Myers v. McGrady

• Decision Date: 05 May 2006
• Docket Number: No. 391A04-2.,391A04-2.
• Citation: 628 S.E.2d 761
• Court: North Carolina Supreme Court
• Parties: Gail M. MYERS, Ancillary Administratrix of the Estate of Darryl Myers, Plaintiff v. Shirley McGRADY, Thomas W. Higgins, Michael P. Murphy, James F. Foust, William A. Spencer, Jr., and Verian Ladson, Successor Representative for the Estate of J.C. Myers, Jr., Defendants, and Shirley McGrady, Thomas W. Higgins, James F. Foust, William A. Spencer, Jr., and Verian Ladson, Successor Representative for the Estate of J.C. Myers, Jr., Third-Party Plaintiffs v. North Carolina Division of Forest Resources, a Division of the North Carolina Department of Environment and Natural Resources, Third-Party Defendants.

628 S.E.2d 761

Gail M. MYERS, Ancillary Administratrix of the Estate of Darryl Myers, Plaintiff v. Shirley McGRADY, Thomas W. Higgins, Michael P. Murphy, James F. Foust, William A. Spencer, Jr., and Verian Ladson, Successor Representative for the Estate of J.C. Myers, Jr., Defendants, and Shirley McGrady, Thomas W. Higgins, James F. Foust, William A. Spencer, Jr., and Verian Ladson, Successor Representative for the Estate of J.C. Myers, Jr., Third-Party Plaintiffs v. North Carolina Division of Forest Resources, a Division of the North Carolina Department of Environment and Natural Resources, Third-Party Defendants.

No. 391A04-2.

Supreme Court of North Carolina.

May 5, 2006.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 170 N.C.App. 501, 613 S.E.2d 334 (2005), affirming orders entered 24 February 2004 by Judge Donald W. Stephens and 23 March 2004 by Judge Abraham Penn Jones in Superior Court, Durham County. On 18 August 2005, the Supreme Court allowed third-party defendants' petition for discretionary review as to an additional issue. Heard in the Supreme Court 13 February 2006.

Twiggs, Beskind, Strickland & Rabenau, P.A., by Jerome P. Trehy, Jr., Raleigh, for plaintiff-appellee.

Kennedy Covington Lobdell & Hickman, L.L.P., by F. Fincher Jarrell, Charlotte, for defendant/third-party plaintiff-appellees James F. Foust and William A. Spencer, Jr.

Law Offices of Douglas F. DeBank, by Douglas F. DeBank, Durham, for defendant/third-party plaintiff-appellee Verian Ladson.

Roy Cooper, Attorney General, by Christopher G. Browning, Jr., Solicitor General, Robert T. Hargett and Amar Majmundar, Special Deputy Attorneys General, and Laura J. Gendy, Assistant Attorney General, for third-party defendant-appellants.

WAINWRIGHT, Justice.

This negligence action arises from a four-vehicle collision on Interstate Highway 95 (I-95) in Northampton County, North Carolina. At the time of the collision on 9 June 2002, thick smoke from a nearby forest fire combined with fog to obscure the southbound lanes of I-95. Two individuals, Darryl Myers and J.C. Myers, were killed in the collision.

Plaintiff Gail Myers is the administratrix of Darryl Myers' estate. Defendants Shirley McGrady, Thomas Higgins, Michael Murphy, James Foust, and William Spencer, Jr. drove and/or owned vehicles involved in the collision. J.C. Myers, Jr. drove the vehicle in which Darryl Myers rode as a passenger, and defendant Verian Ladson is a representative for J.C. Myers, Jr.'s estate.

On 1 August 2003, plaintiff filed suit against defendants in Durham County Superior Court alleging that the negligence of each driver proximately caused Darryl Myer's death. Plaintiff's complaint states that at approximately 4:40 a.m. on 9 June 2002, defendant McGrady stopped the vehicle she was driving in the southbound travel lane of I-95 to switch seats with defendant Higgins, the owner of the vehicle. Defendant McGrady allegedly did not want to drive more because her vision was obscured by smoke and fog. Defendant Murphy then collided with the rear of defendant Higgins' vehicle; defendant Foust drove a tractor-trailer into the rear of defendant Murphy's vehicle; and J.C. Myers, Jr. drove into the rear of the Foust tractor-trailer, killing himself and Darryl Myers. Plaintiff alleged that defendant Foust's liability was imputed to the owner of the tractor-trailer, defendant Spencer.

