Appeal by defendants from order dated 22 May 2001 by Judge J.
Gentry Caudill in Superior Court, Cleveland County. Heard in the
Court of Appeals 21 August 2002.
Deaton & Biggers, P.L.L.C., by W. Robinson Deaton, Jr. and
Brian D. Gulden; and Flowers, Martin & Moore, P.A., by Fred A.
Flowers, for plaintiff-appellee.
Stott, Hollowell, Palmer & Windham, LLP, by Martha Raymond
Thompson and Heather Graham Conner, for defendant-appellant
City of Shelby.
Horn, Pack & Brown, P.A., by Becky J. Brown, for defendant-
appellant Thomas Lowell Lee.
McGEE, Judge.
Sharon Lynn Lovelace (plaintiff) filed a complaint on 5
November 1997, both as the representative of the estate of her
deceased minor child, Shayla Meagen Moore (decedent), and
individually, seeking damages from the City of Shelby and Thomas
Lowell Lee (collectively defendants) for the wrongful death of
decedent and for negligent infliction of emotional distress.
Defendant Lee (Lee) filed an answer and motion to dismiss on 15
January 1998 pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6).
The next day, 16 January 1998, defendant City of Shelby (City ofShelby) also filed a motion to dismiss pursuant to N.C.G.S. § 1A-1,
Rule 12(b)(6). Plaintiff filed a motion to amend her complaint,
which was granted on 11 March 1998. The trial court denied the
City of Shelby's Rule 12(b)(6) motion to dismiss on 12 March 1998.
The City of Shelby appealed the trial court's denial to our Court
on 8 April 1998. In an opinion filed on 1 June 1999, our Court
reversed the trial court's denial of the City of Shelby's Rule
12(b)(6) motion to dismiss and remanded the case to the trial court
for the entry of an order allowing the motion to dismiss. Judge
Wynn dissented from the majority concerning the proper application
of the public duty doctrine. Plaintiff appealed this Court's
decision to the N.C. Supreme Court based on the dissent in the
case. Our Supreme Court reversed the decision of this Court on 7
April 2000, holding that the City of Shelby's Rule 12(b)(6) motion
should have been denied since the public duty doctrine did not
apply in this case. The City of Shelby filed a petition for
rehearing on 1 June 2000, which was denied by our Supreme Court on
15 June 2000.
The City of Shelby filed an answer in which it admitted that
the 911 operator in question was employed as a police officer by
the City of Shelby. Plaintiff's complaint alleged that the 911
operator was an employee of the City of Shelby Police Department,
and for the purposes of a Rule 12(b)(6) motion, this allegation was
taken as true by each of the courts reviewing the matter. Block v.
County of Person, 141 N.C. App. 273, 275, 540 S.E.2d 415, 417(2000) (citing Lovelace v. City of Shelby, 351 N.C. 458, 526 S.E.2d
652 (2000) (Lovelace I)).
Lee filed a motion for summary judgment on 4 April 2000. The
City of Shelby filed a motion to amend its answer and a motion for
judgment on the pleadings pursuant to N.C. Gen. Stat. § 1A-1, Rule
12(c) on 5 April 2000. An order was entered 16 April 2001 allowing
the City of Shelby to amend its answer. The only amendment the
City of Shelby made to its answer was to add that its Police
Department was administering the 911 system for the City of Shelby
as part of its general duty to protect the public. An order was
entered 22 May 2001 denying both the City of Shelby's Rule 12(c)
motion to dismiss and Lee's motion for summary judgment.
Defendants appeal from the trial court's order.
In an appeal from the denial of a motion to dismiss based on
N.C.G.S. § 1A-1, Rule 12(c), except for conclusions of law, legally
impossible facts, and matters not admissible at trial, we must take
all of the non-moving party's allegations as true. Ragsdale v.
Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974) (citations
omitted). Further, in deciding Lee's appeal from the denial of his
motion for summary judgment, "the evidence must be viewed in the
light most favorable to the non-movant." Dalton Moran Shook Inc.
v. Pitt Development Co., 113 N.C. App. 707, 714, 440 S.E.2d 585,
590 (1994) (citation omitted). Plaintiff alleges in her complaint
that on or about 29 June 1996, plaintiff and her minor children,
including decedent, resided at 706 Calvary Street, Shelby, North
Carolina, in a house owned by Lee. Plaintiff also alleges Leefailed to install or maintain a fire detection system in
plaintiff's home as required by his contract with the U.S.
