Long v. FowlerÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-785
Filed: 3 March 2020
Person County, No. 18 CVS 650
ESTATE OF MELVIN JOSEPH LONG, by and through MARLA HUDSON LONG,
Administratrix, Plaintiff-Appellant,
v.
JAMES D. FOWLER, Individually, DAVID A. MATTHEWS, Individually, DENNIS
F. KINSLER, Individually, ROBERT J. BURNS, Individually, MICHAEL T.
VANCOUR, Individually, and MICHAEL S. SCARBOROUGH, Individually,
Defendants-Appellees.
Appeal by Plaintiff from order entered 3 May 2019 by Judge Josephine K.
Davis in Person County Superior Court. Heard in the Court of Appeals 5 February
2020.
Hardison & Cochran, PLLC, by John Paul Godwin, and Sanford Thompson,
PLLC, by Sanford Thompson, IV, for Plaintiff.
Parker Poe Adams & Bernstein LLP, by Jonathan E. Hall, Patrick M.
Meacham, and Catherine R. L. Lawson, for Defendants.
BROOK, Judge.
Marla Hudson Long (“Plaintiff”), as Administratrix of the Estate of Melvin
Joseph Long (“Mr. Long”), appeals from the trial court’s order dismissing her claims
against James D. Fowler, David A. Matthews, Dennis F. Kinsler, Robert J. Burns,
Michael T. Vancour, and Michael S. Scarborough (collectively “Defendants”) for the
LONG V. FOWLER
Opinion of the Court
wrongful death of her husband, Mr. Long. For the following reasons, we reverse the
order of the trial court.
I. Factual and Procedural Background
On 20 January 2017, Mr. Long, a pipefitter with Quate Industrial Services,
was tasked with reconnecting the water pipes of a portable chiller machine at North
Carolina State University’s (“NCSU”) Centennial Campus that had been turned off
for winter break. When Mr. Long began to loosen a 13.1-pound metal flange on a
water pipe, pressurized gas, which had built up within the machine, forcefully
projected the flange into his head. Mr. Long suffered severe head trauma and died
five days later at the hospital.
Plaintiff commenced an action in the Industrial Commission on 15 March 2018
for wrongful death on behalf of the estate of her husband, Mr. Long, against NCSU,
Randy Woodson, Allen Boyette, and “John Doe,” the then-“unidentified
employee/agent of [NCSU]’s machine shop and/or Maintenance and Operations
Division.”1 Plaintiff alleged that John Doe had improperly shut down the chiller unit,
which caused high pressure gas to leak into the water pipes so that when Mr. Long
loosened the metal flange, compressed gas was exposed to air and caused the flange
to explode.
1 At the time of the filing of the Industrial Commission complaint, Randy Woodson was NCSU’s
Chancellor and Allen Boyette was the director of NCSU’s Building Maintenance and Operations
Division.
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Plaintiff subsequently filed a wrongful death action in Person County Superior
Court on 13 November 2018 against Defendants, employees in the maintenance and
HVAC department at NCSU, seeking compensatory and punitive damages.2 Plaintiff
alleged Defendants negligently shut down the chiller unit on 21 December 2016,
which led to the explosion that killed Mr. Long. The complaint’s case caption read as
follows:
JAMES D. FOWLER, Individually,
DAVID A. MATTHEWS, Individually,
DENNIS F. KINSLER, Individually,
ROBERT J. BURNS, Individually,
MICHAEL T. VANCOUR, Individually,
and MICHAEL S. SCARBOROUGH, Individually,
Defendants.
The complaint sought relief from each of the abovenamed Defendants, jointly and
severally, as follows:
1. Compensatory damages from defendant Fowler in an
amount in excess of TWENTY-FIVE THOUSAND
DOLLARS ($25,000).
2. Punitive damages from defendant Fowler in an amount
in excess of TWENTY-FIVE THOUSAND DOLLARS
($25,000).
3. Compensatory damages from defendant Matthews in an
amount in excess of TWENTY-FIVE THOUSAND
DOLLARS ($25,000).
4. Punitive damages from defendant Matthews in an
amount in excess of TWENTY-FIVE THOUSAND
2 Plaintiff’s counsel stated during the hearing on the motions to dismiss at issue that they
learned the identity of Defendants through discovery in the Industrial Commission proceedings.
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Opinion of the Court
DOLLARS ($25,000).
5. Compensatory damages from defendant Kinsler in an
amount in excess of TWENTY-FIVE THOUSAND
DOLLARS ($25,000).
6. Punitive damages from defendant Kinsler in an amount
in excess of TWENTY-FIVE THOUSAND DOLLARS
($25,000).
