Clark v. Red Bird Cab Co. (Red Bird Cab, Inc.)

• Decision Date: 19 April 1994
• Docket Number: No. 9215SC1294,9215SC1294
• Citation: 442 S.E.2d 75,114 N.C.App. 400
• Parties: James W. CLARK, Administrator of the Estate of Kathy Clark Fogleman, Deceased, Plaintiff, v. The RED BIRD CAB COMPANY (RED BIRD CAB, INC.), a corporation; Leonard Warner; The City of Burlington, a municipal corporation; Richard Hall; and Raymond Shelton, Defendants.
• Court: North Carolina Court of Appeals

Page 75

442 S.E.2d 75

114 N.C.App. 400

James W. CLARK, Administrator of the Estate of Kathy Clark Fogleman, Deceased, Plaintiff, v. The RED BIRD CAB COMPANY (RED BIRD CAB, INC.), a corporation; Leonard Warner; The City of Burlington, a municipal corporation Richard Hall; and Raymond Shelton, Defendants.

No. 9215SC1294.

Court of Appeals of North Carolina.

April 19, 1994.

Robert S. Cahoon, Greensboro, for plaintiff-appellant.

Michael B. Brough & Associates by Michael B. Brough and Jan S. Simmons, Chapel Hill, for City of Burlington, Richard Hall and Raymond Shelton, defendant-appellees.

COZORT, Judge.

Plaintiff appeals the trial court's dismissal, based on the public duty doctrine, of his complaint against defendants City of Burlington and two police officers. The complaint alleged that defendants were negligent by failing to properly investigate the credentials of an applicant for a permit to operate a taxicab. Plaintiff contends the defendants' negligence was the proximate cause of his daughter's murder by a taxicab driver, who had previously been convicted of a felony and was known to have dangerous tendencies. We affirm, holding that defendants did not owe the decedent a legal duty and that plaintiff's allegations did not fall within an exception to the public duty doctrine.

Plaintiff James W. Clark, administrator of the estate of his daughter, Kathy Clark Fogleman, filed this action on 4 June 1992 against defendants The Red Bird Cab Company (Red Bird Cab); Leonard Warner, the owner of Red Bird Cab; the City of Burlington; Richard Hall (as a police officer employed by the City of Burlington); and Raymond Shelton (as Chief of Police of the City of Burlington). The facts as alleged in plaintiff's complaint are as follows: In August of 1990, Keith Allen Brown applied to the City of Burlington for a permit to operate a taxicab. Mr. Brown had previously been convicted in North Carolina of common law robbery and assault with a deadly weapon inflicting serious injuries. In addition, Mr. Brown's general reputation was that of being a dangerous individual.

The Burlington City Code establishes certain procedures which must be followed by the Chief of Police when any person applies for a permit to operate a taxicab within the city's corporate limits. Once a person submits an application for a permit to drive a cab, "[t]he chief of police or a member of the police department designated by him is hereby charged with the duty of investigating the facts stated in any application received...." Burlington City Code, Sec. 35-64. Under grounds for refusal, "[t]he chief of police may refuse to grant or renew a taxi driver's permit in case of an application from any person ... [w]ho has been convicted of a felony[.]" Burlington City Code, Sec. 35-63. If the chief of police concludes the applicant has satisfied other requirements and is not "an habitual violator of traffic laws, or other criminal laws, the chief of police shall issue a permit to the applicant to drive a taxicab." Burlington City Code, Sec. 35-65.

Plaintiff alleges that Chief of Police Raymond Shelton gave Officer Richard Hall the responsibility of investigating Mr. Brown's application for a taxicab permit. Sometime after filing his application, Mr. Brown was issued an operator's permit. On 3 November 1990, Ms. Fogleman telephoned Red Bird Cab to have a taxi take her to a local restaurant. Red Bird Cab dispatched Mr. Brown to Ms. Fogleman's residence. Mr. Brown drove Ms. Fogleman to a rural area where he assaulted, raped, and murdered her. Mr. Brown committed suicide prior to trial on the criminal charges. Defendants admit that Brown killed Ms. Fogleman after being dispatched to her residence.

