Allred v. Capital Area Soccer League, Inc.

• Decision Date: 16 December 2008
• Docket Number: No. COA07-647.,COA07-647.
• Citation: 669 S.E.2d 777
• Court: North Carolina Court of Appeals
• Parties: Teresa Lynn ALLRED and husband, Daniel Hilliker, Plaintiffs, v. CAPITAL AREA SOCCER LEAGUE, INC.; CASL Soccer Properties LLC; Wake County, North Carolina; Women's United Soccer Association and All Successors in Interest; Time Warner Inc., formerly known as AOL Time Warner, Inc., d/b/a Time Warner Entertainment-Advance/Newhouse Partnership d/b/a Carolina Courage and All Successors in Interest; and Time Warner Inc., formerly known as AOL Time Warner, Inc., d/b/a Time Warner Entertainment-Advance/Newhouse Partnership d/b/a New York Power and All Successors in Interest, Defendants.

669 S.E.2d 777

Teresa Lynn ALLRED and husband, Daniel Hilliker, Plaintiffs, v. CAPITAL AREA SOCCER LEAGUE, INC.; CASL Soccer Properties LLC; Wake County, North Carolina; Women's United Soccer Association and All Successors in Interest; Time Warner Inc., formerly known as AOL Time Warner, Inc., d/b/a Time Warner Entertainment-Advance/Newhouse Partnership d/b/a Carolina Courage and All Successors in Interest; and Time Warner Inc., formerly known as AOL Time Warner, Inc., d/b/a Time Warner Entertainment-Advance/Newhouse Partnership d/b/a New York Power and All Successors in Interest, Defendants.

No. COA07-647.

Court of Appeals of North Carolina.

December 16, 2008.

Appeal by plaintiffs from judgment entered 28 February 2007 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 14 January 2008.

Hartsoe & Associates, PC, by R. Anthony Hartsoe and Joseph R. Schmitz, Winston-Salem, for plaintiffs-appellants.

Ellis & Winters LLP, by Stephen C. Keadey, Raleigh, for defendant-appellee CASL Soccer Properties, LLC.

Brown, Crump, Vanore & Tierney, L.L.P., by Derek M. Crump, Raleigh, for defendant-appellee Capital Area Soccer League, Inc.

STEELMAN, Judge.

The trial court erred in granting defendants' motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. The complaint adequately alleges several causes of action in negligence against defendants and does not contain allegations which on their face present an insurmountable bar to plaintiffs' recovery.

I. Factual Summary and Procedural Background

On 26 April 2003, Teresa Lynn Allred (hereinafter "plaintiff") attended a professional women's soccer match at State Capital Soccer Park in Cary, North Carolina. Prior to the commencement of the match, plaintiff was in the stands located behind one of the goals when she was struck in the head by a soccer ball. Plaintiff sustained substantial head injuries.

On 25 April 2006, plaintiff and her husband (together, "plaintiffs") filed a complaint in Orange County Superior Court¹ which sought monetary damages for plaintiff's injuries and her husband's loss of consortium based upon the alleged negligence of defendants. On 23 June 2006, Wake County filed an answer to the complaint. On 18 July 2006 and 1 August 2006, Capital Area Soccer League, Inc. and CASL Soccer Properties LLC ("appellees") filed answers to the complaint denying the allegations of negligence, raising the affirmative defenses of contributory negligence and assumption of risk, and moving to dismiss the complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. The motions to dismiss were heard in Wake County Superior Court on 12 February 2007.² On 28 February 2007, the trial court dismissed the claims of plaintiff and her husband against Capital Area Soccer League, Inc. and CASL Soccer Properties LLC, with prejudice. That same day, plaintiffs entered into a stipulation with Wake County that they would be bound by the decision of the appellate courts of North Carolina on the appeal of the 28 February 2007 order. Plaintiffs appeal.

II. Standard of Review

On a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief can be granted. Isenhour v. Hutto, 350 N.C. 601, 604, 517 S.E.2d 121 (1999). Dismissal under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim. Oates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985).

Wood v. Guilford County, 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002). We "consider plaintiff's complaint to determine whether, when liberally construed, it states enough to give the substantive elements of a legally recognized claim." Governor's Club Inc. v. Governors Club Ltd. P'ship, 152 N.C.App 240, 246, 567 S.E.2d 781, 786 (2002) (citations omitted), aff'd per curiam, 357 N.C. 46, 577 S.E.2d 620 (2003). On a Rule 12(b)(6) motion, plaintiff's factual allegations are treated as true. Id.

The appellate court's review of the trial court's granting of a motion to dismiss pursuant to Rule 12(b)(6) is de novo. Acosta v. Byrum, 180 N.C.App. 562, 566, 638 S.E.2d 246, 250 (2006).