Defendants impleaded Forest Ranger Michael Bennett and the North Carolina Division of Forest Resources (NCDFR), a division of the Department of Environment and Natural Resources (NCDENR), pursuant to North Carolina Rule of Civil Procedure 14(a) and (c). Ranger Bennett, an employee of NCDFR, responded to the forest fire on 7 June 2002 at the request of the Gaston Volunteer Fire Department. Defendants' third-party complaints alleged that the fire adjacent to I-95 smoldered in three to five acres of woodland for approximately two days before the accident, that Ranger Bennett visited the scene three times before the collision and was aware of the fire, and that Ranger Bennett knew or should have known that the fire produced open flames and dense smoke dangerous to motorists in the southbound lanes of I-95. Defendants' third-party complaints further alleged that Ranger Bennett failed to control the fire; failed to warn approaching motorists; failed to monitor the weather, wind, and smoke conditions; and failed to protect the traveling public.

On 9 January 2004, third-party defendants Ranger Bennett and NCDFR filed a motion to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief may be granted pursuant to the public duty doctrine and public officer immunity. On 23 February 2004, the trial court allowed the motion to dismiss as to third-party defendant Ranger Bennett and denied the motion as to NCDFR. Plaintiff subsequently sought and received permission to amend her original complaint to include a direct negligence claim against NCDFR as well. The Court of Appeals agreed to hear NCDFR's interlocutory appeal, and, in a divided opinion, affirmed the orders of the trial court.

The determinative question before this Court is whether NCDFR, a state agency, may be liable in negligence for failure to control a naturally occurring forest fire or failing to make safe a public highway adjacent to the fire.¹ We observe that the alleged negligence arises from the agency's purported failure to perform a statutory duty owed to the general public and that this duty is generally unenforceable by individual plaintiffs in tort. Thus, we apply the common law public duty doctrine to the powers and duties conferred upon NCDENR by N.C.G.S. §§ 113-51, -52, -54, and -55 to prevent, control and extinguish forest fires. Because NCDENR does not owe a specific duty to this individual plaintiff and these third-party plaintiffs, but a general duty to the public at large, the trial court should have granted NCDFR's motion to dismiss pursuant to North Carolina Rule of Civil Procedure 12(b)(6) and motion for judgment on the pleadings pursuant to Rule 12(c).

A civil plaintiff seeking to sue a state agency for negligence for failure to carry out statutorily delegated responsibilities must overcome two limitations that are not present in suits against private individuals: (1) the State must have waived sovereign immunity as to the plaintiff's claim, and (2) the duty alleged by the plaintiff may not be a public duty previously recognized by this Court. If the State has not waived sovereign immunity, then it is immune from the plaintiff's suit in North Carolina courts. Charlotte-Mecklenburg Hosp. Auth. v. N.C. Indus. Comm'n, 336 N.C. 200, 207, 443 S.E.2d 716, 721 (1994) ("The doctrine of sovereign immunity — that the state cannot be sued in its own courts without its consent — is firmly established in North Carolina law."), superseded by statute on other grounds, Act of April 19, 1993, ch. 679, sec 2.3, 1993 N.C. Sess. Laws 394, 397-99, as recognized in Carolina Med. Ctr. v. Employers & Carriers Listed in Exhibit A, ___ N.C.App. ___, 616 S.E.2d 588 (2005). If the plaintiff alleges negligence by failure to carry out a recognized public duty, and the State does not owe a corresponding special duty of care to the plaintiff individually, then the plaintiff has failed to state a claim in negligence. Hunt v. N.C. Dep't of Labor, 348 N.C. 192, 196, 499 S.E.2d 747, 749-50 (1998) ("Without any distinct duty to any specific individual, the [governmental] entity cannot be held liable."); Stone v. N.C. Dep't of Labor, 347 N.C. 473, 482, 495 S.E.2d 711, 716 (stating that when a "governmental entity owes no particular duty to any individual claimant, it cannot be held liable for negligence for failure to carry out its statutory duties"), cert. denied, 525 U.S. 1016, 119 S.Ct. 540, 142 L.Ed.2d 449 (1998). This is so because governmental agencies, which serve the public at large, do not generally owe enforceable duties to specific individuals. Hunt, 348 N.C. at 196, 499 S.E.2d at 749 ("The general rule is that a governmental entity acts for the benefit of the general public. . . .").

The North Carolina General Assembly has enacted a limited waiver of sovereign immunity for negligence actions filed against the State and its agents and employees:

The North Carolina Industrial Commission is hereby constituted a court for the purpose of hearing and passing upon tort claims against the State Board of Education, the Board of Transportation, and all other departments, institutions and agencies of the State. The Industrial Commission shall determine whether or not each individual claim arose as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina. If the Commission finds that there was negligence on the part of an officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority that was the proximate cause of the injury and that there was no contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted, the Commission shall determine the amount of damages that the claimant is entitled to be paid, including medical and other expenses, and by appropriate order direct the payment of damages as provided in subsection (a1) of this section, but in no event shall the amount of damages awarded exceed the amounts authorized in G.S. [§ ] 143-299.2 cumulatively to all claimants on account of injury and damage to any one person arising out of a single occurrence. Community colleges and technical colleges shall be deemed State...