Fussell v. North Carolina Farm Bureau, COA08-597.

Citation680 S.E.2d 229
Decision Date04 August 2009
Docket NumberNo. COA08-597.,COA08-597.
CourtCourt of Appeal of North Carolina (US)
PartiesMilton K. FUSSELL and Teresa Fussell, Plaintiffs, v. NORTH CAROLINA FARM BUREAU, Mutual Insurance Company, Inc., Pacesetters Realty, Inc. of Wake County, the Town of Apex, and Thomas Cooper, Defendants.

Manning, Fulton & Skinner, P.A., by Michael S. Harrell, Raleigh, for plaintiffs-appellants.

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

GEER, Judge.

Plaintiffs Milton K. and Teresa Fussell appeal from the trial court's order dismissing their claim for negligence against defendant the Town of Apex pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Plaintiffs' complaint, when viewed in the light most favorable to plaintiffs, alleges that the Town's employee turned on the water at plaintiffs' house and left the water turned on when the employee could see that water was running somewhere in the apparently unoccupied house. We hold that these allegations sufficiently state a negligence claim because it was reasonably foreseeable that leaving the water running in an unoccupied house could result in property damage. We, therefore, reverse the order dismissing plaintiffs' complaint.


Plaintiffs' complaint alleged the following facts. Plaintiffs entered into a contract to purchase a house and adjacent vacant lot in Apex, North Carolina. At that time, the sellers of the property were renting the house to Mary Lois Woodson. Woodson would not vacate the property, and at least once, plaintiffs refused to go forward with the closing of the sale because Woodson had not yet moved out. In order to induce plaintiffs to close, defendant Thomas Cooper, the property's listing agent, provided plaintiffs with a written statement that Woodson would vacate the property by midnight on 23 June 2004. Plaintiffs closed on the property on 24 June 2004.

Woodson, however, remained in the house without plaintiffs' knowledge or consent. Cooper knew she was still living there, and upon Woodson's request, Cooper called the Town on 25 June 2004 and asked that it restore water service to the property, explaining that the tenant needed to get ready for a wedding. The Town sent one of its employees to the home to restore the water service.

When the employee arrived at the house, he knocked on all the doors to the home, but received no answer. The employee nonetheless restored the water service. He saw that the meter was running, but left the property without confirming that anyone was home. In fact, no one was present on the property. A faucet in the upstairs bathtub had, however, been left on and water began flowing through it once the Town's employee restored water service. Since the bathtub drain was plugged, the tub overflowed and water ran through the home for several days before being discovered, causing substantial damage to the property.

On 22 August 2006, plaintiffs filed suit against the Town, North Carolina Farm Bureau Mutual Insurance Company, Inc., Cooper, and his realty company, Pacesetters Realty, Inc. of North Carolina. All defendants filed Rule 12(b)(6) motions to dismiss the complaint. The trial court granted the motions to dismiss of the Town and Farm Bureau, but denied the motions to dismiss of Pacesetters and Cooper. Although the trial court denied plaintiffs' motion to certify the orders for immediate appeal under Rule 54(b) of the Rules of Civil Procedure, plaintiffs voluntarily dismissed their claims against Cooper and Pacesetters on 22 February 2008. Plaintiffs then timely appealed the dismissal of their claim against the Town.


This Court reviews a trial court's ruling on a motion to dismiss de novo. Lea v. Grier, 156 N.C.App. 503, 507, 577 S.E.2d 411, 415 (2003). We must determine "`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, whether properly labeled or not.'" Leary v. N.C. Forest Prods., Inc., 157 N.C.App. 396, 400, 580 S.E.2d 1, 4 (quoting Grant Constr. Co. v. McRae, 146 N.C.App. 370, 373, 553 S.E.2d 89, 91 (2001)), aff'd per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003).

