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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
LATTICE CURL and wife, EVELYN CURL, LEWIS BOGER and wife, KATHY
BOGER, Plaintiffs, v. AMERICAN MULTIMEDIA, INC., AMI, A.M.I.,
INC., AMERICAN MEDIA INTERNATIONAL, LLC, AMERICAN MEDIA
INTERNATIONAL, LTD., BURLINGTON PROPERTY, LLC, BILL AND PEGGY
BRITT LIMITED PARTNERSHIP, BILLY B. BRITT, PEGGY G. BRITT,
EARL G. BROWN, EMMA L. BROWN, RICHARD B. EVANS, PEGGY F. EVANS,
CATHERINE ANN EVANS, RICHARD TIM EVANS, CLARENCE FARRELL, KATHRYN
FARRELL, ROBERT POWELL, SR. and RUTH MAXINE POWELL, Plaintiffs,
v. AMERICAN MULTIMEDIA, INC., AMI, A.M.I., INC., AMERICAN MEDIA
INTERNATIONAL, LLC, AMERICAN MEDIA INTERNATIONAL, LTD.,
BURLINGTON PROPERTY, LLC, BILL LIMITED PARTNERSHIP, BILLY B.
BRITT, PEGGY G. BRITT, Defendants
Filed: 18 December 2007
1. Appeal and Error--motion to amend record--motion to dismiss based on appellate
Defendants' first motion to amend the record in order to add the affidavit of a geologist
who worked with defendants is granted, and defendants' second motion to dismiss plaintiffs'
appeal for violation of the Rules of Appellate Procedure in a case seeking damages for the
contamination of plaintiffs' wells with certain toxic chemicals is denied.
2. Appeal and Error--appealability--interlocutory order--grant of partial summary
judgment--dismissal of remaining claims without prejudice makes a final order
Defendants' motion seeking dismissal of plaintiffs' appeal in a case seeking damages for
the contamination of plaintiffs' wells with certain toxic chemicals on the basis that it is from an
interlocutory order is denied because: (1) plaintiffs voluntarily dismissed without prejudice their
remaining claims for property damage against defendants under N.C.G.S. § 1A-1, Rule 41 after
the entry of partial summary judgment, thus making the trial court's grant of partial summary
judgment a final order; and (2) although defendants contend Hill v. West, 177 N.C. App. 132
(2006), compels dismissal in the instant case, inasmuch as the holding in Hill was apparently
based in part on appellants' manipulative behavior and failure to follow the Rules of Appellate
Procedure, Hill's holding is restricted to the facts of that case.
3. Oil and Gas_toxic contamination of wells_personal injury claims_new causes of
action_partial summary judgment
The trial court did not err in an action seeking damages for the contamination of
plaintiffs' wells with toxic chemicals by entering partial summary judgment in favor of
defendants on plaintiffs' personal injury claims for monetary damages under the strict liability
provision of the Oil Pollution and Hazardous Substance Control Act set forth in N.C.G.S. § 143-
215.93 based upon loss of chance of continued health/increased risk of serious disease, right not
to be compelled to undergo heightened medical monotoring, and instilling fear of cancer or other
deadly disease because: (1) none of the three claims proposed by plaintiff under the strict liability
statute were asserted in their complaint; (2) plaintiffs have no recognized present injury ; and (3)
recognition of a new cause of action is a policy decision within the province of the legislature.
4. Emotional Distress_intentional infliction_toxic chemicals in wells_absence of
evidence of mental condition
Plaintiffs failed to produce evidence that they had suffered from or had been diagnosed
with or treated for any severe and disabling emotional or mental condition required to establish
the severe emotional distress element of a claim for the intentional infliction of emotional
distress from the alleged contamination by defendants of their wells with toxic chemicals.
Appeal by Plaintiffs from judgment entered 15 January 2007 by
Judge W. Osmond Smith, III, in Alamance County Superior Court.
Heard in the Court of Appeals 31 October 2007.
Pulley, Watson, King & Lischer, P.A., by Guy W. Crabtree, Mark
E. Fogel and Richard N. Watson; and Hopf & Higley, P.A., by
James F. Hopf and Donald S. Higley, II, for Plaintiff-
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by
Robert J. King III, and Alexander Elkan; and Northern Blue,
LLP, by J. William Blue, Jr., for Defendant-Appellees.
