Court of Appeals Recent Interpretation of Negligence Per Se
Court of Appeals Recent Interpretation of Negligence Per Se.
Recently, the North Carolina Court of Appeals weighed in on the issue of Negligence Per Se in Manzoeillo v. Pultegroup, Inc., et al., No. COA21-722 (2023). The Court of Appeals previously explained what the term negligence per se means: “When a statute imposes a duty on a person for the protection of others[,] we have held that it is a public safety statute and a violation of such a statute is negligence per se unless the statute says otherwise.” Hart v. Ivey, 332 N.C. 299, 303 (1992). “A member of a class protected by a public safety statute has a claim against anyone who violates such a statute when the violation is a proximate cause of injury to the claimant.” Id. In their decision in Manzoeillo, the Court reversed the trial court’s grant of a 12(b)(6) Motion to Dismiss regarding several issues, including negligence, contributory negligence, and gross negligence. While these are all important issues, the purpose of this post is to analyze the Court’s interpretation of negligence per se.
In Manzoeillo v. Pultegroup, Inc., et al., No. COA21-722 (2023), the Court of Appeals reviewed a trial court’s grant of Defendant’s 12(b)(6) Motion to Dismiss for failing to state a claim upon which relief can be granted.
The facts in Manzoeillo are that of a slip and fall case. The trial court dismissed Plaintiff’s claims against the Defendant owners of Carolina Arbors by Del Webb in Durham, North Carolina. Plaintiff described Carolina Arbors as a 55+ age-restricted active adult community with walking trails and several other amenities. Ms. Manzoeillo was very active, regularly engaging in outdoor activities such as hiking and running. On June 8, 2018, Plaintiff fell while power walking on a paved, designated walking trail and suffered injuries. According to her complaint, her fall was caused by an innocuous spot of dirt on the walkway that concealed a buildup of dangerously slippery wet algae. Plaintiff claimed the algae grew due to the poor design of the walkway and the adjacent retaining wall that directed a constant flow of drainage water across the walkway. The plaintiff complained that an unreasonably lax inspection and maintenance of the common area walkway and a failure to properly treat the consistently wet concrete surface was compounded by the failure to warn persons using the trail about the latent danger of the spots at issue.
Plaintiff further alleged that the problem area was known to some of the Carolina Arbors residents, specifically the Carolina Arbors residents’ Landscape Committee. Plaintiff’s complaint noted that the unsafe walking conditions were not readily apparent or obvious to residents who used the walkways. Plaintiff further alleged that the Associa Defendants were responsible for maintenance of the common areas in Carolina Arbors.
Plaintiff asserted claims of negligence, gross negligence, negligence per se, infliction of emotional distress, and premises liability. Defendant asserted a 12(b)(6) Motion to Dismiss for all of these claims. Specifically regarding the negligence per se claim, Defendant claimed that there was no public safety statute to support the negligence per se claim. The trial court ruled in favor of Defendant.
The Court of Appeals concluded that, for the purposes of a Rule 12(b)(6) motion, Plaintiff sufficiently alleged a violation of a statute, as required for a claim of negligence per se.
Plaintiff contended that her complaint adequately alleged that Defendants did not comply with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities; the standards for Design and Safety of Pedestrian Facilities by the Institute of Transportation Engineers; Standard Practice for Safe Walking Surfaces by the American Society for Testing and Materials; the Durham, North Carolina, Code of Ordinances, § 62-9; the Durham, North Carolina, Unified Development Ordinance, § 12.4; and the U.S. Department of Transportation, Federal Highway Administration’s Guide for Maintaining Pedestrian Facilities for Enhanced Safety. The Court’s Opinion goes through each of these statutory authorities one by one.
In short, the Court determined that Plaintiff did not have a basis for negligence per se argument based on any of these statutory authorities except one: Durham, North Carolina, Unified Development Ordinance, Sec. 12.4 Pedestrian and Bicycle Mobility. That ordinance states: “Walkways and trails shall be designed to maximize the safety of users and the security of adjoining properties with respect to location, visibility, and landscaping.” N.C. Unif. Dev. Ord. § 12.4.1(B) (2022). The Court determined that Defendants would have committed negligence per se by failing to design the trail such as to maximize the safety of the users. This ordinance placed a duty on Defendants for the protection of its residents, which the trial court dismissed improperly.
The Court’s decision to allow only one of the statutes to proceed after a 12(b)(6) motion shows what is considered when a plaintiff asserts a claim of negligence per se.
Why This Decision Matters
This case is important because it shows what is necessary when pleading a case of negligence per se, and what is necessary for a plaintiff to plead when asserting this claim. What is equally interesting about this case, aside from the Court’s ruling about what was a sufficient claim of negligence per se, is what the Court did not find to be negligence per se. As the Court points out Plaintiff did not point to a specific provision of the North Carolina Building Code, and therefore Plaintiff’s allegation was not sufficient. Regarding Durham, N.C., Code of Ordinances § 62-9 (2022), the Court found that the walkway did not fall within the definition of a sidewalk as stated in the ordinance, and therefore Plaintiff did not sufficiently plead negligence per se by citing that ordinance.
These findings by the Court give an excellent example of both how a plaintiff must plead negligence per se, and how a defendant can argue against them. Manzoeillo manages to give an example of both situations, and should be considered when facing an allegation of negligence per se.