                  IN THE SUPREME COURT OF NORTH CAROLINA

                                      No. 409A12

                                FILED 13 JUNE 2013

CATRYN DENISE BRIDGES

             v.
HARVEY S. PARRISH and BARBARA B. PARRISH



      Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel

of the Court of Appeals, ___ N.C. App. ___, 731 S.E.2d 262 (2012), affirming an

order dismissing plaintiff’s complaint entered on 3 November 2011 by Judge

Thomas D. Haigwood in Superior Court, Johnston County. Heard in the Supreme

Court on 6 May 2013.


      Wake Forest University School of Law Appellate Advocacy Clinic, by John J.
      Korzen, for plaintiff-appellant.

      Poyner Spruill LLP, by Steven B. Epstein, for defendant-appellees.

      Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by
      Christopher R. Kiger, for North Carolina Association of Defense Attorneys,
      amicus curiae.


      MARTIN, Justice.

      Plaintiff, Catryn Bridges, seeks money damages from defendants, Harvey

and Barbara Parrish, for the criminal acts of their 52-year-old son Bernie. Plaintiff

alleges that Harvey and Barbara negligently stored their firearm, which Bernie

wrongfully took from their home and used to shoot plaintiff. We hold these parents

are not liable for the criminal conduct of their 52-year-old son.
                                BRIDGES V. PARRISH

                                 Opinion of the Court



      Plaintiff made the following allegations in her complaint:     Plaintiff dated

Harvey and Barbara’s son, Bernie, for seven months in 2010. At that time she was

unaware that Bernie had a history of escalating violence towards the women with

whom he had romantic relationships and he had been charged with, among other

things, first-degree kidnapping, assault with a deadly weapon with intent to kill or

inflict serious injury, and possession of a firearm by a felon in 2007. During the

events at issue here, Bernie lived in a building on Harvey and Barbara’s property,

while they attempted to provide their son with guidance, advice, and financial

assistance.   Harvey and Barbara owned a number of firearms, to which Bernie

occasionally had access. During Bernie’s relationship with plaintiff, Harvey and

Barbara met her on many occasions.

      According to the complaint, plaintiff ended her relationship with Bernie in

November 2010 because he exhibited “controlling, accusatory and risky” behavior.

They resumed their relationship in January 2011. The dysfunctional relationship

dynamics again escalated.    In a conversation on 7 March 2011, Bernie accused

plaintiff of seeing other men. The next day Bernie drove to plaintiff’s workplace and

shot her in the abdomen with one of Harvey and Barbara’s guns.

      Following the assault, rather than suing Bernie, plaintiff filed a civil

complaint alleging that Harvey and Barbara “knew or should have known that

Bernie Parrish posed a risk of serious harm to Plaintiff” yet “failed to take

reasonable and/or necessary steps to keep [their] guns in a safe and secure place, or


                                         -2-
                                 BRIDGES V. PARRISH

                                  Opinion of the Court



otherwise adequately locked and located such that Bernie Parrish could not get

access to and possession of any such guns.” Harvey and Barbara filed a motion to

dismiss, which the trial court allowed. Plaintiff appealed to the Court of Appeals.

      On appeal plaintiff proposed three theories of liability against Harvey and

Barbara, only one of which is before us: a negligence claim alleging Harvey and

Barbara breached a common law duty to secure their firearms from their son.

Bridges v. Parrish, ___ N.C. App. ___, ___, 731 S.E.2d 262, 264-65 (2012). The Court

of Appeals majority declined to find that such a duty arose under North Carolina

common law. Id. at ___, 731 S.E.2d at 266-67. The dissenting judge would have

reversed the trial court’s decision and allowed plaintiff to proceed with a claim for

negligent storage of a firearm. Id. at ___, 731 S.E.2d at 268-69 (Geer, J., concurring

in part and dissenting in part). We affirm.

      Our review of the grant of a motion to dismiss under Rule 12(b)(6) of the

North Carolina Rules of Civil Procedure is de novo.       We consider “whether the

allegations of the complaint, if treated as true, are sufficient to state a claim upon

which relief can be granted under some legal theory.” Coley v. State, 360 N.C. 493,

494-95, 631 S.E.2d 121, 123 (2006) (citation and internal quotation marks omitted).

