DANIEL G. DODDER and JOANN
DODDER,
Plaintiff-Appellants,
v
.
Forsyth County
No. 94 CVS 6219
YATES CONSTRUCTION COMPANY,
INC.,
Defendant-Appellee.
White and Crumpler, by Dudley A. Witt, for plaintiff
appellants.
Bennett, Guthrie & Dean, P.L.L.C., by Rodney A. Guthrie and
Stanley P. Dean, for defendant appellee.
McCULLOUGH, Judge.
Plaintiff Daniel Dodder and his wife, Joann Dodder, appeal the
trial court's entry of directed verdict for defendant Yates
Construction Company (Yates). The pertinent facts are as follows:
(For a full factual recitation, see Tise v. Yates Construction Co.,
345 N.C. 456, 480 S.E.2d 677 (1997), a companion case.). On 26
June 1992, plaintiff Daniel Dodder was employed as a police officer
with the Winston-Salem Police Department in Winston-Salem, North
Carolina. In the early morning hours of 26 June, Dodder and a
fellow officer responded to a call that unknown persons weretampering with heavy construction equipment (a motor grader) at a
construction site maintained by Yates near New Walkertown Road.
Upon arriving at the construction site, Dodder and his fellow
officer did not locate any suspects and were unable to determine
whom to contact about the security of the construction equipment.
The officers noticed the grader parked at a shopping center
adjacent to the construction site and attempted to disable it by
removing fuses. However, they succeeded only in disabling the
grader's lighting system.
After the officers left the scene, four individuals returned
to the construction site and resumed tampering with the
construction equipment. One of the individuals, later identified
as Conrad Crews, got onto the grader, started it, and drove it onto
a road and traveled toward East Drive. Plaintiff and his fellow
officer again responded to the reported disturbance and went to
East Drive in their patrol cars. They were met there by Lieutenant
Aaron Tise. All three officers were in their own patrol cars. As
Crews drove the grader onto Lakeshore Drive, he crushed Lieutenant
Tise's car; Lieutenant Tise later died of his injuries. Crews also
collided with plaintiff's patrol car and seriously injured him.
On 1 September 1994, plaintiff and his wife filed a lawsuit
against Yates, alleging negligence, intentional infliction of
emotional distress, negligent infliction of emotional distress, and
loss of consortium. On 28 February 1995, Yates filed an amended
answer, moved to dismiss plaintiff's complaint pursuant to N.C.
Gen. Stat. § 1A-1, Rule 12(b)(6) (2001), and alleged that (1) thetheft of the grader was a bar to any recovery by plaintiffs; (2)
Yates exercised reasonable care at all times; (3) plaintiff's
employer (the City of Winston-Salem) was contributorily negligent;
(4) the City's negligence was intervening and superseding; (5)
plaintiff was negligent; and (6) plaintiff's negligence was
intervening and superseding.
The case was heard at the 30 October 2000 Civil Session of
Forsyth County Superior Court. After plaintiffs' presentation of
evidence, defendant moved for a directed verdict pursuant to N.C.
Gen. Stat. § 1A-1, Rule 50 (2001). The trial court granted
defendant's motion, and plaintiffs appealed.
On appeal, plaintiffs argue the trial court erred by granting
defendant's motion for directed verdict because they produced
sufficient evidence to withstand the motion, and because the
decision “conflicted” with matters that had already been resolved
in their favor in previous decisions from both this Court and the
Supreme Court. After careful examination of the arguments, we
disagree with plaintiffs and affirm the decision of the trial
court.
We first address the law of the case doctrine. “According to
the doctrine of the law of the case, once an appellate court has
ruled on a question, that decision becomes the law of the case and
governs the question both in subsequent proceedings in a trial
court and on subsequent appeal.” Weston v. Carolina Medicorp,
Inc., 113 N.C. App. 415, 417, 438 S.E.2d 751, 753 (1994).
“Furthermore, under general rules of estoppel by judgment,plaintiff is similarly precluded from relitigating an issue
adversely determined against him.” Id. at 418, 438 S.E.2d at 753.
