{ "id": 11711652, "name": "AMJAD AL-HOURANI Administrator of the Estate of Walid Al-Hourani v. LEEANN ASHLEY and TAYLOR OIL COMPANY, a Corporation", "name_abbreviation": "Al-Hourani v. Ashley", "decision_date": "1997-06-17", "docket_number": "No. COA96-580", "first_page": "519", "last_page": "524", "citations": [ { "type": "official", "cite": "126 N.C. App. 519" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 119-43", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1994, "opinion_index": -1 }, { "cite": "84 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1954, "pin_cites": [ { "page": "276", "parenthetical": "holding that G.S. \u00a7 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\"" }, { "page": "275" }, { "parenthetical": "emphasis added" }, { "page": "275-76" }, { "page": "276" } ], "opinion_index": 0 }, { "cite": "241 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600989 ], "weight": 3, "year": 1954, "pin_cites": [ { "page": "64", "parenthetical": "holding that G.S. \u00a7 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\"" }, { "page": "63" }, { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0060-01" ] }, { "cite": "91 S.E.2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1956, "pin_cites": [ { "page": "896" }, { "page": "896", "parenthetical": "citation omitted" }, { "page": "896-97", "parenthetical": "citation omitted" }, { "page": "897", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "243 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626690 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "670" }, { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0668-01" ] }, { "cite": "326 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "271" } ], "opinion_index": 0 }, { "cite": "313 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721406 ], "year": 1985, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0150-01" ] }, { "cite": "176 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "166" }, { "page": "166" } ], "opinion_index": 0 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "year": 1970, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "259 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 296", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570816, 8570863, 8570767, 8570650, 8570687 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0296-04", "/nc/298/0296-05", "/nc/298/0296-03", "/nc/298/0296-01", "/nc/298/0296-02" ] }, { "cite": "257 S.E.2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "54" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 259", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553908 ], "pin_cites": [ { "page": "263-64" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0259-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 119-43", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1994, "opinion_index": 0 } ], "analysis": { "cardinality": 596, "char_count": 10934, "ocr_confidence": 0.755, "pagerank": { "raw": 1.538338649233718e-07, "percentile": 0.6723996263874844 }, "sha256": "321be88002f288c1f8cad7a48c22b9dd25de11616b99873c1c7afc1436812902", "simhash": "1:1d6cc5f2081934fe", "word_count": 1733 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, John C. and SMITH concur." ], "parties": [ "AMJAD AL-HOURANI Administrator of the Estate of Walid Al-Hourani v. LEEANN ASHLEY and TAYLOR OIL COMPANY, a Corporation" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nThe sole issue on appeal is whether the trial court correctly granted defendants\u2019 motion to dismiss plaintiff\u2019s complaint for failure to state a claim upon which relief can be granted. See N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (1990). We find that the dismissal was proper.\n\u201cThe 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.\u201d Industries, Inc. v. 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.\nDefendants contend that the criminal actions of Lorenzo Norwood and Herbert Joyner in carrying the gasoline off defendants\u2019 premises and using it to burn plaintiff\u2019s brother were intervening and insulating actions creating an insurmountable bar to plaintiff\u2019s recovery from defendants. We agree.\n\u201cGenerally, whether the negligence of a second actor insulated that of another is a question for the jury.\u201d 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 \u201cwas superseded and completely insulated by the intervening negligence,\u201d 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).\nAn intervening cause that relieves the original wrongdoer of liability must be an independent force that \u201cturns aside the natural sequence of events set in motion by the original wrongdoer \u2018and produces a result which would not otherwise have followed, and which could not have been reasonably anticipated.\u2019 \u201d Id. at 671, 91 S.E.2d at 896 (citation omitted). \u201c \u2018The 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.\u2019 \u201d 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.\nNevertheless, plaintiff argues that defendants\u2019 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:\n\u201cAll that the plaintiff is required to prove on the question of foreseeability, in determining proximate cause, is that in \u2018the 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.\u2019 \u201d\nRiddle, 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\u2019 alleged negligent act of selling gasoline into an unapproved container.\nThe safety provisions requiring that gasoline be sold only into approved and labeled containers, see N.C. Gen. Stat. \u00a7 119-43 (1994); N.C. Fire Prevention Code \u00a7\u00a7 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. \u00a7 119-43 was \u201cdesigned to prevent tragic consequences flowing from a failure to label or otherwise identify a dangerous and explosive, yet apparently harmless, liquid\u201d).\nAssuming, arguendo, that defendants violated G.S. \u00a7 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 \u201cwas the proximate cause of the injury for which recovery is sought.\u201d 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) \u201cunless it appears affirmatively from the complaint that there was no causal connection between the alleged negligence and the injury.\u201d Id. at 64, 84 S.E.2d at 275-76.