This appeal arises from a lawsuit seeking damages for the
contamination of Plaintiffs' wells with certain toxic chemicals.
Plaintiffs appeal from entry of partial summary judgment. We
The Plaintiffs are individuals who are current or former
residents of Hahn Road, in Burlington, North Carolina. Defendants
are individuals and corporations with a present or former interest
in property located near Hahn Road. Defendants' property has had
soil and groundwater contamination with chlorinated solvents,
including trichloroethene (TCE) and tetrachloroethene (PCE),
both of which are harmful to the human body. TCE and PCE
contamination has also occurred in Plaintiffs' wells. In March 2003 Plaintiffs filed suit against Defendants,
alleging that Defendants were liable for contamination of their
wells and asserting claims of negligence, negligence per se, strict
liability under N.C. Gen. Stat. § 143-215.93, nuisance, trespass,
and res ipsa loquitor. Based on these claims, Plaintiffs sought
damages for medical expenses, pain and suffering, the increased
likelihood of future disease, the cost of medical monitoring that
was recommended as a result of Plaintiffs' increased risk of
disease, their fear of future disease and diminished quality of
life, the cost of remediation to their properties, the diminution
in the value of their properties, and the cost of alternative water
On 11 December 2006 the trial court granted Defendants' motion
for partial summary judgment, and dismissed all claims against
Defendants David J. Forsyth and Jerry C. Jones, Jr., who are not
parties to this appeal. In an order entered 15 January 2007, the
trial court dismissed Plaintiffs' personal injury claims for
monetary damages for medical expenses, medical monitoring, pain and
suffering, diminished quality of life, the increased chances that
Plaintiffs would contract serious illness, and claims based on
allegations of psychic or emotional injury. The trial court denied
Defendants' motion for entry of summary judgment on Plaintiffs'
claims for property damages, including their claims of negligence,
negligence per se, nuisance, trespass, res ipsa loquitor, and
strict liability to the extent that they sought damages for
diminution of property value, costs of remediation, costs ofobtaining alternative water supplies, and other property damage.
From this order, Plaintiffs have appealed.
Standard of Review
 Preliminarily, we note that Defendants have filed several
appellate motions. The first of these, Defendants' motion to amend
the record in order to add the affidavit of Walter Beckwith, a
geologist who worked with Defendants, is hereby granted. The
second motion, seeking dismissal of Plaintiffs' appeal for
violation of the Rules of Appellate Procedure, is denied.
 Defendants' third motion, seeking dismissal of Plaintiffs'
appeal as interlocutory, is also denied. A judgment is either
interlocutory or the final determination of the rights of the
parties. N.C. Gen. Stat. § 1A-1, Rule 54(a) (2005). An
interlocutory order is one made during the pendency of an action,
which does not dispose of the case, but leaves it for further
action by the trial court in order to settle and determine the
entire controversy. Veazey v. Durham, 231 N.C. 357, 362, 57
S.E.2d 377, 381 (1950).
In the instant case, the trial court entered an order of
partial summary judgment, leaving Plaintiffs' claims for property
damage still pending. A grant of partial summary judgment,
because it does not completely dispose of the case, is an
interlocutory order from which there is ordinarily no right of
appeal. Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d
674, 677 (1993). However, after the entry of partial summary
judgment, Plaintiffs dismissed their remaining claims againstDefendants, pursuant to N.C. Gen. Stat. § 1A-1, Rule 41 (2005).
N.C. Gen. Stat. §1A-1, Rule 41(a)(1) (2005) provides in pertinent
[A]n action or any claim therein may be
dismissed by the plaintiff . . . by filing a
notice of dismissal at any time before the
plaintiff rests his case[.] . . . Unless
otherwise stated . . . the dismissal is
without prejudice[.] . . .[and] a new action
based on the same claim may be commenced
within one year after such dismissal[.] . . .
All the Plaintiffs dismissed their remaining claims; some did so
without prejudice and others entered dismissals with prejudice.
