Appeal and Error--appealability--interlocutory order
Plaintiff's appeal from an interlocutory order in a negligence action arising out of a
collision between an automobile driven by plaintiff's wife and an Amtrak train at a railroad
crossing in Durham County is dismissed and remanded to the trial court for further proceedings
because: (1) although the trial court granted defendants' motion to dismiss the contract claim, the
pending tort claim remains; (2) defendant Serrmi Services, Inc., was not named in the trial court's
grant of partial summary judgment and remains a party to the suit; (3) the trial court did not
certify plaintiff's appeal pursuant to Rule 54(b), nor did plaintiff assign error to the trial court's
failure to do so; and (4) a substantial right is not affected.
Randall, Jervis & Hill, by John C. Randall, William L. Thorp,
and E.C. Harris, for plaintiff-appellant.
Millberg & Gordon, P.L.L.C., by John C. Millberg and Frank J.
Gordon; Michaux & Michaux, P.A., by Eric Michaux; and Smith
Helms Mulliss & Moore, L.L.P., by James G. Exum, Jr. and
Matthew W. Sawchak, for defendants-appellees Norfolk Southern.
WALKER, Judge.
Plaintiff filed this action on 3 May 1994 alleging defendants'
negligence arising out of a collision between an automobile driven
by the plaintiff's wife, Edna Turner, and an Amtrak train at the
Hopson Road railroad crossing in Durham County. Mrs. Turner and
two of their children were killed, and a third child was seriouslyinjured. Plaintiff is the administrator of the estates of his wife
and two children and guardian ad litem of the injured child. The
railroad in question is operated by defendant Norfolk Southern
(Norfolk). Defendant Serrmi Services, Inc. was retained by the
other defendants to perform the engineering and design work and
carry out the construction plans for the automatic warning devices
to be installed at the Hopson Road crossing.
Plaintiff claims defendants are negligent under two theories:
(1) the defendants breached a common law duty to provide adequate
warning devices at the Hopson Road crossing (“tort claim”) and (2)
the defendants negligently performed a contract between Norfolk
and the North Carolina Department of Transportation (DOT) to design
and erect automatic warning devices within a reasonable time at the
Hopson Road crossing after receiving authorization from DOT to do
so (“contract claim”).
On 2 November 1998, all defendants, except Serrmi Services,
Inc., moved for dismissal pursuant to Rule 12(b)(6) of the North
Carolina Rules of Civil Procedure and for summary judgment and
partial summary judgment pursuant to Rule 56. Defendants claimed,
in part, that Title 23 U.S.C.A. § 409 (West 1999)(“Section 409”)
barred the introduction into evidence of the contract between DOT
and Norfolk as well as certain documents which had been produced by
defendants in discovery regarding defendants' performance of the
contract, thus requiring dismissal of plaintiff's claims.
Title 23 U.S.C.A. § 409 states:
Notwithstanding any other provision of law,
reports, surveys, schedules, lists, or data
compiled or collected for the purpose of
identifying[,] evaluating, or planning thesafety enhancement of potential accident
sites, hazardous roadway conditions, or
railway-highway crossings, pursuant to
sections 130, 144, and 152 of this title or
for the purpose of developing any highway
safety construction improvement project which
may be implemented utilizing Federal-aid
highway funds shall not be subject to
discovery or admitted into evidence in a
Federal or State court proceeding or
considered for other purposes in any action
for damages arising from any occurrence at a
location mentioned or addressed in such
reports, surveys, schedules, lists, or data.
23 U.S.C.A. § 409 (West 1999).
On 4 December 1998, the trial court granted defendants' motion
for summary judgment as to plaintiff's contract claim based on a
failure to comply with the contract between DOT and Norfolk and
denied defendant's motion as to plaintiff's tort claim. The trial
court's order stated in pertinent part:
When federal funds participate in
installation, federal preemption is triggered.
