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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
ALINE JOAN IODICE; JAMES IODICE;
MARY J. IODICE,
Plaintiffs-Appellants,
v. No. 01-1640
UNITED STATES OF AMERICA;
DEPARTMENT OF VETERANS AFFAIRS,
an agency of the United States of
America,
Defendants-Appellees.
------------------------------------------------*
------------------------------------------------*
BARBARA HANSEN, Administratrix of
the Estate of Julie Marie Hansen,
Plaintiff-Appellant,
v. No. 01-1651
THE DEPARTMENT OF VETERANS
AFFAIRS,
Defendant-Appellee.
------------------------------------------------*
------------------------------------------------*
R. KENNETH BABB, Ancillary Public
Administrator of the ESTATE OF
MAIA CORY WITZL,
Plaintiff-Appellant, No. 01-1654
v.
DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellee.
------------------------------------------------*
Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CA-99-778, CA-99-781-1, CA-99-779-1)
Argued: February 27, 2002
Decided: May 2, 2002
Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.
____________________________________________________________
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wilkins and Judge Michael joined.
____________________________________________________________
COUNSEL
ARGUED: David D. Daggett, LEWIS & DAGGETT, Winston-
Salem, North Carolina; Robert Mauldin Elliot, ELLIOT, PISHKO,
GELBIN & MORGAN, P.A., Winston-Salem, North Carolina, for
Appellants. Gill Paul Beck, Assistant United States Attorney, Greens-
boro, North Carolina, for Appellees. ON BRIEF: Rodney A. Guthrie,
BENNETT & GUTHRIE, P.L.L.C., Winston-Salem, North Carolina,
for Appellants. Benjamin H. White, Jr., United States Attorney,
Greensboro, North Carolina, for Appellees.
____________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
On September 4, 1996, Richard Thomas Jones, when driving his
car while severely impaired by alcohol and prescription drugs,
crashed into a car carrying several college students. The accident seri-
ously injured Aline Joan Iodice, and killed two other students, Julie
Marie Hansen and Maia Cory Witzl. Iodice and the administrators of
Hansen's and Witzl's estates (collectively "the students") brought
2
these consolidated actions, pursuant to the Federal Tort Claims Act,
28 U.S.C.A. §§ 2671-2680 (1994), against the United States.1 They
allege that employees of the Department of Veterans Affairs (VA)
committed numerous negligent acts - including negligently dispens-
ing narcotics to Jones and failing to institute, enforce, and monitor
adequate policies concerning the dispensation of narcotics - that
proximately and foreseeably caused their injuries. We affirm the dis-
trict court's dismissal of their complaints, albeit on somewhat differ-
ent grounds than those on which the district court relied.
I.
In reviewing a dismissal for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6), we accept the facts as alleged by the
plaintiffs and construe them in the light most favorable to the plain-
tiffs, but consider legal issues de novo. See Flood v. New Hanover
County, 125 F.3d 249, 251 (4th Cir. 1997). The factual account below
is drawn from the three amended complaints.
For more than fifteen years before the 1996 accident at the core of
this case, doctors at VA facilities in Asheville, North Carolina, and
Salisbury, North Carolina, treated Jones (a veteran) for a number of
painful physical problems (including amputation of a leg and sur-
geries on his back) and administered necessary pain medications to
him. Jones became dependent on both prescription drugs and alcohol.
For example, according to his medical history, in the eighteen months
before the accident, Jones took 30-40 Percocet pills a day.
The VA included Jones in a "drug registry" of addicts that it main-
tained at its Asheville facility. Jones developed a "history of request-
ing and receiving early refills of his prescriptions," and his wife urged
VA employees to treat her husband for drug addiction and to limit his
prescriptions. Nonetheless, the VA continued to prescribe narcotics to
Jones and permitted him to receive prescription refills through the
mail.
