Suarez v. Am. Ramp Co. , 266 N.C. App. 604 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-36
Filed: 6 August 2019
Onslow County, No. 17 CVS 2329
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
Appeal by Plaintiffs from Order entered 4 September 2018 by Judge Albert D.
Kirby, Jr. in Onslow County Superior Court. Heard in the Court of Appeals 8 May
2019.
Zaytoun Law Firm, PLLC, by Matthew D. Ballew, Robert E. Zaytoun, and John
R. Taylor, for plaintiffs-appellants.
Crossley McIntosh Collier Hanley & Edes, PLLC, by Clay Allen Collier, and
Ward and Smith, PA, 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
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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
1 Defendant American Ramp Company (ARC) and Third-Party Defendant Alaina Hess (Hess)
are not parties to the instant appeal.
2 We accept the factual allegations of the Complaint as true for the sole purpose of reviewing
the Order dismissing Plaintiff’s claims against the Town on the face of the Complaint. As such, this
opinion should not be construed as judicially establishing any fact at issue in this case.
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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
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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
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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
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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
3It is unclear why the trial court’s Order does not contain a Rule 54(b) certification, except to
say the Record before us does not reflect Plaintiffs requested one.
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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 Plaintiffs’
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interlocutory appeal is properly before us as affecting a substantial right. Thus, we
deny the Town’s Motion to Dismiss the Appeal.
Issues
The dispositive issues in this case are: (I) Whether Plaintiffs’ Complaint states
claims against the Town sufficient to withstand the special liability provisions of N.C.
Gen. § 99E-21 et seq.; (II) Whether Plaintiffs adequately alleged the Town knew or
should have known of the hazardous condition caused by the hot metal ramp; and
(III) Whether the Plaintiffs adequately alleged claims for gross negligence sufficient
to withstand the Town’s Motion to Dismiss.
Standard of Review
The trial court’s Order states the Town’s Motion to Dismiss was based on
N.C.R. Civ. P. “12(b)(1) and/or (6).” However, the Order does not identify the
particular rule or rules upon which it actually based its dismissal. “While we apply
a de novo standard when reviewing either a Rule 12(b)(1) or 12(b)(6) dismissal,
identifying the precise civil procedure rule underlying a dismissal is critical because
it dictates our scope of review.” Holton v. Holton, ___ N.C. App. ___, ___, 813 S.E.2d
649, 654 (2018). The primary difference is that “[u]nlike a Rule 12(b)(6) dismissal,
the court need not confine its evaluation of a Rule 12(b)(1) motion to the face of the
pleadings, but may review or accept any evidence, such as affidavits, or it may hold
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an evidentiary hearing.” Cunningham v. Selman, 201 N.C. App. 270, 280, 689 S.E.2d
517, 524 (2009) (citation and quotation marks omitted).
Here, it is apparent the trial court limited its consideration to the face of the
Complaint in compliance with Rule 12(b)(6). Moreover, to the extent the trial court
perceived the Town’s Motion to Dismiss as raising an immunity defense, our Courts
generally recognize immunity as a defense that can be raised under Rules 12(b)(1),
12(b)(2), or 12(b)(6).4 See generally Meherrin Indian Tribe v. Lewis, 197 N.C. App.
380, 677 S.E.2d 203 (2009). In any event, as discussed herein, we determine the
Town’s Motion to Dismiss did not implicate an immunity defense and thus did not
implicate subject-matter jurisdiction under Rule 12(b)(1). In addition, the trial court
dismissed Plaintiffs’ claims “with prejudice,” which further indicates it was relying
on Rule 12(b)(6) and not Rule 12(b)(1). See Holton, ___ N.C. App. at ___, 813 S.E.2d
at 655 (dismissal under Rule 12(b)(1) is without prejudice (citation omitted)). It
follows then that the trial court’s dismissal in this case was premised on Rule 12(b)(6),
and we review this matter as such.
“The standard of review of an order granting a [Rule] 12(b)(6) motion is
whether the complaint states a claim for which relief can be granted under some legal
4 This raises a tangled issue that we need not address here. It remains somewhat of an open
question in North Carolina as to under which section of Rule 12 sovereign immunity falls. See Lake
v. State Health Plan for Teachers & State Emps., 234 N.C. App. 368, 370-71 n.3, 760 S.E.2d 268, 271
n.3 (2014) (citations omitted). See Can Am S., LLC v. State of N.C., 234 N.C. App. 119, 122, 759 S.E.2d
304, 307 (2014), for a discussion of why this matters under North Carolina appellate practice for
purposes of appealability.
