Ray v. N.C. Dep't of Transp.

• Decision Date: 14 June 2012
• Docket Number: No. 28A12.,28A12.
• Citation: 727 S.E.2d 675
• Parties: Jennifer RAY, Administratrix of the Estate of Mickela Nicholson; Linda Judge, Administratrix of the Estate of Marianne Dauscher; and Eileen and Roger Layaou, Co–Administrators of the Estate of Michael Layaou v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION.
• Court: North Carolina Supreme Court

727 S.E.2d 675

Jennifer RAY, Administratrix of the Estate of Mickela Nicholson; Linda Judge, Administratrix of the Estate of Marianne Dauscher; and Eileen and Roger Layaou, Co–Administrators of the Estate of Michael Layaou

v.NORTH CAROLINA DEPARTMENT OF TRANSPORTATION.

No. 28A12.

Supreme Court of North Carolina.

June 14, 2012.

Appeal pursuant to N.C.G.S. § 7A–30(2) from the decision of a divided panel of the Court of Appeals, ––– N.C.App. ––––, 720 S.E.2d 720 (2011), reversing and remanding an order entered by the North Carolina Industrial Commission on 13 July 2010. Heard in the Supreme Court on 17 April 2012.

Zaytoun Law Firm, PLLC, by Matthew D. Ballew and Robert E. Zaytoun, Raleigh, for plaintiff-appellees.

Roy Cooper, Attorney General, by Amar Majmundar, Special Deputy Attorney General, for defendant-appellant.

Patterson Harkavy LLP, Raleigh, by Burton Craige; and Kirby & Holt, L.L.P., Raleigh, by Isaac Thorp, for North Carolina Advocates for Justice, amicus curiae.

NEWBY, Justice.

In this case we must determine whether the public duty doctrine bars plaintiffs' claims against defendant North Carolina Department of Transportation (“DOT”) under the State Tort Claims Act (“STCA”). To answer this question we must consider the impact of the limitation placed on the use of the public duty doctrine by the General Assembly's 2008 amendment to the STCA. SeeN.C.G.S. § 143–299.1A (2011). Because we hold that N.C.G.S. § 143–299.1A clarified the legislature's intent as to the role of the public duty doctrine under the STCA, the limitation on the doctrine in that statute applies here. Consequently, the doctrine does not bar plaintiffs' claims.

Plaintiffs allege the following facts. On 31 August 2002 Mickela S. Nicholson was driving on RP 1010, a state-maintained road, in Johnston County, North Carolina. Nicholson had three passengers, Marianne Dauscher, Michael Layaou, and Steven Carr. Nicholson was operating her automobile within the posted speed limit and with a proper lookout when she lawfully entered an eroded section of the highway near the shoulder. The condition of the road caused her vehicle to veer off the roadway. When she attempted to return to the highway, the erosion caused her to overcorrect. She lost control of the car, crossing the center line and striking an oncoming automobile head-on. Nicholson and all her passengers were killed.

Plaintiffs, the estates of Nicholson, Layaou, and Dauscher, sued DOT for negligence under the STCA. Plaintiffs claim that DOT was negligent in designing and executing the narrowing of RP 1010 from three lanes to two and that the erosion defect “had existed for a substantial period of time prior to” the wreck such that DOT personnel knew or should have known of its existence and “failed to make appropriate repairs.” DOT responded that the public duty doctrine bars the claims and moved for dismissal for failure to state a claim upon which relief can be granted under North Carolina Rule of Civil Procedure 12(b)(6). Deputy Industrial Commissioner Stephen T. Gheen denied DOT's motion, concluding that the claims were not barred. In a 13 July 2010 order, however, the Full Commission determined that plaintiffs' claims are barred by the doctrine and granted DOT's motion to dismiss.

The Court of Appeals reversed and remanded. After reviewing our public duty doctrine cases, the Court of Appeals concluded that the doctrine prohibits government liability for “failure to prevent the acts of third parties or failure to protect the general public from harm from an outside force” and for “important discretionary decision[s]” that involve “the allocation of limited resources.” Ray v. N.C. Dep't of Transp., ––– N.C.App. ––––, ––––, 720 S.E.2d 720, 723, 724 (2011) (citations and quotation marks omitted). The Court of Appeals held that in this case the harm alleged was not from an outside source but from the actions of the State itself. Id. at ––––, 720 S.E.2d at 724. Furthermore, according to the Court of Appeals, road maintenance is not a discretionary decision but an important duty of the State. Id. at ––––, 720 S.E.2d at 724. Therefore, under our prior cases the public duty doctrine is inapplicable to plaintiffs' claims. Id. at ––––, 720 S.E.2d at 724. Since it concluded that the doctrine did not bar plaintiffs' claims, the Court of Appeals declined to consider whether the 2008 amendment to the STCA had any role here. Id. at ––––, 720 S.E.2d at 724. The dissenting judge found no distinction between the present case and Myers v. McGrady, 360 N.C. 460, 628 S.E.2d 761 (2006), in which we held that the public duty doctrine barred the plaintiff's negligence claim. Ray, ––– N.C.App. at ––––, 720 S.E.2d at 724 (Hunter, Robert C., J., dissenting). DOT appealed on the basis of the dissenting opinion.

