Beckles-Palomares v. Logan

• Decision Date: 02 February 2010
• Docket Number: No. COA09-567.,COA09-567.
• Citation: 688 S.E.2d 758
• Parties: Hayluri BECKLES-PALOMARES, Administrator of the Estate of Joshua Franklin Beckles-Palomares, Plaintiff, v. Michael Andrew LOGAN, Jr., City of Winston-Salem, Flow 425 Silas Creek Parkway, LLC, Flow Companies, Inc., Norman L. Moore, Defendants.
• Court: North Carolina Court of Appeals

688 S.E.2d 758

Hayluri BECKLES-PALOMARES, Administrator of the Estate of Joshua Franklin Beckles-Palomares, Plaintiff, v. Michael Andrew LOGAN, Jr., City of Winston-Salem, Flow 425 Silas Creek Parkway, LLC, Flow Companies, Inc., Norman L. Moore, Defendants.

No. COA09-567.

Court of Appeals of North Carolina.

February 2, 2010.

Appeal by defendant City of Winston-Salem from order entered 9 December 2008 by Judge Jerry Cash Martin in Forsyth County Superior Court. Heard in the Court of Appeals 16 November 2009.

Walter C. Holton, Jr., PLLC, by Walter C. Holton, Jr., Winston-Salem, for plaintiff-appellee.

Womble Carlyle Sandridge & Rice, PLLC, by James R. Morgan, Jr., Winston-Salem, for defendant-appellant.

MARTIN, Chief Judge.

On 20 May 2006, seven-year-old Joshua Beckles-Palomares¹ ("Joshua") was riding his bicycle south on Freeman Street in Winston-Salem, down a slight grade and approaching a "T" intersection with Wells Street. The intersection is controlled by a stop sign requiring vehicles on Freeman Street to stop before entering Wells Street. Michael Logan ("defendant Logan") was driving his sport utility vehicle east on Wells Street toward the intersection with Freeman Street, and was driving left of the center of Wells Street. Joshua entered the intersection, turning right onto Wells Street possibly without stopping, and was struck and killed by defendant Logan's vehicle. Defendant Logan's blood alcohol level shortly after the collision was above the legal limit. Defendant Logan pled guilty to involuntary manslaughter.

Norman L. Moore ("defendant Moore") owns the property located on the northwest corner of the intersection of Freeman Street and Wells Street. On this corner, there is a retaining wall, a bank, and evergreen ground cover.

Flow 425 Silas Creek Parkway, LLC, and Flow Companies, Inc., (collectively "the Flow defendants") own property located at 455 Wells Street, on the south side of Wells Street, and operate an automobile body repair business. At his deposition, defendant Logan stated that he was driving down the center of the road because the vehicles belonging to the Flow defendants were parked "on down into the side of" Wells Street.

Plaintiff, who is Joshua's mother and the administrator of his estate, brought suit against: defendant Logan for his alleged negligence in driving under the influence and on the wrong side of the road; defendant Moore for his alleged negligence in failing to keep his property free from vegetation that could obstruct the view of persons using the intersection of Wells Street and Freeman Street; the Flow defendants for their alleged negligence in parking their cars in such a way as to obstruct the flow of traffic on Wells Street; and the City of Winston-Salem ("defendant City") for its alleged negligence in violating various safety statutes and municipal ordinances regulating the maintenance of its streets, obstructions to vision and traffic, and parking regulations. All defendants except defendant Moore pled the affirmative defense of contributory negligence on Joshua's part for failing to stop at the stop sign and on the part of plaintiff for failing to supervise her minor child. The record contains no answer from defendant Moore.

Defendants Flow, Moore, and City moved for summary judgment. In its motion, defendant City asserted, among other things, that plaintiff's suit was barred by governmental immunity and the public duty doctrine. Plaintiff moved for summary judgment against all defendants with respect to their defenses of contributory negligence. The trial court denied plaintiff's motions for summary judgment and defendant City's motion for summary judgment. Plaintiff submitted to voluntary dismissals with prejudice with respect to her claims against defendant Moore and the Flow defendants. Defendant City of Winston-Salem appeals from the order denying its motion for summary judgment.

An appeal from the denial of a motion for summary judgment is interlocutory. Estate of Hewett v. County of Brunswick, ___ N.C.App. ___, ___, 681 S.E.2d 531, 533 (2009). However, defendant City asserts the denial of its motion affects its substantial rights, so that the order is immediately appealable pursuant to N.C.G.S. § 1-277(a) under the doctrine of both governmental immunity and the public duty doctrine. This Court has recognized that the denial of dispositive motions based upon both doctrines affect a defendant's substantial right and are immediately appealable. Estate of McKendall v. Webster, ___ N.C.App. ___, ___, 672 S.E.2d 768, 769 (2009); Hedrick v. Rains, 121 N.C.App. 466, 468, 466 S.E.2d 281, 283, aff'd per curiam, 344 N.C. 729, 477 S.E.2d 171 (1996).

