Isenhour v. Hutto

• Decision Date: 23 July 1999
• Docket Number: No. 305PA98.,305PA98.
• Citation: 517 S.E.2d 121,350 N.C. 601
• Parties: Anita Faye ISENHOUR, individually and as Administratrix of the Estate of Anthony Darrell Isenhour, Jr., Deceased, v. Kimberly Ann HUTTO, Donald Stephen Hutto, Robbie Faye Morrison, individually and in her official capacity as a School Crossing Guard, and the City of Charlotte, a North Carolina Municipal Corporation.
• Court: North Carolina Supreme Court

517 S.E.2d 121

350 N.C. 601

Anita Faye ISENHOUR, individually and as Administratrix of the Estate of Anthony Darrell Isenhour, Jr., Deceased, v. Kimberly Ann HUTTO, Donald Stephen Hutto, Robbie Faye Morrison, individually and in her official capacity as a School Crossing Guard, and the City of Charlotte, a North Carolina Municipal Corporation.

No. 305PA98.

Supreme Court of North Carolina.

July 23, 1999.

Bailey, Patterson, Caddell, Hart & Bailey, P.A., by Allen A. Bailey and Michael A. Bailey, Charlotte, for plaintiff-appellant and -appellee.

Dean & Gibson, L.L.P., by Rodney Dean and Barbara J. Dean; and Sara Smith Holderness, Charlotte, for defendant-appellants and -appellees Morrison and City of Charlotte.

MARTIN, Justice.

Plaintiff, Anita Faye Isenhour, administratrix of the estate of her deceased son, Anthony Darrell Isenhour, Jr. (Anthony), initiated this action against defendants for the personal injuries and wrongful death sustained by Anthony when he was negligently struck by an automobile operated by defendant Kimberly Ann Hutto (Hutto).

Plaintiff made the following allegations in this action. On 8 October 1991, after school had recessed for the day, Anthony, age seven, walked to the northeast corner of The Plaza (intersection of Wilann Drive and Lakedell Drive) in Charlotte, North Carolina. At The Plaza, Anthony stopped and waited for directions to cross from the school crossing guard, defendant Robbie Faye Morrison (Morrison). After Morrison directed Anthony to walk across The Plaza, he was struck by an automobile operated by Hutto. At the time of the accident, Anthony was within the marked pedestrian crosswalk area. Anthony sustained severe head and bodily injuries and subsequently died on 11 June 1995 as a result of physical complications caused by the accident.

On 23 December 1993 plaintiff filed a complaint against defendants Kimberly Ann Hutto and Donald Stephen Hutto for negligently causing personal injuries to her son, Anthony. In the course of filing four amended complaints, plaintiff asserted a new claim for wrongful death and named additional defendants: Morrison, individually and in her official capacity, and the City of Charlotte (City). In their answer defendants City and Morrison, in her official capacity, denied liability and asserted the defenses of governmental immunity, lack of subject matter jurisdiction, and failure to state a claim upon which relief can be granted. Morrison, in her individual capacity, moved to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted.

On 8 April 1997 the trial court denied defendants' Rule 12(b)(6) motion to dismiss the claims against the City and Morrison, in her official capacity, on the ground of the public duty doctrine. The trial court also denied the Rule 12(b)(6) motion to dismiss the claim asserted against Morrison in her individual capacity. The City and Morrison appealed to the Court of Appeals.

The Court of Appeals affirmed the trial court's denial of defendants' motion to dismiss based on the public duty doctrine, but reversed the trial court's denial of the motion to dismiss plaintiff's claims against Morrison in her individual capacity. Isenhour v. Hutto, 129 N.C.App. 596, 603, 501 S.E.2d 78, 83 (1998).

In analyzing the first issue, the Court of Appeals noted that under the public duty doctrine, there is no tort duty to protect individuals from harm by third parties when a state or municipal governmental entity is acting for the benefit of the general public. Id. at 597, 501 S.E.2d at 80 (citing Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991)); see Stone v. N.C. Dep't of Labor, 347 N.C. 473, 482, 495 S.E.2d 711, 717,

cert. denied, ___ U.S. ___, 119 S.Ct. 540, 142 L.Ed.2d 449 (1998). In finding the public duty doctrine inapplicable, the Court of Appeals stated:

Here, the relevant relationship was one between a crossing guard and an elementary school student. Unlike police and governmental agencies, who serve the public at large, a crossing guard's primary function is to ensure the safety of a specific individual—each child who comes to the crossing guard seeking to cross the street. Thus, the theoretical argument for the public duty doctrine has no applicability to the facts of the present case.

....

