White v Roebuck, (03-987) 06/15/2004

Appeal by plaintiff from judgment entered 14 May 2003 by Judge W. Russell Duke, Jr. in the Superior Court in Pasquotank County. Heard in the Court of Appeals 22 April 2004.

    Marcari, Russotto & Spencer, P.C., by Donald W. Marcari and R. Brad Balaban, for the plaintiff-appellant.

    Baker, Jenkins, Jones, Murray, Askew & Carter, P.A., by Ronald G. Baker and W. Hugh Jones, Jr., for the defendant-appellees.

    HUDSON, Judge.

    Plaintiff filed suit seeking damages for injuries sustained at age 8 when she was hit in the face by a billiard ball while playing at defendants' house. On 18 February 2003, defendants moved to dismiss pursuant to N.C. R. Civ. P. 12(b)(6). On 14 May 2003, the trial court granted the motion. Plaintiff appeals. As explained below, we affirm in part, reverse in part, and remand.
    In ruling on a motion to dismiss brought under Rule 12(b)(6), the court must determine if, “as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whetherproperly labeled or not.” Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). Additionally, “a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” Id. at 671, 355 S.E.2d at 840 (emphasis in original)(citations omitted).
    Here, the plaintiff alleges a claim based upon negligent supervision, a cause of action recognized under North Carolina law. See Anderson v. Canipe, 69 N.C. App. 534, 537, 317 S.E.2d 44, 46 (1984). Specifically, the complaint alleges that the defendants invited plaintiff to their home, as they had in the past, to play with defendant Kathryn Roebuck. On all previous visits, defendant father instructed Kathryn, then age seven, not to use the billiards table. This time the father allowed the girls to play with the billiards table. The children began to bounce the billiard balls quickly toward each other on the table's surface. The defendant parents, who were both in the house within 15-20 feet of the table, could see and hear the girls. After more than ten minutes, defendant mother called Kathryn into the kitchen to speak to her about “her rambunctious behavior.” Immediately after the conversation, Kathryn threw a billiard ball that bounced off the table and hit plaintiff in the mouth, causing severe dental injuries.
    Plaintiff's complaint also contains the following allegations:
    12. At the time set out above, the defendants were negligent in that they:
        (a) Invited minor plaintiff onto their property while Kathryn E. Roebuck was not being properly supervised.

        (b) Failed in their duty to guard against injury or damage from reasonably anticipated conduct of Kathryn E. Roebuck; and

        (c) Failed as the owners of the defendants' property located at 1816 Rivershore Road, Elizabeth City, North Carolina, to keep the defendants' property in a reasonably safe condition; and

        (d) Allowed minor children to engage in unsafe and dangerous conduct.

    These allegations in plaintiff's complaint suffice to set forth a claim for negligent supervision, and thus to withstand a Rule 12(b)(6) motion to dismiss. We note, however, that plaintiff's complaint contains no allegation that defendant Kathryn E. Roebuck, then a minor, was negligent. Thus, we affirm the superior court's order dismissing defendant Kathryn E. Roebuck. We reverse as to the parents and remand for further proceedings.
    Affirmed in part, reversed in part, and remanded.
    Judges MCCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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