Davis v. Messer

• Decision Date: 06 June 1995
• Docket Number: No. 9230SC1336,9230SC1336
• Citation: 119 N.C.App. 44,457 S.E.2d 902
• Court: North Carolina Court of Appeals
• Parties: Danny E. DAVIS and Ann H. Davis, Plaintiffs, v. Leonard MESSER, Individually, and in his official capacity as Chief of the Waynesville Fire Department, The Town of Waynesville, a North Carolina Municipal Corporation, The Waynesville Fire Department, and Haywood County, Defendants.

Page 902

457 S.E.2d 902

119 N.C.App. 44

Danny E. DAVIS and Ann H. Davis, Plaintiffs, v. Leonard MESSER, Individually, and in his official capacity

as Chief of the Waynesville Fire Department, The Town of

Waynesville, a North Carolina Municipal Corporation, The

Waynesville Fire Department, and Haywood County, Defendants.

No. 9230SC1336.

Court of Appeals of North Carolina.

June 6, 1995.

Dean & Gibson by Michael G. Gibson and Brien D. Stockman, Charlotte, for plaintiff-appellant.

Van Winkle, Buck, Wall, Starnes and Davis, P.A. by W. Bradford Searson, Asheville, for defendant-appellees Leonard Messer and the Waynesville Fire Dept.

Blue, Fellerath, Cloninger & Barbour, P.A. by Frederick S. Barbour, Asheville, for defendant-appellee Town of Waynesville.

Killian, Kersten, Patton & Ellis, P.A. by Stephen G. Ellis, Waynesville, for defendant-appellee Haywood County.

JOHN, Judge.

In this negligence action based upon destruction of plaintiffs' residence by fire, plaintiffs contend the trial court erred by (1) dismissing their action pursuant to N.C.R. Civ.P. 12(b)(6) (1990) as to defendants Fire Chief Leonard Messer (Messer), the Waynesville Fire Department (the Department) and the Town of Waynesville (the Town); and (2) granting the summary judgment motion of defendant Haywood County (the County). We hold the court erred regarding plaintiffs' claims against the Town and Messer.

In a complaint filed 22 January 1992, plaintiffs claimed their residence had been destroyed as the result of defendants' negligence in the establishment and operation of emergency fire control services. In particular, plaintiffs alleged that prior to 28 January 1989 the County authorized establishment of an "enhanced" 911 emergency response system. Thereafter, by use of "map overlays" and relying in part on information provided by employees of defendant Town, agents of the County assigned each dwelling within the county to a specific fire district. Plaintiffs' residence on 841 Plott Creek Road was listed as being located within the Town's fire district. However, it is undisputed that plaintiffs' address was in actuality within the Saunook fire district. According to plaintiffs, the 911 system was thus negligently programmed by agents of the Town and the County.

Plaintiffs further alleged that a fire at their residence on 28 January 1989 prompted plaintiff Ann Davis to place a telephone call to the new 911 system for assistance. The dispatcher reached by Ms. Davis confirmed the location of the fire as being 841 Plott Creek Road and notified the Department. The 911 dispatcher inquired of the Department whether plaintiffs' residence fell within the Town's fire district; the fire fighter answering the call "indicated that the Waynesville Fire Department would respond to the fire."

According to plaintiffs, the Department immediately sent trucks bearing appropriate equipment to the scene. As they approached plaintiffs' home, however, fire fighters saw a road sign on Plott Creek Road indicating they were entering the Saunook fire district. At that point, despite being within .4 mile and "in sight of ... [p]laintiffs' burning residence," defendant Messer ordered his crew to return the fire truck to the Department's fire station. Plaintiffs further alleged the In addition, plaintiffs claimed that initial assumption of responsibility for their 911 call by the Department "effectively precluded" any other agency from responding in time to extinguish the fire. More particularly, because they "relied upon the acceptance of the fire call by the Town of Waynesville Fire Department," plaintiffs did not attempt to obtain other assistance. Acceptance of the distress call by the Department coupled with plaintiff's reliance thereon created, according to plaintiffs' complaint, a "special duty" of the Department to plaintiffs. This included continuation of the initial response so as to assure that greater harm did not come to plaintiffs and their property. Plaintiffs maintained that, as a direct and proximate result of the Department's action, the fire burned unimpeded for an additional 15 to 20 minutes and that ultimately their home was completely destroyed.

Department was authorized to respond to a call outside the Town's district by virtue of a "mutual aid agreement."

Plaintiffs further characterized the conduct of defendant Messer as "reckless, willful, [and] wanton," amounting to "a callous, malicious, willful and wrongful disregard for the property rights and safety of the Plaintiffs."

