266 N.C. App. 604
N.C. Ct. App.2019Background
- In 2017 plaintiffs (parents and minor child) sued the Town of Swansboro and American Ramp Company (ARC) after the minor (≈18 months) sustained severe burns when he touched a metal ramp at the Town’s skate park.
- Town solicited proposals requiring corrosion‑resistant ramps; Town contracted with ARC to design, manufacture, and sell ramps installed at the skate park in an unshaded area.
- Plaintiffs allege the ramps were “heat‑attractive,” the Town (and ARC) knew or should have known the ramps could overheat in direct sun, failed to inspect/maintain/warn, and acted wantonly/grossly negligently.
- Town moved to dismiss under Rule 12(b)(1) and/or (6), arguing statutory protection in N.C. Gen. Stat. § 99E‑21 et seq. (Hazardous Recreational Activities Act) and lack of duty/notice; the trial court dismissed all claims with prejudice.
- Plaintiffs appealed interlocutory dismissal; Court of Appeals found the appeal proper because dismissal could create inconsistent verdicts if separate trials proceeded against ARC and the Town.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.C. Gen. Stat. § 99E‑21 et seq. bars the Complaint | Statute does not give blanket immunity; exceptions apply (failure to warn/guard; gross negligence) and statute only covers persons engaging in defined "hazardous recreational activities" | Statute limits governmental liability for skatepark injuries and should bar suit against the Town | Statute does not bar the Complaint on its face; plaintiffs alleged exceptions (no notice/failure to warn; gross negligence) and the child was not necessarily engaged in a covered "hazardous recreational activity" |
| Whether plaintiffs adequately alleged Town knew or should have known of the dangerous condition (duty/notice) | Plaintiffs alleged Town and ARC knew ramps were heat‑attractive, placed them in unshaded area, and failed to inspect/warn; thus Town had or should have had knowledge | Town argued there was no duty because the risk was known/obvious (metal heating in sun) or plaintiffs had equal/superior knowledge | On the face of the complaint, allegations of Town knowledge/constructive notice were sufficient to survive 12(b)(6); whether condition was open/obvious is a factual question for later stages |
| Whether gross negligence was sufficiently pleaded | Complaint alleged wanton, reckless, conscious disregard by Town in selecting/placing ramps and failing to inspect/warn | Town argued plaintiffs pled only ordinary negligence, not conscious/reckless conduct required for gross negligence | Complaint sufficiently alleged gross negligence (wantonly, recklessly) along with negligence elements to survive 12(b)(6) |
| Appealability of interlocutory dismissal | Plaintiffs: risk of inconsistent verdicts and right to single jury on overlapping issues justifies immediate appeal | Town: order interlocutory because claims against ARC remain, so appeal should be dismissed | Court: appeal allowed — dismissal affected a substantial right (risk of inconsistent verdicts), so appeal proceeds |
Key Cases Cited
- Green v. Duke Power Co., 305 N.C. 603 (discusses when avoiding multiple trials on overlapping factual issues constitutes a substantial right)
- Bernick v. Jurden, 306 N.C. 435 (recognizes plaintiff’s substantial right to have one jury decide causation among multiple defendants)
- Hoots v. Pryor, 106 N.C. App. 397 (inconsistent findings re: contributory negligence across trials can raise a substantial right)
- Sharpe v. Worland, 351 N.C. 159 (framework for interlocutory appeals that affect substantial rights)
- Cook v. Bankers Life & Cas. Co., 329 N.C. 488 (definition of substantial right in interlocutory appeal context)