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  "name": "RAYMOND MALLOY and LISA MALLOY, Plaintiffs v. E. MICHAEL PRESLAR and KATHY N. PRESLAR, individually and d/b/a PRESLAR FARMS, and TYSON CHICKEN, INC., Defendants",
  "name_abbreviation": "Malloy v. Preslar",
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    "judges": [
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    "parties": [
      "RAYMOND MALLOY and LISA MALLOY, Plaintiffs v. E. MICHAEL PRESLAR and KATHY N. PRESLAR, individually and d/b/a PRESLAR FARMS, and TYSON CHICKEN, INC., Defendants"
    ],
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      {
        "text": "STEELMAN, Judge.\nWe 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.\nI. Factual and Procedural Background\nRaymond 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\u2019 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\u2019 nest on the back of the box which plaintiff apparently disturbed when he opened and closed the box. The hornets\u2019 stings triggered an allergic reaction, leading to plaintiff suffering respiratory arrest. Plaintiff continues to suffer seizures as a result of the hornets\u2019 stings.\nOn 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 negligence of defendants. Plaintiffs wife seeks monetary damages for loss of consortium.\nOn 27 October 2011, Tyson filed answer to plaintiffs\u2019 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. On 5 October 2012, the trial court entered an order denying the Preslars\u2019 motion for summary judgment and dismissing plaintiffs\u2019 claims against Tyson. The order does not specify whether the dismissal was with or without prejudice.\nPlaintiffs appeal.\nII. Interlocutory Appeal\nThe trial court\u2019s 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.\nA. Standard of Review\n\u201cGenerally, there is no right of immediate appeal from interlocutory orders and judgments.\u201d Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990).\nA 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.\nVeazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (citations omitted).\n\u201c[W]hen an appeal is interlocutory, the appellant must include in its statement of grounds for appellate review \u2018sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.\u2019 \u201d 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).\n\u201cAdmittedly the \u2018substantial right\u2019 test for appealability of interlocutory orders is more easily stated than applied. It is usually necessary to 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.\u201d Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978).\n\u201cEssentially 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.\u201d Goldston v. Am. Motors Corp., 326 N.C. at 726, 392 S.E.2d at 736.\nB. Analysis\nPlaintiffs contend that their claims against Tyson \u201cinvolve the same overlapping factual issues that have to be determined in the remaining action against Defendants Preslars.\u201d Plaintiffs contend that there is a risk of inconsistent judgments that would affect a substantial right.\nWe have previously held that the dismissal of a claim \u201caffects 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.\u201d 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\u2019s owner, Burlington Aviation, and later was granted leave to add the manufacturer, Cessna, as a third party defendant. Plaintiff\u2019s 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\u2019s 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\u2019s substantial right to have all matters arising from the crash settled in a single proceeding. Id. at 524, 430 S.E.2d at 480.\nIn 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.\nWith regard to plaintiffs\u2019 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\u2019s dismissal of these claims does not impact a substantial right, and therefore dismiss plaintiffs\u2019 appeal as to these claims. With regard to plaintiffs\u2019 claim that Tyson is responsible for the Preslars\u2019 actions based on a theory of agency, we hold that the trial court\u2019s dismissal did impact a substantial right, and address the merits of that portion of plaintiffs\u2019 appeal.\nIII. Agency\nIn plaintiffs\u2019 third argument, plaintiffs contend that the Preslars were agents of Tyson, that Tyson was responsible for the hazards on the Preslars\u2019 land, and that the trial court erred in granting Tyson\u2019s motion to dismiss. We disagree.\nA. Standard of Review\nThe motion to dismiss under N.C.R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint. In ruling on the motion the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted.\nStanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations omitted). \u201c[D]espite the liberal nature of the concept of notice pleading, a complaint must nonetheless state enough to give the substantive elements of at least some legally recognized claim or it is subject to dismissal under Rule 12(b)(6).\u201d Id. at 204, 254 S.E.2d at 626.\n\u201cThis Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court\u2019s ruling on the motion to dismiss was correct.\u201d Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff'd per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003).\nIn considering a motion to dismiss for failure to state a claim upon which relief can be granted, \u201cthe well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of fact are not admitted.\u201d Pinewood Homes, Inc. v. Harris, 184 N.C. App. 597, 613, 646 S.E.2d 826, 837 (2007) (quoting Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970)).