United States District Court, W.D. North Carolina, Charlotte Division
JAMES SEITZ, ADMINISTER OF THE ESTATE OF LAUREN E. SEITZ, DECEASED, Plaintiff,
U.S. NATIONAL WHITEWATER CENTER, INC; RECREATION ENGINEERING AND PLANNING, INC.; LIQUID DESIGN, P.C., Defendants.
COGBURN JR. UNITED STATES DISTRICT JUDGE.
MATTER is before the court on defendant Liquid
Design, PC's (hereinafter “defendant”) Motion
to Dismiss for Failure to State a Claim (#53). Having
considered defendant's motion and reviewed the pleadings,
the court enters the following Order.
action was commenced by plaintiff, who is the administrator
of the estate of his daughter, Lauren Seitz. Plaintiff brings
a negligence claim against defendant for the designing,
engineering, and planning of the U.S. National Whitewater
Center. In June 2016, while on a mission trip with her
church, Lauren went whitewater rafting at U.S. National
Whitewater Center. While rafting there, Lauren was thrown
overboard and came into contact with a carnivorous amoeba,
Naegleria fowleri. Lauren died eleven days after
visiting the U.S. National Whitewater Center from primary
amoebic meningoencephalitis, a disease of the central nervous
system, which was due to an infection caused by Naegleria
asserts three claims for relief against defendant: 1)
negligence in the designing, engineering and planning of the
U.S National Whitewater Center, 2) wrongful death, and 3)
survivorship. All allegations against defendant relate to its
alleged negligence in design.
plaintiff alleges that defendant was negligent in designing
and engineering the shallow channels of the whitewater
feature and negligent in the designing and engineering the
filtration system utilized by the U.S. National Whitewater
Center. Both the channels and the filtration systems were
completed by January 2, 2007.
the jurisdiction of the court is based upon diversity
jurisdiction, the substantive law of North Carolina applies.
The North Carolina General Statutes provide a six-year
statute of repose. See N.C. Gen. Stat. § 1-50.
The statute reads, as follows:
No action to recover damages based upon or arising out of the
defective or unsafe condition of an improvement to real
property shall be brought more than six years from the later
of the specific last act or omission of the defendant giving
rise to the cause of action or substantial completion of the
Id. The statute then clarifies that actions arising
out of the defective or unsafe condition of an improvement
includes actions to recover damages for “personal
injury, death . . . damage to property, ”
“economic or monetary loss, ” and “actions
in contract or in tort or otherwise.” Id.
instant motion is limited solely to dismissal of the claims
against defendant. Defendant contends that its Motion to
Dismiss should be granted because the plaintiff's claims
for relief are based on actions alleged to have taken place
more than eleven years prior to the filing of the Amended
Complaint. As such, defendant argues that plaintiff's
claims are barred by the six year statute of repose.
Plaintiff contends that a “disease exception” to
the statute exists, meaning the six-year bar would not be
applicable to the facts of this case. In response, defendant
counters that the statue applies more broadly to
“actions in contract or tort or otherwise, ” N.C.
Gen. Stat. § 1-50(a)(5)(b)(5), and even more broadly to
all “actions against any person . . . who performs or
furnishes the design, plans, specifications, surveying,
supervision, testing or observation of construction, or
construction of an improvement to real property.”
Essentially, defendant argues that even if diseases are not
personal injury, diseases are included in actions in tort or
actions against engineers and thus plaintiff's claim
motion to dismiss “challenges the legal sufficiency of
a complaint.” Francis v. Giacomelli, 588 F.3d
186, 192 (4th Cir. 2009). To survive such motion,
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
The plausibility standard requires “more than a sheer
possibility that a defendant has acted unlawfully, ” as
“threadbare recitals of the elements of a cause of
action supported by mere conclusory statements” are
insufficient to defeat a Rule 12(b)(6) motion. Id.;
see also Twombly, 550 U.S. at 547 (complaints will
be dismissed when plaintiffs “have not nudged their
claims across the line from conceivable to plausible”);
Aziz v. Alcolac, Inc., 658 F.3d 388, 391
(4th Cir. 2011).
“a short and plain statement of the claim showing that
the pleader is entitled to relief” is required.
Fed.R.Civ.P. 8(a)(2). Such statement does not require
“specific facts, ” but need only give defendants
“fair notice of what the . . . claim is and the grounds
upon which it rests.” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at
544). For purposes of the motion, the factual allegations in
the complaint are accepted as true and viewed in the light
most favorable to the non-moving party, Coleman v. Md.
Court of Appeals, 6266 F.3d 187, 189 (4th
Cir. 2010), though the court need not accept
“unwarranted inferences” or “unreasonable
arguments.” Giarratano v. Johnson, 521 F.3d
298, 302 (4th Cir. 2008). The court also notes
that “[a] Rule 12(b)(6) motion ‘does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.'” Pisgah
Laboratories, Inc. v. Mikart, Inc., 2015 WL 996609, at
*2 (W.D. N.C. Mar. 5, 2015) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir.
timeliness, “whether a cause of action is barred by the
statute of limitations is a mixed question of law and fact.
However, when the bar is properly pleaded and the facts are
admitted or are not in conflict, the question of whether the
action is barred becomes one of law.” Pembee Mfg.
Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329
S.E.2d 350, 353 (1985). The North Carolina real property
improvement statute establishes a six-year statute of repose
in which a claimant must bring an action. N.C. Gen. Stat.
§ 1-50(a)(5)(a). Generally, the six-year period
commences upon when the negligent conduct occurs. Dawson
v. N.C. Dep't of Env't & Natural Res., 694
S.E.2d 427 ( N.C. Ct. App. 2010). Should a claimant fail to
file suit within that period, then ...