Lovelace v. City of Shelby

• Decision Date: 01 June 1999
• Docket Number: No. COA98-1015.,COA98-1015.
• Citation: 515 S.E.2d 722,133 NC App. 408
• Court: North Carolina Court of Appeals
• Parties: Sharon Lynn LOVELACE, Administratrix of the Estate of Shayla Meagen Moore, and Sharon Lynn Lovelace, Individually, Plaintiffs, v. CITY OF SHELBY and Thomas Lowell Lee, Defendants.

515 S.E.2d 722

133 NC App. 408

Sharon Lynn LOVELACE, Administratrix of the Estate of Shayla Meagen Moore, and Sharon Lynn Lovelace, Individually, Plaintiffs, v. CITY OF SHELBY and Thomas Lowell Lee, Defendants.

No. COA98-1015.

Court of Appeals of North Carolina.

June 1, 1999.

Deaton & Biggers, P.L.L.C., by W. Robinson Deaton, Jr. and Lydia A. Hoza; and Hamrick, Mauney, Flowers, Martin & Moore, by Fred A. Flowers, Shelby, for plaintiffs-appellees.

Stott, Hollowell, Palmer & Windham, LLP, by Martha Raymond Thompson, Gastonia, for defendant-appellant City of Shelby.

WALKER, Judge.

Plaintiff Sharon Lynn Lovelace, individually and in her capacity as administratrix of the estate of her daughter, Shayla Meagen Moore, filed this action on 5 November 1997. Plaintiffs alleged that the defendant City of Shelby (City) was negligent in the dispatch of fire-fighting personnel to plaintiffs' home resulting in the death of Shayla. Plaintiffs also made claims against defendant Thomas Lowell Lee, the owner of the house; however, he is not a party to this appeal. The allegations in plaintiffs' amended complaint relating to the claims against the City may be summarized as follows: Plaintiff and her children, including Shayla, resided at 706 Calvary Street within the corporate limits of the City. A fire was discovered inside their home, and plaintiff and two of her children exited the home, but Shayla did not. At the request of plaintiff, two or more persons contacted the City's police department by calling the 911 emergency number. Helen Earley, the 911 system operator, answered the calls and informed the callers that emergency response was forthcoming; however, she delayed six minutes before notifying the fire department. The fire department arrived approximately ten minutes after the calls were made even though the station was approximately 1.1 miles from the burning home.

Also included in plaintiff's amended complaint were allegations that the actions of the City had created a "special duty" or "special relationship" between the City and plaintiff:

10. The City of Shelby, by and through its protective officers, agents and employees, created a special duty to the plaintiff and the plaintiff's decedent by acknowledging or promising protection to the plaintiff and the plaintiff's decedent, by answering the 911 calls alleged herein and by further acknowledging that, in effect, fire protection service or other appropriate emergency response would be forthcoming. The plaintiff and the plaintiff's decedent relied on the promise of protection.

11. The defendant City of Shelby, by and through its servants and agents as alleged hereinbefore, undertook to furnish protection to specific individuals, to wit, the plaintiff and the plaintiff's decedent.

...

21. As alleged hereinbefore, a special relationship was formed between the plaintiff, the plaintiff's decedent and the City of Shelby, in that the 911 operator acknowledged and accepted a responsibility of dispatching the appropriate fire protection or other protection services to the scene of the fire at plaintiff's home.

22. The defendant City of Shelby, by and through the acts of its agents and servants, breached its promise of protection to the plaintiff and the plaintiff's decedent, and breached its promise of providing emergency protection to the plaintiff and the plaintiff's decedent.

23. The plaintiff and the plaintiff's decedent relied on this promise of protection, and their reliance on this protection which was not forthcoming, was causally related to the injuries and death sustained by the plaintiff's decedent.

24. The breach of this special duty and breach of agreement regarding this special relationship between the plaintiff, the plaintiff's decedent and the defendant City of Shelby was a direct and proximate cause of the injuries and death suffered by the plaintiff's decedent.

The City filed a motion to dismiss pursuant to N.C.R. Civ. P. 12(b)(6) which was denied by the trial court.

First, we note plaintiff has moved to dismiss the City's appeal as interlocutory. In this case, the trial court's order "does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). Thus, the appeal is interlocutory. However, the appeal may be heard "if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review." Bartlett v. Jacobs, 124 N.C.App. 521, 524, 477 S.E.2d 693, 695 (1996), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997) (citations omitted); see N.C. Gen.Stat. § 1-277 (1996). Our courts have held that orders denying motions to dismiss grounded on the defense of governmental immunity through the public duty doctrine affect a substantial right and are immediately appealable. Hedrick v. Rains, 121 N.C.App. 466, 466 S.E.2d 281, affirmed, 344 N.C. 729, 477 S.E.2d 171 (1996); Clark v. Red Bird Cab Co., 114 N.C.App. 400, 442 S.E.2d 75, disc. review denied, 336 N.C. 603, 447 S.E.2d 387 (1994). Therefore, plaintiff's motion to dismiss the City's appeal is denied.