If federally funded safety devices are planned
but not installed prior to the accident in
question, then the railroad's liability will
be determined solely on the basis of a breach,
if any, of that common law duty, as if no
planning had ever occurred. 23 U.S.C. § 409
prohibits any evidence to be offered in trial
of that common law cause of action regarding
any recommendation, plan, agreement or
scheduling of such safety devices under the
federal program.
(Emphasis in original).
The trial court's order concluded that:
[T]he motions for partial summary judgment
filed by defendants are denied in part and
granted in part; that summary judgment is
granted against plaintiffs on their claims
based on an alleged breach of duty created by
contract; that plaintiff's common law tort
claim survives summary judgment to the extent
it is not based on and does not involve
evidence of any recommendation, plan,agreement, or scheduling of the federally
funded signal project for the Hopson Road
crossing; that any such evidence is not
competent or admissible on the issue of the
alleged breach of a common law duty; and that
such issue shall be tried as if there had
never been any planned or recommended
upgrades.
On 14 December 1998, plaintiff moved, pursuant to Rules 52(b)
and 59 (4), (7), and (8) of the North Carolina Rules of Civil
Procedure, to amend the order and for a new hearing, both of which
were denied on 18 December 1998. The trial court's order denying
plaintiff's motions stated:
The Court, having considered the Plaintiff's
motion to amend its prior judgment, hereby
denies that motion in its entirety. The prior
order of this Court remains in full force and
effect. However, nothing in that prior order
shall deny to the trial judge the right to
rule on matters of evidence which that judge
considers competent, relevant and admissible
on the remaining issues to be resolved by a
jury in this case.
(Emphasis added).
We first consider whether plaintiff's appeal is properly
before this Court. Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431
(1980). There is generally no right to appeal an interlocutory
order. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377,
379, 444 S.E.2d 252, 253 (1994). “An order or judgment is
interlocutory if it is made during the pendency of an action and
does not dispose of the case but requires further action by the
trial court in order to finally determine the entire controversy.”
N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460
S.E.2d 332, 334 (1995). The rule against interlocutory appealsseeks to prevent fragmentary, premature and unnecessary appeals by
allowing the trial court to bring a case to final judgment before
its presentation to the appellate courts. Waters v. Personnel,
Inc., 294 N.C. 200, 240 S.E.2d 338 (1978).
There are only two means by which an interlocutory order may
be appealed: (1) if the order is final as to some but not all of
the claims or parties and the trial court certifies there is no
just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) or
(2) “if the trial court's decision deprives the appellant of a
substantial right which would be lost absent immediate review.”
Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 395
(1996), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997)
(citations omitted); Anderson v. Atlantic Casualty Ins. Co., 134
N.C. App. 724, 518 S.E.2d 786 (1999); N.C. Gen. Stat. § 1-277
(1999); N.C. Gen. Stat. § 7A-27 (1999). Thus, we must determine
whether the orders granting summary judgment to defendants and
denying the amendment of the order were final or, in the
alternative, whether a substantial right of the plaintiff will be
affected absent immediate appellate review.
“A final judgment is one which disposes of the cause as to all
the parties, leaving nothing to be judicially determined between
them in the trial court.” Veazey v. Durham, 231 N.C. 357, 361-62,
57 S.E.2d 377, 381, rehearing denied, 232 N.C. 744, 59 S.E.2d 429
(1950).
When the trial court granted defendants' motion to dismiss the
contract claim, the pending tort claim was not disposed of and theappeal is therefore interlocutory. See Liggett Group v. Sunas, 113
N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993)(“A grant of partial
summary judgment, because it does not completely dispose of the
case, is an interlocutory order from which there is ordinarily no
right of appeal”). Furthermore, defendant Serrmi Services, Inc.
was not named in the trial court's grant of partial summary
judgment and remains a party to the suit. See Jarrell v. Coastal
Emergency Services of the Carolinas, 121 N.C. App. 198, 199, 464
S.E.2d 720, 722 (1995)(“Orders which do not dispose of the action
as to all parties are interlocutory”). Additionally, a review of
the record reveals the trial court did not certify plaintiff's
appeal pursuant to Rule 54(b) nor did the plaintiff assign as error
the trial court's failure to do so.
