Opinion
No. 5:22-CV-413-D
2023-06-01
Lanette B. DEROSE, and Richard T. DeRose, administrator FOR the ESTATE OF Benjamin Todd DEROSE, Plaintiffs, v. DOORDASH, INC., et al., Defendants.
Kerstin Walker Sutton, Kerstin Walker Sutton PLLC, Durham, NC, for Plaintiffs. Gary L. Edwards, II, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Johnson City, TN, for Defendant DoorDash, Inc. David Michael Fothergill, Skylar Gallagher, McAngus Goudelock & Courie, PLLC, Raleigh, NC, for Defendants Beaver Creek Land Holdings, LLC, Centennial Land Company, Timothy W. Stephens, Stacey Lee Stephens.
Kerstin Walker Sutton, Kerstin Walker Sutton PLLC, Durham, NC, for Plaintiffs. Gary L. Edwards, II, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Johnson City, TN, for Defendant DoorDash, Inc. David Michael Fothergill, Skylar Gallagher, McAngus Goudelock & Courie, PLLC, Raleigh, NC, for Defendants Beaver Creek Land Holdings, LLC, Centennial Land Company, Timothy W. Stephens, Stacey Lee Stephens.
ORDER
JAMES C. DEVER III, United States District Judge
On October 10, 2022, Lanette DeRose and Richard DeRose, administrator for the estate of Benjamin Todd DeRose (collectively, "plaintiffs" or "the DeRoses") filed a complaint against the City of Raleigh, DoorDash, Inc. ("DoorDash"), Beaver Creek Land Holdings, LLC ("Beaver Creek"), Centennial Land Company ("CLC"), Timothy Warren Stephens ("T. Stephens"), in his official and individual capacities, and Stacey Lee Stephens ("S. Stephens"), in her official and individual capacities, (collectively, "defendants") [D.E. 1]. On January 19, 2023, the DeRoses amended their complaint. See Am. Compl. [D.E. 36]. The amended complaint seeks relief: (1) against the City of Raleigh for negligence, gross negligence, negligent infliction of emotional distress, and wrongful death; (2) against Beaver Creek, CLC, T. Stephens, and S. Stephens (collectively, "1400 Crest defendants") for negligence, negligence per se, gross negligence, negligent infliction of emotional distress, and wrongful death; and (3) against DoorDash for negligent infliction of emotional distress and wrongful death. See id.
On February 17, 2023, the 1400 Crest defendants moved to dismiss the amended complaint for failure to state a claim [D.E. 43] and filed a memorandum in support [D.E. 44]. On March 17, 2023, the DeRoses responded in opposition [D.E. 55]. On March 17, 2023, the DeRoses also voluntarily dismissed the City of Raleigh [D.E. 56]. On March 29, 2023, the 1400 Crest defendants replied [D.E. 58].
On February 17, 2023, DoorDash moved to dismiss the amended complaint for failure to state a claim [D.E. 46] and filed a memorandum in support [D.E. 47]. On March 13, 2023, the DeRoses responded in opposition [D.E. 54]. On March 31, 2023, DoorDash replied [D.E. 59]. As explained below, the court grants DoorDash's motion to dismiss and grants in part and denies in part the 1400 Crest defendants' motion to dismiss.
I.
This action arises from a traffic accident that occurred on October 17, 2021. On that date, Shaun Oster ("Oster"), a DoorDash delivery driver, fatally struck Benjamin Todd DeRose ("Ben DeRose") with his vehicle as Ben DeRose was crossing the street at the intersection of Varsity Drive and Crest Road in Raleigh, North Carolina. See Am. Compl. ¶ 28.
Varsity Drive and Crest Road are both 27-foot wide, paved, two-lane, undivided public streets with curbs and marked centerlines. Id. at ¶ 39. Both roads are within the Raleigh city limits and were public streets "under the general authority and control of the City of Raleigh . . . ." Id. Both roads had a posted speed limit of 35 miles per hour. Id. at ¶ 42. There was no stop sign or any other traffic control device controlling Oster's entry onto Crest Road from the southbound lane of Varsity Drive. Id. at ¶ 41. There was a stop sign on northbound Crest Road at the intersection with Varsity Drive, and a white stop line painted on Crest Road near the intersection with Varsity Drive. Id. at ¶ 43.
