1. Cities and Towns--public duty doctrine--no longer applicable for fire protection
services
The trial court erred in a negligence case by granting summary judgment in favor of
defendant town because the public duty doctrine no longer applies as a defense for the municipal
provision of fire protection services.
2. Immunity--governmental--waived to extent of liability insurance
Defendant town waived its governmental immunity defense from civil tort liability to the
extent of the liability insurance coverage it purchased.
3. Public Officers and Employees--fire chief--public official--public duty doctrine--
governmental immunity
The trial court erred in a negligence case by granting summary judgment in favor of
defendant fire chief sued in his official and individual capacity because: (1) the public duty
doctrine is no longer available as a defense for a fire chief sued in his official capacity; (2)
defendant's governmental immunity defense in his official capacity is waived to the extent of
insurance coverage purchased by the town; and (3) although a fire chief as defined by N.C.G.S. §
160A-292 is categorized as a public official meaning he cannot be held individually liable for
damages caused by mere negligence in the performance of his governmental or discretionary
duties, there is a genuine issue of material fact as to the issue of gross negligence on the part of
defendant individually.
Davis, Murrelle & Lumsden, P.A., by Edward L. Murrelle, for
plaintiff-appellant.
Crossley McIntosh Prior & Collier, by H. Mark Hamlet and Brian
E. Edes, for defendant-appellees.
HUNTER, Judge.
Robert Willis (“plaintiff”) appeals from an order granting
summary judgment dismissing his claims of negligence in favor ofdefendants Town of Beaufort (“Town”) and Jim Lynch. On appeal,
plaintiff's two assignments of error are (1) the trial court erred
in granting summary judgment in favor of the Town as the public
duty doctrine no longer applies as a defense for the municipal
provision of fire protection services after the North Carolina
Supreme Court's holding in Lovelace v. City of Shelby, 351 N.C.
458, 526 S.E.2d 652, reh'g denied, 352 N.C. 157, ___ S.E.2d ___
(2000), and (2) the trial court similarly erred in granting summary
judgment in favor of defendant Lynch, in his official capacity and
individually, as the public duty doctrine is not available as a
defense for a fire chief following Lovelace. We agree with
plaintiff, and therefore reverse the trial court.
The relevant allegations of plaintiff's complaint show that on
14 October 1998, plaintiff was attempting to repair the fuel tanks
on board his shrimping vessel known as the DEL-ANN, which was
docked at the Homer Smith Seafood House in the Town of Beaufort,
North Carolina. Sparks from a welding machine subsequently ignited
a fire aboard the vessel, and plaintiff unsuccessfully attempted to
extinguish the fire. 9-1-1 was called, and the Beaufort Fire
Department was notified.
At all times relevant to this action, defendant Lynch was
Chief of the Beaufort Fire Department. The Beaufort Fire
Department arrived on the scene of the fire within four minutes of
first being contacted. Upon arrival of the fire department,
plaintiff was still on board the burning vessel attempting to
extinguish the fire, and defendant Lynch ordered plaintiff off thevessel. When plaintiff did not comply, defendant Lynch repeated
his order two additional times; defendant Lynch also notified
plaintiff that he would have him arrested if he continued to
disregard the order. Consequently, plaintiff left the vessel.
Defendant Lynch then requested assistance from several
additional fire departments, and shortly thereafter fire
departments from Morehead City, Otway, Atlantic Beach,
Marshallberg, and the United States Coast Guard arrived.
Initially, the Beaufort Fire Department assumed jurisdiction, and
water was used in an attempt to extinguish the fire. After some
time passed, defendant Lynch ordered all fire fighting efforts to
cease. At this point, defendant Lynch allegedly forbade other fire
fighters from using foam to extinguish the fire, as well as refused
to adhere to any recommendations, suggestions, alternatives, or
advice from any other trained professional on the scene. After
approximately two hours passed, defendant Lynch allowed foam to be
applied to the fire. The fire was extinguished, but the interior
of the vessel was destroyed.
