Court of Appeals of North Carolina.
 Karl E. Knudsen, Raleigh, for plaintiff-appellant.
Patterson, Dilthey, Clay & Bryson, L.L.P. by Mary M. McHugh, Raleigh and Edward Hausle, Greenville, for defendant-appellees.
The sole issue on appeal is whether the trial court correctly granted defendants' motion to dismiss plaintiff's complaint for failure  to state a claim upon which relief can be granted. See N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) (1990). We find that the dismissal was proper.
"The test on a motion to dismiss for failure to state a claim upon which relief can be granted is whether the pleading is legally sufficient." Shoffner Industries, Inc. v. W. B. Lloyd Construction Co., 42 N.C.App. 259, 263-64, 257 S.E.2d 50, 54 (citation omitted), disc. review denied, 298 N.C. 296, 259 S.E.2d 301 (1979). A complaint is not sufficient to withstand a motion to dismiss if an insurmountable bar to recovery appears on the face of the complaint. Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 166 (1970). Such an insurmountable bar may consist of an absence of law to support a claim, an absence of facts sufficient to make a good claim, or the disclosure of some fact that necessarily defeats the claim. Id. at 102-03, 176 S.E.2d at 166.
Defendants contend that the criminal actions of Lorenzo Norwood and Herbert Joyner in carrying the gasoline off defendants' premises and using it to burn plaintiff's brother were intervening and insulating actions creating an insurmountable bar to plaintiff's recovery from defendants. We agree.
"Generally, whether the negligence of a second actor insulated that of another is a question for the jury." Broadway v. Blythe Industries, Inc., 313 N.C. 150, 157, 326 S.E.2d 266, 271 (1985). However, if it affirmatively appears upon the face of the complaint that the alleged negligence "was superseded and completely insulated by the intervening negligence," dismissal pursuant to Rule 12(b)(6) may be proper. See Riddle v. Artis, 243 N.C. 668, 670, 91 S.E.2d 894, 896 (1956).
An intervening cause that relieves the original wrongdoer of liability must be an independent force that "turns aside the natural sequence of events set in motion by the original wrongdoer `and produces a result which would not otherwise have followed, and which could not have been reasonably anticipated.'" Id. at 671, 91 S.E.2d at 896 (citation omitted). "`The test by which the negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another, is reasonable unforeseeability on the part of the original actor of the subsequent intervening act and resultant injury.'" Id. 91 S.E.2d at 896-97 (citation omitted). Undoubtedly, the subsequent criminal acts of those purchasing the gasoline in this case were reasonably unforeseeable by defendants.
Nevertheless, plaintiff argues that defendants' acts were not insulated because it was reasonably foreseeable that some injury would result from the act of selling gasoline in an unapproved container. Plaintiff relies on the following standard:
"All that the plaintiff is required to prove on the question of foreseeability, in determining proximate cause, is that in `the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.'"
Riddle, 243 N.C. at 672, 91 S.E.2d at 897 (citations omitted). We find, however, that the injury in this case did not result from defendants' alleged negligent act of selling gasoline into an unapproved container.
The safety provisions requiring that gasoline be sold only into approved and labeled containers, see N.C. Gen.Stat. § 119-43 (1994); N.C. Fire Prevention Code §§ 901.3, 907.4.1, were enacted to prevent various injuries possible from the improper storage of a highly flammable and dangerous material. See Reynolds v. Murph, 241 N.C. 60, 64, 84 S.E.2d 273, 276 (1954) (holding that G.S. § 119-43 was "designed to prevent tragic consequences flowing from a failure to label or otherwise identify a dangerous and explosive, yet apparently harmless, liquid").
Assuming, arguendo, that defendants violated G.S. § 119-43, we recognize  that such a violation is negligence per se. See Reynolds, 241 N.C. at 63, 84 S.E.2d at 275. We must still determine, however, whether such negligence "was the proximate cause of the injury for which recovery is sought." Id. (emphasis added). An allegation that certain negligence was the proximate cause of an injury is sufficient against a motion to dismiss under Rule 12(b)(6) "unless it appears affirmatively from the complaint that there was no causal connection between the alleged negligence and the injury." Id. at 64, 84 S.E.2d at 275-76.
In this case, we find no causal connection between the defendants' allegedly selling the gasoline into an antifreeze container in violation of G.S. § 119-43, and the criminal acts of dousing and burning plaintiff's brother. Clearly, criminal activity is not the type of harm that the safety provisions were designed to protect against. The tragic consequences in this case did not "flow" from the sale of gasoline into an unapproved container. See Reynolds, 241 N.C. at 64, 84 S.E.2d at 276.
We hold that the intervening actions in this case, as set forth in paragraph 9 of plaintiff's complaint, supersede and completely insulate the alleged negligence of defendants. The complaint on its face reveals the absence of proximate cause between defendants' alleged negligence and the burning of Walid Al-Hourani, which establishes an insurmountable bar to recovery and necessarily defeats plaintiff's claim.
Defendants assert several "cross-assignments of error," which they contend are properly before this Court. We disagree.
Rule 10(d) of the North Carolina Rules of Appellate Procedure provides:
Without taking an appeal an appellee may cross-assign as error any action or omission of the trial court which was properly preserved for appellate review and which deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken.
(Emphasis added.) Defendants' "cross-assignments of error" allege that the trial court erred in granting plaintiff's post-judgment motion to extend time to settle the record on appeal and in denying defendants' motion to dismiss the appeal.
Although defendants properly preserved their objections for appellate review by filing notices of appeal, the errors alleged do not assert an alternative basis in law to support the dismissal from which plaintiff appeals. Rather, defendant's "cross-assignments of error" address the trial court's post-judgment orders relating to plaintiff's appeal. Indeed, defendants contend that the alternative basis for dismissal of plaintiff's complaint is that the "appeal was not prosecuted in a timely manner." This argument lacks logic or merit. Defendants have asserted no alternative basis to support dismissal of plaintiff's action, and the errors they allege are not properly before this Court. We therefore decline to address them.
JOHN C. MARTIN and SMITH, JJ., concur.
September 13, 2013
485 SE 2d 887
Court of Appeals of North Carolina
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