caused damage to the Main Avenue Bridge that will have to be repaired.33. The Incident also caused damage to the Rudy Wright Bridge, which will also have to be repaired and which was (and still is) closed as a result of the Incident. 34, Neill and Dane have promised to repair and re-open the Rudy Wright, Bridge at no cost to the City of Hickory. 35. However, the Project remains incomplete as it was never complete or accepted by the City of Hickory and a portion of the City Walk remains closed to the public. 36. Further, and upon information and belief, substantial costs will be required to review and approve any future repairs or other work on or above the Rudy Wright Bridge due to the Incident and its proximity to N.C. 127, the Main Avenue Bridge, and the Railway Bridge, all of which are owned by third parties, ‘The Cause of the Collapse 87. The City of Hickory holds the Contract directly with Neill for the Project, including the construction of the Arches. 38, The terms and conditions of that Contract required, expressly and/or impliedly, that the Arches be free from defect in their design, manufacture, and installation. 39. ‘The Arches were not free from defect in their design, manufacture, and/or installation as is evident from the fact that they collapsed shortly after their installation. 40. Upon information and belief, and as will be shown at the trial in this matter, the Arches were negligently and/or improperly designed, fabricated, andior installed such that they failed to conform with the applicable standards of care and/or terms of the Contract and collapsed as a proximate cause of such negligent/improper design, fabrication, and/or installation. 41, By way of example only, and not limitation, the Incident could not and would not have occurred in the absence of negligence by one or more of the Defendants. 42, The City of Hickory is now left without use of the Rudy Wright Bridge, no Arches, and an incomplete Project.43, The City of Hickory is entitled to a complete refund of the money paid for the design, fabrication, and installation of the Arches, as well as all damage suffered as a result of the Incident or which the City of Hickory may be required to incur as a result of the Incident, and in such other and further amounts as will be shown at trial. FIRST CLAIM FOR RELIEF (Breach of Contract as to Neill) 44, The allegations asserted above are re-alleged as if fully set forth herein. 45. ‘The Contract is a valid and enforceable contract between the City of Hickory and Neill. 46. The Contract required that Neill perform its work in accordance with the terms of the Contract and in a non-negligent manner, including performing its work in conformance with the applicable standard of care of a licensed, North Carolina general contractor, and in compliance with the applicable building code in North Carolina. 47. Both the Contract and the applicable standard of care of a licensed, North Carolina general contractor required that Neill’s work all compliant with the North Carolina building code and, upon information and belief, the Incident demonstrates that the work is not in compliance with the North Carolina building code. 48. The Contract required that the Arches be designed, fabricated, and installed in a non-negligent manner and the Incident demonstrates that the Arches were, instead, designed, fabricated, and/or installed in a negligent manner. 49, The Incident demonstrates that Neill breached or is otherwise in breach of its Contract by failing to perform and/or correct its work in a non-negligent manner and commensurate with the standard of care of a North Carolina, licensed, general contractor. 50. By way of example, but not limitation, the Arches would not have collapsed under the conditions when the Incident occurred absent the Defendants’ negligence in their design, fabrication, and/or installation.51. The Contract requires that Neill abide by the terms of the Contract, including those terms relating to construction activities (road closures, e.g.), which it has failed and may continue to fail to abide by, which is a breach of the Contract. 52. Finally, Neill is in breach of the Contract by failing to complete the Project within the time specified therein or otherwise by the parties. 53. As a direct and proximate result of Neill’s negligence and breaches of the Contract, the City of Hickory has suffered and continues to suffer damages in an amount to be proven at trial, but at least in excess of $25,000.00. SECOND CLAIM FOR RELIEF Contract and it rainst Dan and Western Wood) 54, The allegations asserted above are re-alleged as if fully set forth herein. 55. Upon information and belief, the subcontract between Neill and Dane is valid and enforceable contract between those parties. 56. Upon information and belief, the subcontract between Dane and Western Wood is a valid and enforceable contract between those parties. 57. Upon information and belief, these subcontracts all required that the parties to those agreements perform their work under the subcontracts in a non- negligent manner, including in conformance with the applicable standard of care and in conformance with the applicable building and licensing code requirements to parties doing the type of work specified therein (¢.g., design, fabrication, and/or installation of the Arches). 58. Plaintiff is informed and believes that those subcontracts each contain arequirement that the parties indemnify the City of Hickory from and against claims, losses, and/or expenses suffered by the City of Hickory as a result of such party's negligence in performing its work under the subcontract. 59. The City of Hickory is therefore an intended, express, third-party beneficiary of the aforementioned indemnity provisions and is entitled to enforce such provision.60. ‘The Incident demonstrates that Dane and/or Western Wood were negligent in performing their work under their respective subcontract and commensurate with the applicable standard of care and/or licensing requirements for such work. 61. As a proximate result of Dane's and/or Western Wood's negligence in performing their work under their respective subcontract commensurate with the applicable standard of care and/or licensing requirements for such work, the City of Hickory has suffered and will continue to suffer damages in an amount to be proven at trial, but at least in excess of $25,000.00. 