After entry of voluntary dismissal there was nothing further that
the trial court could do in the case, although certain Plaintiffs
retained the right to refile their claims within a year of entering
dismissal. We find Combs & Assocs. v. Kennedy, 147 N.C. App. 362,
555 S.E.2d 634, (2001), to be instructive in this situation. In
Combs, as in the instant case, the plaintiff took a voluntary
dismissal without prejudice of its remaining claim. The Court
Ordinarily, an appeal from an order granting
summary judgment to fewer than all of a
plaintiff's claim is premature and subject to
dismissal. However, since the plaintiff here
voluntarily dismissed the claim which survived
summary judgment, any rationale for dismissing
the appeal fails. Plaintiff's voluntary
dismissal of this remaining claim does not
make the appeal premature but rather has the
effect of making the trial court's grant of
partial summary judgment a final order.
Id. at 367, 555 S.E.2d at 638. Citing several other cases, the
Combs Court noted further that its holding: comports with the procedural posture of
appeals this Court has initially dismissed as
being interlocutory and then subsequently
heard on appeal following voluntary
dismissals. In Whitford v. Gaskill, 119 N.C.
App. 790, 460 S.E.2d 346 (1995), . . . the
trial court granted partial summary judgment
in plaintiff's favor. The defendant appealed
and this Court dismissed the appeal as
interlocutory[.] . . . [P]laintiff voluntarily
dismissed her claim for damages. This Court
then allowed the defendant's renewed appeal of
the trial court's summary judgment order.
Similarly, in Berkeley Federal Savings Bank v.
Terra Del Sol, Inc., 119 N.C. App. 249, 457
S.E.2d 736 (1995), disc. rev. denied, 342 N.C.
639, 466 S.E.2d 276 (1996), the trial court
granted the plaintiff [partial] summary
judgment[.] . . . This Court initially
dismissed defendants' appeal as interlocutory,
only to allow the appeal following plaintiff's
voluntary dismissal of its remaining claims.
Id. at 367-68, 555 S.E.2d at 639. We agree with the Court in Combs
that our holding on this issue is in accord with precedent.
Additionally in Brown v. Woodrun Ass'n, 157 N.C. App. 121, 577
S.E.2d 708 (2003), this Court ruled on an appeal in which:
[The] Superior Court . . . granted partial
summary judgment in favor of plaintiffs on all
issues other than damages. . . . [D]efendant
appealed to this Court. We remanded the case
to the lower court as interlocutory and not
appealable because there were remaining
factual issues to decide. . . . [P]laintiffs
voluntarily dismissed their damages claim
without prejudice[.] . . . Thereafter,
defendant gave notice of appeal to this
Id. at 123-24, 577 S.E.2d at 710; see also, e.g., Rouse v. Pitt
County Memorial Hospital, 343 N.C. 186, 470 S.E.2d 44 (1996)
(appeal of partial summary judgment dismissed as interlocutory by
this Court, which subsequently hears appeal after plaintiff takes
voluntary dismissals, both with and without prejudice, of remainingclaims). We conclude that, following the dismissal of Plaintiffs'
remaining claims, their appeal was no longer interlocutory.
Defendants, however, ask us to dismiss Plaintiffs' appeal as
interlocutory, based on the holding in a recent case, Hill v. West,
177 N.C. App. 132, 627 S.E.2d 662 (2006). In Hill, following
dismissal of plaintiffs' appeal from partial summary judgment as
interlocutory, appellants took a voluntary dismissal without
prejudice of their remaining claims against defendants. Plaintiffs
then filed a second appeal, which this Court dismissed. Defendants
herein argue that Hill compels dismissal in the instant case. We
note, however, that Hill did not attempt to distinguish its holding
from the significant body of case law holding contra. Moreover,
the Court in Hill stated several reasons for the dismissal,
including plaintiffs' repeated failure to comply with the North
Carolina Rules of Appellate Procedure, and the Court's perception
that the appellants were manipulating the Rules of Civil Procedure
in an attempt to appeal the 2003 summary judgment that otherwise
would not be appealable. Id. at 135, 627 S.E.2d at 665. Inasmuch
as the holding in Hill was apparently based in part on the
appellants' manipulative behavior and failure to follow the Rules
of Appellate Procedure, we conclude that Hill's holding is
restricted to the facts of that case. Defendants' motion is
Summary judgment is properly entered if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuineissue as to any material fact and that any party is entitled to a
judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c)
The purpose of [summary judgment] is to avoid
a formal trial where only questions of law
remain and where an unmistakable weakness in a
party's claim or defense exists. This Court
has . . . instructed that an issue is genuine
if it is supported by substantial evidence,
which is that amount of relevant evidence
necessary to persuade a reasonable mind to
accept a conclusion[.] . . . [A]n issue is
material if the facts alleged would constitute
a legal defense, or would affect the result of
the action, or if its resolution would prevent
the party against whom it is resolved from
prevailing in the action.
Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d
118, 123-24 (2002) (quoting DeWitt v. Eveready Battery Co., 355
N.C. 672, 681, 565 S.E.2d 140, 146 (2002); and Koontz v. City of
Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972))
On appeal of a trial court's allowance of a motion for
summary judgment, we consider whether, on the basis of materials
supplied to the trial court, there was a genuine issue of material
fact and whether the moving party is entitled to judgment as a
matter of law. Evidence presented by the parties is viewed in the
light most favorable to the non-movant. Summey v. Barker, 357
N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (citing Dobson v. Harris,
352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)).
 Plaintiffs argue that the trial court erred as a matter of
law by granting summary judgment for Defendants on Plaintiffs'personal injury claims. Plaintiffs have not identified factual
disputes, but instead argue that summary judgment was improper as
a matter of law. We disagree.
Plaintiffs first discuss the relationship between their claims
and the Oil Pollution and Hazardous Substances Control Act
(OPHSCA), N.C. Gen. Stat. § 143-215.75 (2005) et seq.
Stat. § 143-215.93 (2005) provides in pertinent part: Any person
having control over oil or other hazardous substances which enters
the waters of the State in violation of this Part shall be strictly
liable, without regard to fault, for damages to persons or
property, public or private, caused by such entry[.] On the basis
of § 143-215.93, Plaintiffs ask the Court to enforce the plain
language of OPHSCA and apply its strict liability standard to
personal injury claims.
Plaintiffs are correct that the cited statute imposes strict
liability for personal and property damage on violators of OPHSCA.
However, the standard of liability assumes relevance only in the
context of a valid claim of personal injury.
In that regard,
Plaintiffs ask this Court to
recognize in toxic contamination cases at
least these three causes of action, all of
which are firmly rooted in traditional tort
law: (1) infliction of a loss of chance of
continued health/increased risk of serious
disease; (2) an invasion of personal autonomy,
specifically of the right not to be compelled
to undergo heightened medical monitoring for
the remainder of their lives; and (3) the
instilling of fear of cancer or other deadly
We are sympathetic to Plaintiffs' situation. Although none of
the Plaintiffs is presently diagnosed with an illness caused by
exposure to TCE or
PCE, there is evidence that their exposure to
these chemicals increased their future risk of serious illnesses,
including certain cancers.
These claims are not totally novel;
Plaintiffs in many jurisdictions have raised similar claims. See,
32 Wm. Mitchell L. Rev. 1095 (2006), Note: A fifty-state survey
of Medical Monitoring and the approach the minnesota supreme court should take when
confronted with the issue. However, for several reasons, we elect not
to create these new causes of action.
Firstly, none of the three causes of action proposed by
Plaintiffs were asserted in their complaint, which sought damages
only for negligence; negligence per se
; statutory strict liability;
nuisance; trespass; and res ipsa loquitur
. This Court has long
held that issues and theories of a case not raised below will not
be considered on appeal[.] Westminster Homes, Inc. v. Town of
Cary Zoning Bd. of Adjust.
