Bynum v. Onslow County

The parties have entered into certain stipulations, including a stipulation that plaintiff is “trying this case on the theory of taking and not upon the theory of negligence.” However, in ruling upon a demurrer to a pleading, the court may not consider matters extrinsic to the pleading, even though the parties stipulate and agree that such matters may be considered. Lane v. Griswold, 273 N.C. 1, 159 S.E. 2d 338. We therefore first consider the sufficiency of plaintiff’s complaint to allege a cause of action based upon negligence.

The only allegation of negligence contained in the complaint is…