      Plaintiff has asserted a common law negligence claim. To state a common

law negligence claim, plaintiff must show “(1) a legal duty; (2) a breach thereof; and

(3) injury proximately caused by the breach.” Stein v. Asheville Bd. of Educ., 360

N.C. 321, 328, 626 S.E.2d 263, 267 (2006) (citation omitted). In the case before us,


                                          -3-
                                 BRIDGES V. PARRISH

                                   Opinion of the Court



the only element contested is whether Harvey and Barbara owed plaintiff a legal

duty.

        We have stated that “[n]o legal duty exists unless the injury to the plaintiff

was foreseeable and avoidable through due care.” Id. at 328, 626 S.E.2d at 267

(citing Estate of Mullis v. Monroe Oil Co., 349 N.C. 196, 205, 505 S.E.2d 131, 137

(1998)). The criminal acts of a third party are generally considered “unforeseeable

and independent, intervening cause[s] absolving the [defendant] of liability.” Id. at

329, 626 S.E.2d at 268 (alterations in original) (quoting Foster v. Winston-Salem

Joint Venture, 303 N.C. 636, 638, 281 S.E.2d 36, 38 (1981)) (internal quotation

marks omitted).     For this reason, the law does not generally impose a duty to

prevent the criminal acts of a third party. Id. at 328, 626 S.E.2d at 268.

        As an exception to this rule, our common law may allow a defendant to be

held liable for the criminal acts of a third party in cases of “special relationships”—

“when the defendant’s relationship with the plaintiff or the third person justifies

making the defendant answerable civilly for the harm to the plaintiff.” Id. at 329,

626 S.E.2d at 268. Plaintiff has waived her argument that Harvey and Barbara had

a special relationship with Bernie. Bridges, ___ N.C. App. at ___ n.1, 731 S.E.2d at

265 n.1 (majority opinion). Accordingly, to state a claim for negligence based on a

special relationship, plaintiff’s complaint must allege facts sufficient to show that

her relationship with Harvey and Barbara justified requiring them to use due care

to prevent the attack on her.


                                           -4-
                                 BRIDGES V. PARRISH

                                  Opinion of the Court



      Special relationships create a responsibility to take “affirmative action for the

aid or protection of another,” 2 Restatement (Second) of Torts § 314 A cmt. b (1965),

and they arise only in narrow circumstances. For example, “the parent of an

unemancipated child may be held liable in damages for failing to exercise

reasonable control over the child’s behavior if the parent had the ability and the

opportunity to control the child and knew or should have known of the necessity for

exercising such control.” Moore v. Crumpton, 306 N.C. 618, 623, 295 S.E.2d 436,

440 (1982) (citations omitted). In addition, a landowner has a “duty to safeguard

his business invitees from the criminal acts of third persons” if those criminal acts

are foreseeable.     Foster, 303 N.C. at 640, 281 S.E.2d at 39 (citation omitted).

Further, common carriers owe a duty “to provide for the safe conveyance of their

passengers as far as human care and foresight can go.” Smith v. Camel City Cab

Co., 227 N.C. 572, 574, 42 S.E.2d 657, 658 (1947) (citations and internal quotation

marks omitted). Other special relationships include those between innkeepers and

their guests and people who voluntarily accept custody of another. See 2

Restatement (Second) of Torts § 314 A. In these cases special relationships creating

liability have arisen through circumstances such as voluntary assumption of

another’s care and well-being or the ability to control the third person at the time of

the criminal acts.

