                              NO. COA13-1336

                    NORTH CAROLINA COURT OF APPEALS

                           Filed: 17 June 2014


ANNE B. GOODMAN, Administrator of
the Estate of RICHARD CLYDE BOST,
Deceased,
     Plaintiff,

    v.                                   Rowan County
                                         No. 13 CVS 172
LIVING CENTERS—SOUTHEAST, INC.,
d/b/a BRIAN CENTER OF SALISBURY
and/or BRIAN CENTER HEALTH &
REHABILITATION/SALISBURY,
     Defendants.


    Appeal by plaintiff from order entered 25 July 2013 by

Judge Mark E. Klass in Rowan County Superior Court.             Heard in

the Court of Appeals 9 April 2014.


    DORAN, SHELBY, PETHEL and HUDSON, P.A., by Michael Doran,
    for plaintiff-appellant.

    HAGWOOD ADELMAN TIPTON, by Amy E. Oleska, for defendant-
    appellee.


    ELMORE, Judge.


    Anne B. Goodman (plaintiff), representative of the estate

of Richard Clyde Bost (the decedent), appeals from an order

dismissing   her   18   January   2013   complaint   against   the   Brian

Center of Salisbury (“defendant” or “Brian Center”).           The trial

court’s order was predicated on the grounds that plaintiff’s
                                          -2-
claims were barred by the statute of repose.                       We conclude that

plaintiff’s claims were not in fact barred by the statute of

repose.       Accordingly,         the    trial    court’s     order      should     be

reversed,     and     this    case       should    be   remanded        for    further

proceedings consistent with this opinion.

                             I.     Procedural Background

      On or about 22 April 2008, the decedent, at the age of

eighty-four, became a permanent resident of the Brian Center, a

long-term nursing and rehabilitation facility in Salisbury.                          On

13   September      2008,    defendant,     through     its    agents,        allegedly

caused an instrumentality for the delivery of I.V. fluids to be

improperly positioned next to the decedent’s bed.                        Due to its

unstable    placement,       the   instrumentality      fell       on   the    decedent

causing serious injuries to the decedent’s upper body, including

blunt trauma to his head, a broken nose, and various cuts and

contusions.          The     decedent     was     admitted    to    Rowan      Regional

Medical Center and treated for his injuries.                       Once stabilized,

he was released to a different nursing home facility where he

later died on 6 October 2008.               The decedent did not return to

the Brian Center at any point after the incident.

      On 5 October 2010, plaintiff, on behalf of the decedent’s

estate, filed a complaint in Rowan County Superior Court seeking
                                         -3-
an award of damages on the basis of allegations sounding in

negligence,     wrongful      death,    and    breach     of    contract.        On    18

January 2012, plaintiff voluntarily dismissed her action without

prejudice pursuant to Rule 41 of the North Carolina Rules of

Civil Procedure.         One year later, on 18 January 2013, plaintiff

refiled her action against defendant, asserting the same three

causes of action as set forth in her 5 October 2010 complaint.

On   25      February    2013,      defendant     moved        for      dismissal      of

plaintiff’s     action     and/or      summary    judgment       in    its   favor     on

grounds that (1) defendant was an improper party to the action

as it had not held a license or any interest in the requisite

facility since 2005, and (2) plaintiff’s claims were barred by

the statute of repose.          On 24 July 2013, the trial court entered

an   order    dismissing      plaintiff’s      action     with       prejudice   after

finding that plaintiff’s action was barred by the statute of

repose.      Plaintiff timely appealed to this Court on 23 August

2013.

                                      II.     Analysis

      On appeal, plaintiff argues that the trial court erred in

dismissing     her   action     for    failing    to     timely       file   under    the

statute   of    repose   when    “the       gravamen     of    the    [c]omplaint      is

ordinary negligence.”         We agree.
                                            -4-
    “This Court must conduct a de novo review of the pleadings

to determine their legal sufficiency and to determine whether

the trial court’s ruling on the motion to dismiss was correct.”

Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580

S.E.2d 1, 4, aff’d per curiam, 357 N.C. 567, 597 S.E.2d 673

(2003).      Further, when there are no disputed factual issues,

issues regarding the application of a statute of limitations or

statute   of      repose     are    questions      of    law    reviewable      de    novo.

Udzinski v. Lovin, 159. N.C. App. 272, 273, 583, S.E.2d 648, 649

(2003), aff’d, 358 N.C. 534, 597 S.E.2d 703 (2004).