7. Compensatory damages from defendant Burns in an
amount in excess of TWENTY-FIVE THOUSAND
DOLLARS ($25,000).
8. Punitive damages from defendant Burns in an amount
in excess of TWENTY-FIVE THOUSAND DOLLARS
($25,000).
9. Compensatory damages from defendant Vancour in an
amount in excess of TWENTY-FIVE THOUSAND
DOLLARS ($25,000).
10. Punitive damages from defendant Vancour in an
amount in excess of TWENTY-FIVE THOUSAND
DOLLARS ($25,000).
11. Compensatory damages from defendant Scarborough
in an amount in excess of TWENTY-FIVE THOUSAND
DOLLARS ($25,000).
12. Punitive damages from defendant Scarborough in an
amount in excess of TWENTY-FIVE THOUSAND
DOLLARS ($25,000).
Proceedings in the Industrial Commission were stayed pending final adjudication of
the superior court matter.
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Opinion of the Court
On 19 February 2019, Defendants filed motions to dismiss for lack of subject
matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon
which relief can be granted. The trial court heard arguments on Defendants’ motions
to dismiss on 8 April 2019. Defense counsel argued that Defendants were sued in
their official capacity, which meant they were entitled to share in their government-
employer’s sovereign immunity, and the Industrial Commission maintained exclusive
jurisdiction over the action. Defense counsel also argued that the complaint failed as
a matter of law to properly allege negligence, gross negligence, and state a claim for
punitive damages. The trial court granted Defendants’ motions to dismiss on 3 May
2019.
Plaintiff timely appealed.
II. Analysis
On appeal, Plaintiff contends the trial court erred in granting Defendants’
motions to dismiss pursuant to Rules 12(b)(1) and 12(b)(2) because Defendants were
sued in their individual, not official, capacities, and, as such, sovereign immunity
does not apply to the case at bar.
Plaintiff next argues the trial court erred in allowing Defendants’ motion to
dismiss under Rule 12(b)(6) because the complaint gave sufficient notice of a legally
cognizable claim of negligence and gross negligence as well as, based on allegations
of willful and wanton conduct by Defendants, punitive damages.
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Opinion of the Court
For the following reasons, we agree with Plaintiff.
A. Rule 12(b)(1) and Rule 12(b)(2) Motions to Dismiss
First, we consider whether the trial court properly dismissed Plaintiff’s claim
pursuant to Rules 12(b)(1) and 12(b)(2) for lack of subject matter and personal
jurisdiction, which requires determining whether Defendants were sued in their
official capacity and are thus protected from suit under the doctrine of sovereign
immunity.3
i. Standard of Review
The standard of review of a motion to dismiss for lack of subject matter
jurisdiction is de novo. Brown v. N.C. Dept. of Public Safety, 256 N.C. App. 425, 427,
808 S.E.2d 322, 324 (2017). When a trial court grants a motion to dismiss for lack of
personal jurisdiction, the standard of review is “whether the record contains evidence
that would support the Court’s determination that the exercise of jurisdiction over
3 “A motion to dismiss based on sovereign immunity is a jurisdictional issue; whether sovereign
immunity is grounded in a lack of subject matter jurisdiction or personal jurisdiction is unsettled in
North Carolina.” M Series Rebuild, LLC v. Town of Mount Pleasant, 222 N.C. App. 59, 62, 730 S.E.2d
254, 257 (2012). “[F]ederal courts have tended to minimize the importance of the designation of a
sovereign immunity defense as either a Rule 12(b)(1) . . . or a Rule 12(b)(2) motion.” Teachy v. Coble
Dairies, Inc., 306 N.C. 324, 327-28, 293 S.E.2d 182, 184 (1982). However, the “distinction becomes
crucial in North Carolina” in cases like that of Teachy v. Coble Dairies, Inc. when the denial of a Rule
12(b)(2) motion allows for immediate appeal while the denial of a Rule 12(b)(1) motion does not. Id. at
328, 293 S.E.2d at 184. The distinction is not crucial to our determination of the instant case as this
case is before us as an appeal from a final judgment in superior court under N.C. Gen. Stat. § 7A-
27(b)(1) (2019), see Stacy v. Merrill, 191 N.C. App. 131, 134, 664 S.E.2d 565, 567 (2008) (reviewing
whether sovereign immunity prevented plaintiffs from bringing suit against defendants when suit was
dismissed pursuant to both Rules 12(b)(1) and 12(b)(2)), and Plaintiff prevails regardless of the
governing standard of review.
