Stein v. Asheville City Board of Education

TYSON, Judge

concurring in part, dissenting in part.

I fully concur in the majority’s reasoning and result to dismiss plaintiffs’ appeal from the dismissal of the Buncombe County Board and to affirm the trial court’s dismissal of the Asheville Board. I disagree with the majority’s decision to reverse the trial court’s order granting the Blue Ridge defendants’ motion to dismiss. I respectfully dissent.

I. Negligence

Plaintiffs contend and the majority’s opinion concludes the complaint sufficiently alleges a negligence action against the Blue Ridge defendants. I disagree.

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint by presenting “the question whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some [recognized] legal theory.”

Forsyth Memorial Hospital v. Armstrong World Industries Inc., 336 N.C. 438, 442 , 444 S.E.2d 423, 425-26 (1994) (alteration in original) (quoting Lynn v. Overlook Dev., 328 N.C. 689, 692 , 403 S.E.2d 469, 471 (1991)). To state a claim for relief for negligence, a plaintiff’s complaint must allege: (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; and (3) the defendant’s breach was the *258 actual and proximate cause of the plaintiff’s injury. Williamson v. Liptzin, 141 N.C. App. 1, 10 , 539 S.E.2d 313, 319 (2000) (quoting Beaver v. Hancock, 72 N.C. App. 306, 311 , 324 S.E.2d 294, 298 (1985)), appeal dismissed, 353 N.C. 456 , 548 S.E.2d 734 (2001); see also Tise v. Yates Constr. Co., 345 N.C. 456, 460 , 480 S.E.2d 677, 680 (1997). The majority’s opinion correctly states the proper standard of review to be applied on a Rule 12(b)(6) motion to dismiss. The trial court properly applied that standard, and its order should be affirmed.

A. Duty

“The general rule is that there ‘is no duty to protect others against harm from third persons’ ” unless a special relationship exists between the parties. King v. Durham Co. Mental Health Authority, 113 N.C. App. 341, 345 , 439 S.E.2d 771, 774 , disc. rev. denied, 336 N.C. 316 , 445 S.E.2d 396 (1994) (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 56, at 385 (5th ed. 1984)) (citations omitted). When a special relationship exists, “there is a duty upon the actor to control the third person’s conduct, and to guard other persons against his dangerous propensities.” King, 113 N.C. App. at 345-46 , 439 S.E.2d at 774 (quotations omitted).

As listed in King , examples of “special relationships” recognized by North Carolina courts include: (1) parent and child, Moore v. Crumpton, 55 N.C. App. 398, 403-04 , 285 S.E.2d 842, 845 , modified, 306 N.C. 618 , 295 S.E.2d 436 (1982); (2) master and servant, Vaughn v. Dep’t. of Human Resources, 296 N.C. 683, 686 , 252 S.E.2d 792, 795 (1979); (3) landowner and licensee; (4) custodian and prisoner, Hull v. Oldham, 104 N.C. App. 29, 38 , 407 S.E.2d 611, 616 , disc. rev. denied, 330 N.C. 441 , 412 S.E.2d 72 (1991); and (5) mental patient and hospital, Pangburn v. Saad, 73 N.C. App. 336, 347-48 , 326 S.E.2d 365, 372-73 (1985). See King, 113 N.C. App. at 346 , 439 S.E.2d at 774 (other citations omitted). “In each example, ‘the chief factors justifying imposition of liability are 1) the ability to control the person and 2) knowledge of the person’s propensity for violence.’ ” King, 113 N.C. App. at 346 , 439 S.E.2d at 774 (quoting Abernathy v. United States, 773 F.2d 184, 189 (8th Cir. 1985)) (other citations omitted). Here, the parties do not dispute the Blue Ridge defendants’ “knowledge of [the juveniles’] propensity for violence.” Id. The dispositive issue becomes whether Blue Ridge had “the ability to control” the juveniles when plaintiffs were injured. Id.

In King , the victim was shot by a juvenile with a known history of committing violent crimes. 113 N.C. App. at 342 , 439 S.E.2d at 772 . *259 The juvenile resided in a facility that provided treatment to “Willie M.” class members. Id. The facility was supervised by the Durham County Mental Health Department, and the juvenile was required to stay at the facility at all times. Id. at 343 , 439 S.E.2d at 772 . Durham County Mental Health failed to inform the police when he escaped from the facility. Id. at 343 , 439 S.E.2d at 773 . The juvenile killed Sherri Sparrow King after his escape. Id. King’s estate brought an action against Durham County Mental Health alleging its negligence caused the victim’s death. Id. We held the defendant did not have custody of the juvenile or the ability to control him at the time he killed King, because there was “no evidence of a court order requiring his participation in the Willie M. program, [therefore, the defendants] had no legal right to mandate his return to the facility.” Id. at 347 , 439 S.E.2d at 775 . In affirming summary judgment for the defendants, we concluded, “[Durham Mental Health] cannot be held liable for the conduct of [the juvenile] and are entitled to judgment as a matter of law.” Id.