Standard of Review

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2009). The standard of review of an order granting or denying a motion for summary judgment is de novo. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009).

I.

Defendant City first contends it is entitled to summary judgment because the alleged negligent acts relied upon by plaintiff in her claim against it involved defendant City's failure "to protect [Joshua] from the wrongful, criminal acts of others" and such claims are barred by the public duty doctrine.

The North Carolina Supreme Court first adopted the public duty doctrine in North Carolina in Braswell v. Braswell, 330 N.C. 363, 371, 410 S.E.2d 897, 902 (1991), reh'g denied, 330 N.C. 854, 413 S.E.2d 550 (1992). In Braswell, the plaintiff sought to recover damages from the sheriff of Pitt County, alleging that he negligently failed to protect plaintiff's mother from being murdered by her estranged husband, who was a deputy sheriff. Id. at 366, 410 S.E.2d at 899. The Court affirmed a directed verdict for the defendant sheriff, and in so doing, adopted the public duty doctrine, which is a common law rule providing 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." Id. at 370, 410 S.E.2d at 901. The rationale for the rule is a recognition of "the limited resources of law enforcement" and a refusal "to judicially impose an overwhelming burden of liability for failure to prevent every criminal act." Id. at 370-71, 410 S.E.2d at 901. The Court also adopted two recognized exceptions to the public duty doctrine, generally called the "special duty" exception and the "special relationship" exception. Id. at 371, 410 S.E.2d at 902. Neither exception is applicable to the facts of this case and we do not discuss them.

Although the holding in Braswell was explicitly limited to the facts of that case, application of the doctrine was subsequently expanded to bar liability of municipalities for negligent performance of public duties beyond those related to law enforcement departments. See Simmons v. City of Hickory, 126 N.C.App. 821, 826, 487 S.E.2d 583, 587 (1997) (holding that the public duty doctrine applied to bar claim against city for negligence in housing inspections); Davis v. Messer, 119 N.C.App. 44, 54-57, 60, 457 S.E.2d 902, 908-12 (holding that the public duty doctrine applied to claims against the town and fire chief for negligence in responding to a fire call, although plaintiff presented sufficient evidence to show the "special duty" exception applied), disc. reviews denied, 341 N.C. 647, 462 S.E.2d 508 (1995); Prevette v. Forsyth Cty., 110 N.C.App. 754, 757-58, 431 S.E.2d 216, 218 (holding that the public duty doctrine applied to the county's animal control departments) disc. review denied, 334 N.C. 622, 435 S.E.2d 338 (1993). In addition, the North Carolina Supreme Court has applied the doctrine to bar claims against State agencies under the Tort Claims Act, Stone v. N.C. Dep't of Labor, 347 N.C. 473, 482, 495 S.E.2d 711, 716, reh'g denied, 502 S.E.2d 836, cert. denied, 525 U.S. 1016, 119 S.Ct. 540, 142 L.Ed.2d 449 (1998), and "to state agencies required by statute to conduct inspections for the public's general protection." Lovelace v. City of Shelby, 351 N.C. 458, 461, 526 S.E.2d 652, 654, reh'g denied, 352 N.C. 157, 544 S.E.2d 225 (2000). However, in Isenhour v. Hutto, 350 N.C. 601, 517 S.E.2d 121 (1999), the Supreme Court declined to apply the doctrine to a claim against the City of Charlotte for the negligence of a school crossing guard, noting a very real distinction between the provision of law enforcement protection to the general public and the duties of a crossing guard. Id. at 608, 517 S.E.2d at 126. And, in Lovelace, the Court reiterated that its holding in Braswell was limited to the facts of that case and specifically noted that it had never expanded "the public duty doctrine to any local government agencies other than law enforcement departments when they are exercising their general duty to protect the public.. . ." Lovelace, 351 N.C. at 461, 526 S.E.2d at 654 (emphasis added).

More recently, the Supreme Court stated, "The public duty doctrine is a rule grounded in common law negligence and provides that `when a governmental entity owes a duty to the general public, particularly a statutory duty, individual plaintiffs may not enforce the duty in tort.'" Watts v. N.C. Dep't of Env't & Natural Res., 362 N.C. 497, 498, 666 S.E.2d 752, 753 (2008) (quoting Myers v. McGrady, 360 N.C. 460, 465-66, 628 S.E.2d 761, 766 (2006)). Although the Court used the broad term "governmental entity," we do not believe the Court intended by its language to sub silentio overrule Lovelace and expand the application of the public duty doctrine with respect to local government entities beyond law enforcement.

With those principles in mind, we turn to defendant...