The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TIMOTHY LEE MITCHELL, )
)
Plaintiff, )
)
v. ) 1:24cv677
)
TRANS-WEST, INC., MEARS GROUP, )
INC., FOREMOST INDUSTRIES LP, )
FOREMOST EQUIPMENT LP, AND )
FOREMOST UNIVERSAL LP, )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
In this product liability action brought by Plaintiff Timothy
Mitchell, Defendant Trans-West, Inc. (“Trans-West”) moves to
dismiss Mitchell’s claim against it alleging failure to warn on
the grounds it fails to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6). (Doc. 34.) The motion is fully briefed
and ready for resolution. (Docs. 35; 41; 49.) For the reasons
set forth below, Trans-West’s motion will be denied.
I. BACKGROUND
The allegations of the complaint, taken in the light most
favorable to Mitchell, show the following.
Mitchell brings the present action against Trans-West and a
number of co-Defendants who he claims were responsible for his
injury. In his amended complaint (the “complaint”), he alleges
that on July 28, 2021, he suffered severe injuries while he and an
employee of Delta Directional (a subcontractor not party to this
action) were operating a hydrovac truck (“Truck #5304”) during
installation of a natural gas line near Fayetteville, North
Carolina. (Doc. 27 ¶¶ 39-88). Mitchell alleges he was injured
when overpressure caused a flange cap to blow off of the truck’s
sludge pump component, striking him in the upper body and spraying
him with hot mud. (Id. ¶ 87.)
Relevant to the motion before the court, Mitchell alleges
that Trans-West sold and/or leased Truck #5304 to his employer.
(Id. ¶ 34.) He further alleges that Trans-West had the opportunity
to inspect the hydrovac installed on Truck #5304, including an
inspection of any and all warnings, labels and/or instructions, or
the lack thereof. (Id. ¶52.) Mitchell alleges that had any of
several warnings and/or instructions been present on Truck #5304
or the hydrovac, he would not have been injured. (Id. ¶¶ 89-92.)
He asserts his claim for failure to warn under Section 99B of the
North Carolina General Statutes against Trans-West in Count Four
of the complaint. (Id. ¶¶ 109-113.)
II. ANALYSIS
A. Legal Standard
Federal Rule of Civil Procedure 8(a)(2) provides that a
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
(8)(a)(2). Under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, (2007)). A claim is plausible “when
the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. In considering a Rule 12(b)(6) motion,
a court “must accept as true all of the factual allegations
contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam), and all reasonable inferences must be drawn
in the plaintiff’s favor, Ibarra v. United States, 120 F.3d 472,
474 (4th Cir. 1997). However, mere legal conclusions are not
accepted as true, and “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
B. Section 99B
Mitchell’s failure to warn claim against Trans-West arises
under Section 99B, which provides in relevant part:
(a) No manufacturer or seller of a product shall be held
liable in any product liability action for a claim based
upon inadequate warning or instruction unless the
claimant proves that the manufacturer or seller acted
unreasonably in failing to provide such warning or
instruction, that the failure to provide adequate
warning or instruction was a proximate cause of the harm
for which damages are sought, and also proves one of the
following:
(1) At the time the product left the control of the
manufacturer or seller, the product, without an adequate
warning or instruction, created an unreasonably
dangerous condition that the manufacturer or seller
knew, or in the exercise of ordinary care should have
known, posed a substantial risk of harm to a reasonably
foreseeable claimant.
(2) After the product left the control of the
manufacturer or seller, the manufacturer or seller
became aware of or in the exercise of ordinary care
should have known that the product posed a substantial
risk of harm to a reasonably foreseeable user or consumer
and failed to take reasonable steps to give adequate
warning or instruction or to take other reasonable
action under the circumstances.
N.C. Gen. Stat. § 99B-5 (emphasis added). Trans-West argues that
Mitchell fails to state a claim for two reasons: first, because he
has not pleaded facts that allow an inference of causation; and
second, because the facts alleged show that Trans-West was a “mere
conduit” for Truck #5304 not subject to liability under Section
99B-2(a). (Doc. 35 at 5-9.) Each ground will be addressed in
turn.