The 1400 Crest defendants owned and operated the property at the corner of the Varsity Drive and Crest Road intersection. Id. at ¶¶ 19-22. The DeRoses allege that several objects at the 1400 Crest property obstructed or partially obstructed Ben DeRoses's and Oster's view of the other, including: "[t]hree mature trees up to 25 feet tall with trunks that were four to eight inches in diameter; [t]hree established shrubs four to five feet tall that measured four to six feet deep and six to eight feet wide; and [a] car parked in the private parking lot space closest to Varsity that was at least four feet in height" Id. at ¶ 62 (cleaned up). Raleigh's municipal code contains provisions concerning public nuisances, vision obstructions, and pedestrian safety on Raleigh's streets. These provisions regulate trees and other vegetation landscaping near roadways that may cause a visual obstruction. See id. at ¶¶ 63-67.
Raleigh Police Department ("RPD") officers responded to the accident, interviewed witnesses, collected evidence, and performed a full accident reconstruction analysis. "RPD Senior Officer D. Egan [("Officer Egan")], concluded that Oster was driving 35 mph when he struck [Ben] DeRose and that he should have seen [Ben] DeRose in the roadway with sufficient time to stop/avoid a collision." Id. at ¶ 37. "The RPD accident reconstruction unit report indicated that [Ben DeRose] was crossing Crest from south to north, near the painted stop line on Crest when he was struck." Id. at ¶ 40. There was no cross walk, and Ben DeRose was crossing in the roadway at a stop sign. Id. at ¶¶ 40-41. In assessing the conditions, Officer Egan noted that nothing hindered Oster's line of sight of Ben DeRose, the roadway was lighted, and Oster "should have seen the pedestrian in the roadway." [D.E. 48] 2, 15. According to Officer Egan's sight distance measurements, Oster had over 160 feet of sight distance to the impact point while approaching on Varsity Drive. Id. at 2, 27-29. At Oster's alleged speed of 35 mph, Officer Egan concluded that Oster only needed 136 feet of stopping distance. Id. Officer Egan concluded that "Oster should have seen [Ben] DeRose in the roadway with sufficient time to stop/avoid a collision. The roadway in this case is lighted and Oster['s] headlights were working by his own admission." Id. at 2.
After the investigation, the RPD charged Oster with misdemeanor death by motor vehicle and failure to reduce speed to avoid collision. See Am. Compl. ¶ 36. Oster pleaded responsible to the failure to reduce speed citation and the court dismissed the misdemeanor death by motor vehicle citation. Id. at ¶ 38. On January 3, 2022, Oster entered into a written settlement agreement and release with the DeRoses. See [D.E. 44-2]. The DeRoses received $50,000 from Oster and "fully and forever release[d] and discharge[d] Shaun Oster" from liability of all claims arising from the accident. See id. at 2. The final paragraph of the release notes that the DeRoses accepted the release "for the purpose of making a full and final compromise adjustment and settlement of any and all claims . . . ." Id.
II.
A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v . Twombly, 550 U.S. 544, 554-63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quotation omitted); see Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences "in the light most favorable to the [nonmoving party]." Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). A court need not accept as true a complaint's legal conclusions, "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937. Rather, a plaintiff's factual allegations must "nudge[ ] [its] claims," Twombly, 550 U.S. at 570, 127 S.Ct. 1955, beyond the realm of "mere possibility" into "plausibility." Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937.
