Coleman v. Cooper

• Decision Date: 15 March 1988
• Docket Number: No. 8710SC834,8710SC834
• Citation: 366 S.E.2d 2,89 N.C.App. 188
• Parties: Evelyn Grace COLEMAN, Administratrix for the Estate of Monica Avis Cobb and Marion Annette Coleman v. Kathy Lunceford COOPER (formerly Kathy Lunceford), Wake County, the City of Raleigh, and the City of Raleigh Police Department.
• Court: North Carolina Court of Appeals

Page 2

366 S.E.2d 2

89 N.C.App. 188

Evelyn Grace COLEMAN, Administratrix for the Estate of Monica Avis Cobb and Marion Annette Coleman v. Kathy Lunceford COOPER (formerly Kathy Lunceford), Wake

County, the City of Raleigh, and the City of

Raleigh Police Department.

No. 8710SC834.

Court of Appeals of North Carolina.

March 15, 1988.

Blanchard, Tucker, Twiggs & Abrams, P.A. by Douglas B. Abrams and Anna Neal Currin, Raleigh, for plaintiff-appellant.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Grady S. Patterson, Jr., and Susan K. Burkhart; Corrine G. Russell and Michael R. Ferrell, Raleigh, for defendants-appellees Kathy Lunceford Cooper and Wake County.

Womble Carlyle Sandridge & Rice by Richard T. Rice and J. Daniel McNatt; and Conely & Stephens, P.A. by Richard B. Conely, Winston-Salem, for defendants-appellees The City of Raleigh and The City of Raleigh Police Dept.

SMITH, Judge.

The undisputed facts as admitted and as appear from affidavits and depositions filed in this cause are as follows: Plaintiff's intestates were her two minor daughters. Defendant Cooper, an employee of the Wake County Department of Social Services (DSS), received information which led her to believe that the two minors might be victims of sexual abuse. Cooper interviewed the children and each related incidents of extensive sexual contact with Melvin Coleman, the natural father of the youngest child and the step-father of the eldest child. Melvin Coleman had divorced plaintiff in 1979.

Cooper interviewed plaintiff who acknowledged that the children had told her of sexual abuse by Melvin Coleman. Cooper informed plaintiff that the girls would have to be examined by a physician and interviewed by the police. She also told plaintiff that the children might have to testify. Plaintiff and the children related to Cooper past acts of physical violence directed at them by Melvin Coleman. Plaintiff also expressed her concern about Melvin Coleman's reaction when he found out about the investigation. Cooper assured plaintiff of adequate and complete police protection if it were needed.

Thereafter, the two minor children were examined by a physician. On 5 March 1985, they were interviewed by Officer Rodger Phillips (Phillips) of the Raleigh Police Department. The girls told Phillips details of past physical and sexual abuse by Melvin Coleman. However, each girl stated that she was not afraid of Melvin Coleman.

Phillips subsequently interviewed Melvin Coleman on 6 March 1985. Mr. Coleman refused to make any statement. Phillips noted that Mr. Coleman was calm and well-dressed. His entire criminal record, available to Phillips, consisted of a speeding conviction. On 1 April 1985, Phillips appeared and testified before the Grand Jury of Wake County regarding the sexual abuse. At approximately 5:00 p.m. that afternoon, Phillips contacted the Wake County District Attorney's office and was informed that true bills of indictment had been returned against Melvin Coleman. The following day, 2 April 1985, Phillips asked the district attorney's office to have prepared the orders for arrest for Melvin Coleman. These documents would not normally be received by the Police Department for several more days. The orders of arrest were prepared on that date but Phillips did not pick them up because he was involved in another investigation. Phillips did phone Mr. Michael Dodd, an attorney who had represented Melvin Coleman with regard to the matters under investigation, and told Mr. Dodd of the grand jury's action. Mr. Dodd informed Phillips that he was no longer Melvin Coleman's attorney but that he would call Mr. Coleman and ask him to turn himself in the next day.

On the morning of 3 April 1985, Phillips was involved in another investigation and requested that Officer Keeter pick up the copies of the Bills of Indictment and the orders of arrest at the Wake County Courthouse. Officer Keeter returned those documents to Phillips at the Municipal Building at about 9:30 a.m. that morning. At approximately 11:00 a.m., Phillips learned that shortly after 9:00 a.m. a man later identified as Melvin Coleman was seen running from the mobile home where plaintiff and her intestates resided. It was subsequently discovered that plaintiff's intestates had been murdered and the mobile home in which they resided had been set ablaze.

It is uncontroverted that the Police Department has no policy concerning the protection of witnesses and that protection is not usually provided. It further appears that in most instances in which a defendant is represented by counsel, the Police Department customarily notifies counsel when charges are initiated. The record before this court indicates that the City and County have liability insurance.