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Opinion of the Court
defendants would be inappropriate.” Stacy, 191 N.C. App. at 134, 664 S.E.2d at 567
(citation omitted).
ii. Merits
At common law, the doctrine of sovereign immunity protected the state from
any liability for negligent or tortious conduct on the part of the state or its agents.
See Moody v. State Prison, 128 N.C. 9, 12, 38 S.E. 131, 132 (1901), superseded by
statute, N.C. Gen. Stat. § 143-291 (2019), as recognized in Hocheiser v. North Carolina
Dep’t of Transp., 82 N.C. App. 712, 715, 348 S.E.2d 140, 141 (1986).
The North Carolina Tort Claims Act partially waived state immunity and
allows tort claims against state agencies to be maintained in the exclusive jurisdiction
of the North Carolina Industrial Commission. N.C. Gen. Stat. § 143-291 (2019). The
Tort Claims Act provides in pertinent part:
The North Carolina Industrial Commission is hereby
constituted a court for the purpose of hearing and passing
upon tort claims against the State Board of Education, the
Board of Transportation, and all other departments,
institutions and agencies of the State. The Industrial
Commission shall determine whether or not each
individual claim arose as a result of the negligence of any
officer, employee, involuntary servant or agent of the State
while acting within the scope of his office, employment,
service, agency or authority, under circumstances where
the State of North Carolina, if a private person, would be
liable to the claimant in accordance with the laws of North
Carolina.
Id. § 143-291(a). “[A] statutory waiver of sovereign immunity must be strictly
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Opinion of the Court
construed.” Meyer v. Walls, 347 N.C. 97, 107, 489 S.E.2d 880, 885 (1997). “Therefore,
the Tort Claims Act applies only to actions against state departments, institutions,
and agencies and does not apply to claims against officers, employees, involuntary
servants, and agents of the State.” Id. at 107, 489 S.E.2d at 885-86.
As a corollary, “[a] plaintiff may maintain both a suit against a state agency in
the Industrial Commission under the Tort Claims Act and a suit against the negligent
agent or employee in the General Court of Justice for common-law negligence.” Id.
at 108, 489 S.E.2d at 886 (citation omitted); see also Chastain v. Arndt, 253 N.C. App.
8, 15, 800 S.E.2d 68, 75 (2017) (explaining plaintiff could bring suit against the state
agency in the Industrial Commission and suit against the negligent employee in his
individual capacity alleging gross negligence and willful and wanton conduct). The
“threshold issue to be determined” in a common law action is whether the negligence
suit is brought against the employee in an official or individual capacity. Mullis v.
Sechrest, 347 N.C. 548, 551, 495 S.E.2d 721, 723 (1998). When an actor is sued in his
or her official capacity, the suit is effectively one against his or her employer, and the
defendant is immune to the same extent as the government entity itself unless there
has been a waiver of immunity. Wright v. Town of Zebulon, 202 N.C. App. 540, 543,
688 S.E.2d 786, 789 (2010) (citation omitted). In an individual capacity suit, on the
other hand, a plaintiff seeks recovery from the defendant directly and sovereign
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Opinion of the Court
immunity does not protect the negligent employee. See Chastain, 253 N.C. App. at
15, 800 S.E.2d at 74.4
Differentiating between an official and individual capacity suit turns on “the
nature of the relief sought, not the nature of the act or omission alleged.” Meyer, 347
N.C. at 110, 489 S.E.2d at 887 (citations omitted) (emphasis added).
It is a simple matter for attorneys to clarify the capacity in
which a defendant is being sued. Pleadings should indicate
in the caption the capacity in which a plaintiff intends to
hold a defendant liable. For example, including the words
“in his official capacity” or “in his individual capacity” after
a defendant’s name obviously clarifies the defendant’s
status. In addition, the allegations as to the extent of
liability claimed should provide further evidence of
capacity. Finally, in the prayer for relief, plaintiffs should
indicate whether they seek to recover damages from the
defendant individually or as an agent of the governmental
entity.
Mullis, 347 N.C. at 554, 495 S.E.2d at 724-25. Beyond the four corners of the
complaint, if money damages are sought “it is appropriate to consider the course of
the proceedings . . . to determine the capacity in which defendant is being sued.” Id.
at 553, 495 S.E.2d at 724.
Mullis v. Sechrest, involving an injury to student Blaine Mullis in Harry
Sechrest’s shop class at a high school in the Charlotte-Mecklenburg school system,
4As our Court explained in affirming the trial court’s denial of a motion to dismiss in Chastain,
allowing an individual capacity negligence suit and Tort Claims Act suit to both proceed out of a
common factual origin does not permit a plaintiff to receive a double recovery in excess of the damages
sustained. 253 N.C. App. at 15, 800 S.E.2d at 74.