On 1 February 1999, plaintiff filed a complaint against the
Town alleging negligence on the part of the Beaufort Fire
Department in their handling of the fire. Subsequently on 20
October 1999, plaintiff filed an amended complaint to add defendant
Lynch as a named defendant, both in his official capacity as Fire
Chief and individually, alleging gross negligence on his part
arising from the events of 14 October 1998. The Town and defendant
Lynch filed a motion for summary judgment, and a hearing was held
on 13 December 1999 in Carteret County Superior Court before theHonorable James E. Ragan, III. By order filed on 28 December 1999,
Judge Ragan allowed defendants' motion for summary judgment.
Plaintiff appeals.
[1]In his first assignment of error, plaintiff claims that
the trial court erred in granting summary judgment in favor of the
Town when it is clear that the public duty doctrine no longer
applies as a defense for the municipal provision of fire protection
services after the North Carolina Supreme Court's holding in
Lovelace v. City of Shelby, 351 N.C. 458, 526 S.E.2d 652. We
agree.
“At the outset, we note that the standard of review on appeal
from summary judgment is whether there is any genuine issue of
material fact and whether the moving party is entitled to a
judgment as a matter of law.” Bruce-Terminix Co. v. Zurich Ins.
Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).
Furthermore, “the evidence presented by the parties must be viewed
in the light most favorable to the non-movant.” Id. Therefore,
summary judgment is only proper when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment as
a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (1999).
Summary judgment “is an extreme remedy and should be awarded only
where the truth is quite clear.” Lee v. Shor, 10 N.C. App. 231,
233, 178 S.E.2d 101, 103 (1970).
“The general common law rule, known as the public dutydoctrine, 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.” Braswell v.
Braswell, 330 N.C. 363, 370, 410 S.E.2d 897, 901 (1991). The
public duty doctrine was first adopted in North Carolina by our
Supreme Court in Braswell. Id. “As originally applied and
adopted, the doctrine operated to shield a governmental entity from
liability for the failure of the government and its law enforcement
agents to furnish police protection to specific individuals.”
Hargrove v. Billings & Garrett, Inc., 137 N.C. App. 759, 761, 529
S.E.2d 693, 695 (2000).
Since Braswell, “[t]he [public duty] doctrine has . . . been
extended by this Court to shield municipalities and their agents
from liability for negligence in providing fire protection
services, Davis v. Messer, 119 N.C. App. 44, 457 S.E.2d 902 (1995)
. . . .” Hargrove, 137 N.C. App. 759, 761-62, 529 S.E.2d 693, 694-
95 (Hargrove, which lists the services the public duty doctrine had
been been extended to shield, was decided by this Court after the
Supreme Court's decision in Lovelace). However, in Lovelace v.
City of Shelby, 351 N.C. 458, 526 S.E.2d 652, the North Carolina
Supreme Court held that the public duty doctrine does not insulate
a city from liability for the alleged negligence of a city 9-1-1
operator in causing a death by failing to timely dispatch the fire
department after receiving a call reporting a fire. Significantly,
our Supreme Court held: While this Court has extended the public
duty doctrine to state agencies required by
statute to conduct inspections for the
public's general protection, we have never
expanded the public duty doctrine to any local
government agencies other than law enforcement
departments when they are exercising their
general duty to protect the public . . . .
Thus, the public duty doctrine, as it applies
to local government, is limited to the facts
of Braswell.
Id. at 461, 526 S.E.2d at 654 (citations omitted).
Hence, this Court's holding in Davis extending the public duty
doctrine to the municipal provision of fire protection services has
been overruled by our Supreme Court's holding in Lovelace. The
Town of Beaufort, therefore, may not utilize the public duty
doctrine as a defense for the alleged negligence on the part of
its fire department. Accordingly, we reverse the trial court's
grant of summary judgment in favor of the Town.
[2]In regards to the Town's governmental immunity defense, we
recognize that “[t]he organization and operation of a fire
department is a governmental . . . function.” Insurance Co. v.
Johnson, Comr. of Revenue, 257 N.C. 367, 370, 126 S.E.2d 92, 94
(1962). “Under the doctrine of governmental immunity, a
municipality is not liable for the torts of its officers and
employees if the torts are committed while they are performing a
governmental function . . . .” Taylor v. Ashburn, 112 N.C. App.
604, 607, 436 S.E.2d 276, 278 (1993). However, “[a]ny city may
. . . waive its immunity from civil tort liability by purchasing
liability insurance.” Id.; see also N.C. Gen. Stat. § 160A-485.
