An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-154

NORTH CAROLINA COURT OF APPEALS

Filed: 02 December 2003

HERBERT M. GREEN,
    Plaintiff

v .                         Alamance County
                            No. 00 CVS 1615
DWIGHT EDWARD WALKER
and MILLER BREWING COMPANY,
    Defendants

    Appeal by plaintiff from an order entered 25 September 2002 by Judge James C. Spencer, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 29 October 2003.

    Egerton & Associates, P.A., by Lawrence Egerton, Jr., for plaintiff-appellant.

    Smith Moore LLP, by Jon Berkelhammer, for defendant-appellee.

    STEELMAN, Judge.

    The sole issue on appeal is whether the trial court erred in dismissing plaintiff's complaint pursuant to N.C. Gen. Stat. § 1A- 1, Rule 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons discussed herein, we affirm.
    Plaintiff's complaint alleges that Dwight Edward Walker (Walker) was an employee of defendant, Miller Brewing Company (Miller), at its brewery in Eden, Rockingham County, North Carolina. Miller's manual provided that each employee was entitled to receive three free cases of beer per month. Walker availed himself of this benefit.     Plaintiff's complaint further alleges that on 3 June 2000, Walker consumed at least four bottles of beer with a 5.6% alcohol content, which was furnished to Walker by Miller. That evening plaintiff and Walker had an argument, which led to Walker striking plaintiff in the face. When plaintiff tried to defend himself, Walker intentionally shot plaintiff with a shotgun. These events are alleged to have occurred in the evening at Walker's residence. Walker pled guilty to the charge of felonious assault with a deadly weapon inflicting serious injury. On 25 July 2000, plaintiff filed a suit against Walker for negligence, gross negligence, and assault and battery. On 14 November 2001, plaintiff amended his complaint, adding Miller as a defendant, and alleging that his injuries were caused by Miller's negligence and gross negligence. Plaintiff sought punitive damages from both defendants.
    Plaintiff alleged that Walker was known to be an alcoholic by Miller, yet Miller continued to provide him with free beer. He further alleged that it was foreseeable that giving free beer to an alcoholic would result in injuries to third parties “by drunk driving or other violent conduct.”
    On 2 July 2002, Miller filed a motion to dismiss pursuant to North Carolina Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. On 25 September 2002, this motion was granted and plaintiff's claims against Miller were dismissed with prejudice. On 22 October 2002, plaintiff voluntarily dismissed the claim against Walker without prejudice,pursuant to Rule 41(a) of the North Carolina Rules of Civil Procedure, and gave notice of appeal.
    In his sole assignment of error, plaintiff argues that the trial court erred in dismissing plaintiff's case against Miller for failure to state a claim upon which relief could be granted. We disagree.
    A motion to dismiss for failure to state a claim upon which relief may be granted challenges the legal sufficiency of a pleading. Walker v. Sloan, 137 N.C. App. 387, 392, 529 S.E.2d 236, 241 (2000). In ruling on a motion to dismiss under Rule 12(b)(6), a court must determine whether, taking all allegations in the complaint as true, relief may be granted under any recognized legal theory. Taylor v. Taylor, 143 N.C. App. 664, 668, 547 S.E.2d 161, 164 (2001). A complaint may be dismissed pursuant to Rule 12(b)(6) if the complaint on its face reveals that no law supports the claim or that sufficient facts to prove an element of the claim are absent, or if the complaint discloses facts which necessarily defeat the claim. See Shell Island Homeowners Ass'n v. Tomlinson, 134 N.C. App. 217, 225, 517 S.E.2d 406, 413 (1999).
    “Actionable negligence occurs when a defendant owing a duty fails to exercise the degree of care that a reasonable and prudent person would exercise under similar conditions, or where such a defendant of ordinary prudence would have foreseen that the plaintiff's injury was probable under the circumstances.” Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473, 562 S.E.2d 887, 892 (2002) (citations omitted). In order to properly allegea cause of action for negligence, the plaintiff must allege four things: (1) duty, (2) breach of duty, (3) proximate cause, and (4) damages. Hunt v. N.C. Dept. of Labor, 348 N.C. 192, 195, 499 S.E.2d 747, 749 (1998). When an act or conduct is done purposely and with knowledge that such act is a breach of duty to others, that is with a conscious disregard of the safety of others, it rises to the level of gross negligence. Yancey v. Lea, 354 N.C. 48, 53, 550 S.E.2d 155, 158 (2001).
    In Winters v. Lee, 115 N.C. App. 692, 446 S.E.2d 123, disc. rev. denied, 338 N.C. 671, 453 S.E.2d 186 (1994), this Court stated:
        An inherent component of any ordinary negligence claim is reasonable foreseeability of injury, which has been discussed by our courts both in terms of the duty owed and of proximate cause. In order to plead this element properly, a plaintiff must set out allegations showing that “a man of ordinary prudence would have known that [plaintiff's injury] or some similar injurious result was reasonably foreseeable . . . .” However, foreseeability “requires only reasonable prevision. A defendant is not required to foresee events which are merely possible but only those which are reasonably foreseeable.”