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Opinion of the Court
demonstrates how this inquiry operates in practice. Id. at 549-50, 495 S.E.2d at 721-
22. First, our Supreme Court noted “plaintiffs failed to specify whether they were
suing defendant Sechrest in his individual or official capacity” in the caption or
elsewhere in the complaint. Id. at 553, 495 S.E.2d at 724. Along the same lines,
though the complaint specifically named the teacher when it alleged he had failed to
give reasonable or adequate instructions, our Supreme Court “note[d] it was
necessary to allege defendant [teacher’s] negligence in the complaint” in order to
establish liability for the school board. Id. The plaintiffs furthermore had set forth
only one claim for relief, which was that “the Defendant Charlotte[-]Mecklenburg
School System provided, permitted and directed the operation of a Rockwell tilting
arbor saw, model # 34-399 in its industrial arts class.” Id.; see also White v. Cochran,
216 N.C. App. 125, 131, 716 S.E.2d 420, 425 (2011) (using the phrase “joint and
several” indicates relief is sought in the defendants’ individual capacities). Finally,
in reviewing the course of proceedings, the Court noted that the plaintiffs had
amended their complaint to reference the defendants’ liability insurance. Mullis, 347
N.C. App. at 553, 495 S.E.2d at 724. Generally, the purchase of liability insurance
waives immunity for cities and counties, see Meyer, 347 N.C. at 108, 489 S.E.2d at
886, which is relevant in an official capacity action but not an individual capacity
suit, see id. at 111, 489 S.E.2d at 888. “Taken as a whole, the amended complaint,
along with the course of proceedings in the present case, indicate[d] an intent by
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Opinion of the Court
plaintiffs to sue defendant Sechrest in his official capacity.” Mullis, 347 N.C. at 554,
495 S.E.2d at 725.
Defendants argue that the superior court action is impermissibly duplicative
of the claim pending in the Industrial Commission. They note that the allegations in
the Industrial Commission and superior court complaints are “identical, and the
monetary damages sought by Appellant in the two cases are based on the same
alleged actions by Appellees.” They further argue that, in spite of the fact that
Plaintiff “did not include an agency theory in th[e superior court] case[,]” this is, at
bottom, the theory upon which the suit proceeds.
Though Defendants are correct that the two cases arise out of the same event,
Plaintiff may commence both actions for two related reasons. First, as noted above
and despite the common factual origin, Plaintiff is permitted to bring both an action
against NCSU in the Industrial Commission and against Defendants in the superior
court so long as she has properly alleged an individual capacity suit. See Meyer, 347
N.C. at 108, 489 S.E.2d at 886. Second,
[w]hether the allegations relate to actions outside the scope
of defendant’s official duties is not relevant in determining
whether the defendant is being sued in his or her official or
individual capacity. To hold otherwise would contradict
North Carolina Supreme Court cases that have held or
stated that public employees may be held individually
liable for mere negligence in the performance of their
duties.
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Id. at 111, 489 S.E.2d at 888 (citations omitted); see also Boyd v. Robeson County, 169
N.C. App. 460, 477-78, 621 S.E.2d 1, 12 (concluding plaintiff intended an individual
capacity suit against detention officers notwithstanding “the substantive allegations
related solely to actions undertaken by the deputy as part of his official duties.”).
Focusing our inquiry as the case law dictates, the complaint and the course of
proceedings reveal Plaintiff intended to bring an individual capacity suit. The case
caption clearly states that Defendants are being sued in their individual capacities
and does not name the state, a state entity, or NCSU. See Mullis, 347 N.C. at 552,
495 S.E.2d at 724 (“[P]leadings should . . . clearly state[] the capacity in which
[defendants are] being sued.”). Likewise, in the prayer for relief, Plaintiff explicitly
notes relief is sought “individually” as well as “jointly and severally.” See Schmidt v.
Breeden, 134 N.C. App. 248, 257, 517 S.E.2d 171, 177 (1999) (concluding the language
of joint and several in “plaintiff’s request for relief indeed implies that damages [we]re
[being] sought from the . . . pocket” of defendants in their individual capacities).
As to the allegations in the superior court complaint, Plaintiff pled six causes
of action against the six individual Defendants, naming them individually liable. For
example, Plaintiff alleged that
149. Between December 21, 2016 and January 20, 2017 at
all times pertinent to this action, defendant Fowler,
individually, and or jointly with the other defendants, was
negligent by one or more of the following acts or omissions:
a. He improperly drained water from the carrier
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Opinion of the Court
chiller;
b. He did not fill the Carrier chiller with glycol,
ethylene glycol or some other anti-freeze after
draining water from it;
c. He left the Carrier chiller outside when he knew
or should have known there was still water in the
chiller tubes[.]
