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Moore v. Gaston Memorial Hospital8/16/2005
64, 668 (2005). "A substantial right is affected when '(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.'" Id. at ___, 612 S.E.2d at 668 (quoting North Carolina Dept. of Transp. v. Page, 119 N.C. App. 730, 735-36, 460 S.E.2d 332, 335 (1995)). Plaintiff contends that both defendant's and Gaston Memorial's liability for the injuries resulting from the Gentamicin regimen is based in part on the actions of Gaston Memorial's pharmacy staff or other agents or employees. Plaintiff argues that these pharmacy staff members, agents, or employees were simultaneously acting as agents of both defendant and Gaston Memorial. Therefore, the dismissal of plaintiff's claims against defendant could lead to multiple trials of the same factual issues, possibly resulting in inconsistent verdicts. We find that a substantial right is affected and that this appeal is properly before our Court.
II.
Plaintiff argues that the trial court erred in dismissing her complaint against defendant for failure to state a claim upon which relief may be granted pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6). In reviewing the dismissal of a case under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), "the standard of review 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.' The complaint must be liberally construed, and the [trial] court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support [the plaintiff's] claim which would entitle [the plaintiff] to relief."
Block v. County of Person, 141 N.C. App. 273, 277-78, 540 S.E.2d 415, 419 (2000) (quoting Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987)). A complaint may be dismissed under Rule 12(b)(6) "(1) when the complaint on its face reveals that no law supports plaintiff's claim; (2) when the complaint reveals on its face the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats the plaintiff's claim." Oates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985).
A.
Plaintiff alleges in her complaint that, under the doctrine of res ipsa loquitur, defendant was negligent when defendant perforated plaintiff's esophagus. Res ipsa loquitur addresses "'situations where the facts or circumstances accompanying an injury by their very nature raise a presumption of negligence on the part of defendant.'" Howie v. Walsh, ___ N.C. App. ___, ___, 609 S.E.2d 249, 251 (2005), (quoting Bowlin v. Duke University, 108 N.C. App. 145, 149, 423 S.E.2d 320, 322 (1992), disc. review denied, 333 N.C. 461, 427 S.E.2d 618 (1993)). Res ipsa loquitur is applicable "'when no proof of the cause of an injury is available, the instrument involved in the injury is in the exclusive control of defendant, and the injury is of a type that would not normally occur in the absence of negligence.'" Howie, ___ N.C. App. at ___, 609 S.E.2d at 251 (quoting Bowlin, 108 N.C. App. at 149, 423 S.E.2d at 322).
For a res ipsa loquitur claim to be successful, a plaintiff must, "'without the assistance of expert testimony,'" be able to show that a defendant's negligent act caused a plaintiff's injury and that the injury could not have occurred without negligence by the defendant. Id. at ___, 609 S.E.2d at 252 (emphasis added)(quoting Diehl v. Koffer, 140 N.C. App. 375, 378, 536 S.E.2d 359, 362 (2000)). A res ipsa loquitur claim requires that the average juror be able "'to infer negligence from the mere occurrence of the accid
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