\nB. Analysis\nIn Lampkin v. Housing Management Resources, Inc., _N.C. App._, 725 S.E.2d 432, disc. review denied,_N.C._, 731 S.E.2d 147 (2012), the plaintiff, four years old and playing in a common area of defendants\u2019 apartment complex, passed through a broken section of fence on defendants\u2019 property, and crawled onto adjoining property that was not owned by defendants. There, plaintiff crawled onto a frozen 'pond. The ice broke, plaintiff fell into the pond, and plaintiff suffered serious and permanent injuries. Plaintiff\u2019s complaint alleged that defendants breached their duty to maintain a barrier between their property and the pond. Defendants moved to dismiss plaintiff\u2019s complaint pursuant to Rule 12(b)(6). The trial court granted defendants\u2019 motion. Id. at_, 725 S.E.2d at 433-34. On appeal, we affirmed the ruling of the trial court:\nPlaintiffs contend that a similar, reciprocal duty should be imposed on landowners whose property abuts property on which a third party maintains a pond, viz., where a landowner knows that children from his property are gathering and playing on or near a dangerous condition on neighboring property, the landowner has a duty to protect those children from injury by that condition. We disagree with Plaintiffs\u2019 contention that a landowner\u2019s duty of reasonable care extends to guarding against injury caused by a dangerous condition on neighboring property, and we conclude that the imposition of such a duty would be contrary to public policy and the established law of this State.\nId. at_, 725 S.E.2d at 434. We further observed that:\nIn our view, the foregoing authority clearly establishes that a landowner\u2019s duty to keep property safe (1) does not extend to guarding against injuries caused by dangerous conditions located off of the landowner\u2019s property, and (2) coincides exactly with the extent of the landowner\u2019s control of his property. As such, because Defendants did not control the pond on the adjacent property, their duty to keep their premises safe did not include an obligation to make the pond safe by preventing children on their land from accessing the pond. Rather, the adjacent landowner, with exclusive control over the pond, had the sole duty to keep the pond safe, the only obligation to act, and the only possible liability. See Green, 305 N.C. at 612, 290 S.E.2d at 599. Defendants\u2019 duty to keep Lampkin and other children safe could have only applied when those children were on Defendants\u2019 land and ended where Defendants\u2019 ownership and control of their property ended.\nId. at_, 725 S.E.2d at 435-36 (footnotes omitted). We held that plaintiff\u2019s complaint failed to sufficiently allege that defendants breached a duty owed to plaintiff, and that plaintiff failed to allege a prima facie claim of negligence. The trial court\u2019s dismissal of plaintiff\u2019s complaint was affirmed. Id. at_, 725 S.E.2d at 439.\nIn the instant case, plaintiffs\u2019 complaint states explicitly that the hazard which caused plaintiff\u2019s injury occurred on the Preslars\u2019 land, not on Tyson\u2019s. In accordance with our decision in Lampkin, any obligation Tyson had to keep its property safe ended where its ownership and control of its property ended. Tyson could not, under North Carolina law, be held hable for the Preslars\u2019 alleged failure to maintain their property. We hold that plaintiffs\u2019 complaint failed to allege a prima facie claim of negligence. The trial court did not err in granting Tyson\u2019s motion to dismiss the claim based upon agency.\nThis argument is without merit.\nDISMISSED IN PART, AFFIRMED IN PART.\nJudges ELMORE and STROUD concur.\n. The Preslars\u2019 motion is not part of the record on appeal.",
        "type": "majority",
        "author": "STEELMAN, Judge."
      }
    ],
    "attorneys": [
      "The Law Offices of William K. Goldfarb, by William K. Goldfarb, and The Duggan Law Firm, PC, by Christopher M. Duggan, for plaintiffs-appellants.",
      "McAngus, Goudelock & Cowrie, PLLC, by John E. Spainhowr, for defendant-appellee Tyson Farms, Inc."
    ],
    "corrections": "",
    "head_matter": "RAYMOND MALLOY and LISA MALLOY, Plaintiffs v. E. MICHAEL PRESLAR and KATHY N. PRESLAR, individually and d/b/a PRESLAR FARMS, and TYSON CHICKEN, INC., Defendants\nNo. COA12-1523\nFiled 2 July 2013\n1. Appeal and Error \u2014 interlocutory orders and appeals \u2014 substantial right\nThe issue of whether defendants Michael and Kathy Preslar were agents of defendant Tyson thus creating liability arising from the same transaction gave rise to a substantial right and was immediately appealable. With regard to plaintiffs\u2019 contentions that Tyson owed a duty to warn of a hazardous condition, and that Tyson owed plaintiff a duty based on their relationship, these claims did not impact a substantial right and were therefore were dismissed.\n2. Agency \u2014 motion to dismiss \u2014 no liability for conditions on real property with no control\nThe trial court did not err by granting defendant Tyson\u2019s motion to dismiss the claim that Tyson was responsible for the hazards on the land of defendants Michael and Kathy Preslar based upon agency. Even assuming 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.\nAppeal by plaintiffs from order entered 1 October 2012 by Judge William R. Pittman in Anson County Superior Court. Heard in the Court of Appeals 11 April 2013.\nThe Law Offices of William K. Goldfarb, by William K. Goldfarb, and The Duggan Law Firm, PC, by Christopher M. Duggan, for plaintiffs-appellants.\nMcAngus, Goudelock & Cowrie, PLLC, by John E. Spainhowr, for defendant-appellee Tyson Farms, Inc."
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