MILLETTE M. CLONTZ,
Plaintiff
v
.
ST. MARK'S EVANGELICAL LUTHERAN CHURCH, a/k/a ST. MARK LUTHERAN
CHURCH, a/k/a ST. MARK'S LUTHERAN CHURCH, HARRY A. SLOOP, and H.
ALLEN SLOOP,
Defendants
Parker & Howes, L.L.P., by David P. Parker, for plaintiff-
appellant.
Caudle & Spears, P.A., by Lloyd C. Caudle and Cameron B.
Weber, for defendants-appellees.
CALABRIA, Judge.
On 24 October 1998, St. Mark's Evangelical Lutheran Church
(“St. Mark's”) held their annual Halloween festival on a farm owned
by H. Allen Sloop (“Allen Sloop”). As part of the festivities, St.
Mark's organized a hayride for the younger members or guests
attending the event. Both children and adults rode through the
woods and around the farm on a flatbed trailer pulled by a farm
tractor driven by Allen Sloop's son, Harry A. Sloop (“Harry
Sloop”).
Millette Clontz (“Clontz”) was not a member of St. Mark's but
was invited to help with the hayride by standing in the woods and
making scary noises. When the last hayride of the night passedClontz, she came out from the woods and started walking alongside
the flatbed. While walking, Clontz saw a child near the edge of
the trailer, waving his arms and appearing to be losing his
balance. Clontz stepped up to the side of the trailer, and as she
pushed the child back onto the trailer bed to prevent his fall,
Clontz fell under the trailer. Clontz was impaled by part of the
trailer, dragged underneath the trailer for a short distance, and
finally run over by the trailer. Clontz suffered extensive and
permanent bodily injuries.
Clontz filed suit on 16 October 2001 in the Superior Court of
Iredell County against St. Mark's, Allen Sloop, and Harry Sloop,
jointly and severally, alleging negligence arising from premises
liability, negligent supervision, and negligent infliction of
emotional distress. On 6 November 2001, St. Mark's and Allen Sloop
filed motions to dismiss under Rules 12(b)(4), 12(b)(5), and
12(b)(6) of the North Carolina Rules of Civil Procedure. On 20
March 2002, the Honorable Mark E. Klass granted both motions to
dismiss pursuant to Rule 12(b)(6). Clontz gave notice of appeal on
8 April 2002, assigning error to the trial court's order on the
grounds that the complaint stated a claim upon which relief could
be granted.
This appeal is interlocutory because the dismissals do not
extend to the third defendant, Harry Sloop, and therefore do not
finally determine all claims, rights, and liabilities of all the
parties. Leasing Corp. v. Myers, 46 N.C. App. 162, 164-65, 265
S.E.2d 240, 242-43 (1980). Interlocutory orders are appealable ifthe order appealed affects a “substantial right.” N.C. Gen. Stat.
§§ 1-277 (2001) and 7A-27(d) (2001). Both “[t]he 'right to have
the issue of liability as to all parties tried by the same jury'
and the avoidance of inconsistent verdicts in separate trials . .
. [are] substantial rights.” Vera v. Five Crow Promotions, Inc.,
130 N.C. App. 645, 648, 503 S.E.2d 692, 695 (1998) (quoting Bernick
v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408-09 (1982)).
Because the dismissal was granted in favor of Allen Sloop and St.
Mark's before the final resolution of Clontz's action against Harry
Sloop, the right to try the issues of liability as to all parties
before the same jury as well as the right to avoid inconsistent
verdicts in separate trials are implicated. Clontz's appeal is
properly before this Court.
Clontz asserts the trial court erred in allowing the motion to
dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of
Civil Procedure. “A motion to dismiss . . . 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).
A complaint may be dismissed on motion filed
under Rule 12(b)(6) if it is clearly without
merit; such lack of merit may consist of an
absence of law to support a claim of the sort
made, absence of fact sufficient to make a good
claim, or the disclosure of some fact which
will necessarily defeat the claim.
Forbis v. Honeycutt, 301 N.C. 699, 701, 273 S.E.2d 240, 241 (1980). Clontz, in her complaint, alleged defendants were negligent and
that, pursuant to the rescue doctrine, she is entitled to recover.
In order to establish actionable negligence,
[a] plaintiff must show that there has been a
failure to exercise proper care in the
performance of some legal duty which the
defendant owed to the plaintiff under the
circumstances in which they were placed, and
that such negligence was the proximate cause of
the injury -- a cause that produced the result
in continuous sequence and without which it
would not have occurred, and one from which any
man of ordinary prudence could have foreseen
that such result was probable under all the
facts as they existed.