1. Proximate Causation
Trans-West first argues that Mitchell has not alleged
sufficient facts to plausibly show that Trans-West’s failure to
warn about the risks of an overpressure and/or pressure
differential caused his injuries. (Doc. 35 at 6.) While Mitchell
alleges generally that Trans-West’s failure to provide adequate
warning proximately caused his injuries (Doc. 27 ¶ 112), Trans-
West maintains that he has not pleaded specific facts related to
Trans-West’s involvement that could support a finding of proximate
causation. (Doc. 35 at 7.) In particular, Trans-West argues that
Mitchell has not alleged that it knew or should have known of the
dangers that caused his injuries. (Id.)
The complaint alleges that Trans-West not only sells hydrovac
trucks, but services them, conducts demonstrations of the trucks
it sells, and provides on-site training to customers who purchase
them. (Doc. 27 ¶¶ 51-56.) Mitchell also alleges that, as a
result, “Trans-West had a reasonable opportunity to inspect the
hydrovac on the Hydrovac Truck #5034, including an inspection for
any and all warnings, labels and/or instructions on the hydrovac
and Hydrovac Truck #5034, or lack thereof.” (Id. ¶ 52.) Further,
he alleges that Trans-West advertises that “[b]ecause [it] has
been in the business of selling and servicing hydrovac trucks for
years, our team knows which truck is best suited to your job.”
(Id. ¶ 54.) As Mitchell argues, these facts support a reasonable
inference that Trans-West knew or should have known that an over-
pressurization situation like that which caused his injuries could
occur and that it was not warned against. (Doc. 41 at 6-7.)
Trans-West also argues that Mitchell has not alleged that he
or the Delta Directional employee would have read, relied on, or
heeded any of the warnings that Mitchell contends should have been
present. (Doc. 49 at 7 & n.1.) To be sure, the complaint
specifically alleges that had any such warnings been present,
Mitchell would not have been injured. (Id. ¶¶ 89-92.) This
supports the permissible inference that renders his failure to
warn claim plausible.
Trans-West relies on Presnell v. Snap-On Securecorp, Inc.,
583 F. Supp. 3d 702, 710 (M.D.N.C. 2022). However, that case is
distinguishable. There, the court granted the defendant’s motion
to dismiss when the hammer that caused the plaintiff’s injury bore
a warning label that adequately conveyed the risk of the very
injury the plaintiff suffered. Id. at 709. The court also noted
that there was no claim “that the warning label played any role in
the decision” to use the hammer. Id. at 710 (citing Burgess v.
Pfizer, Inc., NO. 7:19-CV-235-FL, 2020 WL 1812010, at *5 (E.D.N.C.
Apr. 9, 2020) (granting motion to dismiss where the plaintiff did
not allege that a prescription drug’s existing warning label
affected his decision to use the drug)). Here, Mitchell alleges
that neither the flange cap, the pump component, the hydrovac, nor
Truck #5304 contained any warnings or instructions whatsoever
about the risks associated with an overpressure and/or pressure
differential of the kind that caused his injuries and that, had
such a warning been given, it would have been heeded. (Doc. 27
¶¶ 80-84, 89-92.)
These allegations, when viewed in the light most favorable to
Mitchell, reasonably imply that such warnings would have prevented
Mitchell’s injuries because he, the Delta Direction employee, or
both would have read and heeded them. Therefore, the motion to
dismiss on this ground will be denied.
2. “Mere Conduit”
Alternatively, Trans-West argues that it is protected from
liability under Section 99B’s exemption for being a “mere conduit"
for Truck #5304. (Doc. 35 at 8.) Trans-West contends that because
it was not involved in the design or manufacture of the vehicle
and did nothing more than act as a “mere conduit,” it cannot be
liable under Section 99B as a matter of law. (Doc. 35 at 9 (citing
Travelers Ins. Co. v. Chrysler Corp., 845 F. Supp. 1122, 1124
(M.D.N.C. 1994)).) Mitchell contends that the complaint alleges
that Trans-West is more than a mere conduit and that, in any event,
the exemption is an affirmative defense not suitable for resolution
at this stage. (Doc. 41 at 8-11.)
