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Seitz v. U.S. National Whitewater Center, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

June 12, 2018




         THIS 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.

         I. Background

         This 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 fowleri.

         Plaintiff 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.

         Specifically, 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.

         Since 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 improvement.

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.

         The 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 remains time-barred.

         II. Legal Standard

         A 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).

         Only “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. 1999)).

         As for 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 ...

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