Martin v. Mondie

• Decision Date: 01 August 1989
• Docket Number: No. 8817SC1182,8817SC1182
• Citation: 94 N.C.App. 750,381 S.E.2d 481
• Parties: Ted H. MARTIN, Jr. and Anita C. Martin, Plaintiffs, v. Lisa Boger MONDIE; Dwayne Rex Flinchum; and the Town of Mount Airy, Defendants.
• Court: North Carolina Court of Appeals

Page 481

381 S.E.2d 481

94 N.C.App. 750

Ted H. MARTIN, Jr. and Anita C. Martin, Plaintiffs, v. Lisa Boger MONDIE; Dwayne Rex Flinchum; and the Town of Mount Airy, Defendants.

No. 8817SC1182.

Court of Appeals of North Carolina.

Aug. 1, 1989.

Petree Stockton & Robinson by W. Thompson Comerford, Jr., Jane C. Jackson and Barbara E. Brady, Winston-Salem, for plaintiffs.

Womble Carlyle Sandridge & Rice by Allan R. Gitter and James R. Morgan, Jr., Winston-Salem, for defendants.

WELLS, Judge.

Plaintiffs assign error to the trial court's entry of summary judgment in favor of defendant Town. Plaintiffs contend that the failure of the Town's police department to serve three outstanding arrest warrants on defendant Mondie over a period of approximately four months constituted negligent conduct on the part of the Town which was a proximate cause of plaintiff's injury. Plaintiffs contend that the issuance of the warrants created a duty on the part of the Town, through its police force, to promptly arrest defendant Mondie, and that its failure to do so constituted negligence or, at a minimum, presented a question for the jury on the issue of negligence, making an entry of summary judgment in favor of defendant Town improper.

"Summary judgment is appropriate only where the pleadings, affidavits and other evidentiary materials before the court disclose that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law." Rolling Fashion Mart, Inc. v. Mainor, 80 N.C.App. 213, 341 S.E.2d 61 (1986). "Summary judgment is rarely appropriate in negligence cases." White v. Hunsinger, 88 N.C.App. 382, 363 S.E.2d 203 (1988).

"Actionable negligence is the failure to exercise that degree of care which a reasonable and prudent man would exercise under similar conditions and which proximately causes injury or damage to another." Williams v. Trust Co., 292 N.C. 416, 233 S.E.2d 589 (1977). It "presupposes the existence of a legal relationship between the parties by which the injured party is owed a duty which either arises out of a contract or by operation of law." Vickery v. Construction Co., 47 N.C.App. 98, 266 S.E.2d 711, disc. rev. denied, 301 N.C. 106 (1980).

In the present case plaintiffs seek to recover damages from defendant Town on the theory that the Town's police department was negligent in not promptly serving the three outstanding warrants on defendant Mondie and that this negligence was a proximate cause of plaintiff's injuries. In Coleman v. Cooper, 89 N.C.App. 188, 366 S.E.2d 2, disc. rev. denied, 322 N.C. 834, 371 S.E.2d 275 (1988), we stated that, "Ordinarily, a municipality providing police services is engaged in a governmental function for which there is no liability." We went on to state that: "In furnishing police protection, a municipality ordinarily acts for the benefit of the public at large and not for a specific individual.... As the duty is to the general public rather than to a specific individual, no liability exists for the failure to furnish police protection." Id. at 193, 366 S.E.2d at 6. (Citations omitted). We noted in Coleman, however, that there were two exceptions to the general rule set out above: (1) "when there is a special relationship between the injured party and the police;" 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 193-194, 366 S.E.2d at 6. See also Lynch v. North Carolina Department of Justice, 93 N.C.App. 57, 376 S.E.2d 247 (1989); DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (dictum).

In the present case there is no allegation by plaintiffs and no forecast of evidence that defendant Town, through its police officers, created a "special duty" toward plaintiffs by promising them protection which was then not given, nor that plaintitf's injury resulted from reliance on such a promise. There is also no forecast of evidence of the existence of any "special relationship" between plaintiffs and defendant Town's police department of the kind discussed in Coleman. Plaintiffs contend...