“Immunity is waived only to the extent that the city or town isindemnified by the insurance contract from liability for the acts
alleged.” Combs v. Town of Belhaven, 106 N.C. App. 71, 73, 415
S.E.2d 91, 92 (1992).
Here, the Town purchased North Carolina League of
Municipalities liability insurance covering itself and its agents.
Consequently, the Town is deemed to have waived its governmental
immunity defense to the extent of its coverage.
[3]In his second assignment of error, plaintiff contends that
the trial court erred in granting summary judgment in favor of
defendant Lynch, in his official capacity and individually, as the
public duty doctrine is not available as a defense for a fire chief
following the Supreme Court's decision in Lovelace. Again, we
agree.
On 20 October 1999, plaintiff amended his complaint to add Jim
Lynch as a defendant, both in his official capacity as Fire Chief
of the Beaufort Fire Department and individually, alleging gross
negligence on his part. We note that, “official-capacity suits are
merely another way of pleading an action against the governmental
entity.” Mullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721,
725 (1998). Therefore, the claim against defendant Lynch in his
official capacity is effectively a claim against the Town. As the
public duty doctrine no longer applies as a defense for the
municipal provision of fire protection services, the doctrine is
similarly not available to a fire chief sued in his official
capacity. Thus, defendant Lynch, in his official capacity, cannot
avail himself of the public duty doctrine. We now turn our focus to plaintiff's cause of action against
defendant Lynch. In doing so, we must address the question of
whether defendant Lynch, as a fire chief, is properly categorized
as a public official or a public employee. The significance being,
“[p]ublic officials cannot be held individually liable for damages
caused by mere negligence in the performance of their governmental
or discretionary duties; public employees can.” Meyer v. Walls,
347 N.C. 97, 112, 489 S.E.2d 880, 888 (1997).
The test for differentiating between a public official and a
public employee is:
(1) a public office is a position created by
the constitution or statutes; (2) a public
official exercises a portion of the sovereign
power; and (3) a public official exercises
discretion, while public employees perform
ministerial duties. . . .
Isenhour v. Hutto, 350 N.C. 601, 610, 517 S.E.2d 121, 127 (1999);
see also Meyer, 347 N.C. at 113, 489 S.E.2d at 889. “. . .
'Discretionary acts are those requiring personal deliberation,
decision and judgment; duties are ministerial when they are
“absolute, certain, and imperative, involving merely the execution
of a specific duty arising from fixed and designated facts.”
Jensen v. S.C. Dept. of Social Services, 297 S.C. 323, [322,] 377
S.E.2d 102[, 107] (1988)[, aff'd, 304 S.C. 195, 403 S.E.2d 615
(1991)].'” Meyer, 347 N.C. at 113-14, 489 S.E.2d at 889.
N.C. Gen. Stat. § 160A-292 recognizes the position of “fire
chief” and gives the fire chief the duty and responsibility to
preserve and care for fire apparatus, have
charge of fighting and extinguishing fires andtraining the fire department, seek out and
have corrected all places and conditions
dangerous to the safety of the city and its
citizens from fire, and make annual reports to
the council concerning these duties. . . .
N.C. Gen. Stat. § 160A-292 (1999). We find these duties provide
for a fire chief to exercise some portion of the sovereign power of
the State. Furthermore, under N.C. Gen. Stat. § 160A-292, a fire
chief performs discretionary acts, rather than ministerial duties.
Thus, we conclude that a fire chief is a public official. This
conclusion is consistent with prior decisions of this Court and our
Supreme Court finding the State Commissioner of Motor Vehicles, a
Division of Motor Vehicles inspector, school trustees, park
commissioners, chief building inspectors, the State Banking
Commissioner, the chief of police, and police officers, among
others, to be public officials. Thompson Cadillac-Oldsmobile, Inc.
v. Silk Hope Automobile, Inc., 87 N.C. App. 467, 471-72, 361 S.E.2d
418, 421 (1987).