The majority’s opinion at bar attempts to distinguish King on the grounds that it ruled on a motion for summary judgment and not a motion to dismiss. However, the majority’s opinion fails to explain how the Blue Ridge defendants owed these plaintiffs a duty “as a matter of law.” Id.

Here, plaintiffs’ complaint alleges facts, which taken as true, conclusively establish that the Blue Ridge defendants did not have “the ability or right to control” the juveniles when the violent acts occurred. Id. Plaintiffs’ complaint alleges, “Bus driver Nancy Patton, bus monitor Gail Guzman, Cooperative Learning Center principal Keith Roden... and other authorities associated with defendants had custody of [the juveniles] and/or had the ability or right to control them at the pertinent time.” Plaintiffs’ complaint also alleges that CLC was a school operated by the Blue Ridge defendants and that Patton and Guzman were employed by them, Buncombe County Schools, and Asheville City Schools. Plaintiffs’ complaint does not state or define the meaning of “at the pertinent time.” In a 12(b)(6) motion to dismiss, these allegations are taken as true and show the Blue Ridge defendants had control over the juveniles when the conversation occurred on the school bus. The complaint shows that the juveniles used a gun C.M. “had at home under his mattress.” This allegation shows that the Blue Ridge defendants had neither custody over the juveniles nor the ability to control them at the time Stein was shot.

*260 Our case law establishes that “the pertinent time” in a negligence action requires consideration of whether the Blue Ridge defendants had custody over or the right to control the juveniles when plaintiffs suffered injury: the time of the shooting. See O’Connor v. Corbett Lumber Corp., 84 N.C. App. 178 , 352 S.E.2d 267 (1987) (employer did not have requisite level of custody over the work release inmate employee to create a special relationship— employer had no duty to protect the public outside the scope of employment, which occurred while the perpetrator was not on the job or the job site); see also King, 113 N.C. App. at 346-47 , 439 S.E.2d at 774 (held no liability because no special relationship existed where the treatment facility did not have custody, ability, or right to control the perpetrator after he left the facility); Sage v. U.S., 974 F. Supp. 851, 860 (E.D. Va., 1997) (holding a “confinement setting” and “heightened obligation to monitor and direct the third party’s movements” are required to show ability to control) (citing Nasser v. Parker, 455 S.E.2d 502 (Va. 1995)).

Plaintiffs’ allegations conclusively establish that the Blue Ridge defendants did not possess or exercise any ability or right to control defendants during the time, place, or manner where and when plaintiffs were injured. Plaintiffs allege: (1) the juveniles “were at all times students at CLC and traveled to and from CLC on a public school bus . . . ;” (2) “at approximately 7:00-8:15 p.m. on March 17, 1998, [the juveniles and two others] were armed with the loaded handgun [and] began stopping cars at the intersection . . . near Memorial Mission Hospital in Asheville . . . ;” and (3) “at approximately 8:15 p.m., [J.B.] used the loaded handgun provided by [C.N.] to shoot Stein in the head . . . .” None of plaintiffs’ allegations assert that at the time the shooting occurred, the juveniles were traveling on the school bus, attending CLC or any other activity within the Blue Ridge system, “skipping” a required activity conducted by the Blue Ridge defendants, or under the supervision, custody, or control of the Blue Ridge defendants or any of its employees.

Plaintiffs’ complaint fails to state a claim for negligence against the Blue Ridge defendants “as a matter of law.” King, 113 N.C. App. at 347 , 439 S.E.2d at 775 . It fails to allege the Blue Ridge defendants had custody or control at the time the incident occurred to show a duty owed to plaintiffs. As plaintiffs’ complaint fails to establish the Blue Ridge defendants owed them a duty, the trial court properly granted the Blue Ridge defendants’ motion to dismiss. This assignment of error should be overruled.

*261 B. Proximate Cause

Presuming, as the. majority’s opinion contends, that plaintiffs’ complaint establishes the Blue Ridge defendants owed a duty to plaintiffs and breached that duty, the complaint fails to allege that such breach proximately caused plaintiffs’ injuries.

Proximate cause is defined as

a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff’s injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed.

Williamson, 141 N.C. App. at 10 , 539 S.E.2d at 319 (quoting Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 233 , 311 S.E.2d 559, 565 (1984) (citations omitted)). The law does not require a defendant to “foresee events which are merely possible but only those which are reasonably foreseeable.” Id. at 11, 539 S.E.2d at 319 (quoting Hairston, 310 N.C. at 234 , 311 S.E.2d at 565 (emphasis added) (citations omitted)). As “every person has the right to presume that every other person will perform his duty and obey the law,” criminal acts are not presumed to be foreseeable. Wilkinson v. R.R., 174 N.C. 761, 766 , 94 S.E. 521, 523 (1917) (quoting Cyc., vol. 29, p. 516; Wyatt v. R.R., 156 N.C. 313 , [ 72 S.E. 383 (1911)]).