(Emphasis added.) And so on for the five other defendants, demonstrating an intent
to bring suit against Defendants individually and not against NCSU. In contrast,
Plaintiff alleged in the Industrial Commission amended complaint,
39. That the Defendant North Carolina State University
was responsible for seeing that the chiller was inspected,
maintained, and operating according to manufacturer
specifications and industry standards.
...
46. That the Defendant North Carolina State University
and its agents and employees knew, or through the exercise
of reasonable care should have known, that attempting to
drain and purge a chiller unit with damaged and
deteriorating tubes that were leaking would cause coolant
and/or other substances to remain in the system.
(Emphasis added.)
Furthermore, the allegations in the superior court action specifically
contemplate the public official and public employee distinction, which is pertinent in
an individual capacity suit but not in a suit against the state entity. In an individual
capacity claim, the defendant’s status as a public official or public employee can
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protect him or her from liability for injuries he or she has caused. Meyer, 347 N.C. at
112, 489 S.E.2d at 888 (“Public officials cannot be held individually liable for damages
caused by mere negligence in the performance of their governmental or discretionary
duties; public employees can.”) (citations omitted). The distinction is immaterial in
an official capacity suit. Epps v. Duke Univ., 122 N.C. App. 198, 203, 468 S.E.2d 846,
850 (1996) (“A suit against a public official in his official capacity is basically a suit
against the public entity (i.e., the state) he represents. Therefore, an official capacity
suit operates against the public entity itself, as the public entity is ultimately
financially responsible for the compensable conduct of its officers.”).
Turning finally to the course of proceedings, Plaintiff first brought suit in the
Industrial Commission, following the proper pleading format for an action against a
state entity by filing an affidavit that contained: (1) the name of the claimant, the
Estate of Mr. Long; (2) the name of the institution and the name of the state employee
upon whose alleged negligence the claim was based, NCSU and “John Doe,” the “as-
yet unidentified negligent employee”; (3) the time and place where the injury
occurred, NCSU’s campus on 20 January 2017; (4) a brief statement of the facts and
circumstances surrounding the injury giving rise to the claim; and (5) the damages
sought to be recovered. See N.C. Gen. Stat. § 143-297 (2019) (setting forth these
requirements in order to invoke the jurisdiction of the Industrial Commission in a
claim against a state agency). After learning of Defendants’ identity during discovery
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in the Industrial Commission proceedings, Plaintiff then filed a complaint against
the allegedly negligent employees in superior court. As explained above, this filing
followed the pleading requirements for an individual capacity suit against an alleged
negligent state employee as explained in Mullis. 347 N.C. at 554, 495 S.E.2d at 724-
25. This progression follows our case law’s guidance for seeking recovery from both
State and named individual defendants.
We therefore conclude that Plaintiff seeks recovery against Defendants in their
individual capacities. Consequently, we reject Defendants’ characterization of this
action as an official capacity suit from which they are immune. The trial court thus
erred in granting Defendants’ motion to dismiss for lack of subject matter and
personal jurisdiction.
B. Rule 12(b)(6) Motion to Dismiss
Next, we consider whether the trial court properly dismissed Plaintiff’s claim
under Rule 12(b)(6) for failure to state a claim upon which relief could be granted.
i. Standard of Review
This Court reviews a trial court’s ruling on a Rule 12(b)(6) motion de novo.
Grich v. Mantelco, LLC, 228 N.C. App. 587, 589, 746 S.E.2d 316, 318 (2013).
ii. Merits
A motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) tests the
legal sufficiency of the complaint. Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161,
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163 (1970). When analyzing a Rule 12(b)(6) motion, this Court is to take all factual
allegations as true but should not presume legal conclusions. Miller v. Rose, 138 N.C.
App. 582, 592, 532 S.E.2d 228, 235 (2000). “The function of a motion to dismiss is to
test the law of a claim, not the facts which support it.” Snyder v. Freeman, 300 N.C.
204, 209, 266 S.E.2d 593, 597 (1980) (internal marks and citations omitted). “[A]
complaint should not be dismissed for insufficiency unless it appears to a certainty
that plaintiff is entitled to no relief under any state of facts which could be proved in
support of the claim.” Sutton, 277 N.C. at 103, 176 S.E.2d at 166 (citation omitted).
We also note that a motion to dismiss under Rule 12(b)(6) “is disfavored by the courts
and the pleadings will be liberally construed in the light most favorable to the
nonmovant.” Mabrey v. Smith, 144 N.C. App. 119, 124, 548 S.E.2d 183, 187 (2001).