    According to N.C. Gen. Stat. § 90-21.11(2)(a) (2013), a

medical malpractice action is defined as a “civil action for

damages     for     personal       injury    or    death       arising    out    of    the

furnishing     or    failure        to   furnish    professional         [health      care]

services.”         The North Carolina Court of Appeals has defined

“professional services” as an act or service “arising out of a

vocation,         calling,         occupation,      or         employment       involving

specialized knowledge, labor, or skill, and the labor [or] skill

involved is predominantly mental or intellectual, rather than

physical or manual.”               Lewis v. Setty, 130 N.C. App. 606, 608,

503 S.E.2d 673, 674 (1998) (quotation omitted).                       The distinction

between   medical      malpractice          actions      and     ordinary    negligence
                                    -5-
actions is significant for two primary reasons.               First, medical

malpractice actions are subject to the statute of repose, which

mandates:      “[I]n no event shall an action be commenced more than

four years from the last act of the defendant giving rise to the

cause   of   action[.]”     N.C.   Gen.   Stat.   §    1-15(c).       Second,

plaintiffs filing a medical malpractice action are required to

comply with the certification requirements of Rule 9(j) of the

North Carolina Rules of Civil Procedure.              See N.C. R. Civ. P. §

1A-1,   Rule    9(j).     Specifically,   pursuant      to   Rule   9(j),   any

complaint alleging medical malpractice by a health care provider

pursuant to N.C. Gen. Stat. § 90-21.11(2)(a) (2013) shall be

dismissed unless:

                (1) The pleading specifically asserts
             that the medical care and all medical
             records pertaining to the alleged negligence
             that are available to the plaintiff after
             reasonable inquiry have been reviewed by a
             person who is reasonably expected to qualify
             as an expert witness under Rule 702 of the
             Rules of Evidence and who is willing to
             testify that the medical care did not comply
             with the applicable standard of care;

                (2) The pleading specifically asserts
             that the medical care and all medical
             records pertaining to the alleged negligence
             that are available to the plaintiff after
             reasonable inquiry have been reviewed by a
             person that the complainant will seek to
             have qualified as an expert witness by
             motion under Rule 702(e) of the Rules of
             Evidence and who is willing to testify that
                                              -6-
               the medical care did not comply with the
               applicable standard of care, and the motion
               is filed with the complaint; or

                  (3)    The    pleading    alleges    facts
               establishing negligence under the existing
               common-law doctrine of res ipsa loquitur.


N.C. Gen. Stat. § 1A-1, Rule 9(j).

    Defendant contends that plaintiff has waived her right to

argue that her action sounded in ordinary negligence because she

failed to allege ordinary negligence before the trial court.                             We

disagree.          After reviewing the hearing transcript, it is clear

that defendant assumed plaintiff’s action was one for medical

malpractice and therefore based its argument for dismissal, in

part,     on       an   alleged     violation        of   the   statute    of    repose.

However,       a    review    of    plaintiff’s       complaint    reveals      that    her

claims     sounded       in    ordinary       negligence.         Plaintiff      neither

referenced “medical malpractice” in her complaint nor did she

obtain expert certification pursuant to Rule 9(j).                             We assume

that the trial court found plaintiff’s claims sounded in medical

malpractice, given its dismissal of the action pursuant to the

statute    of       repose.        However,    the    trial     court   need    not    have

reached the merits of defendant’s argument regarding the statute

of repose.          Assuming the action was for medical malpractice, the

trial court was required to dismiss it on the basis that the
                                                 -7-
complaint lacked a Rule 9(j) certification.                           See id.         For the

forthcoming reasons, this is not a case in which the statute of

repose     is     applicable,          and,        accordingly,      we      must     address

plaintiff’s       argument        that       the       action     sounded     in     ordinary

negligence.

       The crux of the issue before us is whether plaintiff’s

claims, which stem from an incident in which defendant, acting

through its agents, improperly placed an instrumentality for the

delivery of I.V. fluids near the decedent such that it fell and

injured    him,        constitute       a    medical       malpractice      action        or    an

action    sounding           in   ordinary         negligence.         In     making       such

determination, we look to whether the injury resulted from the

application of “specialized knowledge, labor, or skill,” or from

actions which were primarily “physical or manual.”                                  Setty at

608, 503 S.E.2d at 674.                 Prior case law is instructive.                         For

example, in Setty, the quadriplegic plaintiff was injured when

he was moved from an examination table to a wheelchair.                                        Id.

This     Court     held        that    the        alleged       negligent     conduct          was

“predominately          a    physical       or    manual    activity”       which    did       not

implicate        the        defendant’s          professional      services         but    fell

“squarely within the parameters of ordinary negligence.”                                       Id.

