A motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b)(6)
(2003), challenges the legal sufficiency of a plaintiff's
pleadings:
A Rule 12(b)(6) motion will be granted '(1)
when the face of the complaint reveals that no
law supports plaintiff's claim; (2) when the
face of the complaint reveals that some fact
essential to plaintiff's claim is missing; or
(3) when some fact disclosed in the complaint
defeats plaintiff's claim.' We treat all
factual allegations of the pleading as true
but not conclusions of law.
Sterner v. Penn, 159 N.C. App. 626, 628, 583 S.E.2d 670, 672 (2003)
(quoting
Walker v. Sloan, 137 N.C. App. 387, 392, 529 S.E.2d 236,
241 (2000)) (other citations omitted). On appeal, our standard of
review “'is whether, 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, whether
properly labeled or not.'”
Bowman v. Alan Vester Ford Lincoln
Mercury, 151 N.C. App. 603, 606, 566 S.E.2d 818, 821 (2002)(quoting
Holloman v. Harrelson, 149 N.C. App. 861, 864, 561 S.E.2d
351, 353,
disc. review denied, 355 N.C. 748, 565 S.E.2d 665
(2002)).
If, in its ruling on a Rule 12(b)(6) motion, the trial court
considers evidence outside the pleadings, the motion is converted
to one for summary judgment.
See Silvers v. Horace Mann Ins. Co.,
324 N.C. 289, 292, 378 S.E.2d 21, 24 (1989) (“court considered
matters outside the pleadings and thus treated the motions to
dismiss as motions for summary judgment”). However, “where, as
here, the matters outside the pleading considered by the trial
court consist only of briefs and arguments of counsel, the trial
court need not 'convert the Rule 12 motion into one for summary
judgment under Rule 56[.]'”
Governor's Club Inc. v. Governors Club
Ltd. P'ship, 152 N.C. App. 240, 246, 567 S.E.2d 781, 785 (2002),
aff'd, 357 N.C. 46, 577 S.E.2d 620 (2003) (quoting
Privette v.
University of North Carolina, 96 N.C. App. 124, 132, 385 S.E.2d
185, 189 (1989)).
In the instant case, the court's order states in pertinent
part that “[a]fter reviewing the pleadings and hearing argument
from counsel and the DePalmas, the Court finds that the motion
should be granted.” We conclude that the trial court did not
consider evidence outside the pleadings; therefore, this Court will
confine its review to the pleadings.
The dispositive issue in this case is whether plaintiffs'
claim is barred by the applicable statute of limitations. “A
statute of limitations defense may properly be asserted in a Rule12(b)(6) motion to dismiss if it appears on the face of the
complaint that such a statute bars the claim.”
Horton v. Carolina
Medicorp, 344 N.C. 133, 136, 472 S.E.2d 778, 780 (1996). “Once a
defendant raises a statute of limitations defense, the burden of
showing that the action was instituted within the prescribed period
is on the plaintiff. A plaintiff sustains this burden by showing
that the relevant statute of limitations has not expired.”
Id.
(citations omitted).
Plaintiffs'
pro se complaint
was captioned “Tort - Negligent
Supervision.” The body of the complaint alleges that defendants
were negligent in failing to inform Marcus of the seriousness of
his October 1999 knee injury, failing to properly treat his knee
injury, failing to properly supervise Marcus, and failing to
properly hire, train, and supervise certain school personnel.
Plaintiffs also asserted an individual claim against defendant
David Mills, in his capacity as athletic trainer, for “breach [of]
his duty as a paramedical professional.” Plaintiffs sought
compensatory and punitive damages from defendants “jointly and/or
severally for their negligent acts and omissions herein set
forth[.]” We conclude that plaintiffs' complaint asserts claims
against defendants for negligence.
“Claims based on negligence are governed by [N.C.G.S.] §
1-52(5),”
White v. Consol. Planning, Inc., __ N.C. App. __, __, 603
S.E.2d 147, 147 (2004), which provides that a claim must be brought
within three years on an action for “any other injury to the person
or rights of another, not arising on contract and not hereafterenumerated.” Thus, the general statute of limitations for
negligence claims is three years.