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theory when the complaint is liberally construed and all the allegations included
therein are taken as true.” Gilmore v. Gilmore, 229 N.C. App. 347, 350, 748 S.E.2d
42, 45 (2013) (alteration in original) (citation and quotation marks omitted). “On
appeal, we review the pleadings de novo to determine their legal sufficiency and to
determine whether the trial court's ruling on the motion to dismiss was correct.” Id.
(citation and quotation marks omitted).
Analysis
I. N.C. Gen. Stat. § 99E-21 et seq.
The primary issue argued before both the trial court and this Court is whether
Article 3 of Chapter 99E of our General Statutes, entitled “Hazardous Recreation
Parks Safety and Liability” (Hazardous Recreational Activities Act), serves as a
complete bar to Plaintiffs’ Complaint. See N.C. Gen. Stat. § 99E-21 et seq. (2017).
The Town contends the Hazardous Recreational Activities Act serves as a complete
immunity defense to Plaintiffs’ claims akin to governmental or sovereign immunity.
We disagree.
The Hazardous Recreational Activities Act serves to limit the liability of
governmental entities operating skateboard parks used for skateboarding, inline
skating, or freestyle bicycling.5 Its stated purpose
5 Article 3 to Chapter 99E of our General Statutes was enacted in 2003 in legislation titled: An
Act to Establish the Duties of Operators of Skateboard Parks, to Establish the Duties of Persons Who
Engage in Certain Hazardous Recreational Activities, and to Limit the Liability of Governmental
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is to encourage governmental owners or lessees of property to
make land available to a governmental entity for skateboarding,
inline skating, or freestyle bicycling. It is recognized that
governmental owners or lessees of property have failed to make
property available for such activities because of the exposure to
liability from lawsuits and the prohibitive cost of insurance, if
insurance can be obtained for such activities. It is also recognized
that risks and dangers are inherent in these activities, which
risks and dangers should be assumed by those participating in
those activities.
N.C. Gen. Stat. § 99E-21 (2017).
This purpose is carried out in two ways. First, the Statutes impose duties upon
those engaged in “hazardous recreational activities”—“Any person who participates
in or assists in hazardous recreational activities assumes the known and unknown
inherent risks in these activities, irrespective of age, and is legally responsible for all
damages, injury, or death to himself or herself or other persons or property that result
from these activities.” Id. § 99E-24(a) (2017). The same is true for “[a]ny person who
observes hazardous recreational activities[.]” Id.
Second, the Hazardous Recreational Activities Act limits liability for
governmental entities and employees:
No governmental entity or public employee who has complied
with G.S. 99E-23 shall be liable to any person who voluntarily
participates in hazardous recreation activities for any damage or
injury to property or persons that arises out of a person's
participation in the activity and that takes place in an area
designated for the activity.
Entities for Damage or Injuries that Arise Out of a Person's Participation in Certain Hazardous
Recreational Activities and that Occur in an Area Designated for Certain Hazardous Recreational
Activities. 2003 N.C. Sess. Law 334 (N.C. 2003).
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Id. § 99E-25(b) (2017). In turn, N.C. Gen. Stat. § 99E-23 simply requires
governmental operators of skateboard parks to require the use of helmets, elbow
pads, and kneepads while skateboarding at a skateboard park. Id. § 99E-23 (2017).
The protections against liability afforded governmental entities under these
statutes are, however, not unlimited. First, Section 99E-25 itself provides two
exceptions to its limitation on liability:
(1) The failure of the governmental entity or public employee to
guard against or warn of a dangerous condition of which a
participant does not have and cannot reasonably be expected
to have had notice.
(2) An act of gross negligence by the governmental entity or public
employee that is the proximate cause of the injury.
Id. § 99E-25(c)(1)-(2).
Second, these statutes, by their plain language, only apply to persons engaging
in “hazardous recreational activities,” which is narrowly defined as only including
“[s]kateboarding, inline skating, or freestyle bicycling.” Id. § 99E-22(2) (2017).
Further, “inherent risk” is defined as: “Those dangers or conditions that are
characteristic of, intrinsic to, or an integral part of skateboarding, inline skating, and
freestyle bicycling.” Id. § 99E-22(3).
