in the Court of Appeals 22 March 2017.
by defendant from order entered 1 September 2016 by Judge
Timothy S. Kincaid in Gaston County, No. 16 CVS 248 Superior
Roberts Law Firm, P.A., by Scott W. Roberts, for
and Gibson, PLLC, by Jeremy S. Foster, for
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.
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.
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.
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
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.
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.
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.
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.
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)).
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").
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
Standard of Review
Ruling on 12(b)(6)
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 ...