____________________________________________________________
1 Although each student also named the Department of Veterans Affairs
as a defendant, the parties and the magistrate judge agree that the United
States is the only proper defendant. Throughout this opinion we therefore
treat the United States as the sole defendant.
3
On three occasions, VA facilities admitted Jones as an inpatient for
alcohol or alcohol and drug detoxification; the last admission began
on August 3, 1996. During that admission, Jones was reported to be
drunk and under the influence of narcotics, and to have left the cam-
pus twice to drink. Throughout the admission, Jones demonstrated
effects of alcohol and narcotics abuse including belligerent behavior,
an unsteady gait, slurred speech, and a strong odor of alcohol. Later
in August, Jones left the inpatient program without completing detox-
ification.
On August 30, 1996, after Jones had ceased to be an inpatient, a
VA doctor prescribed narcotics for Jones in doses even greater than
his usual heavy dose. On September 3, 1996, a VA employee, either
a doctor or a staff member, permitted Jones to refill his prescription
early. The next evening, driving under the influence of alcohol and
narcotics, Jones caused the fatal accident. In sum, the students allege
that "veteran Jones was being prescribed excessive narcotic drugs and
other medications which, at the time of the collision, impaired his
ability and judgment, and proximately caused said collision, and
resulting injuries and damages" to them.2
The students sued the United States, alleging that the accident was
proximately and foreseeably caused by breaches of a number of duties
that the VA purportedly owed to Jones and to the public. A magistrate
judge recommended that the complaints be dismissed for failure to
state a claim. Apparently concluding that all claims asserted in the
complaints constituted claims of medical malpractice, the magistrate
judge ruled that the complaints should be dismissed because North
Carolina law does not "recognize a cause of action for medical mal-
practice brought by [unrelated third party] victims of a patient who
commits the type of crimes committed by Jones in these cases." The
district court rejected the students' timely objections, accepted the
____________________________________________________________
2 Jones was convicted of one count of driving while impaired, one
count of assault with a deadly weapon, and three counts of assault with
a deadly weapon inflicting serious injury. See State v. Jones, 538 S.E.2d
917, 921 (N.C. 2000). On appeal, the Supreme Court of North Carolina
vacated two additional convictions for the first-degree murder of Hansen
and Witzl. Id. at 922.
4
magistrate judge's recommendation, and dismissed all three cases.
These appeals followed.
In this federal tort claims action, arising out of events occurring in
North Carolina, the law of that state controls. See FDIC v. Meyer, 510
U.S. 471, 478 (1994). We must rule as the North Carolina courts
would, treating decisions of the Supreme Court of North Carolina as
binding, and "depart[ing] from an intermediate court's fully reasoned
holding as to state law only if `convinced' that the state's highest
court would not follow that holding." See Assicurazioni Generali,
S.p.A. v. Neil, 160 F.3d 997, 1003 (4th Cir. 1998). The students con-
tend that they have alleged not one, but two, kinds of claims against
Jones's health care providers - medical malpractice claims and ordi-
nary negligence claims - and that North Carolina law permits them
to bring both kinds of claims. We consider their arguments with
respect to each kind of claim in turn.
II.
By statute, North Carolina defines a "medical malpractice action"
as "a civil action for damages for personal injury or death arising out
of the furnishing or failure to furnish professional services in the per-
formance of medical, dental, or other health care by a health care pro-
vider," including a doctor, a pharmacist, or a hospital. N.C. Gen. Stat.
§ 90-21.11 (1999). Unquestionably, some of the students' claims, spe-
cifically those attacking the quality of the medical care the VA pro-
vided to Jones in terms that track the statutory medical malpractice
standard, constitute claims for medical malpractice. See N.C. Gen.
Stat. § 90-21.12 (1999). Thus, it is clear that the students have alleged
medical malpractice claims against Jones's health care providers.