Next, we determine whether a substantial right would be
affected. A substantial right is “one which will clearly be lost
or irremediably adversely affected if the order is not reviewable
before final judgment.” Blackwelder v. Dept. of Human Resources,
60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983). The right to
immediate appeal is “reserved for those cases in which the normal
course of procedure is inadequate to protect the substantial right
affected by the order sought to be appealed.” Id., 299 S.E.2d at
780-81. Our courts have generally taken a restrictive view of the
substantial right exception. Id. at 334, 299 S.E.2d at 780. The
burden is on the appealing party to establish that a substantial
right will be affected. Jeffreys, 115 N.C. App. at 380, 444 S.E.2d
at 254. The avoidance of one trial is not ordinarily a substantial
right. Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593,
596 (1982). However, the right to avoid the possibility of two
trials on the same issues can be a substantial right. Id.
“Ordinarily the possibility of undergoing a second trial affects a
substantial right only when the same issues are present in both
trials, creating the possibility that a party will be prejudiced by
different juries in separate trials rendering inconsistent verdicts
on the same factual issue.” Id.
Plaintiff contends that separate trials on the tort claim and
on the contract claim would involve the same issues and require him
to produce the same evidence for each trial. Further, the two
theories involve negligence which are “logical manifestations of
the overall umbrella of negligence and denial of any responsibility
for grade crossing safety by Norfolk Southern's executives and
management.” Additionally, plaintiff contends that separate trials
on these two theories could result in inconsistent verdicts on
factual issues and other issues such that substantial rights will
be affected should we dismiss his appeal.
Plaintiff's tort claim is predicated on the railroad's “duty
to give reasonable and timely warning of the approach of a train to
the crossing.” Caldwell v. R.R., 218 N.C. 63, 69, 10 S.E.2d 680,
683 (1940). To establish such a claim, the plaintiff must show
that the crossing in question is “peculiarly and unusually
hazardous to those who have a right to traverse it.” Id.; see also
Robinson v. Seaboard System Railroad, Inc., 87 N.C. App. 512, 520,361 S.E.2d 909, 915 (1987), disc. review denied, 321 N.C. 474,
364
S.E.2d 924 (1988).
In contrast, plaintiff's contract claim centers on the
performances due on a contract between Norfolk and DOT.
Plaintiff's claim focuses on the defendants' failure to act, and
thus the defendants' breach of a contractual duty. The issues to
be addressed in this claim would include plaintiff's status as a
third party beneficiary to the contract, the duties imposed on
defendants by the contract, and whether Norfolk was negligent in
its performance of the contract between itself and the DOT. See
Matternes v. City of Winston-Salem, 286 N.C. 1, 11-12, 209 S.E.2d
481, 486-87 (1974). Such issues are separate and distinct from
those to be addressed in plaintiff's tort claim.
Plaintiff also argues that the trial court's 4 December 1998
order granting partial summary judgment effectively precludes
plaintiff from proceeding with his tort claim. Specifically, the
Section 409 documents produced by the defendants and excluded from
evidence by the trial court's 4 December 1998 order were vital to
establishing defendants' liability. We disagree.
The trial court's 18 December 1998 order denying plaintiff's
motion to amend the 4 December 1998 order specifically states that
“nothing in [the 4 December 1998] order shall deny to the trial
judge the right to rule on matters of evidence which that judge
considers competent, relevant, and admissible on the remaining
issues to be resolved by a jury in this case.” Thus, the
applicability of Section 409 to plaintiff's tort claim and theadmissibility of the documents in question remain to be decided by
the trial court. Accordingly, no substantial right of the
plaintiff has been affected.
In summary, plaintiff fails to establish, and we do not
discern, a substantial right which cannot be protected by timely
appeal from the trial court's ultimate disposition of the entire
controversy. For these reasons, the appeal is dismissed and
remanded to the trial court for further proceedings.
Dismissed.
Chief Judge EAGLES and Judge WYNN concur.
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