Jackson v. Gin Co., 255 N.C. 194, 196, 120 S.E.2d 540, 542 (1961).
The rescue doctrine encourages “the rescue of others from peril and
immediate danger . . . by holding the tortfeasor liable for any
injury to the rescuer on the grounds a rescue attempt is
foreseeable. [It] recognizes the need to bring an endangered person
to safety.” Westbrook v. Cobb, 105 N.C. App. 64, 69, 411 S.E.2d
651, 654 (1992). Functionally, “the doctrine stretches the
foreseeability limitation to help bridge the proximate cause gap
between defendant's act and plaintiff's injury.” Id., 105 N.C. App.
at 69, 411 S.E.2d at 654. “[T]he rescue doctrine does not apply
unless it be shown that the peril was caused by the negligence of
another.” Caldwell v. Deese, 288 N.C. 375, 380, 218 S.E.2d 379, 382
(1975) (emphasis in original).
In her complaint, Clontz sets forth five specific grounds in
support of her claims of negligence: (I) premises liability; (II)
violation of N.C. Gen. Stat. § 20-135.2B in the operation of a
vehicle with children under twelve years of age in an open bed orcargo area; (III) operation of an overloaded vehicle without
adequate lighting; (IV) failure to keep the vehicle under proper
control; and (V) negligent supervision.
I. Premises Liability
A. St. Mark's
Clontz asserts St. Mark's is liable as the inviting agency
under general principles of premises liability. The duty imposed
on occupiers of land is “to exercise reasonable care in the
maintenance of the[] premises for the protection of lawful
visitors.” Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882,
892 (1998). Even assuming arguendo St. Mark's is an occupier of
land, the acts alleged to show a lack of reasonable care (i.e.
overloading the vehicle, violating N.C. Gen. Stat. § 20-135.2B, and
failing to adequately light the trailer) relate not to the
maintenance or condition of the property but merely to the way the
hayride was conducted. Hazards relating only to an activity and
existing separate and apart from the condition or maintenance of
property do not give rise to a claim of premises liability.
B. Allen Sloop
Clontz also asserts Allen Sloop is liable for injuries on the
basis of premises liability. The General Assembly has modified the
general principles of premises liability for landowners who allow
their land to be used for recreational purposes:
Except as specifically recognized by or
provided for in this chapter, an owner of land
who either directly or indirectly invites or
permits without charge any person to use such
land for educational or recreational purposes
owes the person the same duty of care that heowes a trespasser . . . . This section does
not apply to an owner who invites or permits
any person to use land for a purpose for which
the land is regularly used and for which a
price or fee is usually charged even if it is
not charged in that instance, or to an owner
whose purpose in extending an invitation or
granting permission is to promote a commercial
enterprise.
N.C. Gen. Stat. § 38A-4 (2001). Where applicable, N.C. Gen. Stat.
§ 38A-4 imposes upon a landowner the duty to “refrain from the
willful or wanton infliction of injury.” Nelson, 349 N.C. at 618,
507 S.E.2d at 884 (citation omitted).
In the instant case, Allen Sloop gratuitously permitted members
of St. Mark's to use his farm for recreational purposes. The
property was generally used for routine farming activities, and
there is no allegation that the purpose of the invitation was to
promote a commercial enterprise. Accordingly, Allen Sloop had no
duty except to refrain from willfully or wantonly inflicting injury.
The complaint fails to allege willful or wanton infliction of injury
by Allen Sloop; therefore, the trial court correctly granted the
Rule 12(b)(6) motion on the claim of premises liability.
II. Violation of N.C. Gen. Stat. § 20-135.2B
Clontz asserts defendants failed to use reasonable care by
violating N.C. Gen. Stat. § 20-135.2B (2001), a provision of the
Motor Vehicle Act prohibiting the transport of children under twelve
years of age in the open bed or cargo area of a vehicle. The scope
and applicability of this provision is limited to vehicles “driven
or moved on any highway.” N.C. Gen. Stat. § 20-115 (2001). The
Motor Vehicle Act defines highways as “open to the use of the publicas a matter of right for the purposes of vehicular traffic.” N.C.
Gen. Stat. § 20-4.01 (13) (2001). The complaint fails to allege the
trail through the woods over which the tractor and trailer traveled
was a “highway” as defined in N.C. Gen. Stat. § 20-4.01 (13).
Because N.C. Gen. Stat. § 20-115 limits the applicability of N.C.