Defendants argue that Plaintiff’s complaint is deficient for two reasons. First,
Plaintiff failed to properly allege proximate cause; that is, that Mr. Long’s injury was
a reasonably foreseeable consequence of Defendants’ alleged conduct. And second,
that Plaintiff failed to include well-pled factual allegations that Defendants’ conduct
was either grossly negligent or willful and wanton.
1. Proximate Cause
“A wrongful death negligence claim must be based on actionable negligence
under the general rules of tort liability.” Id. at 122, 548 S.E.2d at 186 (citation
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omitted). The elements of negligence are: (1) legal duty; (2) breach of that duty; (3)
actual and proximate causation; and (4) injury. Id. (citation omitted).
The test of proximate cause is whether the risk of injury,
not necessarily in the precise form in which it actually
occurs, is within the reasonable foresight of the defendant.
Questions of proximate cause and foreseeability are
questions of fact to be decided by the jury. Thus, since
proximate cause is a factual question, not a legal one, it is
typically not appropriate to discuss in a motion to dismiss.
Acosta v. Byrum, 180 N.C. App. 562, 568-69, 638 S.E.2d 246, 251 (2006) (internal
marks and citations omitted). When a “complaint adequately recites the element of
causation, an issue of fact for the jury to decide, plaintiff has made a sufficient
pleading of causation under Rule 12(b)(6).” See Demarco v. Charlotte-Mecklenburg
Hosp. Authority, ___ N.C. App. ___, ___, 836 S.E.2d 322, 328 (2019).
Defendants argue that the allegations in Plaintiff’s complaint as to proximate
cause are “conclusory.” Defendants specifically label the complaint’s assertions that
Defendants “knew or should have known, pressure could build up inside the chiller”
and yet failed to warn Mr. Long “that there was high pressure gas behind the metal
flanges . . . [as] unwarranted deductions of fact and unreasonable inferences.”
Here, the complaint alleges that each Defendant worked as a facilities
maintenance technician in the maintenance and operations department at NCSU. It
then alleges that the chiller and operating manual warned that it was not possible to
drain all the water from the chiller, and, in order to “prevent freeze-up damage,” the
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unit had to be filled with anti-freeze. The complaint asserts that each Defendant
failed to follow these shutdown procedures, water froze in the pipes, the pipes burst,
and pressure built within the machine. It then alleges that a 13.1-pound metal flange
capped in place by the individual Defendants “was blown off by pressurized
refrigerant gas inside the water pipe.” Finally, it alleges that each Defendant “knew[]
or should have known” his negligence “would be reasonably likely to result in injury
or death,” and Mr. Long’s death was “a direct and proximate result of one or more
acts or omissions of [each] defendant.” Plaintiff’s allegation of foreseeability is not an
unreasonable inference but clearly is supported by the allegations within the
complaint. Moreover, the complaint “adequately recites the element of causation.”
Demarco, ___ N.C. App. at ___, 836 S.E.2d at 328.
We conclude Plaintiff’s allegations as to proximate cause were sufficient to
withstand a motion to dismiss under Rule 12(b)(6).
2. Gross Negligence
“Gross negligence has been defined as wanton conduct done with conscious or
reckless disregard for the rights and safety of others.” Toomer v. Garrett, 155 N.C.
App. 462, 482, 574 S.E.2d 76, 92 (2002) (citations and internal marks omitted). “Aside
from allegations of wanton conduct, a claim for gross negligence requires that plaintiff
plead facts on each of the elements of negligence, including duty, causation,
proximate cause, and damages.” Id. (citations omitted).
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Defendants argue that Plaintiff’s allegations fail to meet the standard for gross
negligence. Defendants claim no factual basis supports the assertion that Defendants
knew or should have known that pressurized gas would build within the chiller’s
water pipes, much less that such conduct rises to the level of gross negligence.
As noted above, Plaintiff alleged here that Defendants did not exercise
reasonable care to prevent the 13.1-pound metal flange from becoming exposed to
pressure from the inside of the chiller, ignored winterization and shutdown
procedures, knew or should have known pressurized gas would build within the
machine, and failed to warn Mr. Long or his employer of this improper shutdown.
The complaint further expressly alleges that in their acts, omissions, and failures,
each Defendant “demonstrated a conscious or intentional disregard or indifference to
the rights and safety of others, including [Mr.] Long, which [D]efendant[s] knew, or
should have known, would be reasonably likely to result in injury or death and as
such constituted willful or wanton conduct.” Such allegations are sufficient to
withstand a Rule 12(b)(6) motion. See Suarez v. American Ramp. Co. (ARC), ___ N.C.