Defendants City of Burlington, Richard Hall, and Raymond Shelton made a motion to dismiss plaintiff's complaint on 29 July 1992. In an order dated 14 September 1992, the trial court dismissed plaintiff's cause of action as to those defendants for failure to state a claim upon which relief could be granted. A second order, identical to the 14 September order, except for a provision indicating there was "no just reason for delay in the entry of this judgment," was filed 2 October 1992. Plaintiff argues on appeal that his complaint was sufficient to survive the defendants' motion to dismiss.

The appeal in this case is interlocutory, since it fails to "[dispose] of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court." Veazey v. City of Durham, 231 N.C. 354, 361-62, 57 S.E.2d 375, 377 (1950). Generally, there is no immediate appeal from an interlocutory order. "Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment." Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951). Where, however, the interlocutory order deprives the appellant of a substantial right which would be lost if not reviewed prior to final judgment, an appeal will lie. See N.C.Gen.Stat. § 1-277 (1983).

This Court has found cases which have presented defenses of governmental or sovereign immunity to be immediately appealable because such orders have affected a substantial right. See, i.e., Slade v. Vernon, 110 N.C.App. 422, 429 S.E.2d 744 (1993). The rationale for the exception to the general rule stems from the nature of the immunity defense. "A valid claim of immunity is more than a defense in a lawsuit; it is in essence immunity from suit. Were the case to be erroneously permitted to proceed to trial, immunity would be effectively lost." Id. at 425, 429 S.E.2d at 746 (citing Corum v. Univ. of North Carolina, 97 N.C.App. 527, 389 S.E.2d 596 (1990), aff'd in part, rev'd in part on other grounds, 330 N.C. 761, 413 S.E.2d 276 (1992)). In this case, the defendants have asserted governmental immunity from suit through the public duty doctrine. Plaintiff's appeal is therefore properly before this Court.

On a Rule 12(b)(6) motion to dismiss, "[t]he question for the court is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not." Harris v. NCNB, 85 N.C.App. 669, 670, 355 S.E.2d 838, 840 (1987). The complaint must be liberally construed, and the trial court should not dismiss the complaint unless plaintiff has not set forth facts to support a claim which would entitle him or her to relief. Dixon v. Stuart, 85 N.C.App. 338, 354 S.E.2d 757 (1987). Even construed liberally, however, plaintiff's complaint falls short of setting forth facts entitling him to relief.

In tort, there will be no liability unless the law imposes a duty. Paschall v. N.C. Dep't of Correction, 88 N.C.App. 520, 364 S.E.2d 144 (1988). Actionable negligence is based on the failure to exercise proper care in the performance of a legal duty which an individual owes to another under the circumstances surrounding them. Mattingly v. R.R., 253 N.C. 746, 117 S.E.2d 844 (1961). The breach of duty may be a negligent act or a negligent failure to act. Williams v. Kirkman, 246 N.C. 510, 98 S.E.2d 922 (1957).

This case is governed by the "public duty doctrine," or the general common law rule that "a municipality and its agents act for the benefit of the public, and therefore, there is no liability for the failure to furnish police protection to specific individuals." Braswell v. Braswell, 330 N.C. 363, 370, 410 S.E.2d 897, 901, reh'g denied, 330 N.C. 854, 413 S.E.2d 550 (1991) (citing Coleman v. Cooper, 89 N.C.App. 188, 193, 366 S.E.2d 2, 6, disc. review denied, 322 N.C. 834, 371 S.E.2d 275 (1988)). In adopting the public duty doctrine in Braswell, our Supreme Court recognized the limited resources of law enforcement personnel and refused to judicially impose liability for their failure to prevent every criminal act. However, the Court also noted:

While this policy is a necessary and reasonable limit on liability, exceptions exist to prevent inevitable inequities to certain individuals. There are two generally recognized exceptions to the public duty doctrine: (1) where there is a special relationship between the injured party and the police, for example, a state's witness or informant who has aided law enforcement officers; and (2)...