When evaluating a motion to dismiss, a court considers the pleadings and any materials "attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011); see Fed. R. Civ. P. 10(c); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016); Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005). A court may also consider a document submitted by a moving party if it is "integral to the complaint and there is no dispute about the document's authenticity." Goines, 822 F.3d at 166. Additionally, a court may take judicial notice of public records without converting the motion to dismiss into a motion for summary judgment. See, e.g., Fed. R. Evid. 201; Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
North Carolina law applies. Accordingly, this court must predict how the Supreme Court of North Carolina would rule on any disputed state-law issues. See Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005). In doing so, the court must look first to opinions of the Supreme Court of North Carolina. See id.; Parkway 1046, LLC v. U.S. Home Corp., 961 F.3d 301, 306 (4th Cir. 2020); Stahle v. CTS Corp., 817 F.3d 96, 100 (4th Cir. 2016). If there are no governing opinions from that court, this court may consider the opinions of the North Carolina Court of Appeals, treatises, and "the practices of other states." Twin City Fire Ins. Co., 433 F.3d at 369 (quotation omitted). In predicting how the highest court of a state would address an issue, this court must "follow the decision of an intermediate state appellate court unless there is persuasive data that the highest court would decide differently." Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th Cir. 2013) (quotation omitted); see Hicks v. Feiock, 485 U.S. 624, 630 & n.3, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). Moreover, in predicting how the highest court of a state would address an issue, this court "should not create or expand a [s]tate's public policy." Time Warner Ent.-Advance/Newhouse P'ship v. Carteret-Craven Elec. Membership Corp., 506 F.3d 304, 314 (4th Cir. 2007) (alteration and quotation omitted); see Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975) (per curiam); Wade v. Danek Med., Inc., 182 F.3d 281, 286 (4th Cir. 1999).
DoorDash argues that the DeRoses fail to state a claim upon which relief can be granted because the DeRoses did not allege that DoorDash breached any duty of care or that DoorDash proximately caused the accident. See [D.E. 47] 5-11. The 1400 Crest defendants argue that the DeRoses fail to state a claim upon which relief can be granted because (1) the DeRoses did not allege that the 1400 Crest defendants breached any duty of care or that the 1400 Crest defendants proximately caused the accident; (2) any alleged obstructive condition on the 1400 Crest defendant's property was open and obvious; (3) the DeRoses fail to state a gross negligence claim; (4) North Carolina's wrongful death act encompasses the DeRoses' NIED claim; (5) the DeRoses' NIED claim is too speculative; and (6) Oster's release precludes the DeRoses' claims. See [D.E. 44] 9-24; [D.E. 58] 1-4.
A.
As for DoorDash, the DeRoses do not dispute that Oster was an independent contractor of DoorDash. See Am. Compl. ¶ 91. Therefore, the court examines North Carolina law on employer liability for the actions of an independent contractor. Under North Carolina law "[g]enerally, the one who employs an independent contractor is not liable for the independent contractor's [acts]." Little v. Omega Meats I, Inc., 171 N.C. App. 583, 586, 615 S.E.2d 45, 48 (2005), aff'd, 360 N.C. 164, 622 S.E.2d 494 (2005) (per curiam). In certain limited situations, however, an employer may be held liable for the negligence of its independent contractor. Id., 615 S.E.2d at 48. "[I]n cases where the independent contractor engages in ultra-hazardous or inherently dangerous work, . . . the employer has a non-delegable duty for the safety of others." Id. at 568, 615 S.E.2d at 48-49 (quotation omitted); Kinsey v. Spann, 139 N.C. App. 370, 374, 533 S.E.2d 487, 491 (2000).
"Ultrahazardous" activities are those that are so dangerous that even the exercise of reasonable care cannot eliminate the risk of serious harm. Woodson v. Rowland, 329 N.C. 330, 350, 407 S.E.2d 222, 234 (1991). In such cases, the employer is strictly liable for any harm that proximately results. Id. In other words, the employer is liable even if the employer exercised due care in performing the activity. Id. at 351, 407 S.E.2d at 234. In North Carolina, only blasting operations are considered ultrahazardous. Id., 407 S.E.2d at 234; Kinsey, 139 N.C. App. at 374, 533 S.E.2d at 491.
"Inherently dangerous" activities are those dangerous activities that carry with them certain attendant risks, but whose risks (unlike ultrahazardous ones) can be eliminated by taking certain special precautions. Woodson, 329 N.C. at 351, 407 S.E.2d at 234. When inherently dangerous activities are involved, an employer's liability is governed by negligence principles, as opposed to strict liability. Id., 407 S.E.2d at 234.
With respect to negligence claims based upon inherently dangerous activities, a court must consider the negligence of the employer, not the independent contractor. Liability is direct, not vicarious. See, e.g., id. at 352, 407 S.E.2d at 235. Liability attaches only if the employer failed to take the necessary precautions to control the risks associated with the activity. Id., 407 S.E.2d at 235. In order to prove an inherently dangerous activity claim, a plaintiff must demonstrate four things. First, the activity at the time of the injury must have been inherently dangerous. See O'Carroll v. Texasgulf, Inc., 132 N.C. App. 307, 312, 511 S.E.2d 313, 317 (1999). Second, at the time of the injury, the employer must have known, or should have known, that the activity was inherently dangerous. See id., 511 S.E.2d at 317. Third, at the time of the injury, the employer must have failed to take the necessary precautions to control the attendant risks. See id. at 312, 511 S.E.2d at 318. Fourth, the employer's failure must have proximately caused injury to plaintiff. See id., 511 S.E.2d at 318.
