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Chastain v. Arndt

Court of Appeals of North Carolina

April 18, 2017

JAMES D. ARNDT a/k/a JIMMY ARNDT, in his official and individual capacity, GASTON COLLEGE and GASTON COLLEGE BOARD OF TRUSTEES, Defendants.

          Heard in the Court of Appeals 22 March 2017.

         Appeal by defendant from order entered 1 September 2016 by Judge Timothy S. Kincaid in Gaston County, No. 16 CVS 248 Superior Court.

          Roberts Law Firm, P.A., by Scott W. Roberts, for plaintiff-appellee.

          Dean and Gibson, PLLC, by Jeremy S. Foster, for defendant-appellant Arndt.

          TYSON, Judge.

         James D. Arndt a/k/a Jimmy Arndt ("Defendant") appeals from the trial court's denial of his motion for summary judgment. We affirm in part, reverse in part, and remand.

         I. Background

         Gaston County Sheriff's Deputy Scotty Chastain ("Plaintiff") was enrolled in the Basic Law Enforcement Training ("BLET") course at Gaston College, a two-year community college operating under the North Carolina Board of Community Colleges. Gaston College provides BLET to Gaston County law enforcement officers. Defendant, a certified Specialized Firearms Instructor and an active Gastonia police officer, was employed by Gaston College to instruct the firearms portion of BLET.

         On 22 March 2013, Plaintiff's BLET class was training on the firing range located at Gaston College. At the conclusion of the shooting portion of the class, the students were instructed to return to the building to break down and clean their firearms. Plaintiff alleges all of the BLET instructors present, including Defendant, failed to ensure all of the students' weapons had been unloaded and cleared of ammunition before leaving the shooting range.

         Another BLET student in Plaintiff's class failed to empty her weapon prior to returning to the building and experienced difficulty in breaking down her weapon. Defendant assisted the student to break down her weapon. Plaintiff alleges

         Defendant pulled the trigger of the firearm while assisting the other student to break down her weapon. The firearm discharged. Plaintiff was wounded by the discharge, but survived a bullet wound to his abdomen.

         On 21 January 2016, Plaintiff filed suit against Defendant, in both his official and individual capacities, Gaston College, and Gaston College Board of Trustees ("the Board of Trustees") in superior court. Plaintiff alleged negligence, gross negligence, and negligent infliction of emotional distress. He alleged Gaston College and the Board of Trustees were negligent for torts committed by Defendant under the doctrine of respondeat superior.

         Plaintiff has dismissed all his claims against Gaston College and the Board of Trustees, with prejudice. Both parties assert in their briefs that Plaintiff brought those dismissed claims before the Industrial Commission under the Tort Claims Act, and the action in the Industrial Commission has been stayed pending resolution of the superior court action.

         Defendant filed a Rule 12 motion to dismiss Plaintiff's claims. Defendant asserts the superior court lacks personal jurisdiction (Rule 12(b)(1)) and subject matter jurisdiction (Rule 12(b)(2)), and Plaintiff also fails to state a claim under Rule 12(b)(6), because Plaintiff's claims must be brought before the North Carolina Industrial Commission under the Tort Claims Act. Defendant also asserts Plaintiff improperly alleges claims against him in his individual capacity, and all Defendants are entitled to sovereign immunity. On 26 August 2016, the trial court denied Defendant's motion. Defendant appeals.

         II. Appellate Jurisdiction

         "Typically, the denial of a motion to dismiss is not immediately appealable to this Court because it is interlocutory in nature." Reid v. Cole, 187 N.C.App. 261, 263, 652 S.E.2d 718, 719 (2007) (citation omitted). "'An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.'" Britt v. Cusick, 231 N.C.App. 528, 530-31, 753 S.E.2d 351, 353-54 (2014) (quoting Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)).

         Defendant contends, however, that this appeal is properly before the Court because his motion to dismiss is grounded on sovereign immunity and affects a substantial right that would be lost in the absence of an immediate appeal. See N.C. Gen. Stat. § 1-277(a) (2015) (authorizing interlocutory appeal of order that "affects a substantial right"); N.C. Gen. Stat. § 7A-27(b)(3) (2015) (providing for an appeal of right from an interlocutory order which "affects a substantial right").

         "This Court has held that a denial of a Rule 12(b)(6) motion to dismiss on the basis of sovereign immunity affects a substantial right and is immediately appealable." Green v. Kearney, 203 N.C.App. 260, 266, 690 S.E.2d 755, 761 (2010) (citation omitted), aff'd per curiam, 367 N.C. 113, 748 S.E.2d 143 (2013). Furthermore, "this Court has held that an appeal of a motion to dismiss based on sovereign immunity presents a question of personal jurisdiction rather than subject matter jurisdiction, and is therefore immediately appealable." Data Gen. Corp. v. Cty. of Durham, 143 N.C.App. 97, 100, 545 S.E.2d 243, 245-46 (2001) (citations omitted). Also, rulings "denying dispositive motions based on [a] public official's immunity affect a substantial right and are immediately appealable." Summey v. Barker, 142 N.C.App. 688, 689, 544 S.E.2d 262, 264 (2001) (citation omitted), aff'd in part and modified in part, 357 N.C. 492, 586 S.E.2d 247 (2003). This appeal is properly before us.

         III. Standard of Review

         A. Ruling on 12(b)(6)

         This Court reviews the trial court's denial of a motion to dismiss de novo. White v. Trew, 366 N.C. 360, 363, 736 S.E.2d 166, 168 (2013). "When applying de novo review, we consider the case anew and may freely substitute our own ruling for the lower court's decision." Lanvale Props., LLC v. Cty. of Cabarrus, 366 N.C. 142, 149, 731 S.E.2d 800, 806-07 (2012) (citation and quotation marks omitted).

The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint. In ruling on the motion the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether ...

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