However, it is equally clear that North Carolina does not allow such
claims. Rather, the Supreme Court of North Carolina has unequivo-
cally held that "the relationship of physician to patient must be estab-
lished as a prerequisite to an actionable claim for medical
malpractice." Easter v. Lexington Mem'l Hosp., 278 S.E.2d 253, 255
(N.C. 1981) (citation omitted).
Nevertheless, the students insist that North Carolina law permits
them, Jones's victims, to bring medical malpractice claims against
Jones's health care providers. They rely on Pangburn v. Saad, 326
5
S.E.2d 365 (N.C. Ct. App. 1985), and Mozingo v. Pitt County Memo-
rial Hospital, 400 S.E.2d 747 (N.C. Ct. App. 1991). Neither case
assists them.
Pangburn simply holds that third party victims of a wrongly
released mental patient may sue the patient's health care providers for
negligent release. Pangburn, 326 S.E.2d at 367. A claim for negligent
release is not a claim for medical malpractice. In Mozingo, although
the North Carolina Court of Appeals did permit a plaintiff to pursue
a medical malpractice claim against a doctor with whom he had no
personal doctor-patient relationship, the plaintiff himself was a patient
allegedly afforded inadequate medical care, not the victim of a patient
afforded inadequate medical care. See Mozingo, 400 S.E.2d at 751-
53; see also Webb v. Nash Hosps., Inc., 516 S.E.2d 191, 194 (N.C.
Ct. App. 1999) (considering, but finding no facts to support, a Moz-
ingo claim in a suit by a patient).
Thus, the students have not cited, and we have not found, a single
North Carolina case permitting unrelated third party victims of a
patient to sue the patient's health care providers for medical malprac-
tice, or even suggesting that such claims are possible.3 Instead, North
Carolina courts have emphasized the policy reasons counseling rejec-
tion of such suits; "`doctors should owe their duty to their patient and
not to anyone else' so as not to compromise this primary duty." Rus-
sell v. Adams, 482 S.E.2d 30, 33 (N.C. Ct. App. 1997) (rejecting a
third party claim of harm based on the care provided by a medical
provider to a patient) (citations omitted); see also Childers v. Frye,
158 S.E. 744, 746 (N.C. 1931) (holding that doctors do not have to
accept patients); Nash v. Royster, 127 S.E. 356, 359 (N.C. 1925)
(holding that doctors may limit the extent of their responsibility to
patients by narrowing the scope of the doctor-patient relationship).
For these reasons, the district court properly dismissed the stu-
____________________________________________________________
3 Of course, North Carolina has recognized that family members of an
injured patient can sue the patient's health care providers for malpractice
causing loss of consortium, see, e.g., Webb, 516 S.E.2d at 194, or loss
of a child's services during his or her minority. See, e.g., Mozingo, 400
S.E.2d at 749.
6
dents' claims to the extent that the claims sound in medical malprac-
tice.
III.
The students, however, maintain that contrary to the holding of the
district court, not all of the claims alleged in their complaints sound
in medical malpractice. They contend that North Carolina distin-
guishes between medical malpractice and ordinary negligence in the
provision of health care. Moreover, they assert that they have alleged
both kinds of claims in their complaints, and that state law permits
them to bring ordinary negligence claims against Jones's health care
providers, even if it does not allow them to bring medical malpractice
claims.
A.
North Carolina does permit a proper plaintiff to bring ordinary neg-
ligence claims, in addition to medical malpractice claims, against a
health care provider. By statute, North Carolina defines a medical
malpractice action as one that "aris[es] out of the furnishing or failure
to furnish professional services" by health care providers. N.C. Gen.
Stat. § 90-21.11 (emphasis added). State courts have held that when
a negligence claim against a health care provider does not "arise out"
of the "furnishing" of "professional services," it is not a medical mal-
practice claim, but rather may be brought as an ordinary negligence
claim. See, e.g., Estate of Waters v. Jarman, 547 S.E.2d 142, 145-46
(N.C. Ct. App. 2001) (ruling that when a claim against a hospital "ar-
[ises] out of clinical care provided by the hospital to the patient," the
claim sounds in medical malpractice, but when it "arises out of policy,
management, or administrative decisions," it sounds in ordinary negli-
gence).
