Bridges v. Parrish

• Decision Date: 21 August 2012
• Docket Number: No. COA12–181.,COA12–181.
• Citation: 731 S.E.2d 262
• Parties: Catryn Denise BRIDGES, Plaintiff, v. Harvey S. PARRISH and Barbara B. Parrish, Defendants.
• Court: North Carolina Court of Appeals

731 S.E.2d 262

Catryn Denise BRIDGES, Plaintiff,

v.Harvey S. PARRISH and Barbara B. Parrish, Defendants.

No. COA12–181.

Court of Appeals of North Carolina.

Aug. 21, 2012.

Appeal by plaintiff from order entered 3 November 2011 by Judge Thomas D. Haigwood in Johnston County Superior Court. Heard in the Court of Appeals 6 June 2012.

Wake Forest University School of Law Appellate Advocacy Clinic, by John J. Korzen, for plaintiff-appellant.

Poyner Spruill LLP, Raleigh, by Steven B. Epstein, for defendants-appellees.

HUNTER, ROBERT C., Judge.

Catryn Denise Bridges (“plaintiff”) appeals the order granting defendants Harvey and Barbara Parrish's (collectively “defendants' ” or individually “Harvey's” and “Barbara's”) motion to dismiss entered 3 November 2011 by Judge Thomas D. Haigwood in Johnston County Superior Court. On appeal, plaintiff argues that she stated a negligence claim upon which relief could be granted.

After careful review, we affirm the trial court's order granting defendants' motion to dismiss.

Background

Plaintiff made the following allegations in her complaint. Lyle Bernie Parrish (“Bernie”), defendants' son, was 52 years old at the time of the incident that gave rise to plaintiff's cause of action. He lived in a building that was owned, maintained, and controlled by defendants. Bernie has been charged with a wide array of crimes throughout his adult life, including numerous drug and weapon charges. Bernie also exhibited a pattern of violent behavior toward women. Specifically, plaintiff contends Bernie hurt former wives and girlfriends. Defendants were aware of Bernie's criminal history and violent conduct toward women.

Plaintiff and Bernie began a romantic relationship shortly after they met in April 2010. Plaintiff met defendants multiple times, and defendants were aware of plaintiff's relationship with their son. Defendants did not inform plaintiff of their son's past violent behavior.

Plaintiff claims that beginning in the year 2000, defendants took it upon themselves to prevent Bernie from continuing any unlawful conduct by providing him with lodging, financial assistance, guidance, and advice. However, Bernie was charged in 2007 with first degree kidnapping, assault with a deadly weapon with intent to kill or inflict serious injury, and possession of a firearm by a felon. Defendants were aware of these charges and did not reveal them to plaintiff.

Plaintiff ended her relationship with Bernie in early November 2010 after Bernie engaged in “controlling, accusatory, and risky” behavior. Plaintiff contends Barbara assured her that Bernie was not a threat. At that time, neither defendant informed plaintiff of their son's violent history.

In mid-January 2011, plaintiff claims she agreed to see Bernie again “from time to time.” On or about 7 March 2011, Bernie called plaintiff and accused her of seeing other men. At approximately 12:30 p.m. on 8 March 2011, Bernie drove defendants' red pickup truck to the office building where plaintiff worked. He shot plaintiff in the abdomen with a .38 caliber handgun, which was registered to Harvey, and was possessed and used by both defendants. Plaintiff was seriously injured as a result of the shooting.

Plaintiff filed a complaint against defendants in Johnston County Superior Court on 1 September 2011. Defendants filed a motion to dismiss, and a hearing was held on 31 October 2011 before Judge Thomas D. Haigwood. Judge Haigwood dismissed plaintiff's complaint with prejudice on 3 November 2011, concluding that plaintiff failed to state a claim upon which relief may be granted.

Plaintiff filed a notice of appeal to this Court on 2 December 2011.

Discussion

Plaintiff argues on appeal that the trial court erred in granting defendants' motion to dismiss the complaint for failure to state a claim of negligence upon which relief can be granted. Specifically, plaintiff asserts three theories by which defendants owed her a legal duty: (1) defendants engaged in an active course of conduct that created a foreseeable risk of harm to plaintiff; (2) defendants negligently failed to secure their firearms from Bernie; and (3) defendants negligently entrusted Bernie with the handgun and truck.¹ After careful review, we affirm the trial court's order.

“The test on a motion to dismiss for failure to state a claim upon which relief can be granted is whether the pleading is legally sufficient.” Al–Hourani v. Ashley, 126 N.C.App. 519, 521, 485 S.E.2d 887, 889 (1997) (quotation marks omitted). A complaint is legally insufficient if an insurmountable bar to recovery exists, such as “an absence of law to support a claim, an absence of facts sufficient to make a good claim, or the disclosure of some fact that necessarily defeats the claim.” Id.

