Cooke v. Stanley Steemer Southern Virginia, LLC Case in another court: Currituck Co. Superior Court, 13CVS1

Filing 16

ORDER GRANTING IN PART AND DENYING IN PART 6 Defendant's Motion to Dismiss for Failure to State a Claim. Plaintiff's strict liability and negligence per se claims for relief are hereby DISMISSED. Plaintiff's negligence claim survives and may proceed in its entirety. Signed by US District Judge Terrence W. Boyle on 9/19/2013. Counsel is directed to read Order in its entirety for critical information. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 2:13-CV-00032-BO

MARIE COOKE,
Plaintiff,
V.

STANLEYSTEEMERSOUTHERN
VIRGINIA, LLC,
Defendant.

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ORDER

This matter is before the Court on defendant Stanley Steemer Southern Virginia, LLC's
motion to dismiss to Federal Rule of Civil Procedure 12(b)(6). [DE 6]. The motion is ripe for
adjudication. For the reasons stated herein, the defendant's motion to dismiss is GRANTED in
part and DENIED in part.

BACKGROUND
Plaintiff filed her complaint against defendant for injuries allegedly stemming from
defendant's professional cleaning of her home. Plaintiff has alleged claims of strict liability and
negligence against defendant based upon its use of the product Sani-T-1 0 in the plaintiffs home.
Plaintiff called defendant to address an odor resulting from plaintiffs use of an anti-allergen
spray. On January 27, 2011, defendant attempted to remove the offensive odor through its
standard cleaning process. However, plaintiff requested defendant to return the following day as
the issue was not resolved. On January 28, 2011, defendant returned to plaintiffs home and

agreed to use a stronger fungicide and disinfectant to attempt to remove the odor. Defendant
applied Sani-T-10 in mist form to various areas of the carpet and furniture in plaintiffs horne.
Plaintiff alleges, the chemical defendant used caused irreversible damage to the mucous
membranes in her lungs and irritated her eyes and skin about her mouth and face.
Plaintiff filed the instant suit against defendant on January 2, 2013 in Currituck County
Superior Court. She amended her complaint on January 24, 2013 and March 31, 2013. Defendant
timely removed this action to this Court on the basis of diversity jurisdiction on May 9, 2013.
Defendant filed this motion on June 10, 2013.
DISCUSSION

Defendant has moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. A Rule 12(b)( 6) motion to dismiss for failure to state a claim for which relief can be
granted challenges the legal sufficiency of a plaintiffs complaint. Francis v. Giacomelli, 588
F .3d 186, 192 (4th Cir. 2009). When ruling on the motion, the court "must accept as true all of
the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 93-94
(2007) (citing Bell At!. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although complete and
detailed factual allegations are not required, "a plaintiffs obligation to provide the 'grounds' of
his 'entitle[rnent] to relief requires more than labels and conclusions." Twombly, 550 U.S. at 555
(citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). Similarly, a court need not accept as true a plaintiffs "unwarranted

inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts. v. J D. Assocs. Ltd.,
213 F.3d 175, 180 (4th Cir. 2000). A trial court is "not bound to accept as true a legal conclusion
couched as a factual allegation." Twombly, 550 U.S. at 555. Accordingly, to survive a Rule

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12(b)(6) motion, a complaint must contain facts sufficient "to raise a right to relief above the
speculative level" and to satisfy the court that the claim is "plausible on its face." !d. at 555, 570.
I.

PLAINTIFF'S CLAIM OF STRICT LIABILITY.

Defendant argues that plaintiffs strict liability claim should be dismissed because the
statute cited in her complaint does not clearly support a private right of action, let alone a claim
for strict liability. This Court agrees. Furthermore, even if this Court were to accept plaintiffs
argument that her strict liability claim is really a negligence per se claim, she has failed to allege
all of the elements of such a claim.
Plaintiff points to North Carolina Gen. Stat. § 143-443(b)(3)'s general prohibition on
using pesticides in a manner inconsistent with their labeling as the basis for strict liability.
However, under North Carolina law, strict liability is typically reserved for ultrahazardous
activities, which is currently limited to blasting. Travelers Ins. Co. (The Travelers) Inc. v.
Chrysler Corp., 845 F. Supp. 1122, 1125 (M.D.N.C. 1994). Furthermore, North Carolina courts

have held that safety statutes will not be construed to impose strict liability unless it was clearly
the purpose of the legislature. Hurley v. Miller, 440 S.E.2d 286, 291 (N.C. Ct. App. 1994). The
statute to which plaintiff points creates no clear private right of action, let alone strict liability,
for its violation. Accordingly, defendant's motion to dismiss is granted as to plaintiffs strict
liability claim.
In her response to defendants motion to dismiss plaintiff attempts to argue that the use of
Sani-T-10 in a manner inconsistent with its labeling violates North Carolina's Pesticide Act of
1971, a safety statute and therefore defendant is negligent per se. However plaintiff has not
properly alleged all of the elements of negligence per se in her complaint. Specifically, plaintiff
fails to allege that the statute was enacted to protect a class of persons which includes the

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plaintiff and that the injury was of the nature contemplated in the statute. Rudd v. Electrolux
Corp., 982 F.Supp. 355, 365 (M.D.N.C. 1997). Accordingly defendant's motion to dismiss is
granted as to any negligence per se claim plaintiff raises
II.

PLAINTIFF'S CLAIM OF NEGLIGENCE.

Under North Carolina law, for a negligence claim to withstand a motion to dismiss, "[it]
must allege the existence of a legal duty or standard of care owed to the plaintiff by the
defendant, breach of that duty, and a causal relationship between the breach of duty and certain
actual injury or loss sustained by the plaintiff." Scadden v. Holt, 733 S.E.2d 90, 92 (N.C. Ct.
App. 2012). The plaintiff has met that burden here.
Plaintiff alleges defendant breached a duty to use its products properly and in a safe
manner as a professional cleaning service that came into her home. Plaintiff alleges defendant
breached that duty when it used Sani-T-10 in a manner inconsistent with its labeling and by
failing to warn her of the dangers posed by the product. Plaintiff alleges the improper application
of the product caused her physical injuries and damaged her property.
Defendant claims that plaintiff has insufficiently quoted Sani-T-10's label. However that
is of no consequence here as this Court "accept[ s] as true all of the factual allegations contained
in the complaint." Erickson, 551 U.S. at 93-94. Viewing all of plaintiffs factual allegations as
true, this Court finds that plaintiff has sufficiently alleged a negligence claim against defendant
and accordingly denies defendant's motion to dismiss as to plaintiffs negligence claim.

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CONCLUSION

For the foregoing reasons, defendant's motion to dismiss is GRANTED in part and
DENIED in part. Plaintiffs strict liability and negligence per se claims for relief are hereby
DISMISSED. Plaintiffs negligence claim survives and may proceed in its entirety.

SO ORDERED.
This the

_Lj_ day of September, 2013.

T RRENCE W. BOYLE
UNITED STATES DISTRI

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JUDGE