Turner v. Norfolk Southern Corp.

• Decision Date: 21 March 2000
• Docket Number: No. COA99-399.,COA99-399.
• Citation: 526 S.E.2d 666,137 NC App. 138
• Court: North Carolina Court of Appeals
• Parties: Stevie L. TURNER, Administrator of the Estate of Edna Branch Turner, Stevie L. Turner, Administrator of the Estate of Stevie Larue Turner, Jr., Stevie L. Turner, Individually and as Guardian Ad Litem for Sherrod A. Turner, Stevie L. Turner, Administrator of the Estate of Redell Nelson Turner, Plaintiff, v. NORFOLK SOUTHERN CORPORATION, Norfolk Southern Railway Co., R.C. Churchill, III, J. Wilbert Forbes, Mark Bauman, Glenn Maurer, Tommy D. Queen, B.L. Sykes, L.E. Wetsel, Jr., and Serrmi Services, Inc., Defendants.

526 S.E.2d 666

137 NC App. 138

Stevie L. TURNER, Administrator of the Estate of Edna Branch Turner, Stevie L. Turner, Administrator of the Estate of Stevie Larue Turner, Jr., Stevie L. Turner, Individually and as Guardian Ad Litem for Sherrod A. Turner, Stevie L. Turner, Administrator of the Estate of Redell Nelson Turner, Plaintiff, v. NORFOLK SOUTHERN CORPORATION, Norfolk Southern Railway Co., R.C. Churchill, III, J. Wilbert Forbes, Mark Bauman, Glenn Maurer, Tommy D. Queen, B.L. Sykes, L.E. Wetsel, Jr., and Serrmi Services, Inc., Defendants.

No. COA99-399.

Court of Appeals of North Carolina.

March 21, 2000.

Randall, Jervis & Hill, by John C. Randall, Durham, William L. Thorp, Chapel Hill, and E.C. Harris, Durham, for plaintiff-appellant.

Millberg & Gordon, P.L.L.C., by John C. Millberg and Frank J. Gordon, Raleigh; Michaux & Michaux, P.A., by Eric Michaux, Durham; and Smith Helms Mulliss & Moore, L.L.P., by James G. Exum, Jr., Greensboro, and Matthew W. Sawchak, Raleigh, for defendants-appellees Norfolk Southern.

WALKER, Judge.

Plaintiff filed this action on 3 May 1994 alleging defendants' negligence arising out of a collision between an automobile driven by the plaintiff's wife, Edna Turner, and an Amtrak train at the Hopson Road railroad crossing in Durham County. Mrs. Turner and two of their children were killed, and a third child was seriously injured. Plaintiff is the administrator of the estates of his wife and two children and guardian ad litem of the injured child. The railroad in question is operated by defendant Norfolk Southern (Norfolk). Defendant Serrmi Services, Inc. was retained by the other defendants to perform the engineering and design work and carry out the construction plans for the automatic warning devices to be installed at the Hopson Road crossing.

Plaintiff claims defendants are negligent under two theories: (1) the defendants breached a common law duty to provide adequate warning devices at the Hopson Road crossing ("tort claim") and (2) the defendants negligently performed a contract between Norfolk and the North Carolina Department of Transportation (DOT) to design and erect automatic warning devices within a reasonable time at the Hopson Road crossing after receiving authorization from DOT to do so ("contract claim").

On 2 November 1998, all defendants, except Serrmi Services, Inc., moved for dismissal pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure and for summary judgment and partial summary judgment pursuant to Rule 56. Defendants claimed, in part, that Title 23 U.S.C.A. § 409 (West 1999)("Section 409") barred the introduction into evidence of the contract between DOT and Norfolk as well as certain documents which had been produced by defendants in discovery regarding defendants' performance of the contract, thus requiring dismissal of plaintiff's claims.

Title 23 U.S.C.A. § 409 states:

Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying[,] evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.

23 U.S.C.A. § 409 (West 1999).

On 4 December 1998, the trial court granted defendants' motion for summary judgment as to plaintiff's contract claim based on a failure to comply with the contract between DOT and Norfolk and denied defendant's motion as to plaintiff's tort claim. The trial court's order stated in pertinent part:

When federal funds participate in installation, federal preemption is triggered. If federally funded safety devices are planned but not installed prior to the accident in question, then the railroad's liability will be determined solely on the basis of a breach, if any, of that common law duty, as if no planning had ever occurred. 23 U.S.C. § 409 prohibits any evidence to be offered in trial of that common law cause of action regarding any recommendation, plan, agreement or scheduling of such safety devices under the federal program.

(Emphasis in original).

The trial court's order concluded that:

[T]he motions for partial summary judgment filed by defendants are denied in part and granted in part; that summary judgment is granted against plaintiffs on their claims based on an alleged breach of duty created by contract; that plaintiff's common law tort claim survives summary judgment to the extent it is not based on and does not involve evidence of any recommendation, plan, agreement, or scheduling of the federally funded signal project for the Hopson Road crossing; that any such evidence is not competent or admissible on the issue of the alleged breach of a common law duty; and that such issue shall be tried as if there had never been any planned or recommended upgrades.

On 14 December 1998, plaintiff moved, pursuant to Rules 52(b) and 59(4), (7), and (8) of the North Carolina Rules of Civil Procedure, to amend the order and for a new hearing, both of which were denied on 18 December 1998. The trial court's order denying plaintiff's motions stated:

The Court, having considered the Plaintiff's motion to amend its prior judgment, hereby denies that motion in its entirety. The prior order of this Court remains in full force and effect. However, nothing in that prior order shall deny to the trial judge the right to rule on matters of evidence which that judge considers competent, relevant and admissible on the remaining issues to be resolved by a jury in this case.

(Emphasis added).

We first consider whether plaintiff's appeal is properly before this Court. Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980). There is generally no right to appeal an interlocutory order. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994). "An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy." N.C. Dept. of Transportation v. Page, 119 N.C.App. 730, 733, 460 S.E.2d 332, 334 (1995). The rule against interlocutory appeals seeks to prevent fragmentary, premature and unnecessary appeals by allowing the trial court to bring a case to final judgment before its presentation to the appellate courts. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978).

There are only two means by which an interlocutory order may be appealed: (1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) or (2) "if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review." Bartlett v. Jacobs, 124 N.C.App. 521, 524, 477 S.E.2d 693, 695 (1996), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997) (citations omitted); Anderson v. Atlantic Casualty Ins. Co., 134 N.C.App. 724, 518 S.E.2d 786 (1999); N.C. Gen.Stat. § 1-277 (1999); N.C. Gen.Stat. § 7A-27 (1999). Thus, we must determine whether the orders granting summary judgment to defendants and denying the amendment of the order were final or, in the alternative, whether a substantial right of the plaintiff will be affected absent immediate appellate review.

"A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court." Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381, rehearing denied, 232 N.C. 744, 59 S.E.2d 429 (1950).

When the trial court granted defendants' motion to dismiss the contract claim, the pending tort claim was not disposed of and the appeal is therefore interlocutory. See Liggett Group v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993)

("A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal"). Furthermore, defendant Serrmi Services, Inc. was not named in the trial court's grant of partial summary judgment and remains a party to the suit. See ...