SAMANTHA C. MOSES, Administratrix of the Estate of CHARLES WAYNE
MOSES,
Plaintiff,
v
.
RODNEY EDWARD YOUNG, Individually and in his Capacity as Law
Enforcement Officer for the Town of Cramerton, North Carolina;
The TOWN OF CRAMERTON, NORTH CAROLINA, by and through acting City
Manager, DAVID YOUNG,
Defendants.
Templeton & Raynor, P.A., by Kenneth R. Raynor, and Harkey,
Lambeth, Nystrom, Fiorella & Morrison, L.L.P., by Averill C.
Harkey, for plaintiff appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Hatcher
Kincheloe and Paul C. Lawrence, and Parker, Poe, Adams &
Bernstein, L.L.P., by William L. Brown, for defendant
appellants.
TIMMONS-GOODSON, Judge.
Cramerton Police Officer Rodney Edward Young ("Officer Young")
and the Town of Cramerton ("Cramerton")(collectively, "defendants")
appeal from the trial court's grant of partial summary judgment
concluding that the public duty doctrine does not shield defendants
from a wrongful death suit brought by Samantha Moses ("plaintiff")
as administratrix of her deceased husband's estate. In her
complaint, plaintiff alleged that the Town of Cramerton, throughits police officer, Officer Young, had caused the death of her
husband, Charles Wayne Moses ("Moses"), when Officer Young's
vehicle collided with a motorcycle driven by Moses. The accident
occurred when Moses attempted to pass Officer Young's vehicle in a
no-passing zone. As Moses drove his motorcycle in the left-hand
lane, Officer Young also entered the left-hand lane in order to
pursue a second motorcyclist who had passed him in the no-passing
zone at a high rate of speed. The two vehicles collided, and Moses
was thrown from his motorcycle, thereby sustaining serious injury.
Moses died from his injuries shortly thereafter.
Plaintiff filed suit against defendants, asserting damages
based on allegations of negligence, willful and wanton conduct,
gross negligence, and constitutional violations by defendants. In
their Answer to plaintiff's complaint, defendants asserted that the
public duty doctrine barred recovery by plaintiff. Plaintiff
thereafter filed a motion for partial summary judgment, which was
heard by the trial court on 9 October 2000. Upon arguments by the
parties, the trial court concluded that the public duty doctrine
was inapplicable to the facts presented by the instant case and
granted plaintiff's motion. On 1 November 2000, the trial court
entered an amended order re-affirming the grant of partial summary
judgment and concluding that its decision affected a substantial
right of defendants and that there was no just reason for delay in
appeal.
Defendants now appeal from the trial court's granting of
partial summary judgment. ______________________________________________________
The sole issue on appeal is whether defendants may assert the
public duty doctrine as an affirmative defense to plaintiff's
claims. For the reasons stated herein, we conclude that the public
duty doctrine is inapplicable to the facts presented in the instant
case, and we therefore affirm the trial court's grant of partial
summary judgment to plaintiff.
We note initially that this case is interlocutory, as it fails
to "dispose[] of the cause as to all the parties, leaving nothing
to be judicially determined between them in the trial court."
Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950).
While as a general rule this Court does not review interlocutory
orders, we have consistently held that "appeals raising issues of
governmental or sovereign immunity affect a substantial right
sufficient to warrant immediate appellate review." Price v. Davis,
132 N.C. App. 556, 558-59, 512 S.E.2d 783, 785 (1999). In this
case, defendants have asserted governmental immunity from liability
based upon the public duty doctrine. We may therefore review
defendants' appeal. See Clark v. Red Bird Cab Co., 114 N.C. App.
400, 402-03, 442 S.E.2d 75, 77 (holding that an interlocutory order
based on the public duty doctrine implicates a substantial right),
disc. review denied, 336 N.C. 603, 447 S.E.2d 387 (1994).
In Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991),
our Supreme Court for the first time adopted the common law public
duty doctrine, stating:
The general common law rule, known as the
public duty doctrine, is that a municipalityand 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.