When bringing an ordinary negligence claim against a health care
provider, a plaintiff need not assert in his complaint that the medical
care has been reviewed by an expert who will testify that it did not
comply with the applicable standard of care, as is required in medical
malpractice actions. Id. Rather, courts apply "the reasonably prudent
person" standard of care in assessing the sufficiency of a claim for
"negligence on the part of the hospital for administrative or manage-
7
ment deficiencies." Id. Thus, in such ordinary negligence actions the
"liability of the defendant [health care provider] to the plaintiff
depends on whether the defendant owed a duty of care to the plaintiff,
which duty was violated, proximately causing injury to the plaintiff."
Blanton v. Moses H. Cone Mem'l Hosp. Inc., 354 S.E.2d 455, 457
(N.C. 1987).
Moreover, North Carolina courts have enumerated a number of
areas in which a hospital's breach of its duty may give rise to a suit
for ordinary negligence, rather than medical malpractice. These
include "fail[ing] to promulgate adequate safety rules relating to the
handling, storage, and administering of medication," Bost v. Riley,
262 S.E.2d 391, 396 (N.C. Ct. App. 1980) (citation omitted),
endorsed in relevant part in Blanton, 354 S.E.2d at 455; "violat[ing]
a safety standard which the hospital had purported to follow," Blan-
ton, 354 S.E.2d at 458; "failing to follow hospital policies," Waters,
547 S.E.2d at 145; failing to "monitor on an ongoing basis the perfor-
mance of physicians on its staff," Blanton, 354 S.E.2d at 458; see also
Waters, 547 S.E.2d at 145; and failing to "monitor and oversee . . .
treatment." Bost, 262 S.E.2d at 397. See also Blanton, 354 S.E.2d at
458 (citing additional ordinary duties); Waters, 547 S.E.2d at 145
(same); Taylor v. Vencor, Inc., 525 S.E.2d 201, 203 (N.C. Ct. App.
2000) (same); Bost, 262 S.E.2d at 396-97 (same).
Review of the students' amended complaints plainly reveals that
they have alleged that VA employees owed them a duty of care in a
number of these areas. For example, they allege that the VA owed
them duties relating to the training, monitoring, and supervision of its
staff, and had an "obligation to maintain appropriate policies and pro-
cedures to provide proper treatment of its patients, including those
addicted to drugs and alcohol." All three amended complaints also
allege that in violation of its duty of care, the VA failed to promulgate
adequate policies and procedures to regulate the dispensation of nar-
cotics to drug-addicted patients, failed to follow existing policies and
procedures to the same end, and failed to communicate with its staff
on these issues.
Therefore, despite the contrary contentions of the United States and
the conclusions of the district court, the students clearly do not assert
8
only medical malpractice claims. They also seek to hold the VA liable
in ordinary negligence.
B.
It is less clear whether North Carolina allows third parties who are
victims of patients to pursue ordinary negligence claims against the
patients' health care providers, and if so, whether the students have
adequately pled such a claim.
As with medical malpractice claims, the students have not cited,
and we have not found, any case in which the North Carolina courts
have permitted a third party victim of a patient to bring an ordinary
negligence action against a hospital.4 Cf. Blanton, 354 S.E.2d 455
(suit by a patient); Waters, 547 S.E.2d at 143 (suit by a patient's
estate); Taylor, 525 S.E.2d at 202 (same); Bost, 262 S.E.2d at 391
(same). Indeed, North Carolina courts have repeatedly discussed ordi-
nary negligence claims against health care providers as involving a
duty that "a hospital . . . owes to its patients." Blanton, 354 S.E.2d at
458; see also, e.g., Muse v. Charter Hosp. of Winston-Salem, Inc., 452
S.E.2d 589, 594 (N.C. Ct. App. 1995); Burns v. Forsyth County Hosp.
