Myers v. Mcgrady
| Decision Date | 07 June 2005 |
| Docket Number | No. COA04-973.,COA04-973. |
| Citation | 613 S.E.2d 334 |
| 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. N.C. Division of Forest Resources, A Division of N.C. Department of Environment and Natural Resources, Third-Party Defendants. |
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.
Douglas F. DeBank, Durham, for defendant-third-party-plaintiff-appellee Verian Ladson, Successor Representative for the Estate of J.C. Myers.
Twiggs, Beskind, Strickland & Rabenau, P.A., by Donald R. Strickland and Jerome P. Trehy, Jr., Raleigh, for defendant-third-party-plaintiff-appellee Gail Myers.
The Derrick Law Firm, by Dirk J. Derrick, Conway, for defendant-third-party-plaintiff-appellee Gail Myers.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Steven M. Sartorio and Jamal A. Rhinehardt, Raleigh, for defendant-third-party-plaintiffs Shirley McGrady and Thomas W. Higgins.1
Yates, McLamb & Weyher, L.L.P., by Rodney E. Pettey, Raleigh, for defendant Michael P. Murphy.2
The public duty doctrine is an exception to the Tort Claims Act and shields the State from liability for negligence claims arising from the alleged failure of law enforcement to prevent misconduct by a third party and the alleged failure of a state agency to detect and prevent misconduct of a third party through improper inspections. Here, Third-Party Defendants North Carolina Division of Forest Resources and North Carolina Department of Environment and Natural Resources (hereinafter referred to collectively as "Division of Forest Resources") argue that the public duty doctrine shields them from liability for claims of negligence arising from a forest ranger's alleged actions and inactions in dealing with a forest fire. Because this case fits into neither established category of the public duty doctrine's application, we affirm the trial court's holding that the public duty doctrine does not shield the Division of Forest Resources.
The record reflects that, on 9 June 2002, a multiple-vehicle accident occurred on I-95 in Northhampton County, North Carolina, resulting in the death of Darryl Myers, who was a passenger in a vehicle driven by J.C. Myers, also killed in the accident. According to the complaint filed by Gail M. Myers as administratrix of the estate of Darryl Myers, at the time of the accident, a forest fire produced smoke which, combined with fog, obscured the vision of travelers.
Ms. Myers alleged that the accident occurred as a result of the following facts: Upon driving into the I-95 area obscured by smoke and fog, Shirley McGrady "negligently stopped" a vehicle to switch seats with the owner and passenger in the vehicle, Thomas W. Higgins. Ms. Myers alleged that Higgins "negligently failed to instruct [Ms. McGrady] to get the vehicle out of the travel lane and into the emergency lane." Thereafter, a chain-reaction of rear-end collisions occurred when Michael P. Murphy drove his vehicle into the rear of the stopped Higgins vehicle; John Foust, driving a tractor-trailer, struck the rear of Murphy's vehicle; and J.C. Myers, driving the vehicle in which Darryl Myers rode as a passenger, rear-ended the tractor-trailer. Ms. Myers alleged that Foust's liability was imputed to William A. Spencer, Jr., the owner of the tractor-trailer. She alleged the negligence of all Defendants proximately caused Darryl Myers' death.
Thereafter, Defendants brought third-party complaints against the Division of Forest Resources and its employee, Michael Bennett. The third-party complaints alleged that Bennett, a county forest ranger, negligently failed to extinguish a forest fire, left a still smoldering forest fire, and failed to protect motorists and warn motorists of the danger of reduced visibility caused by smoke and fog. Third-Party Plaintiffs (Defendants to Ms. Myers' action) further alleged that any negligence on their part was "secondary to the primary and active negligence" of the Division of Forest Resources, which entitled them to indemnification.
In response, the Division of Forest Resources and Bennett moved for dismissal of the third-party claims. On 24 February 2004, the trial court denied the motion as to the Division of Forest Resources but granted the motion as to Bennett. In March 2004, the trial court allowed Ms. Myers to amend her complaint to add claims against the Division of Forest Resources and denied the Division of Forest Resources' motion to dismiss the amended complaint.
This appeal follows from the orders denying dismissal of the claims against the Division of Forest Resources.
Preliminarily, we note that the Division of Forest Resources appeals from orders denying motions to dismiss. These orders are interlocutory, i.e.,"made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court to settle and determine the entire controversy." Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999); Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (same). Generally, there is no right of immediate appeal from interlocutory orders. Travco Hotels, Inc. v. Piedmont Natural Gas Co., 332 N.C. 288, 291, 420 S.E.2d 426, 428 (1992); Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, we take this appeal pursuant to North Carolina General Statute section 7A-27(d)(1), allowing review of interlocutory orders affecting a "substantial right," because the appeal of an interlocutory order raising issues of sovereign immunity and the public duty doctrine affects a substantial right sufficient to warrant immediate appellate review. N.C. Gen.Stat. § 7A-27(d)(1) (2004); Derwort v. Polk County, 129 N.C.App. 789, 790-91, 501 S.E.2d 379, 380 (1998) (); Hedrick v. Rains, 121 N.C.App. 466, 468, 466 S.E.2d 281, 283 (1996) ().
On appeal, the Division of Forest Resources argues that the trial court erroneously failed to find that the complaints against it were barred by the public duty doctrine.
Under North Carolina law, the State Tort Claims Act waives sovereign immunity by permitting actions against the State for negligence committed by State employees in the course of their employment. N.C. Gen.Stat. § 143-291 (2004); Zimmer v. N.C. Dep't of Transp., 87 N.C.App. 132, 134, 360 S.E.2d 115, 117 (1987) . However, in 1991, our Supreme Court adopted the public duty doctrine, which provides an exception to the Tort Claims Act.
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 v. Braswell, 330 N.C. 363, 370-71, 410 S.E.2d 897, 901 (1991) (citations omitted); Lassiter v. Cohn, ___ N.C.App. ___, ___, 607 S.E.2d 688, 692 (2005) (same). In Braswell, the decedent's son sued his father, who killed his mother, as well as the county sheriff. The plaintiff's claims against the county sheriff included negligent failure to protect the decedent, a claim the Supreme Court held was barred by the public duty doctrine.
In 1998, our Supreme Court applied the public duty doctrine to state agencies required to conduct inspections for the public's general protection. Stone v. N.C. Dep't of Labor, 347 N.C. 473, 495 S.E.2d 711 (1998). In Stone, decedents' estates brought suit, alleging the Department of Labor breached its statutory duty to inspect a food products plant where, inter alia, exits were inadequate and blocked, and decedents were unable to escape a plant fire. Our Supreme Court held that "[j]ust as we [in Braswell] `refused to judicially impose an overwhelming burden of liability [on law enforcement] for failure to prevent every criminal act,' we now refuse to judicially impose an overwhelming burden of liability on defendants for failure to prevent every employer's negligence that results in injuries or deaths to employees." Id. at 481, 495 S.E.2d at 716. The Supreme Court applied this same reasoning again in Hunt v. N.C. Dep't of Labor, 348 N.C. 192, 499 S.E.2d 747 (1998). In that case, the plaintiff sought damages for injuries received on an amusement park go-kart. A Department of Labor inspector had approved the go-karts although the seatbelts were not in compliance with State rules and...
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