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1. Appeal and Error_appealability--dismissal of one of several defendants--substantial right affected
An appeal from a dismissal under N.C.G.S. § 1A-1, Rule 12(b)(6), was interlocutory but not premature where all of plaintiffs' claims arose from the same event and the order granting a dismissal as to this defendant affected plaintiffs' right to have claims of joint and concurrent negligence determined in a single proceeding.
2. Negligence_passenger in car_no right or duty to control car
The trial court did not err by granting a dismissal for failure to state a claim upon which relief can be granted for a passenger in the rear seat of an automobile which crossed a center line and struck plaintiffs' vehicle. Although plaintiffs made allegations of negligence concerning the fact that the driver was an unlicensed unemancipated minor, plaintiffs did not allege that this defendant had a legal right or duty to control the motor vehicle. Defendant was simply a passenger in the car.
3. Pleadings_Rule 11 sanctions_negligence claim against passenger in car_no basis in
The trial court did not abuse its discretion by imposing Rule 11 sanctions in an automobile accident case where a claim was filed against a passenger in the back seat of an automobile who had no legal right or duty to control the operation of the vehicle. Moreover, the findings were sufficient to support the attorney fees plaintiffs' counsel was ordered to pay.
Gray, Johnson, Blackmon, Lee & Lawson, L.L.P., by Mark V. L.
Gray and Sharon M. Lawson-Davis for plaintiff appellant.
Hall, Rodgers, Gaylord, Millikan & Croom, PLLC, by Jonathan E. Hall and Kathleen M. Millikan for defendant appellee.
Plaintiffs appeal orders of the trial court granting defendant Ming Hon Suen's motion to dismiss and motion for imposition of sanctions. We affirm both orders.
On 24 February 2005, defendant Erica Hsu and plaintiff Rolesha Andrews Harris were operating motor vehicles in opposite directions on Barbee Road in Durham County, North Carolina. Erica Hsu was fourteen years old and had neither a learner's permit nor a license to drive pursuant to N.C. Gen. Stat. . 20-11. Hsu operated the motor vehicle with the permission and consent of her father, defendant Chieh C. Hsu, who was a front-seat passenger in the car. Defendant Ming Hon Suen was a passenger in the backseat of the car driven by Erica Hsu. Rolesha Andrews Harris' daughter, Eden Harris, was restrained in a child safety seat in the backseat of Harris' car. Rolesha Harris was approximately seven months pregnant with Jonathan Andrew Harris at the time of the accident. Plaintiff's complaint alleged that the two vehicles collided after Erica Hsu lost control of her vehicle while attempting to adjust the heater. The Hsu vehicle crossed the center line and struck plaintiff's vehicle. The impact caused plaintiffs' car to roll several times before coming to rest on its roof beside the road.
As a result of the collision, Rolesha Andrews Harris was required to have an emergency caesarian section delivery. Jonathan Andrew Harris was born with brain damage and died four days later, on 28 February 2005, as a result of the trauma and injuries hesustained in the collision. Rolesha Andrews Harris and Eden Harris sustained injuries requiring medical treatment.
On 10 June 2005, plaintiffs filed a complaint alleging the negligence of Daimler Chrysler Corporation, Elkins Motor Company, Key Safety Systems, Inc., Chieh C. Hsu, Doris Hsu, Erica Hsu and Yu Wang. On 16 August 2005, plaintiffs filed an amended complaint that added a cause of action against Ming Hon Suen. On 31 October 2005, Ming Hon Suen filed a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), and a motion for imposition of sanctions against plaintiffs and their attorneys pursuant to N.C. Gen. Stat. § 1A-1, Rule 11. On 28 November 2005, the trial court entered an order granting Ming Hon Suen's motion to dismiss with prejudice, and a second order imposing sanctions and directing that plaintiffs' counsel reimburse Ming Hon Suen the sum of $1,500 for attorney's fees. Plaintiffs appeal.
There must . . . in order that two persons
riding in an automobile, one of them driving,
may be deemed engaged in a joint enterprise
for the purpose of imputing the negligence of
the driver to the other, exist concurrently
two fundamental and primary requisites, to
wit, a community of interest in the object and
purpose of the undertaking in which the
automobile is being driven and an equal right
to direct and govern the movements and conduct
of each other in respect thereto. The mere
fact that the occupant has no opportunity to
exercise physical control is immaterial.
James, 233 N.C. at 598, 65 S.E.2d at 219 (quoting 4 Blashfield Cyclopedia of Automobile Law and Practice . 2372 (emphasis added)); see also 1 Blashfield Automobile Law and Practice §. 62.25, 62.26, 62.27 (3d ed. 1966). A common enterprise in riding is not enough; the circumstances must be such as to show that [the passenger] and the driver had such control over the car as to be substantially in the joint possession of it. James, 233 N.C. 591, 65 S.E.2d 214 (citing Hill, 190 N.C. at 431, 130 S.E. at 6). Again, the issue is the legal right to control rather than the actual exercise of control. Id. (quotation omitted).
