An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1065


Filed: 17 June 2003


v .                         Iredell County
                            No. 01 CVS 2795


    Appeal by plaintiff from order entered 20 May 2002 by Judge Mark E. Klass in Iredell County Superior Court. Heard in the Court of Appeals 15 May 2003.

    Parker & Howes, L.L.P., by David P. Parker, for plaintiff- appellant.

    Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Mel J. Garofalo and Jason R. Benton, for defendant-appellee.

    CALABRIA, Judge.

    The instant case before this Court involves a second appeal concerning a cause of action filed 16 October 2001. The complete facts are set forth in Clontz v. St. Mark's Evangelical Lutheran Church, ___ N.C. App. ___, 578 S.E.2d 654 (2003) (“Clontz I”). The facts relevant to this appeal are as follows.
    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. As part of the festivities, St. Mark'sorganized a hayride for the younger members or guests attending the event. Both children and adults rode on a flatbed trailer pulled by a farm tractor driven by Harry A. Sloop (“defendant”).
    Millette Clontz (“plaintiff”) was not a member of St. Mark's but helped with the hayride by standing in the woods and making scary noises. When the last hayride of the night passed plaintiff, she came out from the woods and started walking alongside the trailer. While walking, plaintiff saw a child near the edge of the trailer, waving his arms and appearing to be losing his balance. Plaintiff stepped up to the side of the trailer, and as she pushed the child back onto the trailer bed to prevent his fall, plaintiff fell under the trailer. Plaintiff was impaled by part of the trailer, dragged underneath the trailer for a short distance, and finally run over by the trailer. Plaintiff suffered extensive and permanent bodily injuries.
    Plaintiff filed suit on 16 October 2001 in the Superior Court of Iredell County against St. Mark's, H. Allen Sloop, and defendant, jointly and severally, alleging negligence arising from premises liability, negligent supervision, and negligent infliction of emotional distress. In an order dated 20 March 2002, the trial court dismissed plaintiff's complaint as to St. Mark's and Allen Sloop.   (See footnote 1)  On 2 May 2002, defendant filed a motion to dismiss under N.C.R. Civ. P. 12(b)(6) (2003). On 20 May 2002, the trial court granted defendant's motion. Plaintiff gave notice of appeal on 29 May 2002, assigning error to the trial court's order on the groundsthat the complaint stated a claim upon which relief could be granted.
    “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 (1981).
    Plaintiff, in her complaint, alleged defendant was 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 isforeseeable. [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 appeal to this Court, plaintiff asserts her complaint against defendant was sufficient on two grounds: (I) negligent supervision of the children on the hayride and (II) negligent operation of the hayride.
I. Negligent supervision
    Plaintiff asserts the complaint stated a claim upon which relief could be granted because it alleged defendant had a heightened duty to supervise the young children riding on an inherently dangerous hayride. The duty of an adult host or supervisor who is entrusted with and assumes the responsibility for the welfare of a child is “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). The complaint does not allege defendant was entrusted with or assumed responsibility for the welfare of any child. Thus, no allegation gives rise to aduty to supervise, and this claim against defendant fails to state necessary elements of negligent supervision.   (See footnote 2) 
II. Negligent operation
    Plaintiff also asserts the complaint was adequate because it alleged defendant failed to use reasonable care in the operation of the hayride. Plaintiff's complaint alleges St. Mark's organized the hayride. Accordingly, it was St. Mark's and not defendant who determined which precautions were appropriate for the riders' protection. To the extent plaintiff's assertions involve precautions for the safety of the passengers on the hayride (i.e. overloading, improper lighting, improper lookout, and lack of guard railings), the claims are properly asserted against St. Mark's as the organizing agency.
    The only allegations concerning defendant's involvement in the actual operation of the hayride include the following: (1) the hayride violated N.C. Gen. Stat. § 20-135.2B (2001) prohibiting the transport of children under twelve years of age in the open bed or cargo area of a vehicle under certain circumstances, and (2) the hayride was going no faster than a walking pace. The applicability of N.C. Gen. Stat. § 20-135.2B is limited to vehicles driven or moved on highways by operation of N.C. Gen. Stat. § 20-115 (2001). See also Clontz I, ___ N.C. App. ___, ___, 578 S.E.2d 654, 658 (2003). Since the hayride activities were not alleged to fallwithin the scope of N.C. Gen. Stat. § 20-135.2B, application of this statute is precluded. The remaining allegation, that the hayride was traveling no faster than a walking pace, fails to support the proposition that the operation of the vehicle was conducted in a negligent manner.
    Judges McGEE and TYSON concur.
    Report per Rule 30(e).

Footnote: 1
     That order formed the basis of appeal in Clontz I.
Footnote: 2
     We note there were adults riding in the flatbed trailer with the children. It would be incongruous to insist that an individual driving a motor vehicle must divert his attention from the road to supervise the actions of children behind him while simultaneously insisting that he operate the motor vehicle safely.

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