Section 99B provides:
(a) No product liability action, except an action for
breach of express warranty, shall be commenced or
maintained against any seller when the product was
acquired and sold by the seller in a sealed container or
when the product was acquired and sold by the seller
under circumstances in which the seller was afforded no
reasonable opportunity to inspect the product in such a
manner that would have or should have, in the exercise
of reasonable care, revealed the existence of the
condition complained of, unless the seller damaged or
mishandled the product while in his possession;
provided, that the provisions of this section shall not
apply if the manufacturer of the product is not subject
to the jurisdiction of the courts of this State or if
such manufacturer has been judicially declared
insolvent.
N.C. Gen. Stat. § 99B-2(a). As Trans-West notes (Doc. 35 at 8),
Crews v. W.A. Brown & Son, Inc., stated that where the seller of
a product made by a reputable manufacturer “acts as a mere conduit
and has no knowledge or reason to know of a product's dangerous
propensities, [the seller] ‘is under no affirmative duty to inspect
or test for a latent defect, and therefore, liability cannot be
based on a failure to inspect or test in order to discover such
defect and warn against it.’” 416 S.E.2d 924, 928 (N.C. Ct. App.
1992) (quoting Sutton v. Major Prods. Co., 372 S.E.2d 897, 900
(N.C. Ct. App. 1988)). But as Mitchell points out, the Crews court
went on to note that a seller who assembles and installs the
product acts as more than a “mere conduit,” thus bearing the duty
to exercise reasonable care in assembling, installing and
inspecting the product as well as to warn of hazards attendant to
the assembled and installed product's use. 416 S.E.2d at 928.
This duty to warn arises where the seller has “actual or
constructive knowledge of a particular threatening characteristic
of the product” and simultaneously “has reason to know that the
purchaser will not realize the product's menacing propensities for
himself.” Id. (citations omitted). Thus, in Crews, the court
held that the seller of a walk-in freezer was acting as more than
a “mere conduit” when it also assembled and installed the walk-in
freezer for the purchaser. Id.
Here, Mitchell alleges that in addition to selling or leasing
hydrovac trucks, Trans-West services them and provides
demonstrations and on-site training in their use. (Doc. 27 ¶¶ 53-
56.)1 These facts, construed as they must be in Mitchell’s favor,
support the conclusion that Trans-West acts as more than a “mere
conduit” for the hydrovac trucks it sells, including Truck #5304,
thus precluding the court from ruling as a matter of law.
Moreover, by citing to Travelers, Trans-West acknowledges
that it is indirectly invoking a specific statutory defense under
Section 99B; namely, that “the product was acquired and sold by
the seller under circumstances in which the seller was afforded no
reasonable opportunity to inspect the product in such a manner
that would have or should have, in the exercise of reasonable care,
revealed the existence of the condition complained of.” N.C. Gen.
Stat. § 99B-2(a); see Travelers, 845 F. Supp. at 1124. Here,
Mitchell specifically alleges that Trans-West had a reasonable
opportunity to inspect the hydrovac on Truck #5304 to learn of its
defect. (Doc. 27 ¶ 52.) This raises a fact question, and the
burden of proof as to it rests with Trans-West. At this motion to
dismiss stage, the court is precluded from making an evidentiary
finding in Trans-West’s favor. Consequently, Trans-West’s motion
1 Mitchell also points to affidavits filed by co-defendants Foremost
Industries LP, Foremost Equipment LP, and Foremost Universal LP, stating
that Trans-West shipped the chassis for Truck #5304 to the aforementioned
Defendants in Canada, where they manufactured and assembled the final
truck. (Doc. 57-3 at 2, 5.) But because the present motion is based
on the pleadings, the court does not consider this evidence at this
stage.
to dismiss on this ground must be denied.
III. CONCLUSION
For the reasons stated,
IT IS ORDERED that Trans-West’s motion to dismiss (Doc. 34)
is DENIED.
/s/ Thomas D. Schroeder
United States District Judge
September 30, 2025