Fagundes v. Ammons Dev. Grp., Inc.

• Decision Date: 04 September 2018
• Docket Number: No. COA17-1427,COA17-1427
• Citation: 820 S.E.2d 350,261 N.C.App. 138
• Court: North Carolina Court of Appeals
• Parties: Francisco FAGUNDES and Desiree Fagundes, Plaintiffs, v. AMMONS DEVELOPMENT GROUP, INC. ; East Coast Drilling & Blasting, Inc.; Scott Carle; and Juan Albino, Defendants.

261 N.C.App. 138

820 S.E.2d 350

Francisco FAGUNDES and Desiree Fagundes, Plaintiffs,

v.AMMONS DEVELOPMENT GROUP, INC. ; East Coast Drilling & Blasting, Inc.; Scott Carle; and Juan Albino, Defendants.

No. COA17-1427

Court of Appeals of North Carolina.

Filed: September 4, 2018

The Jernigan Law Firm, Raleigh, by Leonard T. Jernigan, Jr. and Anthony L. Lucas, for Plaintiff-Appellant Francisco Fagundes.

Ragsdale Liggett PLLC, Raleigh, by Amie C. Sivon and John M. Nunnally, for Defendant-Appellee Ammons Development Group, Inc.

McGEE, Chief Judge.

Francisco Fagundes ("Plaintiff") appeals an order entered 9 October 2017 granting summary judgment in favor of defendant East Coast Drilling & Blasting, Inc., defendant Scott Carle, and defendant Juan Albino (collectively, "the other defendants"). Plaintiff appeals the 9 October 2017 order for the sole purpose of appealing an order entered 8 December 2015 granting a motion to dismiss in favor of defendant Ammons Development Group, Inc. ("Defendant"). Plaintiff has no outstanding claims against the other defendants.¹ For the reasons discussed below, we reverse the trial court's 8 December 2015 order.

I. Factual and Procedural Background

Defendant was the developer of Heritage East ("Heritage East" or "the construction site"), a planned residential subdivision in Wake Forest, North Carolina. Defendant hired East Coast Drilling & Blasting, Inc., ("East Coast") to provide the services of onsite drilling, blasting, and crushing of rock during the construction of Heritage East. Plaintiff was employed by East Coast as a heavy equipment operator in East Coast's rock crushing division.

Members of East Coast's blasting crew were blasting a certain area within the construction site on or about 25 June 2013. Plaintiff was also working at the construction site that day. According to both Plaintiff and Defendant, Juan Albino ("Albino"), a blaster employed by East Coast, misinformed Plaintiff that Plaintiff was "located in a position that would be safe from flying debris and flyrock [that would be dislodged as a result of an imminent blast]." When Albino subsequently conducted the blast, flyrock and debris flew from the blast site with tremendous force. A heavy piece of rock struck Plaintiff's left leg, causing injuries.

Plaintiff filed a complaint against Defendant, East Coast, Albino, and Scott Carle, an East Coast executive officer, on 29 January 2015. In addition to various claims asserted against the other defendants, Plaintiff alleged Defendant was "strictly liable for the damages sustained by Plaintiff ... that were proximately caused by the ultrahazardous activity of blasting." Defendant filed an answer and motion to dismiss Plaintiff's complaint on 20 April 2015. Citing N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), Defendant first asserted that Plaintiff failed to state a valid claim for relief. Among its additional defenses, Defendant further asserted that "[t]he doctrine of strict liability ... does not apply to cases where injury results to those who have reason to know of the risk which makes the undertaking ultrahazardous and bring themselves within the area which will be endangered by its miscarriage." Defendant alleged that

[a]s an employee working in the field of blasting, Plaintiff [ ] consented to the dangers and risks associated with the field of blasting and cannot recover against Defendant [ ] on a claim of strict liability. Plaintiff[ ] knowingly put himself at risk and was an active participant. Further, Plaintiff[ ] was warned about the risks associated with blasting and was trained regarding the risks associated with blasting.

The trial court granted Defendant's motion to dismiss on 8 December 2015. Plaintiff appealed the dismissal of his strict liability claim against Defendant, but this Court dismissed that appeal as interlocutory because Plaintiff "continue[d] to assert unadjudicated claims against [the other] defendants[,]" and Plaintiff did not specifically contend the interlocutory appeal affected a substantial right that would be lost absent immediate review. See Fagundes v. Ammons Development Group, Inc. , ––– N.C. App. ––––, ––––, 791 S.E.2d 876, –––– (2016) (unpublished).