Department of Housing and Urban Development. The house was located
approximately 1.1 miles from the closest City of Shelby fire
station. A fire began inside plaintiff's home. Plaintiff exited
the home with two of her three children; however, decedent did not
follow them out. At least two people called the 911 emergency
number to report the fire. A police department employee serving as
the operator answered these calls, indicating that an emergency
response would be forthcoming. While waiting for the fire
department to arrive, decedent could be heard inside the house
calling for her mother. Several attempts were made by bystanders
and volunteer workers to enter the house, but the intensity of the
flames prevented anyone from being successful. The police arrived
at the scene before the fire department, but without equipment to
fight the fire, they could not enter the house to attempt to rescue
decedent. The fire department arrived at the scene at least ten
minutes after the 911 calls were made. At some point after the 911
calls were made, and before the fire department arrived, decedent
died. Plaintiff alleges she continues to have nightmares,
flashbacks, and other post-traumatic symptoms as a result of
hearing the cries of decedent in the burning house.
I.
Lee argues the trial court erred in denying his motion for
summary judgment. However, the denial of a motion for summary
judgment is an interlocutory order from which appeal generallycannot immediately be taken.
Schmidt v. Breeden, 134 N.C. App.
248, 251, 517 S.E.2d 171, 174 (1999) (citing
Hill v Smith, 38 N.C.
App. 625, 626, 248 S.E.2d 455, 456 (1978)). In order to
immediately appeal the denial of a motion for summary judgment, the
appealing party must show that the denial of the motion deprives
the party of a "substantial right" which might be "lost,
prejudiced, or less than adequately protected" absent review before
a final judgment.
Murphy v. Coastal Physicians Grp., Inc., 139
N.C. App. 290, 294, 533 S.E.2d 817, 820 (2000) (citation omitted);
Dolton Moran Shook Inc., 113 N.C. App. at 710, 440 S.E.2d at 588
(citation omitted). Lee argues that the order at issue affects a
substantial right but all he states in support of this contention
is that:
[t]his case is one of significant public
importance as evidenced by the procedural
history. Defendant Lee is an elderly man and
a party entitled to the expeditious
administration of justice. In allowing this
interlocutory appeal, the court would be
exercising its proper discretion in placing
him on the same footing as defendant City of
Shelby[.]
Lee seems to be arguing that because he is elderly, he should
therefore be entitled to an immediate appeal of the court's denial
of his motion for summary judgment. While acknowledging that the
rigors of trial could be greater on an elderly person than on
someone of less advanced age, we have clearly stated that avoidance
of a trial is not a substantial right that would allow immediate
appeal from an interlocutory order.
Yang v. Three Springs, Inc.,
142 N.C. App. 328, 330, 542 S.E.2d 666, 667 (2000) (citationsomitted). Further, Lee seems to be arguing that we should allow
his appeal since the City of Shelby is also appealing. However,
this contention lacks merit. While Lee's case involves the same
basic factual situation, the facts and issues of law that would
determine his liability are completely disparate from the issues
affecting the claims against the City of Shelby.
Hudson-Cole Dev.
Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 312 (1999)
("Avoiding separate trials of different issues does not qualify as
a substantial right . . . ."). Further, the substantial right of
"avoidance of separate trials" is normally applied when the
same
party is trying to avoid two separate trials.
See id. at 344-45,
511 S.E.2d at 312. In this case, Lee is arguing that he should be
on the same footing with the City of Shelby, a completely different
party. Assuming,
arguendo, that this Court allows the City of
Shelby to appeal the denial of its Rule 12(c) motion, Lee will not
be prejudiced in any substantial right if he is not allowed to
immediately appeal the denial of his summary judgment motion. We
thus determine that Lee has no substantial right that would be
"lost, prejudiced, or less than adequately protected" absent review
before a final judgment.
Murphy, 139 N.C. App. at 294, 533 S.E.2d
at 820 (citation omitted).
Lee also urges this Court to allow his appeal under our
discretionary review powers. While this Court has the power to
allow such a discretionary review, "[s]uch discretion is not
intended to displace the normal procedures of appeal, but inheres
to appellate courts under our supervisory power to be used only inthose rare cases in which normal rules fail to administer to the
exigencies of the situation."
Stanback v. Stanback, 287 N.C. 448,
453-54, 215 S.E.2d 30, 34 (1975) (citation omitted). Lee cites
Flaherty v. Hunt, 82 N.C. App. 112, 345 S.E.2d 426,
disc. review
denied, 318 N.C. 505, 349 S.E.2d 859 (1986), in support of his
request.
Flaherty involved the appeal by a defendant from the
denial of a Rule 12(b)(6) motion.