      Here, plaintiff’s complaint is devoid of any allegations that, if taken as true,

demonstrate that Harvey and Barbara had a special relationship with her that gave


                                          -5-
                                 BRIDGES V. PARRISH

                                  Opinion of the Court



rise to a legal duty. Like the defendants in Moore, Harvey and Barbara did not

prevent their child from accessing a deadly weapon that the child used to harm

another person. Moore, 306 N.C. at 620, 295 S.E.2d at 438. While parents may be

held liable for the actions of their children in some circumstances, we noted in

Moore that “[t]he opportunity to control a young man of [17 years] obviously is not

as great as with a younger child. . . . Short of standing guard over the child twenty-

four hours a day, there was little that the defendant father could do to prevent” the

harm to the plaintiff. Id. at 626, 295 S.E.2d at 442. We did not hold the parents in

Moore responsible for the criminal actions of their 17-year-old son. Id. at 626, 628,

295 S.E.2d at 441-42, 443. Even more so, Harvey and Barbara are not liable for the

criminal actions of their 52-year-old son.

      Because plaintiff has not stated a claim that supports a finding of negligence

based on a special relationship, the only remaining theory of liability is that Harvey

and Barbara negligently breached a duty owed to plaintiff as a member of the

general public.   Relying on previous cases that have characterized firearms as

dangerous instrumentalities, plaintiff argues that Harvey and Barbara had a duty

to secure their firearms. We disagree. While our prior cases articulate a duty to

exercise due care in the use of dangerous instrumentalities, they do not mandate a

home storage requirement. Cf. Edwards v. Johnson, 269 N.C. 30, 35, 152 S.E.2d

122, 126 (1967) (“It is settled law with us that the highest degree of care is exacted

of those handling firearms.” (emphasis added)); Belk v. Boyce, 263 N.C. 24, 31, 138


                                             -6-
                                   BRIDGES V. PARRISH

                                    Opinion of the Court



S.E.2d 789, 794 (1964) (“[A] very high degree of care is required from all persons

using firearms in the immediate vicinity of others regardless of how lawful or

innocent such use may be.” (emphasis added)). The mere possession of a legal yet

dangerous instrumentality does not create automatic liability when a third party

takes that instrumentality and uses it in an illegal act. As long as the dangerous

instrumentalities are kept in accordance with statutory regulations, the law does

not impose civil liability under the present allegations.

      The General Assembly has enacted a myriad of statutes relating to the use

and storage of firearms. See, e.g., N.C.G.S. §§ 14-269.2 (prohibiting firearms on

educational property or at school-sponsored activities), -269.7 (prohibiting persons

under the age of eighteen from possessing handguns), -315.1 (making it a crime to

not secure firearms in premises shared with a minor), -415.11 (2011) (regulating

concealed carry permits).       The General Assembly, however, has not elected to

impose civil liability in the circumstances presented in the case before us.

Moreover, as defendants observe, “not a single appellate court has recognized a

cause of action for negligent storage of a firearm broad enough to encompass the

claim Plaintiff pleads here.”

      As amicus curiae aptly explains, “under Plaintiff’s theory, a negligent-based

cause of action would exist against a homeowner virtually any time a gun (or any

other object that could be used to injure someone) was stolen from the homeowner’s

premise[s] and then used in the commission of a violent crime that injures another


                                            -7-
                                    BRIDGES V. PARRISH

                                     Opinion of the Court



person.” It logically follows that holding gun owners responsible for the criminal

use of their guns by unauthorized adult users would unfairly burden those who

lawfully own and store guns in their homes. Cf. Nelson v. Freeland, 349 N.C. 615,

632, 507 S.E.2d 882, 892 (1998).

      Even when all plaintiff’s allegations are taken as true, Harvey and Barbara

cannot be held liable for their 52-year-old son’s criminal actions, which are

“unforeseeable and independent, intervening cause[s] absolving [defendants] of

liability.” Stein, 360 N.C. at 329, 626 S.E.2d at 268 (first alteration in original)

(citation and internal quotation marks omitted). Our General Assembly is a “far

more appropriate forum than the courts for implementing policy-based changes to

our laws,” Rhyne v. K-Mart Corp., 358 N.C. 160, 169, 594 S.E.2d 1, 8 (2004), so long

as such policy-based changes are kept within constitutional bounds, see Britt v.

State, 363 N.C. 546, 550, 681 S.E.2d 320, 323 (2009). Accordingly, we affirm the

decision of the Court of Appeals.

      AFFIRMED.

      Justice BEASLEY took no part in the consideration or decision of this case.




                                             -8-
