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NO. COA12-706 NORTH CAROLINA COURT OF APPEALS Filed: 18 December 2012 ELLIS PITTMAN, Plaintiff, v. HYATT COIN & GUN, INC., and LARRY HYATT, (in his capacity as President of Hyatt Coin & Gun, Inc.), Defendants. Appeal by Plaintiff from judgment entered on 24 January 2012 by Judge Forrest D. Bridges in Mecklenberg County Superior Court. Heard in the Court of Appeals 24 October 2012. PLLC, by Carnell Johnson, for Mecklenburg County No. 11 CVS 3019

Johnson & Nicholson, Plaintiff-Appellant.

Cranfill Sumner & Hartzog, LLP, by Jaye E. Binghman-Hinch and John W. Ong, for Defendant-Appellees. BEASLEY, Judge. Ellis Pittmann (Plaintiff) appeals from an order granting Defendant affirm. On 21 August 2010, Plaintiff purchased a Ruger P345 pistol with the serial number 664-57001 from Defendant Hyatt Coin & Gun, a federally licensed firearms dealer. Defendants summary judgment. For the following reasons, we

-2previously purchased the pistol from a customer in 2009 and

noted the transfer of title in the store's Firearms Acquisition and Disposition Record Book. Defendants made no comments and

gave no warnings to Plaintiff regarding whether the title to the pistol had been verified. Plaintiff was traveling in Dillon, South Carolina, when he was pulled over by a Dillon police officer for speeding.

Plaintiff informed the officer that he had the pistol in his glove box. The officer ran the serial number of the pistol

through the National Crime Information Center (NCIC) database and discovered that a gun with that serial number was listed as stolen. Plaintiff did not have his bill of sale to prove his The officer arrested Plaintiff for stolen goods. Further

purchase of the pistol. speeding and

possession/receiving

investigation revealed that the serial number on the stolen gun had been entered incorrectly into the database. 2009, Willie Walker reported that his gun, with On 23 July the serial

number 664-57007, was stolen, but the police report incorrectly listed the serial number as that matching Plaintiff's pistol. Plaintiff filed this action on 16 February 2011, claiming negligence, intentional negligent infliction infliction of of emotional distress, distress, unfair and

emotional

-3deceptive trade practices, breach of implied warranty of

merchantability, breach of implied warranty of fitness for a particular purpose, and inadequate instruction or warning under Chapter 99B of the North Carolina General Statutes. Following

Defendants' motion to dismiss on the grounds of failure to state a claim, the court dismissed all but Plaintiff's claims for negligence, negligent and intentional infliction of emotional distress, damages. unfair and deceptive trade practices, and punitive

On 4 November 2011, Defendants filed a motion for

summary judgment; it was first amended on 7 November 2011 and again on 22 December 2011. 2012. A hearing was held on 3 January

The trial court granted the motion and dismissed the

remaining claims in an order filed on 24 January 2012. Plaintiff argues that the trial court erred by granting Defendant's motion for summary judgment. Specifically,

Plaintiff first argues that the trial court erred in granting summary judgment to Defendants on the allegation of negligence because evidence was presented establishing a duty to ensure the gun was not stolen. We disagree.

"Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that `there is no genuine issue as to any material fact

-4and that any party is entitled to a judgment as a matter of law.'" In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,

576 (2008)(quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). To prevail on a summary judgment motion in a negligence action, the plaintiff must show that the defendant had a legal duty and that the defendant breached that duty. Lavelle v.

Schultz, 120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995). "Actionable fails to negligence the occurs degree when of a defendant that a owing a duty and

exercise

care

reasonable

prudent person would exercise under similar conditions, or where such a defendant of ordinary prudence would have foreseen that the plaintiff's injury was probable under the circumstances." Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473, 562 S.E.2d 887, 892 (2002)(citations omitted). "When there is no

dispute as to the facts or when only a single inference can be drawn from the evidence, the issue of whether a duty exists is a question of law for the court." Mozingo v. Pitt Cnty. Mem'l

Hosp., Inc., 101 N.C. App. 578, 588, 400 S.E.2d 747, 753 (1991), aff'd, 331 N.C. 182, 415 S.E.2d 341 (1992). Here, the record contains no genuine issue of fact that Defendants breached, or even had, a legal duty to check the NCIC

-5database or perform any other act of assurance beyond those actually performed. that Defendants had The evidence on record here establishes no statutory duty to check the NCIC

database, see 28 U.S.C.

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