Similarly,       in    Norris     v.    Rowan       Memorial      Hospital,    this       Court
                                              -8-
concluded      that    the   hospital         employees’     failure         to   raise    the

rails of a bed or instruct the patient to ask for assistance in

getting out of bed (which resulted in the patient falling and

breaking her hip) stemmed from ordinary negligence because the

“alleged breach of duty did not involve the rendering or failure

to   render    professional            nursing    or   medical        services      requiring

special skills.”             21 N.C. App. 623, 626, 205 S.E.2d 345, 348

(1974).     Finally, in Taylor v. Vencor, Inc., the administrator

of a patient’s estate brought a wrongful death action against a

nursing home, alleging that the nursing home failed “through

inadequate     staffing       and       other    negligent       behavior,        to   provide

adequate      observation      and       supervision”       of    a    patient      who   died

after lighting her nightgown on fire when attempting to light a

cigarette.      136 N.C. App. 528, 529, 525 S.E.2d 201, 202 (2000).

This Court      held       that “the observance and supervision of the

plaintiff, when she smoked in the designated smoking area, did

not constitute an occupation involving specialized knowledge or

skill.”       Id.     at    530,       525   S.E.2d    at   203.        We    additionally

remarked:      “Preventing         a    patient     from    dropping      a   match       or   a

lighted cigarette upon themselves, while in a designated smoking

room, does not involve matters of medical science.”                           Id.
                                     -9-
    In     the   instant   case,    plaintiff   alleges      that    defendant

breached   its   duty   (1)   to   exercise   due   care   with     respect   to

providing reasonably safe living quarters for its residents, (2)

to warn residents of unsafe conditions, and (3) to supervise

patients when:

            a) Defendant     placed      the    aforesaid
               instrumentality in such a position as to
               be   unreasonably   unstable  so   as   to
               constitute a hazard to those in close
               proximity hereto, such as plaintiff’s
               decedent;

            b) Defendant failed to properly supervise the
               plaintiff’s decedent’s activities once
               defendant    installed    use    of    the
               instrumentality to provide intravenous
               fluids to plaintiff’s decedent; AND


            c) Defendant   failed   to   warn   plaintiff’s
               decedent    of   the    presence    of   the
               instrumentality and to warn plaintiff’s
               decedent   of   the   instability    of  the
               equipment.

    In essence, plaintiff alleges that defendant, through its

agents, failed to safely position the               I.V.   apparatus in the

decedent’s room and failed to warn the decedent accordingly.

Based on prevailing case law, we hold that defendant’s acts or

failure to act clearly involved the exercise of manual dexterity

as opposed to     the rendering of any specialized knowledge or

skill.     See, e.g., Norris, 21 N.C. App. at 626, 205 S.E.2d at
                                              -10-
348.     Accordingly,        we      hold      that     the     claims        asserted       in

plaintiff’s complaint sound in ordinary negligence rather than

medical malpractice.

       Given that plaintiff’s claims sound in ordinary negligence,

her action is subject to the three-year statute of limitations

set forth in N.C. Gen. Stat. § 1-52(16) (2013) (providing that

an action for personal injury not governed by the statute of

repose, N.C. Gen. Stat. § 1-15(c), shall be brought within three

years    of    the   date    upon     which          bodily    harm    to    the       claimant

“becomes apparent or ought reasonably to have become apparent to

the     claimant,     whichever         event    first        occurs”).            Here,    the

decedent was injured on 13 September 2008.                          Plaintiff filed her

initial       complaint     within      the    three-year       period       on    5   October

2010.     She subsequently voluntarily dismissed the action without

prejudice pursuant to Rule 41.                       Under Rule 41, a new action

based on the same claim may be commenced within one year after

such dismissal, and “the refiled case will relate back to the

original       filing     for     purposes       of     tolling        the        statute   of

limitations.”        Losing v. Food Lion, L.L.C., 185 N.C. App. 278,

283,     648    S.E.2d      261,     264-65          (2007).        Because         plaintiff

voluntarily       dismissed       her    complaint       on    18     January       2012    and

timely refiled it on 18 January 2013, her complaint is not time
                                       -11-
barred.       Further,   given      that   plaintiff’s   claims    sounded    in

ordinary negligence rather than medical malpractice, the four-

year statute of repose provided for in N.C. Gen. Stat. § 1-15(c)

was inapplicable.        Plaintiff’s claims are          not barred by the

statute of limitations or the statute of repose.                  Accordingly,

the   trial   court   erred    in    dismissing   plaintiff’s      action   with

prejudice     on   grounds    that    plaintiff   violated   the    statue   of

repose.




      Reversed and remanded.

      Judges McCULLOUGH and DAVIS concur.
