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Phillip Driver and Nancy Driver v. Burlington Aviation Inc.6/15/1993
MARTIN, Judge.
Initially, we note that plaintiffs have appealed from an interlocutory order. Judge Allen's order dismisses plaintiffs' action against Cessna, but does not dispose of plaintiffs' claims against Burlington Aviation, nor does the order contain a certification that "there is no just reason for delay" as required by G.S. § 1A-1, Rule 54(b) for entry of a final judgment affecting fewer than all of the claims or parties. As a general rule, no appeal lies from an interlocutory order. Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362 (1979). However, G.S. §§ 1-277 and 7A-27(d) allow an immediate appeal from an interlocutory order which affects
a substantial right. Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976); Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976). In the present case, we conclude that the trial court's dismissal of plaintiffs' claims against Cessna affects 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, Fox v. Wilson, 85 N.C. App. 292, 354 S.E.2d 737 (1987), and we will consider the appeal.
Plaintiffs' sole contention on appeal is that the trial court erred in granting Cessna's motion to dismiss pursuant to G.S. § 1A-1, Rule 12(b)(6) because their amended complaint states cognizable claims for relief. For the reasons stated below, we reverse in part and remand this case to the trial court.
The question presented by a motion to dismiss is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not. Harris v. NCNB, 85 N.C. App. 669, 355 S.E.2d 838 (1987). Furthermore, in analyzing the sufficiency of the complaint to withstand a Rule 12(b)(6) motion, the complaint must be liberally construed, Dixon v. Stuart, 85 N.C. App. 338, 354 S.E.2d 757 (1987), and "'a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.'" Sutton v. Duke, 277 N.C. 94, 103, 176 S.E.2d 161, 166 (1970), quoting, 2A J. Moore, Moore's Federal Practice, P 12.08 (2d ed. 1968) (emphasis original).
In the present case, plaintiffs allege that defendant Cessna "is engaged in the business of preparing, producing, and publishing instructional material," including the Cessna information manual purchased and relied upon by the pilot, Neil Harris, in the operation of the Cessna model 152 aircraft and that the Cessna materials "promulgated dangerously inadequate information about preventing carburetor icing and wrongfully instructed concerning carburetor icing and the slow-flight characteristics of the aircraft," the conditions which allegedly caused the aircraft to crash on 19 November 1989 resulting in plaintiffs' injuries. At the hearing on Cessna's motion to dismiss and in their brief to this Court, plaintiffs argued
that the allegations in the complaint and amended complaint give rise to a claim based upon negligent misrepresentation.
In this State, we have adopted the Restatement 2d definition of neglige
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