Al-Hourani v. Ashley6/17/1997
On 13 April 1995 plaintiff, administrator of his brother's estate, filed a wrongful death suit against defendants for the death of his brother, Walid Al-Hourani, alleging, in pertinent part:
7. 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.
8. 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 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.
9. 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's intestate, Walid Al-Hourani, who was working at the market, and then set him on fire.
10. 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.
Plaintiff further alleged that defendants violated N.C. Gen. Stat. § 119-43 (1994), as well as §§ 901.3 and 907.4.1 of the North Carolina Fire Prevention Code, thus creating "a dangerous situation which endangered the lives of others, and against which the safety statutes of North Carolina were designed to protect."
Plaintiff finally alleged that "as a direct and proximate result of the aforesaid acts of negligence," his brother suffered severe burns resulting in "extreme pain of body and mind," and ultimately death. Plaintiff prayed for compensatory damages for hospital, medical, funeral, and burial expenses.
Defendants 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' motion to dismiss. Plaintiff appeals.
ARNOLD, Chief Judge.
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." 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.
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