The City contends on appeal that the trial court erred in denying its motion to dismiss the complaint for failure to state a claim upon which relief could be granted. The City argues that the public duty doctrine insulates it from liability in this instance and that the plaintiff has failed to plead any exceptions to the doctrine.

A motion to dismiss pursuant to Rule 12(b)(6) "tests the legal sufficiency of the pleading against which it is directed." Derwort v. Polk County, 129 N.C.App. 789, 791, 501 S.E.2d 379, 380 (1998). The motion should be allowed when the factual allegations fail as a matter of law to state the elements of a legally recognizable claim. Id. at 791, 501 S.E.2d at 381. An action for negligence is predicated on the existence of a legal duty owed by the defendant to the plaintiff. Lynn v. Overlook Development, 98 N.C.App. 75, 389 S.E.2d 609 (1990), affirmed in part and reversed in part, 328 N.C. 689, 403 S.E.2d 469 (1991). Therefore, a pleading asserting a claim sounding in negligence must assert a duty on the part of the defendant to the plaintiff.

The public duty doctrine is a common law rule first recognized by our Supreme Court in Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991),rehearing denied,330 N.C. 854, 413 S.E.2d 550 (1992). The rule holds 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. Braswell recognized the doctrine in the context of police protection. Since that holding, our appellate courts have expanded the doctrine to include many government services or responsibilities. See, e.g., Stone v. N.C. Dept. of Labor, 347 N.C. 473, 495 S.E.2d 711,rehearing denied,___ N.C. ___, 502 S.E.2d 836,cert. denied, ___ U.S. ___, 119 S.Ct. 540, 142 L.Ed.2d 449 (1998) (workplace safety inspections); Clark, 114 N.C.App. 400,442 S.E.2d 75 (investigation of taxicab driver license application); Prevette v. Forsyth County, 110 N.C.App. 754, 431 S.E.2d 216,disc. review denied, 334 N.C. 622, 435 S.E.2d 338 (1993) (animal control); Hunt v. N.C. Dept. of Labor, 348 N.C. 192, 499 S.E.2d 747 (1998) (amusement ride safety inspection); Davis v. Messer, 119 N.C.App. 44, 457 S.E.2d 902,disc. review denied, 341 N.C. 647, 462 S.E.2d 508 (1995) (fire protection); Sinning v. Clark, 119 N.C.App. 515, 459 S.E.2d 71,disc. review denied, 342 N.C. 194, 463 S.E.2d 242 (1995) and Simmons v. City of Hickory, 126 N.C.App. 821, 487 S.E.2d 583 (1997)(building inspections).

Exceptions to the public duty doctrine arise where some form of "special duty" exists between the parties. Vanasek v. Duke Power Co., ___ N.C.App.___, 511 S.E.2d 41 (1999). A "special duty" exception exists where the municipality "promis[es] 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. (quoting Davis, 119 N.C.App. at 56, 457 S.E.2d at 909). Often mentioned as a separate exception, but actually a subset of the "special duty" exception, is the "special relationship" such as the relation between law enforcement officers and a state's witness or informant wherein the officers give special protection to the witness or informant because of the information or testimony that will be given and the accompanying greater risk undertaken. Hunt, 348 N.C. at 199, 499 S.E.2d at 751. This relationship is formed by "representations or conduct by the police which cause the victim(s) to detrimentally rely on the police such that the risk of harm as the result of police negligence is something more than that to which the victim was already exposed." Hull v. Oldham, 104 N.C.App. 29, 38, 407 S.E.2d 611, 616, disc. review denied, 330 N.C. 441, 412 S.E.2d 72 (1991). In order to survive the application of the public duty doctrine, the plaintiff's allegations must fit within an exception to the doctrine. Thus, to properly set forth 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. Derwort, 129 N.C.App. at 793-94, 501 S.E.2d at 382.

In this case, plaintiffs allege that the "special duty" was created "by answering the 911 calls alleged herein and by further acknowledging that, in effect, fire protection service or other appropriate emergency response would be forthcoming." Plaintiffs cite Davis, 119 N.C.App. 44, 457 S.E.2d 902, as authority that supports these allegations. In Davis, the allegations of a "special duty" were found to be sufficient where a firefighter informed a dispatcher that his...