Suarez by and through Nordan v. American Ramp Company

• Decision Date: 06 August 2019
• Docket Number: No. COA19-36,COA19-36
• Parties: Gavin SUAREZ, minor child, BY AND THROUGH Guardian Ad Litem, Richard P. NORDAN, Esq.; Eric Suarez and Jean Suarez, individually and as parents and natural guardians of Gavin Suarez, Plaintiffs v. AMERICAN RAMP COMPANY (ARC); Town of Swansboro, Defendants v. Alaina Hess, Third-Party Defendant
• Court: North Carolina Court of Appeals

266 N.C.App. 604

831 S.E.2d 885

Gavin SUAREZ, minor child, BY AND THROUGH Guardian Ad Litem, Richard P. NORDAN, Esq.; Eric Suarez and Jean Suarez, individually and as parents and natural guardians of Gavin Suarez, Plaintiffs

v.AMERICAN RAMP COMPANY (ARC); Town of Swansboro, Defendants

v.Alaina Hess, Third-Party Defendant

No. COA19-36

Court of Appeals of North Carolina.

Filed: August 6, 2019

Zaytoun Law Firm, PLLC, Raleigh, by Matthew D. Ballew, Robert E. Zaytoun, and John R. Taylor, for plaintiffs-appellants.

Crossley McIntosh Collier Hanley & Edes, PLLC, Wilmington, by Clay Allen Collier, and Ward and Smith, PA, New Bern, by Michael J. Parrish, for defendant-appellee.

HAMPSON, Judge.

Factual and Procedural Background

Gavin Suarez (minor Plaintiff), by and through his Guardian ad Litem , and his parents, Eric and Jean Suarez, (collectively, Plaintiffs) appeal from the trial court's Order dismissing their Complaint against the Town of Swansboro (Town).¹ The Record before us tends to show the following:

On 21 June 2017, Plaintiffs filed a Complaint against the Town and ARC.² The Complaint alleged, in relevant part, that the Town, a North Carolina municipal corporation, owned the Swansboro Skate Park (Skate Park). In the fall of 2011, the Town sent out an invitation for proposals for the construction of a skateboarding park. The Town specifically requested skateboarding ramps be made of "stainless steel or other corrosion resistant material" and indicated that the ramps would "be installed by the Public Works Department of [the Town], under the direction of a certified playground safety inspector who is a Town Employee."

The Town contracted with ARC to design, manufacture, and sell to the Town skateboarding ramps for the Skate Park. The Complaint further alleged the Town and ARC agreed to the sale and purchase of the ramps containing a "heat-attractive surface" and did so knowing the Skate Park was located in a hot-climate area with a lack of natural shade and in direct sunlight, presenting the risk of potential burn injuries. In December 2011, an employee or agent of ARC inspected the installed ramps. However, this inspection did not include any checks related to hazards of burn injuries or overheating of the ramps. Plaintiffs alleged ARC and the Town willfully and wantonly chose not to inspect the ramps installed at the Skate Park for "burn injury potential." The Skate Park opened in early 2012. While the Town posted signs at the Skate Park, none of these signs warned visitors that the ramps may become hot enough to cause burn injuries. As such the Complaint alleged: "Pursuant to N.C. Gen. Stat. § 99E-25(c)(1) ... [the Town] ... failed to guard against or warn of a dangerous condition of which guests and participants at the Skate Park did not have notice and cannot reasonably be expected to have notice."

On 14 August 2014, the minor Plaintiff and his older brother were being supervised by their babysitter, Hess. It was a nice warm summer day, and Hess took the children to the municipal park where the Skate Park was located. When they arrived, the Skate Park was not being used. The minor Plaintiff's older brother wanted to see the Skate Park, and Hess allowed the children to explore the Skate Park. The group had only been in the Skate Park for a matter of minutes when the minor Plaintiff (then just shy of 18 months old) followed his older brother up a ramp and fell. The minor Plaintiff immediately began screaming and crying. Hess took the child to a bathroom to clean up and observed the skin on his hands and both of his legs had bubbled up into large blisters. Hess ultimately took the minor Plaintiff to Carteret General Hospital where the minor Plaintiff's mother worked. The minor Plaintiff was subsequently transferred by helicopter to the UNC Hospital Pediatric Burn Department.

The Complaint alleged the Plaintiffs suffered damages as a result of the minor Plaintiff's burn injuries caused by the hot ramp. It further alleged Plaintiffs and Hess did not have and could not have had notice of the hazardous condition at the Skate Park. Plaintiffs asserted claims against both ARC and the Town. Against the Town specifically, Plaintiffs claimed both negligence and gross negligence by the Town, grounded in allegations of failure to warn, failure to inspect and maintain, and failure to take corrective measures or precautions to prevent hot skateboarding ramps.