Auth. Inc., 344 S.E.2d 839, 845-46 (N.C. Ct. App. 1986); Bost, 262
S.E.2d at 396. However, although these cases do state that hospitals
owe such duties to patients, no North Carolina case states (or sug-
gests) that hospitals owe such duties only to patients.
Moreover, in a major decision analyzing and specifically permit-
ting suits against hospitals based on ordinary negligence, the Supreme
Court of North Carolina repeatedly emphasized that this cause of
action represents "no more than the application of common law prin-
ciples of negligence." Blanton, 354 S.E.2d at 457; see also id. at 459.
This emphasis by the Supreme Court of North Carolina seems to
direct courts to apply general principles of negligence in determining
____________________________________________________________
4 The Pangburn court considered principles of ordinary negligence in
permitting a claim for negligent release of a mental patient, but held that
in conjunction with statutory immunity, such a claim would only be cog-
nizable for "`wilful, wanton or recklessly' negligent acts or . . . inten-
tional acts." 326 S.E.2d at 338 (citation omitted).
9
whether a plaintiff has alleged a claim of ordinary negligence against
a health care provider.
Generally, North Carolina does permit suits by third parties for
negligence under certain defined circumstances. Most significantly
for the present case, in Hart v. Ivey, 420 S.E.2d 174 (N.C. 1992), the
Supreme Court of North Carolina considered "the liability of a social
host who serves an alcoholic beverage to a person who then injures
someone while operating an automobile while under the influence of
an intoxicating beverage." Id. at 177. The Hart court held that the
third party victim of a drunk driver could sue a social host who served
alcohol to the driver, if the host "knew or should have known" that
the person served "was under the influence of alcohol [and] . . . would
shortly thereafter drive an automobile." Id. at 178.
The decision of North Carolina's highest court in Hart is obviously
instructive in the present case, also involving provision of an intoxi-
cant to a driver.5 Although serving alcohol violates a state statute bar-
ring the provision of alcohol to persons under age 21, the Hart court
expressly refused to base its decision on the statute. Id. at 176-77.
Instead, the court relied on the common law duty of "every person
who enters upon an active course of conduct . . . to exercise ordinary
care to protect others from harm," and emphasized that its decision
did not "recogniz[e] a new claim" but "appl[ied] established negli-
gence principles." Id. at 178 (internal quotation marks and citation
omitted). This emphasis seems particularly significant here given the
Supreme Court of North Carolina's similar directive in Blanton that
claims against hospitals for negligence (other than medical malprac-
tice) are to be based on and governed by general ordinary negligence
principles. See 354 S.E.2d at 457; see also Pangburn, 326 S.E.2d at
367 (relying on ordinary principles of negligence to allow suit by a
third party for negligent release of a mental patient).
____________________________________________________________
5 The United States does not suggest that the difference in the intoxi-
cant assertedly provided - narcotics rather than alcohol - distinguishes
this case from Hart. This seems unlikely given that North Carolina treats
alcohol and narcotics identically in all relevant respects for purposes of
motor vehicle offenses. See N.C. Gen. Stat. §§ 20-138.1(a), 20-138.3(a)
(1999).
10
To be sure, a hospital's legal position presents more complications
than that of a social host. Having accepted Jones as a patient, the VA
had an affirmative duty to him, see, e.g., Russell, 482 S.E.2d at 33,
a duty potentially in tension with its duty to the public if the latter
required the hospital to restrict Jones's access to pain killers. A social
host, meanwhile, whatever advertisers may suggest, has no positive
duty to serve alcohol to guests. But North Carolina courts have
acknowledged similar concerns in other cases simply by limiting ordi-
nary negligence claims in the health care setting, not by barring such
claims entirely. For example, in Blanton, the court allowed a suit
against a hospital based on negligent failure to provide assistance to
a doctor unqualified for his task, but required that the plaintiff show
that the hospital knew the doctor to be unqualified. 354 S.E.2d at 459.