Id. at 370-71, 410 S.E.2d at 901 (citation omitted). In Braswell,
the plaintiff was the son and administrator of the estate of a
woman killed by her estranged husband. The plaintiff filed suit
against the county sheriff, alleging that the sheriff had
negligently failed to protect plaintiff's mother from foreseeable
harm. The Supreme Court rejected plaintiff's arguments, concluding
that the public duty doctrine shielded the sheriff from liability.
The Court noted that the public duty doctrine is subject to two
exceptions, namely:
(1) where there is a special relationship
between the injured party and the police . . .
; and (2) 'when a municipality, through its
police officers, 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.'
Id. at 371, 410 S.E.2d at 902 (quoting Coleman v. Cooper, 89 N.C.
App. 188, 194, 366 S.E.2d 2, 6, disc. review denied, 322 N.C. 834,
371 S.E.2d 275 (1988)). Concluding that neither exception applied
to the plaintiff's case, the Court affirmed directed verdict in
favor of the defendant.
The public duty doctrine applies to "law enforcement
departments when they are exercising their general duty to protect
the public." Lovelace v. City of Shelby, 351 N.C. 458, 461, 526S.E.2d 652, 654 (2000). Defendants argue that Officer Young was
exercising his general duty to protect the public at the time of
the accident by pursuing arrest of a lawbreaker who was endangering
the motoring public, and that therefore the public duty doctrine
operates to bar plaintiff's claims. We do not agree.
The public duty doctrine is simply inapplicable to the facts
presented by the instant case. An exhaustive review of the public
duty doctrine as applied in North Carolina reveals no case in which
the public duty doctrine has operated to shield a defendant from
acts directly causing injury or death. Rather, the application of
the public duty doctrine in this State has been confined to cases
where the defendant's actions proximately or indirectly result in
injury. See, e.g., Wood v. Guilford County, __ N.C.__, 558 S.E.2d
490 (filed 1 February 2002) (holding that the public duty doctrine
barred the plaintiff's claims against the county for failing to
provide adequate security at the courthouse where the plaintiff was
attacked by a third party); Stone v. N.C. Dept. of Labor, 347 N.C.
473, 482-83, 495 S.E.2d 711, 717 (holding that the public duty
doctrine barred the plaintiffs' negligence claims against the North
Carolina Department of Labor for its failure to adequately inspect
a chicken plant where workers subsequently died in a fire), cert.
denied, 525 U.S. 1016, 142 L. Ed. 2d 449 (1998); Little v.
Atkinson, 136 N.C. App. 430, 433-34, 524 S.E.2d 378, 381 (holding
that the public duty doctrine barred claims against city and its
police officers who failed to adequately inspect a crime scene
before allowing relatives of the victim to visit the site), disc.review denied, 351 N.C. 474, 543 S.E.2d 492 (2000); Vanasek v. Duke
Power Co., 132 N.C. App. 335, 340-41, 511 S.E.2d 41, 45 (holding
that the public duty doctrine barred claims against city and its
police officers who failed to warn the public of broken power lines
that caused decedent's death), cert. denied, 350 N.C. 851, 539
S.E.2d 13 (1999); Simmons v. City of Hickory
, 126 N.C. App. 821,
823-25, 487 S.E.2d 583, 586 (1997)
(holding that the public duty
doctrine applied to bar claim against city for negligently
inspecting homes and issuing building permits); Humphries v. N.C.
Dept. of Correction
, 124 N.C. App. 545, 547-48, 479 S.E.2d 27, 28
(1996)
(holding that the doctrine barred claim against the
Department of Correction for alleged negligence in the supervision
of a probationer),
disc. review improvidently allowed
, 346 N.C.
269, 485 S.E.2d 293 (1997);
Tise v. Yates Construction Co., 122
N.C. App. 582, 588-89, 471 S.E.2d 102, 107 (1996) (holding that the
public duty doctrine shielded city from liability for its failure
to inform construction company of potential tampering of
construction equipment by trespassers where decedent died after
construction equipment crushed him);
Davis v. Messer
, 119 N.C. App.
