Fussell v. North Carolina Farm Bureau Mut. Ins. Co. Inc, 369A09.

• Court: United States State Supreme Court of North Carolina
• Citation: 364 N.C. 222,695 S.E.2d 437
• Docket Number: No. 369A09.,369A09.
• Parties: Milton K. FUSSELL and Teresa Fussellv.NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, INC., Pacesetters Realty, Inc. of Wake County, the Town of Apex, and Thomas Cooper.
• Decision Date: 17 June 2010

364 N.C. 222
695 S.E.2d 437

Milton K. FUSSELL and Teresa Fussell
v.
NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, INC., Pacesetters Realty, Inc. of Wake County, the Town of Apex, and Thomas Cooper.

No. 369A09.

Supreme Court of North Carolina.

June 17, 2010.

695 S.E.2d 438

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, --- N.C.App. ----, 680 S.E.2d 229 (2009), reversing an order dismissing plaintiffs' complaint entered on 6 December 2006 by Judge Donald W. Stephens in Superior Court, Wake County. Heard in the Supreme Court 6 January 2010. Notes from the Official Reporter

Negligence-allegations sufficient to state claim-turning on water at house-flooding-duty of care

Plaintiffs' complaint for damages was sufficient to survive a Rule 12(b)(6) motion for dismissal where they alleged that defendant town's employee turned on the water at a house they had purchased even though no one had answered the door, left without checking the meter to determine whether the flow ceased in a short time, and an open bathtub spigot flooded the house. Under the liberal standards accorded notice pleading, the complaint adequately alleged that defendant owed plaintiffs a duty of care. By asserting that defendant's agent left the residence in the circumstances alleged and created a reasonably foreseeable risk of flooding, plaintiffs sufficiently stated a claim that defendant owed them a duty of care.

Manning, Fulton & Skinner, P.A., by Michael S. Harrell, Raleigh, for plaintiff-appellees.

Little & Little, PLLC, by Cathryn M. Little, Raleigh, for defendant-appellant Town of Apex.

EDMUNDS, Justice.

In this case we consider whether plaintiffs' allegations of negligence against defendant Town of Apex (“defendant” or “Apex”) adequately pleaded the element that defendant owed plaintiffs a duty of care. The complaint alleges that plaintiffs' property was damaged by flooding that resulted when, in response to a telephone call requesting that the water be turned on at the residence on the property, an agent or employee of Apex

695 S.E.2d 439

knocked on plaintiffs' doors and, receiving no answer, nevertheless turned on the water and left after confirming that the water meter was running. We conclude that plaintiffs' allegation of duty of care is sufficiently pleaded to avoid dismissal under the liberal standard applied when considering motions made pursuant to Rule 12(b)(6). Accordingly, we affirm the decision of the Court of Appeals.

Plaintiffs Milton K. Fussell and Teresa Fussell made the following allegations in their complaint. Plaintiffs purchased a house in Apex, North Carolina on 24 June 2004 from Seagroves Farm, LLC (Seagroves). Thomas Cooper, a real estate agent with Pacesetters Realty, Inc. (Pacesetters) represented Seagroves in the transaction. Plaintiffs had refused to close the sale before that date because Seagroves's tenant, Mary Lois Woodson, had not vacated the residence on the property. On 23 June 2004, as an inducement to complete the transaction, Cooper gave plaintiffs a written statement that Woodson would vacate the residence “as of midnight 6/23/04.” Despite this assurance, Cooper nevertheless authorized, or at least allowed, Woodson to remain in the home as a tenant after 24 June 2004 without plaintiffs' knowledge or consent.

On 25 June 2004, Cooper telephoned Apex, and the call was answered by the Apex Police Department. Cooper requested that water service be restored at the property, representing that the tenant was preparing for a wedding and had no water. In response, Apex sent an employee or agent to the residence to reconnect the water. Despite having received no answer after knocking on the doors of the residence, Apex's employee or agent “reconnected the property's water service, confirmed that the meter was running, and left without taking precautions to ensure that no problems would arise as a result of the unauthorized and unexpected commencement of water service.” A bathtub spigot was open at the time Apex recommenced water service. No one was present in the residence at that time, and water overflowed the tub and flooded the house for several days, causing substantial damage.

The complaint further alleged in Paragraph 36 that:

Defendant Apex's agents, servants, or employees were negligent in that the agents, servants or employees:

a. Failed to determine whether defendant Cooper had authority to direct that the water be turned on at the Property;

b. Failed to determine the status or condition of the faucets and other plumbing before turning the water on;

c. Failed to determine whether anyone was present in the house before turning the water on; and

d. Failed to take precautions to ensure that no problems would arise when the water was turned on.

Plaintiffs filed suit in Superior Court, Wake County, against Apex, Pacesetters, Cooper, and North Carolina Farm Bureau Mutual Insurance Company, Inc. All four defendants filed motions to dismiss the complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. The trial court denied the motions of Pacesetters and Cooper, but granted the motions of Apex and Farm Bureau. Plaintiffs voluntarily dismissed their claims against Cooper and Pacesetters on 22 February 2008, then timely appealed the dismissal of their claim against Apex. Because Apex is the only defendant pertinent to this appeal, for clarity we will refer to it hereafter as “ defendant.”

In a divided opinion, the Court of Appeals reversed the...