App. ___, ___, 831 S.E.2d 885, 893 (2019). We thus conclude Plaintiff’s complaint
adequately states a claim for gross negligence, and the trial court erred in granting
Defendants’ motion to dismiss.
III. Conclusion
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Opinion of the Court
For the reasons stated above, we reverse the trial court’s dismissal of Plaintiff’s
claims.
REVERSED AND REMANDED.
Judge HAMPSON concurs.
Judge TYSON dissents by separate opinion.
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No. COA19-785 – Long v. Fowler
TYSON, Judge, dissenting.
I. Sovereign Immunity
The question before the trial court and before this Court on Plaintiff’s appeal
is limited and boils down to a simple and single issue: whether any of the purported
negligent acts or omissions of these five individuals, acting together or individually,
occurred outside of or were unrelated to their public employment by North Carolina
State University (“NCSU”). If not, the trial court’s dismissal must be affirmed. The
matter pending before the Industrial Commission is the exclusive and sole procedure
for the recovery for the wrongful death of Melvin Joseph Long arising from injuries
he allegedly suffered while working at NCSU.
“A motion to dismiss based on sovereign immunity is a jurisdictional issue.” M
Series Rebuild, LLC v. Town of Mount Pleasant, 222 N.C. App. 59, 62, 730 S.E.2d 254,
257 (2012). When ruling upon Defendants’ motion to dismiss, the “threshold issue to
be determined” is whether a negligence suit is brought against the employees for
alleged acts which occurred in official or individual capacities. Mullis v. Sechrest, 347
N.C. 548, 551, 495 S.E.2d 721, 723 (1998).
When a defendant, who is a public employee, is sued for actions arising during
his official capacity, the suit is effectively one against his public employer.
Defendants are immune to the same extent as the government-employer entity itself,
unless there has been a waiver of immunity. See Wright v. Town of Zebulon, 202 N.C.
App. 540, 543, 688 S.E.2d 786, 789 (2010) (citation omitted). “[A] statutory waiver of
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sovereign immunity must be strictly construed.” Meyer v. Walls, 347 N.C. 97, 107,
489 S.E.2d 880, 885 (1997).
II. Motions to Dismiss
On 19 February 2019, these five individual Defendants filed motions to
dismiss asserting: lack of subject matter jurisdiction, lack of personal jurisdiction,
and failure to state a claim upon which relief can be granted. Defendants argue they
were being sued for negligent acts occurring while at work and in their official
capacity and all are entitled to their government-employer’s sovereign immunity.
Defendants argue the Industrial Commission maintains exclusive jurisdiction over
Plaintiff’s claims.
Plaintiff’s complaint failed as a matter of law to properly allege negligence,
gross negligence, or state a claim for punitive damages against Defendants
individually by asserting actions for conduct arising during and solely out of their
public employment. The trial court granted Defendants’ motions to dismiss on 29
April 2019.
Plaintiff acknowledged at oral argument this action was filed after she had
asserted and filed a wrongful death action under the State Tort Claims Act in the
Industrial Commission involving the identical acts she asserts here. Plaintiff’s
allegations before the Industrial Commission and in her superior court complaint are
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“identical, and the monetary damages sought by [Plaintiff] in the two cases are based
on the same alleged actions by [Defendants].”
Plaintiff also “did not include an agency theory in th[e superior court] case[,]”
the only theory upon which that suit proceeds. Nothing alleges any Defendant
committed any acts that occurred outside of their employment with the State.
Plaintiff also admitted at oral arguments that, after invoking a state tort claim
against NCSU before the Industrial Commission and engaging in discovery, she
moved to stay the proceeding pending before the Industrial Commission, rather than
resolving her claims in that chosen forum.
No allegation shows any of the individuals named in the complaint ever knew
of or had met the deceased, had any knowledge of his presence, or owed any individual
duties to an unknown plaintiff. There is simply no allegation of the Defendants’
asserted negligence that is independent of and apart from their public employment
by NCSU, which places exclusive jurisdiction within and before the Industrial
Commission. Wright, 202 N.C. App. at 543, 688 S.E.2d at 789.
Defendants argue the trial court properly dismissed Plaintiff’s complaint as
deficient for two reasons: (1) Plaintiff failed to properly allege proximate cause; that
is, Mr. Long’s injury was a reasonably foreseeable consequence of Defendants’ alleged
conduct; and, (2) Plaintiff failed to include well-pled factual allegations that
Defendants’ conduct was either grossly negligent or willful and wanton.