44, 55-56, 457 S.E.2d 902, 909 (holding that the public duty
doctrine applied to a claim against a fire chief, a fire
department, a town, and a county for negligence in their failure to
complete their effort to extinguish a fire in plaintiff's home),
disc. review denied
, 341 N.C. 647, 462 S.E.2d 508 (1995); Sinning
v. Clark
, 119 N.C. App. 515, 518-20, 459 S.E.2d 71, 73-74 (holding
that the public duty doctrine applied to bar a claim against amunicipality, the city building inspector, and the city code
administrator for gross negligence in an inspection of a home),
disc. review denied
, 342 N.C. 194, 463 S.E.2d 242 (1995);
Clark,
114 N.C. App. at 406, 442 S.E.2d at 78 (holding that the public
duty doctrine protected municipality and police officers who
negligently issued a taxicab permit to a driver who subsequently
murdered a customer); Prevette v. Forsyth County
, 110 N.C. App.
754, 758, 431 S.E.2d 216, 218 (holding that the public duty
doctrine barred wrongful death claim against county and against
director and employee of the county animal control shelter for
failing to protect plaintiff from dogs which defendants knew were
dangerous),
disc. review denied
,
334 N.C. 622, 435 S.E.2d 338
(1993)
.
In the instant case, plaintiff has alleged injury directly
resulting from Officer Young's actions. Thus, this case does not
concern defendants' "failure to furnish police protection" or
"failure to prevent [a] criminal act" or any other act of
negligence proximately resulting in injury. Braswell, 330 N.C. at
370-71, 410 S.E.2d at 901. Rather, the claim originates from
allegations that Officer Young's collision with decedent's
motorcycle directly caused decedent's death.
Vehicular accidents involving law enforcement officers are not
new to this State. See, e.g., Young v. Woodall, 343 N.C. 459, 471
S.E.2d 357 (1996); Goddard v. Williams, 251 N.C. 128, 110 S.E.2d
820 (1959), overruled, 343 N.C. 459, 471 S.E.2d 357 (1996). In
Young, the defendant police officer was involved in an accidentwith the plaintiff while pursuing a suspect. Our Supreme Court did
not address or apply any type of governmental immunity to the
police officer's actions, although both the amicus curiae and the
defendant's briefs urged such application. Defendants have not
furnished, nor have we discovered, any cases applying the public
duty doctrine to claims brought against police officers involving
vehicular accidents in which the police officer is directly
involved. If we adopted the position advanced by defendants, the
public duty doctrine would operate as a blanket defense to bar all
claims based on acts of negligence by police officers. Such a
blanket defense, however, would not be consistent with the purpose
of the public duty doctrine, which is to “'shield[] the state and
its political subdivisions from tort liability arising out of
discretionary governmental actions.'” Stone, 347 N.C. at 482, 495
S.E.2d at 716 (quoting DeFusco v. Todesca Forte, Inc., 683 A.2d
363, 365 (R.I. 1996)). This is because
"[t]he amount of protection that may be
provided is limited by the resources of the
community and by a considered legislative-
executive decision as to how those resources
may be deployed. For the courts to proclaim a
new and general duty of protection in the law
of tort, even to those who may be the
particular seekers of protection based on
specific hazards, could and would inevitably
determine how the limited police resources . .
. should be allocated and without predictable
limits."
Braswell, 330 N.C. at 371, 410 S.E.2d at 901 (quoting Riss v. City
of New York, 22 N.Y.2d 579, 581-82, 240 N.E.2d 860, 860-61 (1968)).
Officer Young's act of steering his vehicle into an occupied
lane is not the type of "discretionary governmental action"shielded by the public duty doctrine. Clearly, Officer Young did
not deliberately collide with decedent's vehicle after actively
weighing the safety interests of the public. Rather, Officer
Young's actions were accidental in nature and do not implicate an
allocation of resources by the Town of Cramerton. As such,
plaintiff's claim does not raise the specter of "overwhelming
liability" for defendants or otherwise encourage future lawsuits;
indeed, the city has purchased liability insurance for just such an
incident.
Our review is strictly limited to whether the public duty
doctrine applies to the facts presented by the instant case. We
hold that it does not. The trial court therefore properly granted
partial summary judgment to plaintiff on this issue.
Affirmed.
Judges HUDSON and TYSON concur.
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