Little v. Atkinson

• Decision Date: 18 January 2000
• Docket Number: No. COA99-52.,COA99-52.
• Citation: 524 S.E.2d 378,136 NC App. 430
• Court: North Carolina Court of Appeals
• Parties: Nathenia LITTLE, Mattie Broadway, and Sarah Rankin, Plaintiffs, v. E.S. ATKINSON, Jeffrey Clark, Phil Firrantello, and City of Gastonia, Defendants.

524 S.E.2d 378

136 NC App. 430

Nathenia LITTLE, Mattie Broadway, and Sarah Rankin, Plaintiffs, v. E.S. ATKINSON, Jeffrey Clark, Phil Firrantello, and City of Gastonia, Defendants.

No. COA99-52.

Court of Appeals of North Carolina.

January 18, 2000.

F. William Powers, Charlotte, for the plaintiff-appellants.

Frank B. Aycock, III, Charlotte, for the defendant-appellees.

LEWIS, Judge.

Plaintiffs brought this civil action on 5 June 1998, alleging "infliction of emotional distress" and "gross negligence" claims against the City of Gastonia and three of its employees, officers of the Gastonia Police Department. On 3 November 1998, the trial court granted defendants' 12(b)(6) motion to dismiss all claims based on the public duty doctrine. As such, our review must determine "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." Harris v. NCNB, 85 N.C.App. 669, 670, 355 S.E.2d 838, 840 (1987).

Mildred "Della" Tyson mysteriously disappeared in July 1996. Plaintiff Nathenia Little is the daughter of Ms. Tyson, and plaintiffs Mattie Broadway and Sarah Rankin are the sisters of Ms. Tyson. Plaintiffs allege that after viewing television reports regarding the discovery of human remains in Crowder Mountain Park in Gastonia, North Carolina, they contacted the Gastonia Police Department. Officers Jeffrey Clark and Phil Firrantello informed plaintiffs that they had positively identified the human remains to be those of Ms. Tyson. Officer E.S. Atkinson advised Ms. Rankin that "[w]e checked the whole area within one-hundred square feet of where [Ms. Tyson] was found," that "[w]e turned over every leaf, one by one," and that "[w]e used a metal detector and really went over it with a fine[-]toothed comb." Plaintiffs requested permission from Officer Atkinson to enter the area where the remains were found to plant flowers. Officer Atkinson further advised plaintiffs that the police department would mark the place where the body was found with tape. He stated he checked the area the day before, just to be sure it was clear.

On 27 March 1997, plaintiffs visited the site where Ms. Tyson's remains were discovered and found within the crime scene area the remains of human hair and scalp, a "pony tail," a glass bead headdress and ten isolated bones. Plaintiffs collected the remains and gave them to Officer Atkinson; he returned them to plaintiffs stating, "We're not even sure if these are human bones or her bones." Plaintiffs alleged that they believed the remains to be human and belonging to Ms. Tyson.

The public duty doctrine becomes an issue when the allegations of the complaint involve the exercise of defendants' police powers as a municipality. Vanasek v. Duke Power Co., 132 N.C.App. 335, 337, 511 S.E.2d 41, 45, cert. denied, 350 N.C. 851, ___ S.E.2d ___ (1999). The doctrine is a common law rule which provides that a municipality and its agents ordinarily act for the benefit of the general public when exercising police powers, and thus, there is no liability for failure to furnish police protection to specific individuals. Sinning v. Clark, 119 N.C.App. 515, 518, 459 S.E.2d 71, 73 (1995). This policy acknowledges the limited resources of law enforcement and works against judicial imposition of an overwhelming burden of liability. Braswell v. Braswell, 330 N.C. 363, 370-71, 410 S.E.2d 897, 901 (1991). The doctrine ceases to apply, however, when the conduct alleged rises to the level of intentional tort. Clark v. Red Bird Cab Co., 114 N.C.App. 400, 406, 442 S.E.2d 75, 79, disc. review denied, 336 N.C. 603, 447 S.E.2d 387 (1994).

The public duty doctrine is not a protective cape against any governmental liability. Two generally recognized exceptions to the doctrine exist: first, where a special relationship exists between the injured party and the police, and second, "`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.'" Braswell, 330 N.C. at 371, 410 S.E.2d at 902 (quoting Coleman v. Cooper, 89 N.C.App. 188, 194, 366 S.E.2d 2, 6, disc. rev. denied, 322 N.C. 834, 371 S.E.2d 275 (1988)). These exceptions are to be narrowly applied. Sinning, 119 N.C.App. at 519, 459 S.E.2d at 74.

Plaintiffs argue that the "special duty" exception precludes application of the public duty doctrine to the claims alleged here. The "special duty" exception to the public duty doctrine "is a very narrow one; it should be applied only when the promise, reliance, and causation are manifestly present." Braswell, 330 N.C. at 372, 410 S.E.2d at 902. To make out a prima facie case under the "special duty" exception, "the complaint must allege an `overt promise' of protection by defendant, detrimental reliance on the promise, and a causal relation between the injury and the reliance." Lovelace v. City of Shelby, 133 N.C.App. 408, ___, 515 S.E.2d 722, 725 (1999)(citing Derwort v. Polk County, 129 N.C.App. 789, 793-94, 501 S.E.2d 379, 382 (1998)).

Plaintiff has not alleged any set of facts which, even if taken as true, establish a special duty owed to plaintiffs by defendants. Plaintiffs' complaint alleged that Officer Atkinson "advised" plaintiffs that the police did the following: "checked the whole area within one-hundred square feet of where [Ms. Tyson] was found," "turned over every leaf, one by one," "used a metal detector and really went over it with a fine toothed comb" and checked the area the day before, "just to be sure the area [was] clear." In our opinion, these allegations do not indicate a promise that any kind of protection would be afforded plaintiffs, let alone the requisite "overt" promise of protection to establish a special duty. Further, plaintiffs neither alleged that they relied to their detriment on any statements made by...