A given activity is inherently dangerous if it carries with it some substantial danger inherent in the work itself. See Evans v. Rockingham Homes, Inc., 220 N.C. 253, 259, 17 S.E.2d 125, 128 (1941). Any collateral dangers created by how the work is actually performed are immaterial and do not affect whether the activity is inherently dangerous. See id., 17 S.E.2d at 128.
The DeRoses argue that DoorDash owed a duty to Ben DeRose, a pedestrian, because delivering food through an online ordering application ("app") via independent contractor drivers is ultrahazardous. See [D.E. 54] 12-15. DoorDash deliveries are not ultrahazardous. See, e.g., Woodson, 329 N.C. at 350, 407 S.E.2d at 234.
The DeRoses also allege that DoorDash's business is inherently dangerous. Specifically, the DeRoses allege that DoorDash should have known that its name, which contains the word "dash," and its business model could foreseeably cause accidents. See Am. Compl. ¶¶ 91-128. In support, the DeRoses cite Wauchop v. Domino's Pizza, Inc., 832 F. Supp. 1577 (N.D. Ind. 1993).
Wauchop involved a Dominos delivery driver who ignored traffic signals to meet a 30-minute delivery guarantee. Applying Indiana law, the court held that Dominos knew or should have known that the delivery driver would speed. See Wauchop, 832 F. Supp. at 1578-83. The court found that several franchisees and employees alerted Dominos that the 30-minute delivery guarantee created a safety hazard. The court also found that Dominos acknowledged that it received information from outside entities about the potential hazard, that Dominos knew that insurance underwriters regarded the 30-minute delivery guarantee to be unsafe, and that Dominos knew that many franchisees had trouble obtaining insurance due to the 30-minute delivery guarantee. See id. at 1580-81. Nonetheless, Dominos never discussed the concerns with any board of directors or executive teams. Moreover, in a company newsletter, Dominos's founder stated, "Every pizza should be a matter of life and death to make the delivery in 30 minutes or less. When the rush comes—Hustle." Id. at 1581. Based on these facts, the court denied Dominos's motion for summary judgment and held that the plaintiffs presented sufficient evidence from which a jury could find that Dominos had knowledge of the danger of the 30-minute delivery guarantee, but consciously disregarded the danger. See id. at 1583.
The DeRoses do not allege that DoorDash created the same environment described in Wauchop. See Am. Compl. ¶¶ 91-128. The DeRoses allege that DoorDash had an app with an estimated time of arrival and that DoorDash's policies and corporate marketing tactics emphasized fast delivery. See id. at ¶¶ 98-124. But the DeRoses do not allege that DoorDash's app guaranteed a delivery time. Estimating a time of delivery or stating which restaurants are fastest to produce food in not the same thing as a 30-minute delivery guarantee. Moreover, the DeRoses do not allege that DoorDash was warned or alerted to any safety concerns caused by its app or other corporate policies. Cf. Wauchop, 832 F. Supp. at 1580-81. Furthermore, the DeRoses admit that Oster was driving the speed limit when the accident occurred. See Am. Compl. ¶ 37. In North Carolina, driving an automobile to deliver something to another person is not an inherently dangerous activity. See Bennett v. Young, 266 N.C. 164, 171, 145 S.E.2d 853, 859 (1966) (holding that driving a dump truck was not an inherently dangerous activity and "required no precaution other than those incident to any operation of a dump truck").
The DeRoses fail to plausibly allege that DoorDash owed a duty to Ben DeRose or that DoorDash acted negligently. Accordingly, the court dismisses plaintiffs' claims against Doordash in the amended complaint.
B.