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III. Foreseeability and Proximate Cause
Palsgraf v. Long Island Railroad Co., 162 N.E. 99, 99 (N.Y. 1928), is the leading
case in American tort law addressing the issue of a defendant’s liability to an
unforeseeable plaintiff. Judge (later Justice) Cardozo explained proximate cause and
reasonable foreseeability of distant and remote acts and impact on an unknown
plaintiff as follows: “the conduct of the defendants . . . if a wrong in its relation to
the[ir employer], was not a wrong in its relation to the plaintiff, standing far away.
Relative[] to her it was not negligence at all.” Id. at 102. Judge Cardozo quoted
Pollock on Torts and cited several cases for the proposition that “proof of negligence
in the air, so to speak, will not do.” Id. Only if there is a duty to the injured plaintiff,
the breach of which causes injury, can there be liability. See id.
Negligence which does no one harm is not a tort. It is not enough, Judge
Cardozo found, to prove negligence by the Defendants and damage to the Plaintiff’s
husband. There must be a breach of a duty these Defendants owed to Plaintiff’s
husband. Judge Cardozo traced the history of the law of negligence. He noted and
concluded that negligence evolved as an offshoot from the law of trespass, and
Plaintiff cannot sue for trespass committed against a third party. Id.
Our Supreme Court has agreed with this analysis: “The breach of duty must
be the cause of the damage. The fact that the defendant has been guilty of negligence,
followed by an injury, does not make him liable for that injury, which is sought to be
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TYSON, J., dissenting
referred to the negligence, unless the connection of cause and effect is established.”
Smith v. Whitley, 223 N.C. 534, 535, 27 S.E.2d 442, 443 (1943) (citation omitted).
IV. Willful and Wanton Conduct
Addressing Defendants’ second contention, Plaintiff failed to include well-pled
factual allegations that Defendants’ conduct was either grossly negligent or willful
and wanton. Nothing in the complaint alleges grossly negligent, or willful and
wanton conduct to support a cause of action. Gross negligence and willful and wanton
conduct describe the same conduct. Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42,
50, 524 S.E.2d 53, 59 (1999). “An act is wanton when it is done of wicked purpose, or
when done needlessly, manifesting a reckless indifference to the rights of others.”
Green v. Kearney, 217 N.C. App. 65, 72, 719 S.E.2d 137, 142 (2011) (citation omitted).
Gross negligence is “wanton conduct done with conscious or reckless disregard for the
rights and safety of others.” Greene v. City of Greenville, 225 N.C. App. 24, 26, 736
S.E.2d 833, 835 (2013) (citations omitted).
Our Court has found a substantial difference between alleged acts of
negligence and gross negligence. “Negligence, a failure to use due care, be it slight or
extreme, connotes inadvertence.” Green, 217 N.C. App. at 71, 719 S.E.2d at 142
(citations and quotations omitted). Wanton conduct is done “in conscious and
intentional disregard of and indifference to the rights and safety of others.” Id.
(citations and quotations omitted). Here, Plaintiff’s complaint asserts no factual
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basis or to warrant inferring that Defendants knew or should have known about the
risk of pressurized gas build-up in the chiller’s water pipes or acted with “intentional
disregard of and indifference to the rights and safety of others.” Id.
V. Conclusion
As noted, Plaintiff admitted that her claims before the Industrial Commission
are identical to those in her dismissed complaint without the allegation of
Defendants’ employment and agency with the State and NCSU. Under the State’s
sovereign immunity, the only basis for liability and recovery for Defendants’ alleged
negligent acts while public employees, is a claim under the State Tort Claims Act
before the Industrial Commission. The General Assembly’s “statutory waiver of
sovereign immunity must be strictly construed.” Meyer, 347 N.C. at 107, 489 S.E.2d
at 885.
Plaintiff’s allegations against Defendants as public employees judicially estops
Plaintiff’s identical assertions to impose individual liability upon Defendants for
identical conduct that occurred as public employees. She cannot have it both ways.
The trial court correctly ruled Plaintiff’s complaint did not invoke the subject matter
jurisdiction of the courts, nor against these Defendants personally or individually,
and that her complaint had failed to state a claim in the superior court.
Plaintiff has chosen the Industrial Commission as her forum for the resolution
of her claim for her husband’s wrongful death for the asserted negligence of public
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TYSON, J., dissenting
employees of the State under a waiver of the State’s sovereign immunity. See Walls,
347 N.C. at 107, 489 S.E.2d at 885. The trial court’s dismissal of Plaintiff’s complaint
was proper, lawful, and is properly affirmed. I respectfully dissent.
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