When construing these statutory provisions together, it is evident the
Hazardous Recreational Activities Act is not intended to give a governmental actor
blanket immunity from every negligence or premise-liability claim arising in a
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skateboard park. Rather, it operates to limit liability of governmental entities for the
increased risk of injuries caused by skateboarding, inline skating, and freestyle
bicycling that is inherent in those activities. This distinction is important because
immunity serves as more than an affirmative defense because it “not only prevents
courts from entering judgments against our state government, but also protects the
government from being haled into court in the first instance.” Ballard v. Shelley, ___
N.C. App. ___, ___, 811 S.E.2d 603, 605 (2018) (citation omitted). Here, N.C. Gen.
Stat. § 99E-21 et seq. does not bar all claims by an injured person covered under the
Act but rather limits those claims and provides for additional defenses. Indeed, we
find this distinction further supported by the statutes themselves. Chapter 99E is
entitled “Special Liability Provisions,” and each article addresses standards of
liability for different types of potentially hazardous activities. The Hazardous
Recreational Activities Act itself differentiates its provisions from immunity:
“Nothing in this section shall be deemed to be a waiver of sovereign immunity under
any circumstances.” N.C. Gen. Stat. § 99E-25(d). Governmental or sovereign
immunity is thus an additional defense that may apply to a particular claim,
including a claim falling under Section 99E-21 et seq.6
6 Indeed, in the trial court below, the Town tabled its arguments regarding governmental or
sovereign immunity for potential later proceedings. We, obviously, express no opinion on the merits
or applicability of such immunity defenses to this case.
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In this case, on the face of the Complaint, the 18-month-old Plaintiff was not
engaged in a “hazardous recreational activity,” as narrowly defined by the statute,
but rather was simply playing with his brother within the Skate Park when he
contacted the hot metal on the ramp. Indeed, it is not apparent, and certainly not on
the face of this Complaint, that severe burns caused by scorching hot metal is an
inherent risk of skateboarding or other hazardous recreational activity, such that the
minor Plaintiff assumed the risk of such injuries under N.C. Gen. Stat. § 99E-24.
Moreover, even assuming the minor Plaintiff’s conduct falls within the ambit
of the Hazardous Recreational Activities Act and the limitation of liability under N.C.
Gen. Stat. § 99E-25(b), Plaintiffs, in their Complaint, expressly alleged the Town
engaged in acts falling under the two statutory exceptions in Section 99E-25(c). First,
the Complaint alleges the Town failed to guard against or warn of a dangerous
condition of which Plaintiffs and Hess had no notice and could not reasonably be
expected to have had notice. Specifically, the Complaint alleges the Town failed to
inspect the ramps, take precautions against the ramps becoming dangerously hot, or
warn of the potential danger of the hot metal ramps. The Complaint further
specifically alleges Plaintiffs and Hess had no notice of the dangerous condition and
could not reasonably be expected to have had notice of the burning hot metal.
Additionally, the Complaint also alleges the Town engaged in gross negligence by
willfully and wantonly choosing not to inspect the ramps, despite knowing the ramps
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were constructed of metal and left in an unshaded area of the park. Consequently,
the Complaint alleges claims not barred by Section 99E-25(b). As such, to the extent
the trial court dismissed the Complaint against the Town on the basis of the
Hazardous Recreational Activities Act on the face of the Complaint, this was error
and we reverse the trial court on this ground.
II. The Town’s Actual or Constructive Knowledge of a Dangerous Condition
Plaintiffs also argue the trial court erred in dismissing their negligence claims
against the Town. The Town contends the trial court correctly dismissed Plaintiffs’
claims, arguing the allegations in the Complaint fail to allege the Town breached any
duty owed to the Plaintiffs. Specifically, the Town asserts it had no duty to Plaintiffs
to warn or take steps to prevent the burn injuries to the minor Plaintiff because there
is no allegation the Town knew or should have known of the dangerous condition. See
generally Steele v. City of Durham, 245 N.C. App. 318, 325, 782 S.E.2d 331, 336
(2016).