See Johnson v. Raleigh, 98 N.C.
App. 147, 148, 389 S.E.2d 849, 850 (1990) (“statute of limitations
for personal injury allegedly due to negligence is three years”).
In the instant case, plaintiffs' complaint asserts claims for
negligence arising “[o]n or about October 15, 1999 and for a time
thereabout[.]” The complaint generally asserts that defendants
were negligent in their response to Marcus's knee injury, including
their treatment of Marcus's 15 October 1999 knee injury, their
subsequent supervision of Marcus, and their failure to inform
Marcus of the seriousness of the 15 October 1999 injury.
Plaintiffs' claim against Mills individually also arises from the
15 October 1999 knee injury and Mills' alleged failure to “attend
to the needs of an injured student athlete” and “intercede and
protect the Plaintiff from a known or potential harm[.]” Finally,
plaintiffs' complaint expressly asserts that defendants' negligence
occurred “[d]uring the time period between October, 1999 through
December 2000[.]” Thus, the factual allegations of plaintiffs'
complaint uniformly assert that defendants' negligence arose on 15
October 1999 and continued for some period of time thereafter. We
conclude that the complaint clearly establishes that plaintiffs'
alleged cause of action accrued on 15 October 1999. Consequently,
because plaintiffs' complaint was not filed until 31 May 2003, it
was barred by the applicable three-year statute of limitations.
Plaintiffs, however, argue on appeal that “the events which
lead up to the injury complained of did not occur until August 2000through November 2000”; that “the facts of the injury were never
revealed by the Defendants”; and that the “date of discovery of
this deception was November 17 2000 and should be the controlling
date for the court to determine the issue of the Statute of
Limitations.” We reject plaintiffs' argument for several reasons.
First, plaintiffs' arguments are based in part on documents
outside the complaint. Plaintiffs' brief cites an affidavit
executed by plaintiff Arlene DePalma and a medical record kept by
a Dr. Szura as proof of a “pattern of deceit” and of the date of
its discovery. However, neither the affidavit nor the medical
record referenced in plaintiffs' brief were part of the complaint.
Therefore, these are not considered in our review of the trial
court's order. As discussed above, the factual allegations in the
complaint unequivocally assert that defendants' negligence began on
the date of Marcus's 15 October 1999 injury, and the complaint
fails to allege any negligent actions by the defendants between
August and November 2000.
For the same reason, we do not consider certain of plaintiffs'
assertions, made for the first time on appeal and not contained in
their complaint. These include allegations that defendants
violated certain specifically identified provisions of the General
Statutes or of the North Carolina Administrative Code; that a Dr.
Szura performed a test on 15 October 1999 diagnosing Marcus's knee
condition; that the defendants intentionally concealed this
“diagnosis” from plaintiffs; and that defendants conspired to
prevent plaintiffs from learning the extent of Marcus's kneeinjury. None of these assertions are contained in plaintiffs'
complaint, which is based on allegations of negligence, contains
only a generalized conclusory allegation that defendants' actions
were “contrary to State Law and/or Administrative Regulation,” and
which does not mention Dr. Szura.
Secondly, we reject plaintiffs' argument that their complaint
states a basis to extend the statute of limitations. Plaintiffs
argue on appeal that they did not learn of defendants' negligence
until November 2000. On this basis, plaintiffs contend that the
statute of limitations was tolled until their belated “discovery”
of the extent of Marcus's injuries. It is true that an exception
to the three year statute of limitations is found in N.C.G.S. § 1-
52(16), which provides in relevant part that in an action for
personal injury “[u]nless otherwise provided by statute, . . . the
cause of action . . . shall not accrue until bodily harm to the
claimant or physical damage to his property becomes apparent or
ought reasonably to have become apparent to the claimant, whichever
event first occurs[.]” However, the statute “serves to delay the
accrual of a cause of action in the case of latent damages until
the plaintiff is aware he has suffered damage, not until he is
aware of the full extent of the damages suffered.”
Pembee Mfg.
Corp. v. Cape Fear Constr. Co., 69 N.C. App. 505, 509, 317 S.E.2d
41, 43 (1984),
aff'd, 313 N.C. 488, 329 S.E.2d 350 (1985).