The trial court subsequently denied summary judgment on Plaintiff's strict liability claim against the other defendants and Plaintiff's willful, wanton, and reckless negligence claim against Albino. On appeal, this Court reversed. See Fagundes v. Ammons Development Group, Inc. , ––– N.C. App. ––––, 796 S.E.2d 529 (2017) (" Fagundes I "). We concluded that "because [Plaintiff] was injured in a work-related accident, the [North Carolina] Workers’ Compensation Act provide[d] the exclusive remedy for his injuries, and the trial court lacked jurisdiction to adjudicate his strict liability claims against his employer." Id. at ––––, 796 S.E.2d at 533. This Court also concluded the trial court erroneously denied summary judgment with respect to Plaintiff's claim against Albino for willful, wanton, and reckless negligence. Id. at ––––, 796 S.E.2d at 533. On remand, the trial court entered an order on 9 October 2017 granting summary judgment for the other defendants on Plaintiff's strict liability claim, and granting summary judgment for Albino on Plaintiff's claim for willful, wanton, and reckless negligence. Consequently, Plaintiff concedes the other defendants "are no longer aggrieved parties." Plaintiff now appeals from the 9 October 2017 order for the purpose of appealing the 8 December 2015 order dismissing Plaintiff's strict liability claim against Defendant.

II. Motion to Dismiss

A. Standard of Review

A motion to dismiss under [ N.C. Gen. Stat. § 1A-1, Rule] 12(b)(6) is the usual and proper method of testing the legal sufficiency of [a] complaint. In reviewing a trial court's Rule 12(b)(6) dismissal, the appellate court must inquire whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.

Newberne v. Department of Crime Control & Pub. Safety , 359 N.C. 782, 784, 618 S.E.2d 201, 203 (2005) (citations and internal quotation marks omitted). "A complaint may be dismissed pursuant to Rule 12(b)(6) if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim." Fussell v. N.C. Farm Bureau Mut. Ins. Co. , 364 N.C. 222, 225, 695 S.E.2d 437, 440 (2010) (citation and quotation marks omitted). "The complaint must be liberally construed, and [a] court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief." Hunter v. Guardian Life Ins. Co. of Am. , 162 N.C. App. 477, 480, 593 S.E.2d 595, 598 (2004) (citation and quotation marks omitted) (emphases added). See also Burgin v. Owen , 181 N.C. App. 511, 512, 640 S.E.2d 427, 428 (2007) ("The standard of review of an order granting a 12(b)(6) motion is whether the complaint states a claim for which relief can be granted under some legal theory when ... all the allegations included therein are taken as true ." (citation omitted) (emphasis added) ); Acosta v. Byrum , 180 N.C. App. 562, 567, 638 S.E.2d 246, 250 (2006) ("When analyzing a 12(b)(6) motion, the court ... is concerned with the law of the claim, not the accuracy of the facts that support [the] [ ] motion." (citation omitted) ). "This Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct." Leary v. N.C. Forest Prods., Inc. , 157 N.C. App. 396, 400, 580 S.E.2d 1, 4 (2003).

B. Analysis

A Rule 12(b)(6) motion to dismiss "is addressed to whether the facts alleged in the complaint, when viewed in the light most favorable to the plaintiff[ ], give rise to a claim for relief on any theory." Ford v. Peaches Entertainment Corp. , 83 N.C. App. 155, 156, 349 S.E.2d 82, 83 (1986) (citation omitted). Importantly, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claim." S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC , 189 N.C. App. 601, 607, 659 S.E.2d 442, 448 (2008).

In the present case, Plaintiff's complaint alleged the following in support of his strict liability claim against Defendant:

58. Blasting is an ultrahazardous activity.

59. Defendant [ ] knew that blasting is an ultrahazardous activity.

60. Defendant [ ] hired [d]efendant East Coast to perform the ultrahazardous activity of blasting at the Heritage East development site, including the area in question.

61. In hiring [d]efendant East Coast to perform the ultrahazardous activity of blasting, Defendant [ ] ha[d] a non-delegable duty for the safety of Plaintiff [ ].

62. Defendant [ ] is strictly liable for the damages sustained by Plaintiff [ ] that were proximately caused by the ultrahazardous activity of blasting.

63. As a direct and proximate result of the ultrahazardous activity of blasting by Defendant [ ] as described herein, Plaintiff [ ] suffered the injuries and sustained the damages set forth above, and is entitled to compensatory damages[.]

In a memorandum of law filed by Defendant in support of its motion to dismiss, Defendant contended Plaintiff's complaint "disclosed facts which necessarily defeat Plaintiff's claim against [Defendant]." Defendant argued certain facts alleged in the complaint made it "clear that Plaintiff assumed the risk of being injured by a blast and as such Plaintiff has not stated a claim for which relief can be granted." (emphasis added). Defendant argued that Plaintiff "voluntarily exposed himself to danger both generally (by accepting employment with a blasting company[ ] ) and specifically (by being at the blast [that occurred on [25 June] 2013[ ] )."

On appeal, Defendant asserts that an employee...