However, the Complaint alleges that the Town and ARC contracted for the
design, manufacture, and sale of the “heat-attractive” ramps with both Defendants
knowing the planned location of the skate park “and its lack of natural shade, and
direct natural sunlight.” Further, the Complaint alleges the Defendants “knew or
should have known that the heat-attractive ramps placed in a location with full,
direct sunlight in a hot climate present a risk of potential burn injuries to skin that
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touches the ramps” and “chose to recommend, install and approve for public use
ramps with heat-attractive surfaces in a location with full, direct sunlight in a hot
climate[.]” In their claim directed against the Town, Plaintiffs again expressly
alleged the Town “knew, or by a reasonable inspection should have discovered, the
hazardous, dangerous, and unsafe condition with the hot skateboarding ramps at the
Skate Park[.]” Thus, the Complaint clearly alleges the Town knew or should
reasonably have known of the alleged dangerous condition.
Nevertheless, the Town maintains it had no duty to warn of the alleged
dangerous condition because it constituted a known and obvious danger of which
Hess or the Suarez children had equal or superior knowledge to the Town. See
generally Waddell v. Metropolitan Sewerage Dist. of Buncombe Cnty., 207 N.C. App.
129, 134, 699 S.E.2d 469, 472 (2010); Lorinovich v. K Mart Corp., 134 N.C. App. 158,
162, 516 S.E.2d 643, 646 (1999); Farrelly v. Hamilton Square, 119 N.C. App. 541, 546,
459 S.E.2d 23, 27 (1995). However, the Complaint quite plainly and repeatedly
alleges Plaintiffs and Hess did not have notice of the condition and, moreover, could
not reasonably be expected to have had notice. The Complaint alleges the Town failed
to warn of the “hidden perils and unsafe condition of hot skateboarding ramps,” that
Plaintiffs and Hess had no notice of the dangerous condition and could not reasonably
have been expected to discover the condition, and that, indeed, Hess had no
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opportunity to inspect the ramp prior to the 18-month-old Plaintiff contacting the
searing hot metal.
Even accepting the premise implicit in the Town’s argument—that it is known
and obvious metal becomes hot in the North Carolina summer sun—it does not
necessarily follow that the hot metal ramp in this case constituted an open and
obvious dangerous condition. At this preliminary stage of the litigation, a number of
variables remain, including, inter alia, the actual appearance of the ramps (i.e., is it
apparent they are, in fact, metal) and the layout of the park itself (i.e., would the
condition be hidden from someone entering the park). Further discovery and
litigation may ultimately lead to the conclusion that the hot metal ramp constituted
an open and obvious condition; however, at this stage of the litigation, the allegations
of the Complaint do not establish the hot metal ramp to be an open and obvious
condition. As such, we reverse the trial court’s Order dismissing Plaintiffs’ negligence
claims under Rule 12(b)(6).
III. Gross Negligence
In addition to the arguments raised by Plaintiffs, the Town further contends
Plaintiffs failed to allege the Town acted with conscious or reckless disregard for the
rights and safety of others to support a gross-negligence claim. “Gross negligence has
been defined as ‘wanton conduct done with conscious or reckless disregard for the
rights and safety of others.’ ” Toomer v. Garrett, 155 N.C. App. 462, 482, 574 S.E.2d
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76, 92 (2002) (quoting Bullins v. Schmidt, 322 N.C. 580, 583, 369 S.E.2d 601, 603
(1988)). “Aside from allegations of wanton conduct, a claim for gross negligence
requires that plaintiff plead facts on each of the elements of negligence, including
duty, causation, proximate cause, and damages.” Id. (citation omitted).
In this case, we have already determined Plaintiffs adequately stated
negligence claims against the Town. Moreover, Plaintiffs’ Complaint alleges that
notwithstanding the Town’s knowledge and decision to use heat-attractive ramps and
place them in an unshaded, direct sun-lit area, the Town failed to inspect and
maintain the Skate Park, warn of the danger of the hot metal ramps, or take steps to
prevent the ramps from overheating. The Complaint further expressly alleges that
in so failing, the Town acted “wantonly, recklessly and with conscious and intentional
disregard for the rights and safety of others[.]”
Therefore, we conclude Plaintiffs’ Complaint adequately states a claim for
gross negligence to survive the Town’s Motion to Dismiss under Rule 12(b)(6). Thus,
at this stage of the litigation, the Town is not entitled to dismissal of Plaintiffs’ gross-
negligence claims.
Conclusion
Accordingly, for the foregoing reasons, we reverse the trial court’s Order
dismissing Plaintiffs’ claims against the Town.
REVERSED.
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Judges STROUD and YOUNG concur.
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