Plaintiff brings forward three assignments of error. By her first assignment of error, she contends the trial court erred by refusing to consider the affidavits of certain witnesses at the summary judgment hearing. By her second and third assignments of error, she contends the trial court erred in granting the summary judgment motions in favor of defendants.

I

Defendants are entitled to summary judgment "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 [defendants are] entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c). If the pleadings and proof establish that no cause of action exists, summary judgment is proper. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). If the pleadings establish the existence of a cause of action, summary judgment should be granted cautiously in negligence cases in which the jury ordinarily applies a standard of care to the facts of the case. Williams v. Power & Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979). In reaching its determination that no issues of material fact exist and that a party is entitled to judgment as a matter of law, the trial court must view the record in the light most favorable to the non-movant, Patterson v. Reid, 10 N.C.App. 22, 178 S.E.2d 1 (1970), and draw all reasonable inferences in favor of the non-movant. Whitley v. Cubberly, 24 N.C.App. 204, 210 S.E.2d 289 (1974).

We hold that as to defendants City of Raleigh and Raleigh Police Department summary judgment was properly entered as no cause of action exists. As to defendants Cooper and Wake County, we hold that the granting of summary judgment was error. In view of our decisions, it is not necessary to address plaintiff's first assignment of error.

II

The trial court's order granting summary judgment for the Raleigh Police Department was proper in all respects. Unless a statute provides to the contrary, only persons in being may be sued. McPherson v. Bank, 240 N.C. 1, 81 S.E.2d 386 (1954). In North Carolina there is no statute authorizing suit against a police department. The Police Department is a "component part[ ] of defendant City ... and as such lack[s] the capacity to be sued." Jones v. City of Greensboro, 51 N.C.App. 571, 593, 277 S.E.2d 562, 576 (1981).

III

A more difficult question is presented by the lower court's order granting summary judgment for the City of Raleigh. Ordinarily, a municipality providing police services is engaged in a governmental function for which there is no liability. Croom v. Burgaw, 259 N.C. 60, 129 S.E.2d 586 (1963). By purchasing liability insurance, municipalities in this State waive the defense of governmental immunity to the extent of insurance coverage. G.S. 160A-485. A waiver of governmental immunity, however, does not create a cause of action where none previously existed. Riddoch v. State, 68 Wash. 329, 123 P. 450 (1912); 57 Am.Jur.2d Municipal, School, and State Tort Liability, Sec. 72.

In tort, it is axiomatic that there is no liability unless the law imposes a duty. Stanford v. Owens, 46 N.C.App. 388, 265 S.E.2d 617, disc. rev. denied, 301 N.C. 95 (1980); Paschall v. N.C. Dept. of Correction, 88 N.C.App. 520, 364 S.E.2d 144 (1988). Actionable "[n]egligence is the failure to exercise proper care in the performance of a legal duty which [a] defendant owe[s] the plaintiff under the circumstances surrounding them. Mattingly v. R.R., 253 N.C. 746, 117 S.E.2d 844. The breach of duty may be by negligent act or a negligent failure to act. Williams v. Kirkman, 246 N.C. 510, 98 S.E.2d 922." Moore v. Moore, 268 N.C. 110, 112-13, 150 S.E.2d 75, 77 (1966) (emphasis added).

A decision with reference to the potential liability of the City of Raleigh first requires that this court examine the duty, if any, owed by the city, through its police department, to plaintiff's intestates. In furnishing police protection, a municipality ordinarily acts for the benefit of the public at large and not for a specific individual. Chambers-Castanes v. King County, 100 Wash.2d 275, 669 P.2d 451 (1983); Evers v. Westerberg, 38 A.D.2d 751, 329 N.Y.S.2d 615, appeal denied, 30 N.Y.2d 486, 286 N.E.2d 926, 335 N.Y.S.2d 1025 (1972), aff'd, 32 N.Y.2d 684, 296 N.E.2d 257, 343 N.Y.S.2d 361 (1973); Food Fair v. City of Evansville, 149 Ind.App. 387, 272 N.E.2d 871 (1971); Evett v. City of Inverness, 224 So.2d 365 (Fla.Dist.Ct.App.1969), cert. dismissed, 232 So.2d 18 (Fla.1970); Keane v. City of Chicago, 98 Ill.App.2d 460, 240 N.E.2d 321 (1968). As the duty is to the general public rather than to a specific individual, no liability exists for the failure to furnish police protection. Warren v. District of Columbia, 444 A.2d 1 (D.C.1981); Evett v. City of Inverness, supra; Keane v. City of Chicago, supra. The reason for the rule has been stated thusly:

The amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed. For the courts to proclaim a new and general duty of protection in the law of tort, even to those who may be...