Plaintiffs sought recovery against all defendants on negligence theories and against Messer (individually and in his official capacity as Fire Chief) on the additional grounds that his conduct was "reckless, willful, wanton, malicious, and without just cause." Regarding the Town, the Department and the County, plaintiffs specifically alleged each entity had "waived governmental or sovereign immunity by the procurement of liability insurance which provides coverage to each of them for the full dollar amount of the claims asserted...."

In their joint answer to the complaint, Messer and the Department moved to dismiss claims against them pursuant to Rule 12(b)(6) on grounds of immunity from liability as provided by N.C.Gen.Stat. § 160A-293 (1994). In its answer, the Town similarly moved to dismiss plaintiffs' action, and also asserted the affirmative defense of municipal immunity. The County likewise raised the affirmative defense of governmental immunity in its answer and specifically denied having waived immunity through the purchase of liability insurance. The County thereafter moved for summary judgment.

Hearing on defendants' various motions was held 19 October 1992. By order entered that same date, the trial court allowed the Rule 12(b)(6) motions of defendants Messer, the Department and the Town, and granted summary judgment in favor of the County. In pertinent part, the court's order provided as follows:

1. The 12(b)(6) motions are allowed primarily on the basis of N.C.G.S. 160A-293;

2. For purposes of this motion, the Court takes as true Plaintiffs' allegations that Defendants have applicable liability insurance.

Regarding the County's Motion for Summary Judgment, the Court considered the record, including the applicable insurance policies and applicable statute, N.C.G.S. 153A-435.

Plaintiffs appeal each of the court's rulings.

_____

I.

Plaintiffs' first assignment of error is directed at the trial court's dismissal pursuant to Rule 12(b)(6) of their claims against defendants Messer, the Department and the Town.

A Rule 12(b)(6) motion to dismiss presents the question of "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...." Harris v. NCNB, 85 N.C.App. 669, 670, 355 S.E.2d 838, 840 (1987) (citation omitted). In order to survive dismissal under the Rule, a party must "state enough to satisfy the substantive elements of at least some legally recognized claim...." Orange County v. Dept. of Transportation, 46 N.C.App. 350, 378-79, 265 S.E.2d 890, 909 (citation omitted), disc. review denied, 301 N.C. 94 (1980). In ruling upon such motion, the complaint is to be liberally construed, Jenkins v. Wheeler, 69 N.C.App. 140, 142, 316 S.E.2d 354, 356, disc. review denied, 311 N.C. 758, 321 S.E.2d 136 (1984), and should not be dismissed unless In the case sub judice, plaintiffs sought to recover based upon the alleged negligence of the various defendants. In order to plead a prima facie case of actionable negligence, a plaintiff's complaint must set out allegations indicating that: (1) defendant owed plaintiff a duty of reasonable care; (2) defendant breached that duty; (3) said breach was an actual and proximate cause of plaintiff's injury; and (4) plaintiff suffered damages as a result thereof. Winters v. Lee, 115 N.C.App. 692, 694, 446 S.E.2d 123 124 (citations omitted), disc. review denied, 338 N.C. 671, 453 S.E.2d 186 (1994). However, because different rules govern the potential liability of the several defendants herein, we examine separately the court's action as to each.

it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Id. (citations omitted).

A. Town of Waynesville.

The allegations of plaintiffs' complaint construed liberally, see, e.g., Dixon v. Stuart, 85 N.C.App. 338, 340, 354 S.E.2d 757, 758 (1987) (citation omitted), contained two distinct claims of negligence against the Town. First, plaintiffs alleged the Department, a department of the Town of Waynesville, was negligent by initially responding to the emergency call and thereafter not fighting the fire at plaintiffs' residence. Second, plaintiffs asserted employees of the Town negligently provided incorrect information to the County which resulted in improper programming of the enhanced 911 system. The Town in response insisted it was immune from liability regarding both allegations of negligence.

1. Refusal to Fight the Fire.

(a.) Governmental Immunity.

The common law doctrine of governmental immunity protects a city or county from liability for injuries arising from governmental (as opposed to proprietary) activities. See, e.g., Wiggins v. City of Monroe, 73 N.C.App. 44, 49, 326 S.E.2d 39, 43 (1985) (citations omitted); see also Davis v. Town of Southern Pines, 116 N.C.App. 663, 673-74, 449 S.E.2d 240, 246 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995). Governmental activities have been described as those which promote the "health, safety, security or general welfare of its citizens." Clark v. Scheld, 253 N.C. 732, 735, 117 S.E.2d 838, 841 (1961) (citation omitted). The establishment of a 911 emergency system and provision of fire protection indisputably fall within this definition; thus, a municipality would not ordinarily be liable for the negligence of officers and employees...