\nIn this case, we find no causal connection between the defendants\u2019 allegedly selling the gasoline into an antifreeze container in violation of G.S. \u00a7 119-43, and the criminal acts of dousing and burning plaintiff\u2019s 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 \u201cflow\u201d from the sale of gasoline into an unapproved container. See Reynolds, 241 N.C. at 64, 84 S.E.2d at 276.\nWe hold that the intervening actions in this case, as set forth in paragraph 9 of plaintiff\u2019s complaint, supersede and completely insulate the alleged negligence of defendants. The complaint on its face reveals the absence of proximate cause between defendants\u2019 alleged negligence and the burning of Walid Al-Hourani, which establishes an insurmountable bar to recovery and necessarily defeats plaintiff\u2019s claim.\nDefendants assert several \u201ccross-assignments of error,\u201d which they contend are properly before this Court. We disagree.\nRule 10(d) of the North Carolina Rules of Appellate Procedure provides:\nWithout 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.\n(Emphasis added.) Defendants\u2019 \u201ccross-assignments of error\u201d allege that the trial court erred in granting plaintiffs post-judgment motion to extend time to settle the record on appeal and in denying defendants\u2019 motion to dismiss the appeal.\nAlthough 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\u2019s \u201ccross-assignments of error\u201d address the trial court\u2019s post-judgment orders relating to plaintiff\u2019s appeal. Indeed, defendants contend that the alternative basis for dismissal of plaintiff\u2019s complaint is that the \u201cappeal was not prosecuted in a timely manner.\u201d This argument lacks logic or merit. Defendants have asserted no alternative basis to support dismissal of plaintiff\u2019s action, and the errors they allege are not properly before this Court. We therefore decline to address them.\nAffirmed.\nJudges MARTIN, John C. and SMITH concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Karl E. Knudsen for plaintiff appellant.", "Patterson, Dilthey, Clay & Bryson, L.L.P., by Mary M. McHugh and Edward Hausle, for defendant appellees." ], "corrections": "", "head_matter": "AMJAD AL-HOURANI Administrator of the Estate of Walid Al-Hourani v. LEEANN ASHLEY and TAYLOR OIL COMPANY, a Corporation\nNo. COA96-580\n(Filed 17 June 1997)\n1. Negligence \u00a7 21 (NCI4th)\u2014 gasoline \u2014 sale into illegal container \u2014 intervening criminal acts \u2014 negligence insulated\nThe criminal actions of two customers in carrying gasoline from defendants\u2019 service station premises and using it to douse and bum plaintiff\u2019s intestate were intervening actions which insulated alleged negligence by defendant service station cashier and defendant owner in selling gasoline into an illegal container in violation of N.C.G.S. \u00a7 119-43.\nAm Jur 2d, Negligence \u00a7\u00a7 625, 790, 791.\n2. Appeal and Error \u00a7 342 (NCI4th)\u2014 appellee \u2014 cross-assignment \u2014 no alternative basis\nDefendant appellee\u2019s cross-assignment of error was not properly before the Court of Appeals where defendant did not assert an alternative basis to support the dismissal of plaintiffs actions as required by N.C. R. App. P. 10(d).\nAm Jur 2d, Appellate Review \u00a7 332.\nAppeal by plaintiff from order entered 12 December 1995 by Judge J.B. Allen, Jr., in Wake County Superior Court. Heard in the Court of Appeals 17 February 1997.\nOn 13 April 1995 plaintiff, administrator of his brother\u2019s estate, filed a wrongful death suit against defendants for the death of his brother, Walid Al-Hourani, alleging, in pertinent part:\n7. Plaintiff is informed, believes, and therefore alleges that on April 13, 1993, at or about 2:00 p.m., defendant Leeann Ashley was working for defendant Taylor Oil Company as a cashier at an ETNA gasoline service station, owned and operated by defendant Taylor Oil Company in Rocky Mount, North Carolina.\n8. Plaintiff is informed, believes, and therefore alleges that on the date and time above defendant Leeann Ashley turned on the pumping mechanism and sold approximately $.95 cents worth of gasoline to two men, Lorenza [sic] Norwood and Herbert Joyner, who dispensed the gasoline into a plastic antifreeze container; that defendant Leeann Ashley knew, or should have known, that this act violated the laws of the State of North Carolina, and that she had, at that time, the means at her disposal to shut off the gasoline pump and prevent the two men from filling the unlawful container with gasoline.\n9. That because the defendants delivered gasoline to these two men in an illegal container, the men were able to take the gasoline directly to and enter the Honolulu Market one door down the street and use the gasoline to douse plaintiff\u2019s intestate, Walid Al-Hourani, who was working at the market, and then set him on fire.\n10. That Taylor Oil Company was negligent in that it failed to properly train, educate, and supervise its employee, Leeann Ashley, to ensure compliance with North Carolina law forbidding the sale of gasoline into unapproved containers.\nPlaintiff further alleged that defendants violated N.C. Gen. Stat. \u00a7 119-43 (1994), as well as \u00a7\u00a7 901.3 and 907.4.1 of the North Carolina Fire Prevention Code, thus creating \u201ca dangerous situation which endangered the lives of others, and against which the safety statutes of North Carolina were designed to protect.\u201d\nPlaintiff finally alleged that \u201cas a direct and proximate result of the aforesaid acts of negligence,\u201d his brother suffered severe burns resulting in \u201cextreme pain of body and mind,\u201d and ultimately death. Plaintiff prayed for compensatory damages for hospital, medical, funeral, and buriai expenses.\nDefendants answered and moved to dismiss the case for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Both parties submitted briefs to the trial court, and after a hearing, Judge J.B. Allen, Jr., granted defendants\u2019 motion to dismiss. Plaintiff appeals.\nKarl E. Knudsen for plaintiff appellant.\nPatterson, Dilthey, Clay & Bryson, L.L.P., by Mary M. McHugh and Edward Hausle, for defendant appellees." }, "file_name": "0519-01", "first_page_order": 557, "last_page_order": 562 }