As for the 1400 Crest defendants, the DeRoses allege negligence, negligence per se, gross negligence, and wrongful death. Under North Carolina law, "[n]egligence is the failure to exercise proper care in the performance of a legal duty which the defendant owed the plaintiff under the circumstances surrounding them." Dunning v. Forsyth Warehouse Co., 272 N.C. 723, 725, 158 S.E.2d 893, 895 (1968); Moore v. Moore, 268 N.C. 110, 112, 150 S.E.2d 75, 77 (1966); Coulter v. Catawba Cnty. Bd. of Educ., 189 N.C. App. 183, 185, 657 S.E.2d 428, 430 (2008). To state a negligence claim, a plaintiff must plausibly allege that "(1) defendant failed to exercise due care in the performance of some legal duty owed to plaintiff under the circumstances; and (2) the negligent breach of such duty was the proximate cause of the injury." Whisnant v. Carolina Farm Credit, 204 N.C. App. 84, 93-94, 693 S.E.2d 149, 156 (2010); see Ward v. Carmona, 368 N.C. 35, 37, 770 S.E.2d 70, 72 (2015); Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013); Fussell v. N.C. Farm Bureau Mut. Ins. Co., 364 N.C. 222, 226, 695 S.E.2d 437, 440 (2010).
As for duty, "a landowner has a duty to exercise reasonable care regarding natural conditions on his land which lies adjacent to a public highway in order to prevent harm to travelers using the highway." Gibson v. Hunsberger, 109 N.C. App. 671, 675, 428 S.E.2d 489, 492 (1993). A landowner is subject to liability only if specific facts show that the landowner had actual or constructive notice of a dangerous natural condition and failed to use reasonable care. Id., 428 S.E.2d at 492. A legal duty requires an individual to conform to a certain standard of conduct for the protection of others against unreasonable risks. See Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 58-59, 554 S.E.2d 840, 846 (2001); Davis v. N.C. Dep't of Human Res., 121 N.C. App. 105, 112, 465 S.E.2d 2, 6 (1995). "North Carolina courts have consistently recognized a common law rule that 'imposes on every person engaged in the prosecution of any undertaking [a duty] to use due care, or to so govern his actions as not to endanger the person or property of others.' " McCants v. Nat'l Collegiate Athletic Ass'n, 201 F. Supp. 3d 732, 738-39 (M.D.N.C. 2016) (quoting Pinnix v. Toomey, 242 N.C. 358, 362, 87 S.E.2d 893, 897 (1955)). Violating an ordinance intended to protect the public from dangerous conditions is negligence per se. See, e.g., Estate of Coppick v. Hobbs Marina Properties, LLC, 240 N.C. App. 324, 328, 772 S.E.2d 1, 5-6 (2015); Stein v. Asheville City Bd. of Educ., 360 N.C. 321, 326, 626 S.E.2d 263, 266 (2006). The DeRoses have plausibly alleged negligence and negligence per se. See Am. Compl. ¶¶ 78-88; see, e.g., Estate of Coppick, 240 N.C. App. 324, 328, 772 S.E.2d 1, 5-6. Thus, the court declines to dismiss the DeRoses' negligence and negligence per se claims against the 1400 Crest defendants.
As for gross negligence, "the difference between ordinary negligence and gross negligence is substantial." Yancey v. Lea, 354 N.C. 48, 53, 550 S.E.2d 155, 158 (2001). "An act or conduct rises to the level of gross negligence when the act is done purposely and with knowledge that such act is a breach of duty to others, i.e., a conscious disregard of the safety of others." Id., 550 S.E.2d at 158 (emphasis omitted); see Ray v. N.C. Dep't of Transp., 366 N.C. 1, 13, 727 S.E.2d 675, 684 (2012); Green ex rel. Crudup v. Kearney, 217 N.C. App. 65, 70-71, 719 S.E.2d 137, 141 (2011). "Gross negligence is determined based on the facts and circumstances of each case . . . ." Ray, 366 N.C. at 13, 727 S.E.2d at 684. Two factors are especially relevant: (1) purposeful conduct and (2) disregard for the safety of others. See id., 727 S.E.2d at 684; Yancey, 354 N.C. at 53, 550 S.E.2d at 158. The DeRoses have plausibly alleged that defendants had actual or constructive notice of the allegedly dangerous conditions existing for pedestrian at the 1400 Crest property and that defendants repeatedly violated Raleigh codes or ordinances in disregard of the safety of others. See Am. Compl. ¶¶ 89-128.