Gen. Stat. § 20-135.2B to vehicles operated on highways and the
activities conducted on Allen Sloop's property were not alleged to
fall within the scope of its regulation, application of the statute
is precluded.
III. Overloading and Improper Lighting
Clontz asserts defendants failed to use reasonable care by
overloading and improperly lighting the trailer. Although the
complaint alleges Allen Sloop owned the trailer, the trailer itself
was not alleged to be defective, nor was Allen Sloop alleged to have
been involved in the loading or lighting of the trailer. Therefore,
Clontz's complaint failed to allege a claim of negligence against
Allen Sloop based upon overloading or improperly lighting the
trailer, and the motion to dismiss was properly granted. Clontz's
complaint alleges St. Mark's organized the hayride and determined
what precautions should be taken for the riders' protection. St.
Mark's, not Allen Sloop, decided whether the lighting on the trailer
was adequate and how many passengers were permitted on each ride.
The allegations of the complaint do not fail, as a matter of law,
to state a claim of negligence against St. Mark's. Accordingly, a
motion to dismiss in favor of St. Mark's is premature.
IV. Failure to Keep Vehicle under Proper Control Clontz asserts defendants failed to keep the vehicle under
proper control. However, no facts alleged in the complaint support
the proposition that the vehicle was, at any time, out of control,
nor is there an allegation that the child was in danger due to any
lack of control. The only fact in the complaint relating to the
control of the tractor is that it was going no faster than a walking
pace. Since there are no allegations regarding loss of control or
that said loss of control contributed to the unfortunate injury that
occurred, the trial court properly granted defendants' motion to
dismiss.
V. Negligent Supervision of Children
Finally, Clontz asserts defendants also failed to exercise
reasonable care in the supervision of the children on the hayride.
Where an adult host or supervisor is entrusted with and assumes the
responsibility for the welfare of a child, they “have a duty to the
children to exercise a standard of care that a person of ordinary
prudence, charged with similar duties, would exercise under similar
circumstances.” Royal v. Armstrong, 136 N.C. App. 465, 471, 524
S.E.2d 600, 603-04 (2000). “[T]he amount of care due . . .
increases with . . . immaturity, inexperience, and relevant physical
limitations.” Payne v. N.C. Dept. of Human Resources, 95 N.C. App.
309, 314, 382 S.E.2d 449, 452 (1989) (citations omitted).
The complaint alleges facts contradicting the exercise of
reasonable care including that (1) there was a lot of loud screaming
and horsing around; (2) the light illuminating the trailer was
insufficient to properly illuminate the entire bed preventing propervisibility and supervision by the adults present; and (3) a child
was close enough to the edge of the trailer bed to be within easy
reach of one walking alongside of it.
The complaint does not allege Allen Sloop was entrusted with
or assumed responsibility for the welfare of any child. Thus, no
allegation gives rise to a duty to supervise, and this claim against
Allen Sloop fails to state necessary elements of negligent
supervision. However, the complaint, taken as true, does allege
facts indicating the welfare of the children on the hayride had been
entrusted to the supervisors appointed by St. Mark's for purposes
of safely operating the hayride. Therefore, a motion to dismiss in
favor of St. Mark's is premature.
VI. Applicability of N.C. Gen. Stat. § 1-539.10
Defendants assert a motion to dismiss is warranted because
Clontz failed to allege St. Mark's and Allen Sloop waived immunity
from civil liability afforded to volunteers. North Carolina General
Statute § 1-539.10 (2001) provides for immunity from civil liability
for volunteers performing services for charitable organizations
under specific circumstances. To the extent the organization or
volunteer has liability insurance, that immunity, which is in the
nature of a defense, is waived. Id. Where disclosure of some fact
necessarily defeats a claim, dismissal under Rule 12(b)(6) is
appropriate. Forbis v. Honeycutt, 301 N.C. 699, 701, 273 S.E.2d
240, 241 (1980). No immunity necessarily defeating the claim has
been proffered. The immunity conferred by N.C. Gen. Stat. § 1-
539.10 depends on the absence of liability insurance carried bydefendants. Since no showing has yet been made by defendants that
the immunity applies, it does not act as a bar to recovery that
would otherwise justify the granting of a motion to dismiss.
For the foregoing reasons, the dismissal by the trial court of
all claims against Allen Sloop is affirmed. The dismissal by the
trial court of the claims of premises liability and violation of
N.C. Gen. Stat. § 20-135.2B against St. Mark's is also affirmed.
The dismissal by the trial court of the remaining claims against St.
Mark's is reversed.
Affirmed in part and reversed in part.
Judges McGEE and HUNTER concur.
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