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Al-Hourani v. Ashley6/17/1997
on of G.S. ยง 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.
Affirmed.
Judges MARTIN, John C. and SMITH concur.
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