Malloy v. Preslar

745 S.E.2d 352, 228 N.C. App. 183, 2013 WL 3305520, 2013 N.C. App. LEXIS 728
CourtCourt of Appeals of North Carolina
DecidedJuly 2, 2013
DocketNo. COA12-1523
StatusPublished
Cited by1 cases

This text of 745 S.E.2d 352 (Malloy v. Preslar) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malloy v. Preslar, 745 S.E.2d 352, 228 N.C. App. 183, 2013 WL 3305520, 2013 N.C. App. LEXIS 728 (N.C. Ct. App. 2013).

Opinion

STEELMAN, Judge.

We allow plaintiffs appeal to the extent that it affects a substantial right. The portion of plaintiffs appeal that does not affect a substantial right is dismissed. Even assuming that the Preslars were the agents of Tyson, Tyson cannot be held liable for conditions on the real property of the Preslars over which it had no control.

I. Factual and Procedural Background

Raymond Malloy (plaintiff) was employed by Davis Mechanical to deliver feed for defendant Tyson Farms, Inc. (Tyson) to real property owned by Michael and Kathy Preslar, and their company, Preslar Farms (collectively, the Preslars). Plaintiff was required by Tyson to place a delivery ticket, stamped with a seal, in a designated box upon the Preslars’ property. After plaintiff delivered the feed on 18 August 2008, he placed the ticket into the box and was stung numerous times by hornets. There was a hornets’ nest on the back of the box which plaintiff apparently disturbed when he opened and closed the box. The hornets’ stings triggered an allergic reaction, leading to plaintiff suffering respiratory arrest. Plaintiff continues to suffer seizures as a result of the hornets’ stings.

On 17 August 2011, plaintiff filed this complaint against Tyson and the Preslars (collectively, defendants), asserting that the Preslars were agents of Tyson, and owed plaintiff a duty to warn of hazardous conditions on their property. Plaintiff seeks monetary damages for personal injuries that he contends were proximately caused by the [185]*185negligence of defendants. Plaintiffs wife seeks monetary damages for loss of consortium.

On 27 October 2011, Tyson filed answer to plaintiffs’ complaint. On 17 August 2012, Tyson filed a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Apparently, the Preslars also moved for summary judgment.1 On 5 October 2012, the trial court entered an order denying the Preslars’ motion for summary judgment and dismissing plaintiffs’ claims against Tyson. The order does not specify whether the dismissal was with or without prejudice.

Plaintiffs appeal.

II. Interlocutory Appeal

The trial court’s order did not dispose of all claims against all parties and is therefore interlocutory. We must first determine whether this interlocutory appeal is properly before us.

A. Standard of Review

“Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990).

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. An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.

Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (citations omitted).

“[W]hen an appeal is interlocutory, the appellant must include in its statement of grounds for appellate review ‘sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.’ ” Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336, 338 (quoting N.C.R. App. P. 28(b)(4)), aff'd per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005).

“Admittedly the ‘substantial right’ test for appealability of interlocutory orders is more easily stated than applied. It is usually necessary [186]*186to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered.” Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978).

“Essentially a two-part test has developed - the right itself must be substantial and the deprivation of that substantial right must potentially work injury ... if not corrected before appeal from final judgment.” Goldston v. Am. Motors Corp., 326 N.C. at 726, 392 S.E.2d at 736.

B. Analysis

Plaintiffs contend that their claims against Tyson “involve the same overlapping factual issues that have to be determined in the remaining action against Defendants Preslars.” Plaintiffs contend that there is a risk of inconsistent judgments that would affect a substantial right.

We have previously held that the dismissal of a claim “affects a substantial right to have determined in a single proceeding whether plaintiffs have been damaged by the actions of one, some or all defendants where their claims arise upon the same series of transactions.” Driver v. Burlington Aviation, Inc., 110 N.C. App. 519, 524, 430 S.E.2d 476, 480 (1993). In Driver, plaintiff was injured when the aircraft in which he was a passenger lost power and crashed. Plaintiff brought suit against the aircraft’s owner, Burlington Aviation, and later was granted leave to add the manufacturer, Cessna, as a third party defendant. Plaintiff’s suit against defendants was based on negligence, gross negligence, breach of warranty, strict liability, and intentional and negligent infliction of emotional distress. Id. at 521-23, 430 S.E.2d at 479. The trial court granted Cessna’s motion to dismiss the claim against it pursuant to Rule 12(b) (6) of the North Carolina Rules of Civil Procedure for failure to state a claim. Plaintiff appealed this order. Id. at 523, 430 S.E.2d at 479. We held that the appeal was not premature, due to plaintiff’s substantial right to have all matters arising from the crash settled in a single proceeding. Id. at 524, 430 S.E.2d at 480.

In the instant case, plaintiffs contend that (1) plaintiffs have stated a cause of action of negligence against Tyson, because Tyson knew of a hazardous condition and failed to warn plaintiff; (2) Tyson owed a duty to plaintiff, just as a contractor owes a duty to warn subcontractors of known dangers; and (3) plaintiffs alleged that the Preslars were agents of Tyson. Of these three contentions, only the third, that the Preslars were agents of Tyson, creates liability arising from the same transaction, which gives rise to a substantial right.

[187]*187With regard to plaintiffs’ contentions that Tyson owed a duty to warn of a hazardous condition, and that Tyson owed plaintiff a duty based on their relationship, we hold that the trial court’s dismissal of these claims does not impact a substantial right, and therefore dismiss plaintiffs’ appeal as to these claims. With regard to plaintiffs’ claim that Tyson is responsible for the Preslars’ actions based on a theory of agency, we hold that the trial court’s dismissal did impact a substantial right, and address the merits of that portion of plaintiffs’ appeal.

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Related

Malloy v. Preslar
Court of Appeals of North Carolina, 2015

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Bluebook (online)
745 S.E.2d 352, 228 N.C. App. 183, 2013 WL 3305520, 2013 N.C. App. LEXIS 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malloy-v-preslar-ncctapp-2013.