Thus, it seems unlikely that a North Carolina court would hold that
a potential conflict with the hospital's duty to treat Jones's pain elimi-
nates, as a matter of law, its duty to "exercise ordinary care to protect
others from harm." Hart, 420 S.E.2d at 178 (internal quotation marks
and citation omitted).
In the case at hand, however, we need not definitively determine
whether the Supreme Court of North Carolina would permit a third
party victim of a patient to bring a properly pled ordinary negligence
action against the patient's medical care providers. This is so because,
even if such a claim exists under North Carolina law, the students
have not alleged the facts necessary to support such a claim.
Hart (and its progeny) provide the only potential basis in North
Carolina law for the students' claim that a third party victim can
recover from a patient's medical provider for negligent provision of
an intoxicant to the patient.6 However, neither Hart nor the cases that
follow it contains a discussion of the policy animating the approach
taken. In the absence of such a discussion, we have few clues as to
how the North Carolina courts would deal with certain differences
between the Hart line of cases and the students' claims here. For
example, a social host may fairly assume that a guest will immedi-
ately drink any alcohol provided, limiting the time frame of any fore-
seeable harm to third parties, while the timing of consumption of
____________________________________________________________
6 The medical context of the present case, of course, distinguishes it
from those cited by the students that concern other professions.
11
prescription drugs is less clear. On the other hand, the Supreme Court
of North Carolina has not distinguished between social hosts who pro-
vide alcohol and commercial providers of alcohol, and the latter
might well argue that they too could not be sure of the timing of con-
sumption. See, e.g., Estate of Mullis v. Monroe Oil Co., 505 S.E.2d
131 (N.C. 1998). In considering what a North Carolina court would
do in the present circumstance, we are guided by North Carolina's
apparent wariness of health care claims by third parties, evidenced
both by its flat ban on medical malpractice suits by third party vic-
tims, and the total absence of ordinary negligence cases permitting
recovery against a health care provider by a third party victim.7 Given
that background, we can only conclude that North Carolina would
require a tight nexus between the provision of narcotics and the harm
to the victim, if it permitted third party plaintiffs to recover at all.
In Hart and its progeny, facing a similar calculus, the Supreme
Court of North Carolina required a plaintiff to prove that the defen-
dant possessed knowledge of the risk attendant to his negligent con-
duct. Indeed, North Carolina law subsequent to Hart makes it
unmistakably clear that a claim based on negligent provision of alco-
hol to a driver cannot succeed without a showing that at the time the
defendant supplied alcohol to the driver, he knew or should have
known that the driver was intoxicated. See Estate of Mullis, 505
S.E.2d 131 (affirming summary judgment in favor of a commercial
vendor); Camalier v. Jeffries, 460 S.E.2d 133 (N.C. 1995) (affirming
summary judgment in favor of a social host). Accord Smith v. Winn
Dixie Charlotte, Inc., 542 S.E.2d 288, 293 (N.C. Ct. App. 2001). Both
Estate of Mullis, 505 S.E.2d at 136, and Camalier, 460 S.E.2d at 134-
35, affirmed grants of summary judgment to defendants sued by third
party victims because the victim had presented no evidence of such
knowledge; in both cases the plaintiff alleged and offered evidence of
an automobile accident, caused by a drunken driver, to whom the
defendant had supplied alcohol knowing that he would shortly drive
____________________________________________________________
7 Only Pangburn even arguably permitted such a claim. Beyond its lim-
itation by operation of statutory immunity to cases involving more than
"ordinary negligent acts," 326 S.E.2d at 337-38; see supra n.4, that case
involved specific knowledge by the health-care provider of a threat to a
specific victim. Id. at 347-48. Pangburn thus supports our holding as to
Hart's application in the present context.