Plaintiffs argue the trial court's grant of a directed verdict in
favor of defendant was contrary to an earlier unpublished decision
by our Court in a companion case, Tise v. Yates Construction Co.,
131 N.C. App. 155, 510 S.E.2d 417, disc. review denied, 349 N.C.
534, 526 S.E.2d 476 (1998). In that case, a panel of this Court
reversed the trial court's grant of defendant's Rule 12(b)(6)
motion and stated that “plaintiff's complaint contained sufficient
allegations of negligence to survive defendant's Rule 12(b)(6)
motion, and the trial court therefore erred by granting the
motion.” Plaintiffs now urge us to conclude that the motion for
directed verdict was also improperly granted in favor of defendant.
We do not agree.
The question in Tise was whether plaintiff had sufficiently
pled her complaint to survive a Rule 12(b)(6) motion to dismiss for
failure to state a claim upon which relief could be granted. “A
motion to dismiss under Rule 12(b)(6) of the North Carolina Rules
of Civil Procedure presents the question whether, as a matter of
law, the allegations of the complaint, treated as true, are
sufficient to state a claim upon which relief can be granted under
some legal theory.” Lynn v. Overlook Development, 328 N.C. 689,
692, 403 S.E.2d 469, 471 (1991).
In the present appeal, however, the central concern is whether
plaintiffs presented enough evidence to survive a Rule 50 motion
for directed verdict. “When determining the correctness of thedenial for directed verdict or judgment notwithstanding the
verdict, the question is whether there is sufficient evidence to
sustain a jury verdict in the non-moving party's favor, or to
present a question for the jury.” Davis v. Dennis Lilly Co., 330
N.C. 314, 323, 411 S.E.2d 133, 138 (1991) (citations omitted).
Because a Rule 12(b)(6) motion has a different standard of proof
than a motion for directed verdict, we hold that the law of the
case doctrine does not apply in the present case and does not
require reversal of the trial court's grant of directed verdict in
favor of defendant. See Southland Assoc. Realtors v. Miner, 73
N.C. App. 319, 326 S.E.2d 107 (1985); Edwards v. Northwestern Bank,
53 N.C. App. 492, 281 S.E.2d 86, disc. review denied, 304 N.C. 389,
285 S.E.2d 831 (1981). Having concluded that the law of the case
doctrine does not apply to this case, we now consider whether the
trial court properly granted a directed verdict for Yates.
“A motion by a defendant for a directed verdict under G.S.
1A-1, Rule 50(a) tests the legal sufficiency of the evidence to
take the case to the jury and support a verdict for the plaintiff.”
Wellmon v. Hickory Construction Co., 88 N.C. App. 76, 79, 362
S.E.2d 591, 593 (1987), disc. review denied, 322 N.C. 115, 367
S.E.2d 921 (1988). To survive a motion for directed verdict, a
plaintiff “must make out his case by proving the facts essential to
his cause of action or by proving facts permitting an inference of
the material facts as a fair and logical conclusion.” Southern
Bell Telephone and Telegraph Co. v. West, 100 N.C. App. 668, 670,
397 S.E.2d 765, 767 (1990), aff'd, 328 N.C. 566, 402 S.E.2d 409(1991). “In deciding the motion, the trial court must treat non-
movant's evidence as true, considering the evidence in the light
most favorable to non-movant, and resolving all inconsistencies,
contradictions and conflicts for non-movant, giving non-movant the
benefit of all reasonable inferences drawn from the evidence.”
McFetters v. McFetters, 98 N.C. App. 187, 191, 390 S.E.2d 348, 350,
disc. review denied, 327 N.C. 140, 394 S.E.2d 177 (1990). “Some
degree of probability, however small, must exist to provide the
jury with a question of causation to resolve.” Hinson v. National
Starch & Chemical Corp., 99 N.C. App. 198, 202, 392 S.E.2d 657,
659-60 (1990). With these principles in mind, we turn to the case
at hand.