"In order to avoid dismissal under Rule 12(b)(6), a party must state enough to satisfy the substantive elements of at least some legally recognized claim." Winters v. Lee, 115 N.C.App. 692, 694, 446 S.E.2d 123, 124 (internal quotation marks omitted), disc. review denied, 338 N.C. 671, 453 S.E.2d 186 (1994). "To withstand a motion to dismiss, plaintiff's negligence complaint must allege the existence of a legal duty or standard of care owed to the plaintiff by the defendant, breach of that duty, and a causal relationship between the breach of duty and certain actual injury or loss sustained by the plaintiff." Sterner v. Penn, 159 N.C.App. 626, 629, 583 S.E.2d 670, 673 (2003) (internal quotation marks omitted).

Plaintiffs alleged that the Town was negligent in the following respects:

36. 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.

37. The negligent acts and omissions described herein were committed by servants, agents or employees of defendant Apex working in the course and scope of their employment or agency; therefore, those negligent acts and omissions are imputed to defendant Apex.

On appeal, the parties dispute whether these factual allegations were sufficient to allege that the Town breached any duty of reasonable care owed plaintiffs.

In Mosseller v. City of Asheville, 267 N.C. 104, 106, 147 S.E.2d 558, 560 (1966), the plaintiff slipped on ice that formed when water leaked from the City's water line into the streets and froze. Our Supreme Court first held that a municipal corporation that sells water for private consumption is acting in a proprietary capacity and can be held liable to the same extent as a privately owned water company. Id. at 107, 147 S.E.2d at 561. Nevertheless, the Court concluded that the trial court had properly dismissed the action because the plaintiff had not shown that her injury was reasonably foreseeable to the City. Id. at 110, 147 S.E.2d at 563.

The Court explained that a municipal corporation

is not an insurer against injury or damage by water leaking from such system. It is liable only if the escape of the water was due to its negligence either as to the initial break in the water line or in its failure to repair or cut off the line so as to stop the flow. The reasonable care which is required of the city when engaged in such operation, like that required of a privately owned water company, includes the exercise of ordinary diligence to discover breaks in its lines and to correct such defects of which it has notice, or which it could have discovered by the exercise of reasonable inspection.

Id. at 107, 147 S.E.2d at 561 (internal citation omitted). The Court noted that because no evidence explained how the leak occurred, the plaintiff could recover only by showing that the City "was negligent in its failure to take steps to stop the flow of water after it had actual or constructive notice of the leak." Id.

The record indicated that the City had actual notice of a small leak that was causing a small amount of water to flow in the gutter. Id. The City did not send anyone to repair the leak until after the plaintiff had fallen. Id. at 110, 147 S.E.2d at 563. Nevertheless, the Supreme Court concluded that the possibility that a large volume of water would freeze on the streets and be covered with light snow such that the unsuspecting plaintiff might slip and fall was unforeseeable. Consequently, the Court affirmed the entry of judgment in favor of the City.

In Graham v. N.C. Butane Gas Co., 231 N.C. 680, 685, 58 S.E.2d 757, 761 (1950), our Supreme Court explained that a gas company must "use reasonable care to prevent the escape of gas" in its customers' buildings. Id. The Court acknowledged that when the gas company does not own and did not install the gas fixtures in a customer's building, the gas company "is in no way responsible for their condition or for their maintenance," and thus can act on the assumption "in the absence of notice to the contrary[,] that such fixtures are sufficiently secure to permit gas to be introduced into the building with safety." Id.

If, however, the gas company "becomes aware that such gas is escaping from the gas fixtures on the premises into the building, it becomes the duty of the gas company to shut off the gas supply until the further escape of gas from the fixtures can be prevented, even though the fixtures do not belong to the company and are not in its charge or custody." Id., 58 S.E.2d at 762. Therefore, "[i]f the gas company continues to transfer gas to the fixtures on the premises after it learns that the gas is escaping therefrom, it does so at its own risk, and becomes liable for any injury proximately resulting from its act in so doing." Id.

In applying these principles, the Court noted that the plaintiffs had presented evidence that the defendant was delivering 50 gallons of gas to the plaintiffs' storage tank. Id. at 686, 58 S.E.2d at 762. While the defendant's agent was transferring the gas from his tank truck to the storage tank, the agent realized that the gas was escaping through the plaintiffs' gas range into the...

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