12
a car. However, because the plaintiff failed to offer evidence that the
defendant knew or should have known the driver was impaired at the
time the alcohol was supplied to him, North Carolina's highest court
held that the plaintiffs' claims failed, making it evident that such
knowledge is a necessary element of such a claim. Estate of Mullis,
505 S.E.2d at 138; Camalier, 460 S.E.2d at 139. If it permitted liabil-
ity at all in the case at hand, we believe North Carolina would require
similar knowledge.
In sum, given the post-Hart decisions, we are not sure whether the
North Carolina courts would allow a suit by a third party against a
hospital for negligently providing narcotics to a driver. If so, we
believe that North Carolina courts would, at a minimum, require a
third party plaintiff to allege that the hospital "knew or should have
known," when dispensing the drugs, that the patient was "under the
influence of alcohol" or narcotics and "would shortly thereafter drive
an automobile." Hart, 420 S.E.2d at 178. The students never make
equivalent allegations.
They do allege that when VA officials treated Jones "during
August-September, 1996" they "w[ere] aware, or should have been
aware" of his history of drug and alcohol addiction and yet "continued
to prescribe large doses of narcotics"; that "prior to and on September
4, 1996 . . . Jones was being prescribed drugs . . . which . . . impaired
his ability . . . and proximately caused . . . [the] collision"; that "[a]s
a proximate result of [the] VA's negligence [including a failure to
supervise, manage, and administer proper dispensation of narcotics]
. . . Jones operated his vehicle on September 4, 1996 while impaired
from drugs or the combination of drugs and alcohol; and, as a result
of his impairment, caused the collision"; and finally that "[i]t was rea-
sonably foreseeable that" the VA's negligent acts "could or would
result in injury or death to one or more third persons." However, the
students never allege that when VA employees furnished Jones with
narcotics, the employees knew or should have known that Jones was
at that time "under the influence of alcohol" or narcotics and "would
shortly thereafter drive an automobile." Hart, 420 S.E.2d at 178.
Without such allegations, their ordinary negligence claims must fail.
We recognize that, unlike Camalier and Estate of Mullis, which
involved summary judgments, in this case the district court dismissed
13
the complaints for failure to state a claim. This difference in proce-
dural posture would be significant if the students had alleged facts
sufficient to state the substantive elements of their claim. In this case,
they did not. Because the students have not alleged that when VA
employees provided narcotics to Jones, they knew or should have
known that Jones at that time was intoxicated and would shortly be
driving, they have failed to allege the elements necessary to state an
ordinary negligence claim under Hart against the VA, even if North
Carolina would permit such a claim.8 Dismissal of a complaint for
failure to state facts supporting each of the elements of a claim is, of
course, proper. See, e.g., Winters v. Lee, 446 S.E.2d 123, 126 (N.C.
Ct. App. 1994) (affirming dismissal of complaint attempting to assert
Hart claim because it failed "to allege facts sufficient to satisfy [one
of] the substantive elements of common law negligence" (internal
quotation marks and citation omitted)).
Thus, we do not affirm here because the students failed to forecast
evidence sufficient to prove an element of an ordinary negligence
claim, as the courts did in Camalier and Estate of Mullis, but because
the students have failed to allege facts sufficient to state elements of
such a claim. Even in these days of notice pleadings, see Swierkiewicz
v. Sorema, N.A., ___ U.S. ___, 122 S. Ct. 992 (2002), a complaint
asserting a negligence claim must disclose "that each of the elements
is present in order to be sufficient." 5 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1249 (2d ed. 1990 &
Supp. 2001) (citing cases to the effect that the elements of negligence
"are as essential under modern pleading as they ever were").
IV.
For the foregoing reasons, the judgments of the district court are
AFFIRMED.
____________________________________________________________
8 Nor is dismissal without prejudice appropriate since there is no reason
to believe that the students could have alleged as much. The fatal acci-
dent did not occur until 10:30 p.m. on September 4, and none of the stu-
dents suggest that Jones saw anyone at the VA on that date.
14