North Carolina Lawyers Weekly
Plaintiff’s complaint tracked the language of the littering statute, G.S. § 14-399(a), when it alleged that defendant’s employee “dumped the contents of a one thousand gallon off-road diesel holding tank in Plaintiff’s car wash drain system,” that the amount dumped exceeded 500 pounds and was dumped for commercial purposes, and that plaintiff sustained injuries as a result. However, plaintiff’s car wash drain system qualifies as a “litter receptacle” within the meaning of § 14-399(a), so the alleged acts did not violate the statute.
We affirm the trial court’s sua sponte grant of defendant’s motion to dismiss on the eve of trial as to plaintiff’s littering claim but reverse as to plaintiff’s trespass and negligence claims.
The term “litter receptacle” is not defined within § 14-399, or another neighboring statute. However, we have previously stated that our General Assembly intended to encompass a broad range of containment vessels by using the word “receptacle.” As a private dumpster holds litter in a contained location for some time until it can be removed, so too a car wash’s drainage system collects and stores waste cleaned from its customers’ vehicles until it can be removed at a later date.
Trespass
Though plaintiff’s car wash drain is a litter receptacle designed to accept refuse and defendant (through its employee) is a customer contemplated by plaintiff’s business, a jury could determine that plaintiff’s invitation to use its facilities to clean vehicles did not extend to an invitation to dump a large quantity of hazardous materials on its property. Therefore, we conclude that plaintiff has stated a claim for trespass.
Negligence
Plaintiff alleged essentially that defendant’s employee had a duty of care in its use of plaintiff’s property and that the employee caused damage to the car wash drain by failing to adhere to that duty. Plaintiff’s allegations are sufficient to state a claim for negligence.
Motion to Dismiss
Although the local rules required that dispositive motions be accompanied by a supporting memorandum and be noticed at least 15 days prior to trial, the trial judge had the discretion to avoid the local rules. The trial court did not abuse its discretion in considering defendant’s N.C. R. Civ. P. 12(b)(6) motion after the jury was empaneled; plaintiff had notice of the motion when defendant filed the motion more than a year before it was heard.
Affirmed in part; reversed and remanded in part.
ABC Services, LLC v. Wheatly Boys, LLC (Lawyers Weekly No. 011-159-18, 12 pp.) (Chris Dillon, J.) Appealed from Carteret County Superior Court (Benjamin Alford, J.) Russell Alexander and Wesley Collins for plaintiff; Claud Wheatly III for defendants. N.C. App.