62, ‘Through Neill, the City of Hickory has demanded that Dane and/or Western Wood indemnify them for the damages complained of herein and Dane and Western Wood have failed and/or refused to indemnify the City of Hickory for all of its claims, losses, and/or expenses. 63. As a direct and proximate result of Dane and/or Western Wood breaching their indemnification obligations under their respective subcontracts, the City of Hickory has suffered and will continue to suffer damages in an amount to be proven at trial, but at least in excess of $25,000.00. THIRD CLAIM FOR RELIEF (Negligence fendants Neill and D 64, ‘The allegations asserted above are re-alleged as if fully set forth herein, 65. Neill and, upon information and belief, Dane had a valid and enforceable contract relating to their work on the Project, including the design, fabrication, and installation of the Arches. 66. Pursuant to those contracts, and under North Carolina law, Neill and Dane were all charged with a duty of care in performing their work under said contracts in a non-negligent manner and so as to avoid harm to the City of Hickory and/or third parties.67. As licensed contractors, Neill and Dane were also charged with a duty owed to the City of Hickory and other, third parties that required Neill and Dane perform their work in conformance with North Carolina’s building code. 68. As set forth above, and as evident from the Incident, Neill and Dane breached their respective duties of care by performing their work under the aforementioned contracts in a negligent manner. 69. By way of example only, and not limitation, a catastrophic collapse of the Arches as occurred here does not and would not have occur absent negligence in the design, fabrication, and/or installation of the Arches, lestern Wood- 70. ‘The allegations asserted above are re-alleged as if fully set forth herein, 71. Upon information and belief, Western Wood had a valid and enforceable contract relating to the work on the Project, including the design, fabrication, and installation of the Arches. 72, Pursuant to its contract, and under North Carolina law, Western Wood was charged with a duty of care in performing its work under said contract in a non- negligent manner and so as to avoid harm to the City of Hickory and/or third parties. 73, As a firm providing engineering services in North Carolina, Western Wood was charged with a duty owed to the City of Hickory and other, third-parties that required Western Wood to perform its services in conformance with North Carolina's engincering code and in a manner consistent with the standard of care for a firm practicing engineering and providing engineering services for a project in North Carolina. 74. For example: During the design and revision process, Western Wood, as the designer/fabricator, had a duty to perform its work in accordance with the standard of care applicable to a North Carolina professional engineer and ensure that the Arches were safe for the conditions and use intended,b. During the re-inspection process of the Arches in 2021, Western Wood, as the designer/fabricator, had a duty to perform its work in accordance with the standard of care applicable to a North Carolina professional engineer and ensure that the Arches wore safe for the conditions and use intended. 75. _Allof these duties of care owed by Western Wood were owed to the City of Hickory. 76. As set forth above, and as evident from the Incident, Western Wood breached its respective duties of care by performing their services relating to the Project and the Arches in a negligent manner and designing/manufacturing unsafe Arches. 77. By way of example only, and not limitation, the Incident could not occur and would not have occurred absent negligence in the design, fabrication, and/or installation of the Arches. City of Hickory’s Damages From Such Negligence- 78, The allegations asserted above are re-alleged as if fully set forth herein. 79. Asa direct and proximate cause of the Defendants’ negligent acts and omissions, the City of Hickory has suffered damages both to the Project itself (“Project Damages”), and to areas other than to the Project itself in the form of actual and/or potential repair costs to property owned by others (“Non-Project Damages”). 80. As the Project Damages were caused by Defendants charged with a legal duty of care that is separate from those imposed by their respective contracts/subcontraets, the economie loss rule does not apply to bar tort claims for such damages. 81. The Plaintiff is entitled to recover from the Defendants, jointly and severally, the Project Damages, which amount shall be proven at trial but are believed to be in excess of $25,000.00. 82. As the Non-Project Damages wore to either the property other than the Project or persons/entities other than the Plaintiff, the economic loss rule does not apply to bar tort claims for such damages. 1083. ‘The Plaintiff is entitled to recover from the Defendants, jointly and severally, the Non-Project Damages, which amount shall be proven at trial but are believed to be in excess of $25,000.00. [Remainder of Page Inientionally Left Blank] iPi [EF WHEREFORE, Plaintiff respectfully pray the Court as follows: 1. For judgment in favor of Plaintiff and against each Defendant on all claims for relief set forth above; 2, That Defendants be held jointly and severally liable for the damages sought, under the Third Claim for Relief; 3. That Plaintiff have and recover intorest on all damages at the maximum rate and running from the earliest date permitted under applicable law. 4, That Plaintiff be awarded reasonable costs and attorneys’ fees as permitted by law; 5. For a trial by jury on all factual issues; and 6. For such other and further relief as the Court may deem just and proper. THIS the aa day of April 2022. RoseENWwoop, Rose & LiTwaK, PLLC Sp ive > By: Gok “xz Carl J. Burchette oe Bar No. 47617) Erik M. Rosenwood (NC Bar No. 28049) 1712 Buclid Ave Charlotte, NC 28203 ‘Telephone: 704-228-2878 Facsimile: 704-371-6400 churchette@rosenwoodrose.com erik@rosenwoodvose.com Aitorneys for Plaintiff City of Hickory 12