Because the DeRoses have plausibly alleged gross negligence, the court addresses causation. "Proximate cause is a cause which in natural and continuous sequence, unbroken by any new or independent cause, produced the plaintiff's injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed." Johnson v. Skinner, 99 N.C. App. 1, 7-8, 392 S.E.2d 634, 637 (1990) (internal citations omitted). Proximate cause requires foreseeability. See id., 392 S.E.2d at 637. Generally, "[q]uestions of proximate cause and foreseeability are questions of fact to be decided by the jury. Thus, since proximate cause is a factual question, not a legal one, it is typically not appropriate to discuss in a motion to dismiss." Estate of Long ex rel. Long v. Fowler, 270 N.C. App. 241, 252, 841 S.E.2d 290, 299 (2020), aff'd, 378 N.C. 138, 861 S.E.2d 686 (2021); Newman v. Stepp, 376 N.C. 300, 306, 852 S.E.2d 104, 109 (2020); Acosta v. Byrum, 180 N.C. App. 562, 568-69, 638 S.E.2d 246, 251 (2006). "It is only when the facts are all admitted and only one inference may be drawn from them that the court will declare whether an act was the proximate cause of an injury or not. But that is rarely the case." Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 214, 29 S.E.2d 740, 742 (1944).
The DeRoses have plausibly alleged causation. See Estate of Long, 270 N.C. App. at 252, 841 S.E.2d at 299; cf. Lavelle v. Schultz, 120 N.C. App. 857, 861, 463 S.E.2d 567, 570 (1995) (dismissing a case with similar facts based on a defense motion for summary judgment). Whether the DeRoses' negligence, negligence per se, gross negligence, and wrongful death claims will survive the 1400 Crest defendants' inevitable motion for summary judgment is an issue for another day.
As for the DeRoses' NIED claim against the 1400 Crest defendants, a plaintiff must plausibly allege that "(i) defendant negligently engaged in conduct; (ii) it was reasonably foreseeable the conduct would cause plaintiff severe emotional distress; and (iii) the conduct in fact caused plaintiff to suffer such distress." Andersen v. Baccus, 335 N.C. 526, 531, 439 S.E.2d 136, 139 (1994); Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990); Acosta, 180 N.C. App. at 567, 638 S.E.2d at 250. North Carolina has long recognized NIED claims. See Bailey v. Long, 172 N.C. 661, 662, 90 S.E. 809, 810 (1916). A plaintiff, however, must prove that he or she has suffered such severe emotional distress as a "proximate and foreseeable result of the defendant's negligence." Johnson, 327 N.C. at 305, 395 S.E.2d at 98. To determine whether the plaintiff's injury was a foreseeable result of the defendant's negligence, a court considers three factors: (1) the plaintiff's proximity to the negligent act; (2) the relationship between the plaintiff and the other person for whose welfare the plaintiff is concerned; and (3) whether the plaintiff personally observed the negligent act. See id., 395 S.E.2d at 98.
As for the NIED claim, the DeRoses were in New Mexico, when the allegedly negligent act that caused this accident occurred. The DeRoses arrived at the hospital to see their son hours after the accident and when he was bandaged after his initial surgery. See Am. Compl. ¶ 133. Thus, they were not proximate to the alleged negligent act. As for the relationship between the plaintiffs and Ben DeRose, he was the DeRoses' son. See id. at ¶¶ 14-16. As for whether the DeRoses personally observed the negligent act, they did not. See id. at ¶ 133.
Newman demonstrates why the DeRoses' NIED claim fails. In Newman, a mother dropped her toddler off at an at-home daycare where the toddler was shot at close range in the kitchen by another child who found a loaded and unattended shotgun. See Newman, 376 N.C. at 301-03, 852 S.E.2d at 106-07. The toddler's mother and father were immediately called after the accident. The father saw the ambulance containing his child on the way to the hospital. Both parents were at the hospital when the toddler arrived. The father witnessed the toddler brought from the ambulance into the hospital on a stretcher. The mother held the toddler's body after the toddler died for as long as she could until the hospital staff took the deceased toddler's body. See id., 852 S.E.2d at 106-07. After the incident, the mother had "been under constant psychiatric care and has been placed on numerous strong anti-depressants as well as other medications," "had etched in her memory the sight of her lifeless daughter in her arms at" the hospital, "has convinced herself that she also is going to die, because God would not allow her to suffer as she has suffered without taking her life also," among other specific allegations of severe emotional trauma. Id. at 303, 852 S.E.2d at 107. In contrast to Newman, the DeRoses were in New Mexico when the accident happened, arrived several hours after the accident, did not see their son in the condition that he was found in at the accident but instead saw him wrapped in bandages in the hospital after his initial surgery, and only generally allege emotional harm. See Am. Compl. ¶¶ 129-39.
