Multiple Claimants v. Nc Dept. of Health

• Decision Date: 07 March 2006
• Docket Number: No. COA04-808.,COA04-808.
• Citation: 626 S.E.2d 666
• Parties: MULTIPLE CLAIMANTS, Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Division of Facility Services, Jails and Detention Services, Defendant.
• Court: North Carolina Court of Appeals

626 S.E.2d 666

MULTIPLE CLAIMANTS, Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Division of Facility Services, Jails and Detention Services, Defendant.

No. COA04-808.

Court of Appeals of North Carolina.

March 7, 2006.

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Appeal by defendant from order entered 19 March 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 2 February 2005.

Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., by Benjamin E. Baker, Jr., Montgomery, AL; Grimes & Teich, by Henry E. Teich, Asheville; William Hixon; Elmore, Elmore & Williams, P.A., by Bruce A. Elmore, Jr., Asheville; C. Gary Triggs, Morganton; Byrd, Byrd, Ervin, Whisnant & McMahon, P.A., by Robert K. Denton and Lawrence D. McMahon, Jr., Morganton; Anderson Law Firm, P.A., by Scott M. Anderson, Greenville, SC, for plaintiffs-appellees.

Attorney General Roy Cooper, by Special Deputy Attorney General David Roy Blackwell, Special Deputy Attorney General Melissa L. Trippe, Special Deputy Attorney General Amar Majmundar, and Assistant Attorney General Richard L. Harrison, for defendant-appellant.

GEER, Judge.

Defendant North Carolina Department of Health and Human Services ("DHHS") appeals from an order of the North Carolina Industrial Commission denying its motion to dismiss based on the public duty doctrine. Plaintiffs' claims under the State Tort Claims Act arose out of a fire on 3 May 2002 at the Mitchell County jail. The fire claimed the lives of inmates Jason Jack Boston, Mark Halen Thomas, Jesse Allen Davis, and Danny Mark Johnson and seriously injured inmate O.M. Ledford, Jr. Plaintiffs contend that the inspector for DHHS was negligent in his inspection of the Mitchell County jail and that DHHS failed to properly train the inspector to perform his duties as an inspector of county jails.

Our Supreme Court has held that the public duty doctrine applies "`to state agencies required by statute to conduct inspections for the public's general protection'" Wood v. Guilford County, 355 N.C. 161, 167, 558 S.E.2d 490, 495 (2002) (emphasis added) (quoting Lovelace v. City of Shelby, 351 N.C. 458, 461, 526 S.E.2d 652, 654 (2000)). Although DHHS acknowledges that the General Assembly has placed a duty on DHHS to perform inspections of local detention facilities to ensure the health and welfare of prisoners in such facilities, it argues that these inspections "benefit the public" because "[t]he inmates addressed in these statutes are members of the public...."

If we were to accept this facile argument, we would effectively eviscerate the Tort Claims Act, since State agencies would be able to argue that any duty that they owed was necessarily to a member of the public since all residents of North Carolina are members of the public. This Court must, however, be ever vigilant not to act as a super-legislature that imposes its notion of public policy in the face of statutory determinations otherwise. It is for the General Assembly, and not judges, to decide questions of public policy regarding how and when the State may be sued.

For 100 years, North Carolina's courts have recognized that governments owe a private duty to inmates to maintain their health and safety. In connection with that duty, our General Assembly has specifically provided that DHHS has the duty to inspect local detention facilities, including jails, in order to ensure the protection of jail inmates. Since this duty is for the benefit of the inmates and not for the general public, the public duty doctrine does not apply. We, therefore, hold that the Industrial Commission properly denied DHHS' motion to dismiss.

Following the fire at the Mitchell County jail, plaintiffs filed separate affidavits of claim in the Industrial Commission pursuant to the Tort Claims Act, N.C. Gen.Stat. Art. 31, §§ 143-291 et seq. (2005). The claims of all five plaintiffs were consolidated before the Industrial Commission on 27 August 2003. Because this appeal is before us on DHHS' motion to dismiss, we treat the factual allegations in plaintiffs' affidavits of claim as true. Hunt v. N.C. Dep't of Labor, 348 N.C. 192, 194, 499 S.E.2d 747, 748 (1998).

Plaintiffs alleged that Ernest Dixon, a DHHS employee responsible for inspecting the Mitchell County jail, failed to adequately inspect the jail "to ensure compliance with certain regulations and to ensure that all fire safety devices and procedures were in good working order." Plaintiffs also alleged that DHHS acted negligently in "fail[ing] to properly train [Mr. Dixon] to perform the special duties of inspecting county jails for the protection of ... inmates."