This Court conducts a de novo review of motions to dismiss. Burgin v. Owen, 181 N.C.App. 511, 512, 640 S.E.2d 427, 429 (2007). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Appeal of The Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). Plaintiff's factual allegations in the complaint are to be treated as true on review. Block v. Cnty. of Person, 141 N.C.App. 273, 277, 540 S.E.2d 415, 419 (2000).

In order for a claim of negligence to survive a motion to dismiss, the plaintiff must allege all of the following elements in the complaint: “1) [a] legal duty; 2) breach of that duty; 3) actual and proximate causation; and 4) injury.” Mabrey v. Smith, 144 N.C.App. 119, 122, 548 S.E.2d 183, 186 (2001); see also Sterner v. Penn, 159 N.C.App. 626, 629, 583 S.E.2d 670, 673 (2003). The trial court did not specify which element or elements it deemed to be lacking in the complaint, but the arguments on appeal focus only on whether defendants owed plaintiff a duty. A claim of negligence necessarily fails if there is no legal duty owed to the plaintiff by the defendant. See Sterner, 159 N.C.App. at 629, 583 S.E.2d at 673;see also Harris v. Daimler Chrysler Corp., 180 N.C.App. 551, 555, 638 S.E.2d 260, 265 (2006) (“If no duty exists, there logically can be neither breach of duty nor liability.”).

Duty is defined as an “obligation, recognized by the law, requiring the person to conform to a certain standard of conduct, for the protection of others against unreasonable risks.” Davis v. N.C. Dep't of Human Res., 121 N.C.App. 105, 112, 465 S.E.2d 2, 6 (1995) (quoting W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 30, at 164–65 (5th ed.1984)), disc. review denied,343 N.C. 750, 473 S.E.2d 612 (1996). Here, plaintiff contends that defendants owed her a legal duty because the harm she suffered was a foreseeable result of actions undertaken by defendants. Specifically plaintiff alleges that defendants owed her a legal duty based on their: (1) active course of conduct; (2) negligent storage of their guns; and (3) negligent entrustment. Therefore, the issue becomes whether, taking plaintiff's allegations as true, she established a legal duty sufficient to plead a negligence claim upon which relief can be granted.

I. Active Course of Conduct

First, plaintiff argues that defendants owed her a duty because they engaged in an active course of conduct that created a risk of harm to plaintiff. Specifically, plaintiff alleges that by providing Bernie with assistance and shelter, downplaying his behavior, and failing to secure their guns, defendants engaged in an active course of conduct that resulted in plaintiff's harm. We disagree.

Generally, “[t]he law imposes upon every person who enters upon an active course of conduct the positive duty to exercise ordinary care to protect others from harm, and calls a violation of that duty negligence.” Council v. Dickerson's Inc., 233 N.C. 472, 474, 64 S.E.2d 551, 553 (1951). “The duty of ordinary care is no more than a duty to act reasonably. The duty does not require perfect prescience, but instead extends only to causes of injury that were reasonably foreseeable....” Carsanaro v. Colvin, ––– N.C.App. ––––, ––––, 716 S.E.2d 40, 45 (2011) (quoting Fussell v. N.C. Farm Bureau Mut. Ins. Co., 364 N.C. 222, 226, 695 S.E.2d 437, 440 (2010)). Therefore, there is no legal duty to protect against the results of one's conduct that are “only remotely and slightly probable.” Winters v. Lee, 115 N.C.App. 692, 696, 446 S.E.2d 123, 125 (quotation omitted), disc. review denied,338 N.C. 671, 453 S.E.2d 186 (1994); see also Carsanaro, ––– N.C.App. at ––––, ––––, 716 S.E.2d at 45–46;Hart v. Ivey, 332 N.C. 299, 305, 420 S.E.2d 174, 178 (1992); James v. Charlotte–Mecklenburg Bd. of Educ., 60 N.C.App. 642, 648, 300 S.E.2d 21, 24 (1983).

In Winters, the defendant was not liable for loaning her car to her grandson, who used the car to drive to the plaintiff's house and stab the plaintiff 37 times. 115 N.C.App. at 693–97, 446 S.E.2d at 123–26. Even though the defendant knew her grandson was intoxicated, in an “emotionally unstable” state, and had harmed the plaintiff in the past, this Court held that the resulting attack was an unforeseeable result of the defendant's conduct. Id. Thus, because the harm was unforeseeable, this Court affirmed the trial court's dismissal of the complaint for failure to state a claim upon which relief could be granted. Id.

Here, plaintiff is not suing Bernie, the person who shot her, but defendants, based on the contention that she would not have been shot if they had not engaged in an active course of conduct by providing assistance to Bernie, “attempt[ing] to downplay [Bernie's] behavior,” telling plaintiff he posed no threat, and failing to take steps to secure their firearms.² However, there is no allegation in the complaint, treated as true, that establishes “facts supporting any nexus of foreseeability between defendant [s'] [conduct] and plaintiff's subsequent injury.” Id. at 697, 446...