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Hastings v. Seegars Fence Co.12/16/1997
MARTIN, John C., Judge.
Plaintiff, who is the mother of and guardian ad litem for the minor plaintiff, brought this action against defendant Seegars Fence Company and the Pitt County School Board to recover compensatory and punitive damages for personal injuries to the minor plaintiff and for emotional distress to both plaintiff and the minor plaintiff allegedly caused by negligence and gross negligence on the part of defendants. The injuries were alleged to have occurred on 15 May 1993 when the minor plaintiff, an eight-year-old child, was playing on a fence and gate constructed by defendant Seegars on school grounds belonging to the Pitt County School Board. Plaintiff subsequently submitted to a voluntary dismissal of her claims against the Pitt County School Board. Defendant Seegars answered, denying plaintiff's allegations of negligence and alleging the child's contributory negligence as a bar to plaintiff's recovery. After discovery, defendant Seegars moved for summary judgment.
Defendant's motion for summary judgment was heard by Judge James E. Ragan, III, at the 25 September 1995 civil session of the Pitt County Superior Court. The pleadings, affidavits, and discovery materials before Judge Ragan tended to show, in summary, that in November 1990 defendant Seegars installed a fence and gates at the playground of the Third Street School in Greenville, N.C. One of the gates was a twenty-foot horizontal cantilevered gate attached to rollers on the top and bottom; the gate is moved horizontally along the rollers to open and close the fence. On 15 May 1993, the minor plaintiff was playing on the gate. While she was hanging onto the top of the gate, another child pushed on it causing it to roll. Two of the minor plaintiff's fingers became caught in the gate roller, crushing them and resulting in their amputation. Plaintiff's expert witness stated by affidavit that it was his opinion that the gate mechanism was defective and unreasonably dangerous in that it had no guard device over the roller mechanism. By order dated 25 October 1995, Judge Ragan granted defendant Seegars' motion for summary judgment as to plaintiff's claims for infliction of emotional distress, but denied summary judgment with respect to the minor plaintiff's claims for damages for personal injuries.
On 11 June 1996, after additional discovery, defendant Seegars filed motions to dismiss pursuant to G.S. § 1A-1, Rule 12(b)(6), for judgment on the pleadings pursuant to 12(c), and for summary judgment pursuant to G.S. § 1A-1, Rule 56. These motions were heard at the 8 July 1996 civil session of the Pitt County Superior Court by Judge W. Russell Duke, Jr. In an order dated 29 July 1996, Judge Duke concluded "that there exists an independent basis to allow each of Defendant's motions, . . .", granted each of the motions, and dismissed plaintiff's action. Plaintiff gave timely notice of appeal from Judge Duke's order.
The primary issue is whether Judge Ragan's 25 October 1995 order denying defendant's motion for summary judgment as to the minor plaintiff's claim for personal injury precluded Judge Duke from granting defendant's subsequent motion and dismissing the action. We hold that it did, and reverse.
Initially we note that although defendant ostensibly filed its second motion pursuant to Rules 12(b)(6) and 12(c), and alternatively pursuant to Rule 56, Judge Duke's order explicitly states that he considered depositions and other matters in addition to the pleadings. Therefore, notwithstanding Judge Duke's assertion of "an independent basis to allow each of Defendant's motions . . .", the Disposition of the motion, and our review thereof, is as provided solely by Rule 56. N.C. Gen. Stat.
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