DHHS filed a motion to dismiss pursuant to N.C.R. Civ. P. 12(b)(1), (2), and (6) on the grounds that plaintiffs' claims were barred by the public duty doctrine under Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991), and Stone v. N.C. Dep't of Labor, 347 N.C. 473, 495 S.E.2d 711, cert. denied, 525 U.S. 1016, 119 S.Ct. 540, 142 L.Ed.2d 449 (1998). In response to the motion, plaintiffs amended their affidavits of claim to expressly allege that a special relationship existed between the inmates and DHHS and that DHHS owed them a special duty.

Specifically, plaintiffs alleged that because the inmates were unable to protect themselves, "a special relationship arose between the aforementioned department and [the inmate] to fulfill the duties imposed under the law to ensure that the [inmate], as a confined individual, would be protected in the event of a fire." Plaintiffs further alleged that "the State promised it would inspect county jails to ensure the protection of inmates in the event of fires." Finally, plaintiffs asserted that "[t]he duties described hereinabove were not for the benefit of the public at large, but for the benefit of the specific individuals confined in the subject jail."

Deputy Commissioner Edward Garner, Jr. denied DHHS' motion to dismiss. DHHS appealed to the Full Commission, which upheld the Deputy Commissioner's decision. DHHS timely appealed that decision to this Court pursuant to N.C. Gen.Stat. § 143-293 (2005).

Discussion

As a preliminary matter, we note that ordinarily the denial of a motion to dismiss is an interlocutory order from which there may not be an immediate appeal. Block v. County of Person, 141 N.C.App. 273, 276, 540 S.E.2d 415, 418 (2000). Since, however, DHSS bases its appeal on the public duty doctrine, its appeal involves a substantial right warranting immediate appellate review. Smith v. Jackson County Bd. of Educ., 168 N.C.App. 452, 457-58, 608 S.E.2d 399, 405 (2005).

The sole question presented on this appeal by DHHS is whether the Commission erred when it failed to conclude that the public duty doctrine barred plaintiffs' claims. A law review commentator has cogently explained the development of the general rule:

The public duty doctrine provides that, absent a special relationship between the governmental entity and the injured individual, the governmental entity will not be liable for injury to an individual where liability is alleged on the ground that the governmental entity owes a duty to the public in general. The doctrine has been commonly described by the oxymoron, "duty to all, duty to none." ....

After the historic tort barrier of governmental immunity crumbled and states provided waiver mechanisms, state courts resurrected the [public duty doctrine] to provide limits to governmental tort liability when their legislatures had not done so. Thus, state courts embraced the public duty doctrine to confine liability to specific types of governmental actions, namely those not undertaken for the public in general.

Frank Swindell, Note, Municipal Liability for Negligent Inspections in Sinning v. Clark — A "Hollow" Victory for the Public Duty Doctrine, 18 Campbell L.Rev. 241, 247-49 (1996).

Our Supreme Court specifically adopted the public duty doctrine for the first time in 1991:

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.

Braswell, 330 N.C. at 370-71, 410 S.E.2d at 901 (internal citations omitted). In 1998, the Supreme Court extended this "common law rule" to certain conduct of State agencies challenged under the Tort Claims Act. Stone, 347 N.C. at 479, 495 S.E.2d at 715. In response to Justice Orr's vigorous dissent, the majority emphasized that this extension involved a "limited new context, not heretofore confronted by this Court." Id. at 483, 495 S.E.2d at 717.

Subsequently, the Supreme Court described this extension as limited to applying "the public duty doctrine to state agencies required by statute to conduct inspections for the public's general protection." Lovelace, 351 N.C. at 461, 526 S.E.2d at 654 (emphasis added). Two years later, the Court reemphasized this limitation on the application of the public duty doctrine with respect to State agencies. See Wood, 355 N.C. at 167, 558 S.E.2d at 495 ("[T]his Court has extended the public duty doctrine to state agencies required by statute to conduct inspections for the public's general protection...."). See also Isenhour v. Hutto, 350 N.C. 601, 608, 517 S.E.2d 121, 126 (1999) (noting that the public duty doctrine applies only to a violation of a "statutory duty of a state agency to inspect various facilities for the benefit of the public").

The first question we must decide, therefore, is whether the duty of inspection relied upon by plaintiffs was one "to conduct inspections for the public's general protection." Lovelace, 351 N.C. at 461, 526 S.E.2d at 654. If we conclude that the duty to inspect set out by the General Assembly was not "intended to...