The controlling question here is whether the public duty doctrine bars plaintiffs' claims. To answer that question we must consider whether, as plaintiffs contend, the 2008 amendment to the STCA was a clarifying one, making it applicable to the case before us. Making that determination in this particular case requires a review of the history of sovereign immunity and the public duty doctrine in North Carolina.

This Court has long recognized the common law doctrine of sovereign immunity, acknowledging that “[i]t is an established principle of jurisprudence ... that a state may not be sued ... unless by statute it has consented to be sued or has otherwise waived its immunity from suit.” Smith v. Hefner, 235 N.C. 1, 6, 68 S.E.2d 783, 787 (1952) (citations omitted). Unless waived this protection extends to state agencies. Id. (citations omitted). The STCA, enacted in 1951, provides a limited waiver of sovereign immunity for 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.

N.C.G.S. § 143–291 (2011); see also Stone v. N.C. Dep't of Labor, 347 N.C. 473, 479, 495 S.E.2d 711, 714 (noting that the STCA “permit[s] suit[s] in derogation of sovereign immunity”), cert. denied,525 U.S. 1016, 119 S.Ct. 540, 142 L.Ed.2d 449 (1998).

The public duty doctrine is a common law negligence doctrine that exists apart from the doctrine of sovereign immunity. See Myers, 360 N.C. at 465, 628 S.E.2d at 766 (describing the doctrine as “a separate rule of common law negligence that may limit tort liability, even when the State has waived sovereign immunity”). When it was enacted the STCA did not specifically address the public duty doctrine. Lacking legislative guidance, our Court turned to the common law. See State v. Bass, 255 N.C. 42, 47, 120 S.E.2d 580, 584 (1961) (“The common law prevails in this State unless changed by statute.”). We first recognized the common law public duty doctrine in Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991). In that case the estate of a woman killed by her husband sued a county sheriff for negligently failing to protect the victim from her husband. Id. at 366–67, 410 S.E.2d at 899. We held that the public duty doctrine barred her claim, stating, “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.” Id. at 370, 410 S.E.2d at 901 (citing Coleman v. Cooper, 89 N.C.App. 188, 193, 366 S.E.2d 2, 6,disc. rev. denied,322 N.C. 834, 371 S.E.2d 275 (1988)). Because the public duty doctrine says that there is a duty to the public generally, rather than a duty to a specific individual, the doctrine operates to prevent plaintiffs from establishing the first element of a negligence claim—duty to the individual plaintiff. See Kientz v. Carlton, 245 N.C. 236, 240, 96 S.E.2d 14, 17 (1957) (citations omitted). We recognized two exceptions in which there is a duty to a particular individual, noting that the public duty doctrine does not apply to bar a claim

(1) where there is a special relationship between the injured party and the police ...; and (2) “when a municipality ... 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.”

Braswell, 330 N.C. at 371, 410 S.E.2d at 902 (quoting Coleman, 89 N.C.App. at 194, 366 S.E.2d at 6).

In Stone v. North Carolina Department of Labor, we recognized the doctrine's applicability to state agencies and to governmental functions other than law enforcement. 347 N.C. at 481, 495 S.E.2d at 716.Stone involved a chicken plant fire that killed a number of workers and injured others. Id. at 477, 495 S.E.2d at 713. Surviving workers and the estates of some deceased workers brought suit under the STCA, alleging that the North Carolina Department of Labor negligently failed to inspect the plant. Id. at 476–77, 495 S.E.2d at 713. An inspection would have revealed violations of the Occupational Safety and Health Act of North Carolina, “including the plant's inadequate and blocked exits and inadequate fire suppression system.” Id. at 477, 495 S.E.2d at 713. Noting that the statutory requirement to inspect did not create a duty to specific individuals, we held that the public duty doctrine barred the claims. Id. at 477, 482–83, 495 S.E.2d at 714, 716–17.

Later that year we were faced with another negligence claim against the State's Department of Labor, this time by a plaintiff who was injured in a go-kart accident at an amusement park. Hunt v. N.C. Dep't of Labor, 348 N.C. 192, 194–95, 499 S.E.2d 747, 748 (1998). The brakes failed on the go-kart that the plaintiff was operating, and he crashed into a pole. Id. at 194, 499 S.E.2d at 748. The seat belt tightened...