Having found the public duty doctrine inapplicable as a
defense for defendant Lynch and that a fire chief is a public
official, we must next address the liability of defendant Lynch in
his official capacity. Generally, “[g]overnmental immunity
protects the governmental entity and its officers or employees sued
in their 'official capacity.'” Taylor v. Ashburn, 112 N.C. App. at
607, 436 S.E.2d at 279. “Under the doctrine of governmental
immunity, . . . [a municipality's] officers or employees sued in
their official capacities are immune from suit for torts committed
while the officers or employees are performing a governmentalfunction.” Morrison-Tiffin v. Hampton, 117 N.C. App. 494, 504, 451
S.E.2d 650, 657 (1995). Nevertheless, where a municipality waives
its immunity by purchasing liability insurance, “public officers
[or employees] are not entitled to the defense of governmental
immunity, at least as to the extent of coverage purchased by the
municipality.” Moore v. Evans, 124 N.C. App. 35, 41, 476 S.E.2d
415, 421 (1996). Thus, defendant Lynch's governmental immunity
defense, in his official capacity, is waived to the extent of
insurance coverage purchased by the Town. However, this does not
subject defendant Lynch as a public official to individual
liability for ordinary negligence as hereinafter discussed.
Further, since the Town is deemed to have waived its immunity to
the extent of its insurance coverage, the Town is therefore liable
for the negligent acts of its public officials to the extent it has
waived its immunity by purchasing insurance.
We next examine defendant Lynch's liability individually.
Under the public officers' immunity doctrine, “'a public official
is [generally] immune from personal [or individual] liability for
mere negligence in the performance of his duties, but he is not
shielded from liability if his alleged actions were corrupt or
malicious or if he acted outside and beyond the scope of his
duties.'” Schlossberg v. Goins, 141 N.C. App. 436, 445, 540 S.E.2d
49, 56 (2000) (quoting Slade v. Vernon, 110 N.C. App. 422, 428, 429
S.E.2d 744, 747 (1993)). In other words,
a public official sued individually is not
liable for “mere negligence” -- because such
negligence standing alone, is insufficient to
support the “piercing” . . . of the cloak ofofficial immunity. Locus [v. Fayetteville
State University], 102 N.C. App. [522,] 526,
402 S.E.2d [862,] 865 [1991]; Reid [v.
Roberts], 112 N.C. App. [222,] 224, 435 S.E.2d
[116,] 119 [1993].
Epps v. Duke University, 122 N.C. App. 198, 207, 468 S.E.2d 846,
853 (1996) (emphasis in original). As defendant Lynch was the Fire
Chief of the Beaufort Fire Department at all times relevant to this
action, defendant Lynch, a public official, was immune from
individual liability for mere negligence in the performance of his
duties under public officers' immunity. See Schlossberg, 141 N.C.
App. at 445, 540 S.E.2d at 55.
Plaintiff alleged that defendant Lynch was grossly negligent
and his “directives to withhold foam and other appropriate fire
fighting methods from the burning [vessel] for two hours were
willful, wanton, wrongful, reckless, and without just cause.” As
a result, defendant Lynch, a public official, can be held
individually liable if it is “'. . . proved that his act, or
failure to act, was corrupt or malicious, or that he acted outside
of and beyond the scope of his duties . . . .'” Meyer, 347 N.C. at
112, 489 S.E.2d at 888 (quoting Smith v. Hefner, 235 N.C. at 7, 68
S.E.2d at 787 (citations omitted)). The record does not clearly
reflect if the trial court made a ruling on whether there remained
a question of material fact regarding defendant Lynch's alleged
“willful, wanton, wrongful, reckless” conduct which would result in
gross negligence. Therefore, we reverse and remand for the trial
court to determine whether a material fact remained as to the issue
of gross negligence on the part of defendant Lynch individually. In summary, we hold that pursuant to our Supreme Co
urt's
holding in Lovelace, the public duty doctrine is no longer
available as a defense for the municipal provision of fire
protection services, nor is it available to a fire chief. Thus,
the Town of Beaufort, by having waived its immunity, is liable for
the negligent acts of its public officials to the extent it has
waived its immunity by purchasing insurance. We hereby reverse the
trial court's grant of summary judgment in favor of the Town and
defendant Lynch, in his official capacity as Fire Chief of the
Beaufort Fire Department; we also reverse and remand for the trial
court to determine whether a material fact remained as to the issue
of gross negligence on the part of defendant Lynch, individually.
Reversed and remanded.
Judges WALKER and CAMPBELL concur.
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