III. Factual Allegations of Complaint

Plaintiffs' complaint alleged that she attended a women's professional soccer match. Plaintiff was in the stands located immediately behind one of the soccer goals during the players' pre-game warm-ups. During the warm-ups "many balls were directed towards the nets in a relatively short period of time." One of these balls sailed over the soccer goal, into the stands, striking plaintiff and causing serious injury. Plaintiff alleged that she "had never attended a soccer game at the subject facility prior to her injury, had no knowledge or underlying information that there was a significant risk of being struck by a soccer ball."

Plaintiffs' complaint asserts that defendants were negligent in: (1) failing to warn patrons of the risk of being struck by a soccer ball leaving the field of play; (2) failing to provide a safe environment for patrons; and (3) failing to install protective netting behind the goals to protect spectators.

IV. North Carolina Law of Spectator Injuries at Baseball Games

There are no North Carolina cases dealing with spectators injured as a result of being struck by a ball at a soccer match. The cases previously decided in North Carolina deal with spectators being struck by balls at baseball games. These cases have been uniformly decided against the spectator, either on the basis that the stadium operator was not negligent or that the spectator assumed the risk of being hit by a baseball. Erickson v. Baseball Club, 233 N.C. 627, 65 S.E.2d 140 (1951); Cates v. Exhibition Co., 215 N.C. 64, 1 S.E.2d 131 (1939); Hobby v. City of Durham, 152 N.C.App. 234, 569 S.E.2d 1 (2002).

V. General Duty of Sporting Facility Operators to Patrons

In the case of Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998), our Supreme Court abolished the common law trichotomy distinguishing a landowner's duty to licensees, invitees, and trespassers. In lieu thereof, the Supreme Court imposed upon landowners "only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors." Id. at 632, 507 S.E.2d at 892. Thus, consistent with the baseball cases, supra, the owner of a public facility has a duty of reasonable care under the circumstances to its invitees. See Manganello v. Permastone, Inc., 291 N.C. 666, 672, 231 S.E.2d 678, 681 (1977) (swimming lake operator has duty of reasonable care to paying guests); Aaser v. Charlotte, 265 N.C. 494, 498, 144 S.E.2d 610, 614 (1965) ("One who ... invites others to come upon his premises to view, for a price, an athletic event being carried on therein has the duty to be reasonably sure that he is not inviting them into danger and must exercise reasonable care for their safety.") (citing Dockery v. Shows, 264 N.C. 406, 142 S.E.2d 29 (1965)).

We further note that the cases in this area have tended to intermingle the legal concepts of the duty owed by the sports facility owner to the patron and the patron's assumption of known and obvious risks of attending a sporting event. While these legal theories are interrelated and contain common concepts, see 62 Am.Jur.2d Premises Liability § 173 (2005), they are nonetheless separate. We will treat the duty of the facility owner and the patron's assumption of risk as separate concepts.

VI. Duty to Patrons at Baseball Games

A. "No Duty" Rule

The duty of the operator of a baseball park to exercise reasonable care to protect its patrons does not extend to "the common hazards incident to the game." Erickson at 629, 65 S.E.2d at 141. This concept was articulated in the case of Brown v. San Francisco Ball Club, 99 Cal.App.2d 484, 222 P.2d 19 (1950):

In baseball, ... the patron participates in the sport as a spectator and in so doing subjects himself to certain risks necessarily and usually incident to and inherent in the game; risks that are obvious and should be observed in the exercise of reasonable care. This does not mean that he assumes the risk of being injured by the proprietor's negligence but that by voluntarily entering into the sport as a spectator he knowingly accepts the reasonable risks and hazards inherent in and incident to the game.

Id. at 487, 222 P.2d at 20.

The law in this area was summarized by Professor Timothy Davis in the Marquette Sports Law Review:

Thus, the prevailing principle is that "there is no legal duty to protect or warn spectators about the `common, frequent, and expected' inherent risks of observing a sporting event such as being struck by flying objects that go into the stands." With respect to the role of knowledge, generally "adult spectators of ordinary intelligence" who are familiar with the sports at issue will be presumed to possess an awareness of the normal risk of watching a sport, such as baseball. Another general rule that can be derived from the spectator cases is that while an owner may not owe a duty of care to spectators for inherent risks, the owner or facility operator must do nothing to enhance the risks that are inherent to a particular sport.

Timothy Davis, Symposium: National Sports Law Institute Board of Advisors: Avila V. Citrus Community College District: Shaping the Contours of Immunity and Primary Assumption of the Risk, 17 Marq. Sports L.Rev. 259, 271-72 (2006) (internal footnotes citing authorities omitted).

The "no duty" rule has been followed in North Carolina:

As a general proposition, there is no duty to protect a lawful visitor against dangers which are...