In Newman, the court stressed that plaintiffs and defendants "knew each other to such a degree that plaintiffs allowed their young child to spend appreciable amounts of time in defendants' home." Newman, 376 N.C. at 312, 852 S.E.2d at 112. The DeRoses do not plausibly allege that the 1400 Crest defendants knew the DeRoses or knew Ben DeRose beyond his status as a tenant. As in Andersen, the 1400 Crest defendants "could not reasonably have foreseen that [their] negligent act, if any, would cause [the DeRoses] to suffer severe emotional distress" because "nothing suggests that [the 1400 Crest defendants] knew of [the DeRoses'] existence" beyond a general knowledge that individuals have parents. Andersen, 335 N.C. at 532-33, 439 S.E.2d 136 at 140. Accordingly, the court dismisses the DeRoses' NIED claim against the 1400 Crest defendants. See, e.g., id. at 527-33, 439 S.E.2d 136 at 137-40; Gardner v. Gardner, 334 N.C. 662, 666-68, 435 S.E.2d 324, 327-28 (1993); Sorrells v. M.Y.B. Hosp. Ventures of Asheville, 334 N.C. 669, 672-75, 435 S.E.2d 320, 322-23 (1993).
The 1400 Crest defendants also argue that the court should dismiss the DeRoses' claims against them for lack of subject-matter jurisdiction because the release agreement between the DeRoses and Oster released any and all claims arising out of this accident. See [D.E. 44] 22-24; [D.E. 58] 1-2. The DeRoses respond that the court should not consider the release because it is outside the pleadings. Alternatively, the DeRoses argue that the release applied only to Oster. See [D.E. 55] 9-10.
Because the 1400 Crest defendants move to dismiss for lack of subject-matter jurisdiction based on the release, the court may consider the release without converting the motion to one for summary judgment. See, e.g., Evans v. B. F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). "A release is a private agreement amongst parties which gives up or abandons a claim or right to the person against whom the claim exists or the right is to be enforced or exercised." Fin. Servs. of Raleigh, Inc. v. Barefoot, 163 N.C. App. 387, 392, 594 S.E.2d. 37, 41 (2004). A valid release "operates as a merger of, and bars all right to recover on, the claim or right of action included therein, as would a judgment duly entered in an action between said persons." Jenkins v. Fields, 240 N.C. 776, 778, 83 S.E.2d. 908, 910 (1954). The effect of a release of liability turns on "the true intention of the parties." McBride v. Johnson Oil & Tractor Co., 52 N.C. App. 513, 515, 279 S.E.2d 117, 119 (1981).
The first sentence of the release states that the DeRoses have received $50,000 from Oster and in consideration "fully and forever release and discharge Shaun Oster" from liability. [D.E. 44-2] 2. Although the final paragraph of the release states that the release is "accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims," the rest of the release makes clear that the parties intended the release to apply to Oster alone. Id. In North Carolina, courts have found ambiguous release language where the plaintiff attempted to release multiple defendants, but not all defendants, or where the release did not specify to whom the release applied. See, e.g., Battle v. Clanton, 27 N.C. App. 616, 619-22, 220 S.E.2d 97, 99-101 (1975). Here, the release makes clear that it applies to Oster alone. See [D.E. 44-2]; McBride, 52 N.C. App. at 514-16, 279 S.E.2d at 118-20.
C.