Id. at 694, 446 S.E.2d at 124 (alteration in original) (citations omitted). Moreover, one generally does not have a duty to protect another from the criminal conduct of third persons because such conduct cannot reasonably be foreseen. O'Connor v. Corbett Lumber Corp., 84 N.C. App. 178, 182, 352 S.E.2d 267, 270 (1987); Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 638, 281 S.E.2d 36, 38 (1981).     This Court's decision in James v. Board of Education, 60 N.C. App. 642, 300 S.E.2d 21 (1983), is instructive. In James, a student was injured when her fellow classmates were misbehaving during the teacher's absence. Id. at 643, 300 S.E.2d at 22. The student's parents sued her teacher, alleging that previous misbehavior by students in the classroom gave rise to a duty on behalf of the teacher to protect against injuries to her students that might occur while she was absent from her classroom. Id. at 643-44, 300 S.E.2d at 22. This Court rejected that argument, stating:
        [F]oreseeability of harm to pupils in the class or at the school is the test of the extent of the teacher's duty to safeguard her pupils from dangerous acts of fellow pupils, and absent circumstances under which harm to her pupils might have been reasonably foreseen during her absence, [the teacher] was not under a duty to either remain with her class at all times or to provide other adult supervision at all times while she was absent.

Id. at 648, 300 S.E.2d at 24. The Court held that because the prior incidents were not assaultive or dangerous in nature, they were not sufficient to charge the teacher “with the requisite knowledge that the pupils might injure or harm each other in her absence.” Id. at 648, 300 S.E.2d at 25.
    Another instructive case is Winters v. Lee, 115 N.C. App. 692, 446 S.E.2d 123, disc. rev. denied, 338 N.C. 671, 453 S.E.2d 186 (1994). In Winters, the plaintiff was attacked in her home by a man named Randy, who was intoxicated when he drove to plaintiff's home in an automobile provided by the defendant. Id. at 693, 446 S.E.2d at 123-24. The plaintiff sued the defendant, claiming thatthe defendant knew or should have known Randy posed a danger to the plaintiff. Id. This Court dismissed plaintiff's claim, pursuant to Rule 12(b)(6), stating:
        [W]e do not believe it foreseeable by a person of ordinary prudence that Randy would thereafter drive to a private residence and stab or otherwise assault the occupant. . . . Further, there is no claim Randy said or did anything which reasonably would have put defendant on notice that Randy was contemplating using the automobile to commit an assault or similar act of violence. Reviewing plaintiff's complaint, one find no declaration of facts supporting any nexus of foreseeability between defendant's act of lending her automobile to Randy and plaintiff's subsequent injury.

        Under these circumstances, plaintiff's complaint fails to allege facts sufficient “to satisfy [one of] the substantive elements,” of a claim of common law negligence, i.e., foreseeability.

Winters, 115 N.C. App. at 697, 446 S.E.2d at 126 (alteration in original) (citation omitted).
    Plaintiff's complaint fails to allege sufficient facts indicating that plaintiff's injuries were a foreseeable result of Miller's conduct. It is devoid of any allegation that Miller knew or should have known that Walker became violent or assaultive when intoxicated. The only allegations contained in the complaint of Walker's conduct prior to the June 2000 assault were of his prior driving while impaired convictions, the most recent of which was more than ten years before the assault. The complaint merely recites this conduct, and does not allege that Miller was aware of the conduct. The risk that Walker would criminally assault another person while under the influence of alcohol was not a risk that aperson of ordinary prudence would have reasonably foreseen as a result of providing free beer to Walker. See id. Having failed to allege the requisite foreseeability, plaintiff's complaint is inadequate to allege a duty on the part of Miller or proximate cause, both of which are necessary elements of plaintiff's negligence claim. See id. Having failed to allege a claim for negligence, plaintiff's claim for gross negligence on the part of Miller also fails. This assignment of error is without merit.
    NO ERROR.
    Judges MARTIN and HUDSON concur.
    Report per Rule 30(e).

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