Accordingly, “as soon as the injury becomes apparent to the
claimant or should reasonably become apparent, the cause of action
is complete and the limitation period begins to run. It does notmatter that further damage could occur; such further damage is only
aggravation of the original injury.”
Pembee Mfg. Corp. v. Cape
Fear Constr. Co., 313 N.C. at 493, 329 S.E.2d at 354 (1985)
(citing
Matthieu v. Gas Co., 269 N.C. 212, 152 S.E. 2d 336 (1967)).
“In applying the discovery rule, it must be determined when
[plaintiff] knew or should have known the cause of action accrued.
Under common law, 'when the right of the party is once violated,
even in ever so small a degree, the injury . . . at once springs
into existence and the cause of action is complete.'”
McCarver v.
Blythe, 147 N.C. App. 496, 499, 555 S.E.2d 680, 683 (2001) (quoting
Mast v. Sapp, 140 N.C. 533, 540, 53 S.E. 350, 352 (1906). Thus,
“where plaintiffs clearly know more than three years prior to
bringing suit about damages, yet take no legal action . . . the
fact that further damage is caused does not bring about a new cause
of action.”
Robertson v. City of High Point, 129 N.C. App. 88, 91,
497 S.E.2d 300, 302 (1998) (citing
Pembee Mfg. Corp. v. Cape Fear
Constr. Co.,
313 N.C. 488, 329 S.E.2d 350 (1985)
).
In the instant case, the complaint asserts that defendants
were negligent in their treatment of and response to Marcus's
October 1999 injury. By its own terms, plaintiffs' complaint
alleges that defendants' negligence began on 15 October 1999. It
is undisputed that on 15 October 1999 plaintiffs knew Marcus had
been injured. Thus, “plaintiff's injuries were apparent to
plaintiff and his [condition] could have been generally recognized
and diagnosed by a medical professional . . . plaintiff's injuries
and [condition] were not latent; thus, § 1-52(16) is inapplicableto the facts of this case.”
Soderlund v. Kuch, 143 N.C. App. 361,
370, 546 S.E.2d 632, 638 (2001). Moreover, defendants'
“supervision” of Marcus in relation to his football injury also
arose on 15 October 1999. Finally, the allegations of plaintiffs'
complaint do not support their arguments on appeal that plaintiffs
(1) were unaware of defendants' negligence or of the nature of
Marcus's injury until November 2000, (2) were prevented by
defendants from determining the extent of Marcus's injury, or (3)
could not reasonably have learned of defendants' negligence or the
extent of Marcus's injury at some time within three years of his 15
October 1999 injury. We conclude that plaintiffs' complaint fails
to include any allegations that would toll the applicable statute
of limitations.
We also reject plaintiffs' argument that the “continuing
supervision” of Marcus by defendants between 15 October 1999 and
December 2000 is the equivalent, for purposes of the statute of
limitations, of a medical “continuing course of treatment.”
Plaintiffs cite no authority to support this proposition, and we
find none. Moreover, “[o]ur Supreme Court has adopted the
'continuing course of treatment doctrine' with regard to
malpractice by hospitals and other health care providers.”
Delta
Envtl. Consultants, Inc. v. Wysong & Miles Co., 132 N.C. App. 160,
169, 510 S.E.2d 690, 696 (1999) (citing
Horton v. Carolina
Medicorp, Inc., 344 N.C. 133, 472 S.E.2d 778 (1996)).
This Court
has not extended the doctrine to situations outside of the medical
malpractice arena.
See Delta, id. at 170, 510 S.E.2d at 697 (“inlight of the holding in
Horton, which narrowly defines the
'continuing course of treatment doctrine,' we elect not to expand
the doctrine's breadth”). Plaintiffs herein argue vehemently that
they have
not filed a medical malpractice claim, making the
“continuing course of treatment” exception inapplicable.
For the reasons discussed above, we conclude that plaintiffs'
claim was barred by the statute of limitations, and was properly
dismissed by the trial court. Having reached this conclusion, we
have no need to address the parties' arguments regarding the
special requirements for filing a medical malpractice claim. The
trial court's order is
Affirmed.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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