In addition to foreseeability, proximate cause requires a consideration of

whether the cause is, in the usual judgment of mankind, likely to produce the result; whether the relationship between cause and effect is too attenuated; whether there is a direct connection without intervening causes; whether the cause was a substantial factor in bringing about the result; and whether there was a natural and continuous sequence between the cause and the result.

Williamson, 141 N.C. App. at 11 , 539 S.E.2d at 319 -20 (quoting Wyatt v. Gilmore, 57 N.C. App. 57, 59 , 290 S.E.2d 790, 791 (1982)).

Plaintiffs’ complaint alleges Guzman overheard the conversation between the juveniles “one week prior to the March 17, 1998 shooting.” Regarding foreseeability to the Blue Ridge defendants, plaintiffs’ complaint fails to allege any specific plans overheard by the Blue Ridge defendants or their employees beyond the general comments, *262 “Let’s rob somebody;” “I have the gun;” and “I’ll kill them.” These statements appear to be general threats that are not specific to any time, place, or intended victim, and are not a reasonably foreseeable criminal act against Stein. Under the majority’s analysis, these statements are sufficient to establish a duty, proximate cause, and foreseeability on the Blue Ridge defendants to survive a motion to dismiss. If so, the Blue Ridge defendants would be liable to any victim, at any time or place, whom the juveniles might eventually “rob” or “kill.” The majority’s result establishes a duty to the whole world, imposes strict liability, and also eliminates the presumption that criminal acts are not foreseeable. See Wilkinson, 174 N.C. at 766 , 94 S.E. 523 . Plaintiffs also failed to allege either Patton or Guzman were aware of any specific violent acts committed by the juveniles. Williamson, 141 N.C. App. at 11 , 539 S.E.2d at 319 .

C. Failure to Join

The Blue Ridge defendants’ liability to plaintiffs, if any, is derivative of the acts of its alleged employees. Here, plaintiffs failed to join either Patton or Guzman, the juveniles’ parents, or the other perpetrators as named defendants to this action.

Plaintiffs’ failure to allege the juveniles were in custody or under the control of the Blue Ridge defendants for the entire period between the conversation on the school bus and the time of the shooting more than one week later allows opportunity for numerous “intervening causes.” Id. Plaintiffs’ complaint fails to plead a “natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff’s injuries . . . .” Id. at 10 , 539 S.E.2d at 319 .

Justice Cardozo stated, long ago in a case that is required horn-book law for all first-year law students, “One who seeks redress at law does not make put a cause of action by showing without more that there has been damage to his person.” Palsgraf v. Long Island R. Co., 162 N.E. 99, 101 , reh’g denied, 164 N.E. 564 (N.Y. 1928).

Proof of negligence in the air, so to speak, will not do. ... In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury.

Id. at 99-100 (quotations and citations omitted). Plaintiffs’ complaint fails to show that the Blue Ridge defendants, aside from any duties or *263 allegations pertaining to the other defendants, had the ability to either “avert[] or avoid[]” the injury. Id.

Plaintiffs failed to allege the Blue Ridge defendants’ breach of a duty, if any, proximately caused plaintiffs’ injuries. The trial court properly dismissed plaintiffs’ complaint for failure to state a claim of negligence.

II. Conclusion

I concur in the majority’s opinion as it: (1) dismisses plaintiffs’ appeal of the trial court’s order dismissing the Buncombe County Board because the appeal is not properly before this Court; and (2) affirms the Asheville Board’s motion to dismiss because the Industrial Commission has exclusive jurisdiction of plaintiffs’ claims against the City Board.

The trial court did not err in granting the Blue Ridge defendants’ motion to dismiss, and its order should be affirmed. Plaintiffs’ complaint failed to state a claim for negligence against the Blue Ridge defendants by failing to allege a duty owed, breach of that duty, or proximate cause. Further, plaintiffs failed to join the employees alleged to be responsible or the parents of the juveniles who perpetrated the acts and caused the injuries to plaintiffs.

Plaintiff Kathlyn Stein suffered serious and lifelong injuries and could have rightfully asserted her claims against all those individuals who caused her injuries. Her complaint fails to assert her claims against the proper parties. “This Court should not, however, permit these ‘bad facts’ to lure it into making ‘bad law.’” N.C. Baptist Hospitals, Inc. v. Mitchell, 323 N.C. 528, 539 , 374 S.E.2d 844, 850 (1988). I respectfully dissent.