“Actionable negligence is the failure to exercise that degree
of care which a reasonable and prudent person would exercise under
similar conditions.” Hart v. Ivey, 332 N.C. 299, 305, 420 S.E.2d
174, 177-78 (1992). “'To recover damages for actionable negligence,
plaintiff must establish (1) a legal duty, (2) a breach thereof,
and (3) injury proximately caused by such breach. . . .'” Matthieu
v. Gas Co., 269 N.C. 212, 217, 152 S.E.2d 336, 341 (1967) (quoting
Petty v. Print Works, 243 N.C. 292, 298, 90 S.E.2d 717, 721
(1956)). See also Waltz v. Wake County Bd. of Education, 104 N.C.
App. 302, 303-04, 409 S.E.2d 106, 107 (1991), disc. review denied,
330 N.C. 618, 412 S.E.2d 96 (1992).
“The general rule is that the intervening or superseding
criminal acts of another preclude liability of the initial
negligent actor when the injury is caused by the criminal acts.” Tise, 345 N.C. at 460, 480 S.E.2d at 680; see also Muse v. Charter
Hospital of Winston-Salem, 117 N.C. App. 468, 476, 452 S.E.2d 589,
595-96, aff'd, 342 N.C. 403, 464 S.E.2d 44 (1995). Presented with
the identical facts, the Supreme Court in Tise stated
[t]he criminal acts in this case were an
intervening cause that relieved the City of
any actionable negligence by cutting off the
proximate cause flowing from the acts of the
agents of the City in attempting to disable
the grader. This superseding cause was a new
cause, which intervened between the original
negligent act of the City and the injury
ultimately suffered by Tise.
Id. at 461, 480 S.E.2d at 681. Yates urges us to extend that
reasoning to it: Because the criminal acts shielded the City from
liability, those criminal acts should also shield Yates from
liability.
Yates also contends the criminal acts were not foreseeable.
“The test by which the negligent conduct of one is to be insulated
as a matter of law by the independent negligent act of another, is
reasonable unforeseeability on the part of the original actor of
the subsequent intervening act and resultant injury.” Butner v.
Spease, 217 N.C. 82, 89, 6 S.E.2d 808, 812 (1940). Our Supreme
Court in Tise stated that “[Crews'] unauthorized operation of the
grader could not have been foreseeable from the officers' acts of
attempting to disable the grader.” Id. at 461, 480 S.E.2d at 681.
Though our Supreme Court in Tise held that Crews' criminal
actions were not foreseeable by the officers, there has been no
determination of whether Crews' actions were foreseeable by Yates.
Plaintiff presented evidence that (1) Yates knew or should haveknown the grader could be easily started without a key and operated
by unauthorized persons; (2) Yates did not take precautions against
unauthorized use of its construction equipment by unauthorized
individuals; (3) Yates knew or should have known its construction
site was located in a high crime area; and (4) unauthorized use of
the grader by an untrained, unauthorized individual was likely to
result in injury or death.
The rule of proximate cause, as understood and applied in this
jurisdiction, was reiterated by the Supreme Court in Tise, 345 N.C.
at 461, 480 S.E.2d at 681. Application of that rule in the present
case leads us to conclude Crews' acts were not foreseeable as a
matter of law. It follows, then, that we are not permitted to
conduct an independent analysis focusing on acts of perceived
negligence; the thief's intervention prevents this Court and/or a
jury from engaging in such an inquiry.
“'[T]he general rule of law is that if between
the negligence and the injury there is the
intervening crime or willful and malicious act
of a third person producing the injury but
that such was not intended by the defendant,
and could not have been reasonably foreseen by
it, “the causal chain between the original
negligence and the accident is broken.”'”
Williams v. Mickens, 247 N.C. 262, 264, 100 S.E.2d 511, 513 (1957)
(quoting Ward v. R.R., 206 N.C. 530, 532, 174 S.E. 443, 444
(1934)). See also Dean v. Construction Co., 251 N.C. 581, 111
S.E.2d 827 (1960); and Spurlock v. Alexander, 121 N.C. App. 668,
468 S.E.2d 499, disc. review denied, 343 N.C. 753, 473 S.E.2d 619
(1996). After careful examination of the record and the arguments of
the parties, we conclude that the trial court did not err in
granting a directed verdict in favor of Yates.
No error.
Judges WYNN and BIGGS concur.
Report per Rule 30(e).
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