On 1 September 2017, ARC filed its Answer. In its Answer, ARC raised several defenses, including, inter alia , the possibility of intervening negligence of a third party. The third party in question, Hess, was served with summons as a third-party defendant. On 19 July 2018, the Town filed an Amended Answer, which included a Motion to Dismiss asserting "Plaintiffs’ Complaint fails to establish jurisdiction over the Town and fails to state a claim against the Town upon which relief may be granted" pursuant to Rule 12 of the North Carolina Rules of Civil Procedure. Town also raised the defenses of the intervening negligence of Hess, the contributory negligence of the minor Plaintiff, and governmental immunity, among others.

The Town's Motion to Dismiss came on for hearing on 13 August 2018 in Onslow County Superior Court. At this hearing, the Town argued (1) it was entitled to immunity from suit under the provisions of N.C. Gen. Stat. § 99E-21 et seq ., which provide certain protections for governmental operators of skateboarding parks; and (2) alternatively, Plaintiffs’ Complaint failed to plead essential elements of a premise-liability claim against the Town to support either negligence or gross-negligence claims. On 4 September 2018, the trial court entered its Order granting the Town's Motion to Dismiss "pursuant to [ Rule] 12(b)(1) and/or (6) [.]" The trial court dismissed all claims against the Town with prejudice. Plaintiffs filed Notice of Appeal on 25 September 2018.

Appellate Jurisdiction

As an initial matter, we must determine whether this appeal is properly before us. As Plaintiffs acknowledge, this appeal is interlocutory because it leaves Plaintiffs’ claims against ARC pending. See, e.g. , Cunningham v. Brown , 51 N.C. App. 264, 266, 276 S.E.2d 718, 721 (1981) (holding that "[a]n order which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties" is interlocutory and generally not appealable). The Town, in turn, has filed a Motion to Dismiss the Appeal on this basis.

"Generally, there is no right of immediate appeal from interlocutory orders and judgments." Sharpe v. Worland , 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999) (citations omitted). "Notwithstanding this cardinal tenet of appellate practice, immediate appeal of interlocutory orders and judgments is available in at least two instances." Id. at 161, 522 S.E.2d at 579. First, under N.C.R. Civ. P. 54(b), "immediate review is available when the trial court enters a final judgment as to one or more, but fewer than all, claims or parties and certifies there is no just reason for delay." Id. at 161-62, 522 S.E.2d at 579 (citations omitted). Here, the trial court did not include a Rule 54(b) certification in its Order.³

Second, "immediate appeal is available from an interlocutory order or judgment which affects a ‘substantial right.’ " Id . at 162, 522 S.E.2d at 579 (citations omitted). "[A]n interlocutory order affects a substantial right if the order ‘deprive[s] the appealing party of a substantial right which will be lost if the order is not reviewed before a final judgment is entered.’ " Id. (alteration in original) (citation omitted) (quoting Cook v. Bankers Life & Cas. Co. , 329 N.C. 488, 491, 406 S.E.2d 848, 850 (1991) ). Here, Plaintiffs contend the possibility of inconsistent verdicts on overlapping factual issues against the two Defendants in this case is such a substantial right.

"[T]he right to avoid the possibility of two trials on the same issues can be ... a substantial right." See Green v. Duke Power Co. , 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982) (alteration in original) (citation and quotation marks omitted). We have explained:

This general proposition is based on the following rationale: when common fact issues overlap the claim appealed and any remaining claims, delaying the appeal until all claims have been adjudicated creates the possibility the appellant will undergo a second trial of the same fact issues if the appeal is eventually successful. This possibility in turn "creat[es] the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue."

Davidson v. Knauff Ins. Agency , 93 N.C. App. 20, 25, 376 S.E.2d 488, 491 (1989) (alteration in original) (citation omitted) (quoting Green , 305 N.C. at 608, 290 S.E.2d at 596 ).

Here, Plaintiffs identify a number of potentially overlapping factual issues that may result in inconsistent verdicts should they be required to pursue separate trials against the Town and ARC, which they maintain affects a substantial right. We agree with Plaintiffs. At a minimum, separate trials would potentially raise inconsistencies in issues of both causation and damages. This gives rise to a substantial right allowing for an immediate appeal. See Bernick v. Jurden , 306 N.C. 435, 439, 293 S.E.2d 405, 409 (1982) ("[T]he plaintiff's right to have one jury decide whether the conduct of one, some, all or none of the defendants caused his injuries is indeed a substantial right."). In particular, we note a key issue in any trial against both Defendants will be the intervening or superseding negligence of Hess, and different juries could reach inconsistent verdicts on that question. Cf. Hoots v. Pryor , 106 N.C. App. 397, 402, 417 S.E.2d 269, 273 (1992) (holding that a scenario where one trial might find a party contributorily negligent while another might not creates a substantial risk of inconsistent verdicts). Therefore, we conclude Plaint...