, 354 N.C. 298, 309, 554 S.E.2d 634, 641
(2001) (citing Smith v. Bonney
, 215 N.C. 183, 184-85, 1 S.E.2d 371,
371-72 (1939); Weil v. Herring
, 207 N.C. 6, 10, 175 S.E. 836, 838
(1934)). Because the pertinent allegations have not been
withdrawn or amended, the pleadings have a binding effect as to the
underlying theory of plaintiff's  claim. Anderson v. Assimos
356 N.C. 415, 417, 572 S.E.2d 101, 102 (2002)
Moreover, the recognition of a new cause of action is a
policy decision which falls within the province of the legislature.
'The excelsior cry for a better system in order to keep step withthe new conditions and spirit of a more progressive age must be
made to the Legislature, rather than to the courts.' Ipock v.
, 85 N.C. App. 70, 73, 354 S.E.2d 315, 317 (1987) (quoting
Henson v. Thomas
, 231 N.C. 173, 176, 56 S.E.2d 432, 434 (1949)).
For example, consider Plaintiffs' argument that the policy
objectives of OPHSCA compel the recognition of 'increased risk of
disease' as a present injury. Sound policy reasons might be
advanced either in favor of or opposition to the creation of this
cause of action, and if such a claim were
recognized, other policy
questions would arise. The questions would include the following
inquiries: What statistical chance of future illness or percent
increase in that likelihood would trigger the cause of action?
Would secondary causes of increased risk, such as cigarette
smoking, preclude recovery? Would plaintiffs be required to
demonstrate present physical effects, such as decreased immune
function or increased cellular concentration of a toxin? Similar
questions would arise upon recognition of the costs of future
medical monitoring as a basis for damages. Would Defendants be
liable for the costs of all medically recommended monitoring, or
would Plaintiffs have to meet some other standard?
The cases cited by Plaintiffs in support of these damages all
involve future damages claimed in connection with a recognized
. However, these cases do not address or support a
freestanding claim for future medical expenses in the absence of a
present injury. Clearly, recognition of the increased risk of disease as a
present injury, or of the cost of medical monitoring as an element
of damages, will present complex policy questions. We conclude
that balancing the humanitarian, environmental, and economic
factors implicated by these issues is a task within the purview of
the legislature and not the courts. Accordingly, we decline to
create the new causes of action or type of damages urged by
 Regarding Plaintiffs' claims for their increased fears and
anxiety, our common law has long recognized claims for negligent
and intentional infliction of emotional distress. We again note
that Plaintiffs failed to bring claims for either of these.
Further, Plaintiffs failed to produce evidence to support these
The essential elements of a claim for intentional infliction
of emotional distress are '(1) extreme and outrageous conduct by
the defendant (2) which is intended to and does in fact cause (3)
severe emotional distress.' Holloway v. Wachovia Bank and Trust
339 N.C. 338, 351, 452 S.E.2d 233, 240 (1994) (quoting Dickens
, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981)). In
this context, the term 'severe emotional distress' means any
emotional or mental disorder, such as, for example, neurosis,
psychosis, chronic depression, phobia, or any other type of severe
and disabling emotional or mental condition which may be generally
recognized and diagnosed by professionals trained to do so. Johnson v. Ruark Obstetrics
, 327 N.C. 283, 304, 395 S.E.2d 85, 97
(1990) (citations omitted).
None of the North Carolina cases cited by Plaintiffs suggest
that a different standard might be applicable. Rather, Plaintiffs
have cited cases that address issues other than the existence of
severe emotional distress, wherein the presence of either a
physical injury or severe emotional injury had been established.
Nor are we persuaded by Plaintiffs' citations from other
jurisdictions that the element of severe
emotional distress is
unnecessary in toxic exposure cases[.]
Plaintiffs produced no evidence that any Plaintiff had
suffered from or was diagnosed with or treated for a severe and
disabling emotional or mental condition. We conclude that the
trial court did not err by granting summary judgment on their
claims for damages for their emotional distress.
Finally, Plaintiffs argue that the trial court committed an
error of law by granting summary judgment of Plaintiffs' claims
for personal injuries associated with their claims of trespass and
nuisance. As discussed above, we have concluded that Plaintiffs
failed to forecast evidence of any type of personal injury that has
been recognized as compensable in North Carolina.
We conclude that the trial court did not err and that its
order of partial summary judgment for Defendants should be
Judges CALABRIA and STEPHENS concur.
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