The DeRoses seek punitive damages against DoorDash and the 1400 Crest defendants. Under North Carolina law, punitive damages are not a separate cause of action. See Sasso v. Tesla, Inc., 584 F. Supp. 3d 60, 81 (E.D.N.C. 2022); Sykes v. Health Network Sols., Inc., 372 N.C. 326, 329, 828 S.E.2d 467, 469 (2019); Watson v. Dixon, 352 N.C. 343, 348, 532 S.E.2d 175, 178 (2000); Newton v. Barth, 248 N.C. App. 331, 345, 788 S.E.2d 653, 664 (2016). Nonetheless, if a complaint plausibly alleges the facts in support of an award of punitive damages under North Carolina law, a court should not dismiss a request for punitive damages. To recover punitive damages, a claimant must prove that an aggravating factor of fraud, malice, or willful or wanton conduct is present and was related to the injury subject to the compensatory damages. See N.C. Gen. Stat. § 1D-15(a); OmniSource Corp. v. Heat Wave Metal Processing, Inc., No. 5:13-CV-772, 2015 WL 3452918, at *13 (E.D.N.C. May 29, 2015) (unpublished); Opsitnick v. Crumpler, No. 5:13-CV-835, 2014 WL 1682013, at *4 (E.D.N.C. Apr. 28, 2014) (unpublished); Catalano v. AARP Org., No. 5:09-CV-455, 2010 WL 3063263, at *2 (E.D.N.C. Aug. 4, 2010) (unpublished); Monk v. Progressive Se. Ins. Co., No. 7:06-CV-15, 2006 WL 8439059, at *2-3 (E.D.N.C. May 23, 2006) (unpublished).
"[W]illful or wanton conduct" is "the conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm." N.C. Gen. Stat. § 1D-50(7). "A wanton act is an act done with a 'wicked purpose or . . . done needlessly, manifesting a reckless indifference to the rights of others." Lashlee v. White Consol. Indus., Inc., 144 N.C. App. 684, 693, 548 S.E.2d 821, 827 (2001) (quoting Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42, 51, 524 S.E.2d 53, 60 (1999)). "An act is willful when there is a deliberate purpose not to discharge a duty, assumed by contract or imposed by law, necessary for the safety of the person or property of another." Lashlee, 144 N.C. App. at 693, 548 S.E.2d at 827. Whether the facts alleged in the complaint plausibly suffice to permit punitive damages is a question of law for the court. See Iqbal, 556 U.S. at 667-80, 129 S.Ct. 1937; Twombly, 550 U.S. at 554-63, 127 S.Ct. 1955. When punitive damages are sought from a corporate defendant, "the officers, directors, or managers of the corporation" must have "participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages." N.C. Gen. Stat. § 1D-15(c); Bell v. Am. Int'l Indus., No. 1:17-CV-111, 2018 WL 2745238, at *3 (M.D.N.C. June 7, 2018) (unpublished).
The DeRoses do not allege fraud or malice. The only possible basis for punitive damages is for willful or wanton conduct. As for DoorDash, because the DeRoses fail to plausibly state a claim for relief on any claim against Doordash and because a request for punitive damages does not stand alone, the court dismisses the DeRoses' request for punitive damages against DoorDash. As for the 1400 Crest defendants, the DeRoses do not respond to the 1400 Crest defendants' arguments regarding punitive damages, and they appear to have abandoned seeking such relief. Cf. Sawyers v. United Parcel Serv., Inc., No. 1:18-CV-1037, 2019 WL 4305771, at *3 (unpublished) (collecting cases); Hall v. Tyco Hall Int'l Ltd., 223 F.R.D. 219, 255 (M.D.N.C. 2004); Mentch v. Eastern Savings Bank, FSB, 949 F. Supp. 1236, 1247 (D. Md. 1997). In any event, the DeRoses fail to plausibly allege the requirements for punitive damages, and the court dismisses their request for punitive damages against the 1400 Crest defendants.
III.
In sum, the court GRANTS DoorDash's motion to dismiss [D.E. 46] and DISMISSES DoorDash as a defendant. The court DENIES IN PART the 1400 Crest defendants motion to dismiss as to the negligence, negligence per se, gross negligence, and wrongful death claims, GRANTS IN PART the 1400 Crest defendants' motion to dismiss the NIED claim and request for punitive damages, and DISMISSES the NIED claim and request for punitive damages against the 1400 Crest defendants [D.E. 36]. The parties shall engage in a court-hosted mediation with United States Magistrate Judge James E. Gates.
SO ORDERED. This 1st day of June, 2023.