With regard to passengers in automobiles who are neither owner-occupants nor on a joint enterprise, our Supreme Court has held that negligence on the part of the driver of an automobile will not, as a rule, be imputed to another occupant or passenger unless such other occupant . . . has some kind of control over the driver. Tyree v. Tudor, 183 N.C. 363, 370, 111 S.E. 714, 717 (1922) (quotation omitted); see, e.g., Pusey v. R. R., 181 N.C.137, 142, 106 S.E. 452, 453 (1921) (holding that the negligence of the driver could not be imputed to the passenger where it was not the passenger's car and he had no control over the driver); see also Ellis v. Gillis, 17 N.C. App. 297, 298, 193 S.E.2d 774, 775 (1973) (holding that the trial court did not err by directing verdict in favor of the passenger, reasoning that the driver's negligence was not imputed to the passenger, driver's mother, who did not control or have the right and duty to exercise control of the driver's conduct in the operation of the vehicle).
Plaintiffs erroneously rely on the following language from Williams v. Blue, 173 N.C. 501, 503, 92 S.E. 270 (1917), to impute negligence on passenger Suen:
One in charge of operation of a motor vehicle, although he is neither the owner nor the person actually operating it, is nevertheless liable for injury sustained by third persons by reason of its negligent operation, as the person actually operating the vehicle will be deemed his servant irrespective of whether he employed him or not.
Id. (emphasis added). Since 1917, numerous opinions from the appellate courts of North Carolina have construed and rendered an interpretation of the aforementioned language from Blue. The Court in Dillon v. City of Winston-Salem, 221 N.C. 512, 520, 20 S.E.2d 845, 850 (1942) , cited Blue for the following proposition: [W]here it appears that the passenger has or exercises control over the driver, negligence of the driver is imputable to the passenger. In Williams v. R. R., 187 N.C. 348, 351, 121 S.E. 608, 609 (1924), the Court clarified the holding of Blue and stated that the negligence of a driver . . . is not imputable to a passengertherein unless the passenger has assumed such control and direction of the vehicle as to be practically in control thereof[.] Furthermore, the Court in Tudor, 183 N.C. at 371, 111 S.E. at 717, cited Blue and explained that [t]he prevailing view is that where the occupant has no control over the driver . . . the doctrine of imputed negligence does not apply. Id. (quotation omitted).
Here, plaintiffs made the following allegations of negligence as to the defendant Ming Hon Suen:
[F]ailed to prevent or advise Defendant Erica Hsu not to operate the vehicle knowing that she did not have a valid learner's permit or other driving privileges;
[F]ailed to exercise reasonable control and management over the vehicle to prevent injury to other drivers when he had the means to do so;
[F]ailed to recognize the danger posed to members of the community by allowing an unlicensed unemancipated minor to operate a motor vehicle;
[F]ailed to warn members of the community that an unlicensed unemancipated minor was operating a motor vehicle; and
[A]cted or failed to act in other ways that may be shown through discovery and at trial.
We first note that plaintiffs, after relying on Blue, do not assert in their amended complaint that Ming Hon Suen was in charge of the operation of the motor vehicle. Blue, 173 N.C. 501, 92 S.E. 270 . In fact, plaintiffs do not assert that Suen had either the legal right, duty or opportunity to exercise any control whatsoever over the operation or management of the vehicle. Rather,plaintiffs allege that Suen could have taken over the operation and management of the car had he so chosen.
We hold that under the controlling case law of this State, plaintiffs' allegations do not, as a matter of law, state a claim for negligence against defendant Ming Hon Suen. Plaintiffs do not allege, nor does the complaint contain allegations to support, the following possible legal theories for the liability of Ming Hon Suen: (1) that Ming Hon Suen had a special relationship to either Erica Hsu, the driver of the vehicle, or to plaintiffs; (2) that Ming Hon Suen was the owner-occupant of the vehicle; (3) that Ming Hon Suen was on a joint enterprise with Erica Hsu; (4) that Ming Hon Suen had the legal right and duty to control the operation of the motor vehicle, and the reasonable opportunity to exercise the right or duty coupled with a failure to do so; or (5) that Ming Hon Suen actually negligently exercised control over the vehicle. Since he was merely a guest passenger in the backseat of the vehicle, he had no legal right or duty to: (1) prevent Erica Hsu from operating or advise her not to operate the vehicle; (2) exercise control or management over the vehicle; (3) or to warn members of the community that Erica Hsu was unlicensed. Furthermore, in the absence of a legal duty, any failure of Ming Hon Suen to act affirmatively to prevent the negligence of Erica Hsu is not actionable at law.
The evidence discloses that defendant . . . was simply a passenger in the automobile. Gillis, 17 N.C. App. at 298, 193 S.E.2d at 775 (holding that the trial court did not err by grantingdefendant's motion to dismiss because there was no evidence of any other relationship which would permit the negligence of the [driver] to be imputed to the [passenger]). Absent legal grounds for visiting civil liability on defendant[s], our courts cannot offer plaintiffs the requested remedy. Stein, 360 N.C. at 325, 626 S.E.2d at 266. This assignment of error is without merit.
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