... Here, the imposition of liability on crossing guards implicates no such threat of overwhelming liability, given the limited range of services provided by them and the relatively smaller segment of the population served.

Isenhour, 129 N.C.App. at 600-01,501 S.E.2d at 81. Consequently, the Court of Appeals declined to apply the public duty doctrine to shield the City and Morrison, in her official capacity, from tort liability for Morrison's negligence in directing Anthony across the street. Id. at 602, 501 S.E.2d at 82.

In reversing the trial court's order denying Morrison's motion to dismiss in her individual capacity, the Court of Appeals concluded a crossing guard is a public official rather than a public employee. Id. at 603, 501 S.E.2d at 82-83. "`[A] public official, engaged in the performance of governmental duties involving the exercise of judgment and discretion, may not be held personally liable for mere negligence in respect thereto.' However, a public employee may be held individually liable." Id. at 602, 501 S.E.2d at 82 (quoting Smith v. Hefner, 235 N.C. 1, 7, 68 S.E.2d 783, 787 (1952)) (citation omitted).

The Court of Appeals found Morrison's job duties analogous to the duties of a police officer. Id. at 603, 501 S.E.2d at 82-83. "As a police officer is a public official, ... we believe a crossing guard should be so treated." Id. at 603, 501 S.E.2d at 83. Accordingly, the Court of Appeals held "the crossing guard was not susceptible to suit in her individual capacity for ordinary acts of negligence." Id.

On 5 November 1998 we allowed defendants' petition for discretionary review to determine whether the Court of Appeals properly applied the public duty doctrine to the instant facts and plaintiff's petition for discretionary review to determine whether the Court of Appeals properly concluded Morrison was not liable for negligence in her individual capacity.

When reviewing the denial of a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in plaintiff's complaint are treated as true. Cage v. Colonial Bldg. Co., Inc. of Raleigh, 337 N.C. 682, 683, 448 S.E.2d 115, 116 (1994). "A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint by presenting `the question whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some [recognized] legal theory.'" Forsyth Mem'l Hosp., Inc. v. Armstrong World Indus., 336 N.C. 438, 442, 444 S.E.2d 423, 425-26 (1994) (quoting Lynn v. Overlook Dev., 328 N.C. 689, 692, 403 S.E.2d 469, 471 (1991)) (alteration in original). A motion to dismiss pursuant to Rule 12(b)(6) should not be granted "`unless 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.'" Sutton v. Duke, 277 N.C. 94, 103, 176 S.E.2d 161, 166 (1970) (quoting 2A James W. Moore, Moore's Federal Practice § 12.08 (2d ed.1968)) (alteration in original).

We first address the question of whether the public duty doctrine shields the City and Morrison, in her official capacity, from liability for the alleged negligent acts of Morrison in her capacity as a school crossing guard.

We recognized and applied the common law public duty doctrine in Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897. There, Lillie Braswell (Lillie) informed the Pitt County sheriff that she suspected her husband was planning to murder her. Id. at 367, 410 S.E.2d at 900. The sheriff comforted Lillie and told her she would be protected. Id. at 370, 410 S.E.2d at 901. Less than a week later, Lillie was murdered by her husband. Id. at 369, 410 S.E.2d at 901. Her estate subsequently asserted a claim against the sheriff for negligently failing to protect the decedent. Id. at 366, 410 S.E.2d at 899. At trial, the trial court granted the sheriff's motion for a directed verdict. Id. at 367, 410 S.E.2d at 899.

This Court in Braswell stated:

The general common law rule, known as the public duty doctrine, is 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. This rule recognizes the limited resources of law enforcement and refuses 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 (citation omitted). "`For the courts to proclaim a new and general duty of protection in the law of tort, even to those who may be the particular seekers of protection based on specific hazards, could and would inevitably determine how the limited police resources ... should be allocated and without predictable limits.'" Id. at 371, 410 S.E.2d at 901 (quoting Riss v. City of New York, 22 N.Y.2d 579, 582, 240 N.E.2d 860, 860-61, 293 N.Y.S.2d 897, 898 (1968)) (alteration in original).

In addition to recognizing the general common law rule, this Court recognized two well-established 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) "when a municipality, through its police officers, creates a special duty by promising protection to an individual, the protection is not forthcoming, and the individual's reliance on the promise of protection is causally related to the injury suffered."

Id. at 371, 410 S.E.2d at 902 (quoting Coleman v. Cooper, 89 N.C.App. 188, 193-94, 366 S.E.2d 2, 6, disc. rev. denied, 322 N.C. 834, 371 S.E.2d 275 (1988)).

This...