Id. In
Flaherty, this Court
noted that no direct appeal was generally allowed from such an
interlocutory order, and that the defendant was not deprived of a
substantial right that could not be protected by a timely appeal
from a decision on the merits.
Id. at 113, 345 S.E.2d at 427.
However, this Court stated that "where a decision of the principal
question presented would expedite the administration of justice, or
where the case involves a legal issue of public importance,
appellate courts may exercise their discretion to determine such an
appeal on its merits."
Id. at 113-14, 345 S.E.2d at 427
(citations
omitted). This Court determined that since
Flaherty involved the
alleged misuse of state property by a governor while in office, it
was an appropriate case for the exercise of such discretion.
Id.
at 114, 325 S.E.2d at 427-28. In
Flaherty,
this Court did not
specify whether it was relying on the "expedition of justice" or an
"issue of legal importance" to exercise such discretion. However,
this doctrine has also been applied to other situations appearing
to involve the "public good," such as in
Bardolph v. Arnold, 112
N.C. App. 190, 435 S.E.2d 109,
disc. review denied, 335 N.C. 552,
439 S.E.2d 141 (1993) (concerning the liability of county officialsfor expenditures of county money), and
Block, 141 N.C. App. 273,
540 S.E.2d 415 (concerning the liability of a city in a dispute
involving a septic system).
Lee argues that this case is of "significant public
importance" given the procedural history of the case. However, his
reference is to the earlier appeal involving the City of Shelby and
our appellate courts' interpretation of the public duty doctrine.
See Lovelace I, 351 N.C. 458, 526 S.E.2d 652 (2000). The claim
against Lee was not involved in the earlier appeals, does not
involve doctrines of similar import for public bodies, and does not
have compelling exigencies that require invocation of discretionary
review in this case.
See Stanback, 287 N.C. at 453-54, 215 S.E.2d
at 34. Lee's appeal is dismissed.
II.
Plaintiff filed a motion to dismiss the City of Shelby's
appeal of the trial court's denial of its Rule 12(c) motion. In
order to succeed on a Rule 12(c) motion, the City of Shelby "must
show that no material issue of fact exists and that [it] is clearly
entitled to judgment" as a matter of law.
Ragsdale, 286 N.C. at
137, 209 S.E.2d at 499 (citation omitted). After reviewing the
pleadings, the City of Shelby's Rule 12(c) motion was denied by the
trial court. Plaintiff argues that the City of Shelby's motion to
dismiss is really a second Rule 12(b)(6) motion captioned as a Rule
12(c) motion. The record does not reflect a ruling on that
specific issue at the trial court. Further, there is no contention
that plaintiff even sought dismissal of the City of Shelby's Rule12(c) motion before the trial court on the basis she now asserts,
or on any other basis.
Rule 10(b)(1) of the Rules of Appellate Procedure provides in
pertinent part that "[i]n order to preserve a question for
appellate review, a party must have presented to the trial court a
timely request, objection or motion, stating the specific grounds
for the ruling the party desired the court to make if the specific
grounds were not apparent from the context." N.C.R. App. P.
10(b)(1) (2002). As this is the first time plaintiff has raised
this issue, she has failed to preserve this issue for review.
Creasman v. Creasman, ___ N.C. App. ___, ___, 566 S.E.2d 725, 728
(2002) (citing
Town of Chapel Hill v. Burchette, 100 N.C. App. 157,
159-60, 394 S.E.2d 698, 700 (1990); N.C.R. App. P. 10(b)(1)). We
decline to consider plaintiff's motion to dismiss the City of
Shelby's appeal, and address the merits of the appeal.
III.
The City of Shelby argues the trial court erred in denying its
Rule 12(c) motion to dismiss. As noted above, in order to succeed
on a motion pursuant to Rule 12(c), the movant bears the burden of
proving, after viewing the facts and permissible inferences in a
light most favorable to the non-movant, that there are no material
issues of fact and the non-movant is entitled to judgment as a
matter of law.
Ragsdale, 286 N.C. at 137, 209 S.E.2d at 499. The
City of Shelby contends that the public duty doctrine prevents
plaintiff from seeking recovery from the city in this case, and it
is therefore entitled to judgment as a matter of law. We disagree. Since the public duty doctrine was announced by our Supreme
Court in
Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991),
it has been applied to a variety of situations beyond the one
addressed in
Braswell.
See Moses v. Young, 149 N.C. App. 613, 616-
17, 561 S.E.2d 332, 334-35,
disc. review denied, 356 N.C. 165, 568
S.E.2d 199 (2002) (cataloguing the applications). However, our
Supreme Court, in
Lovelace I, 351 N.C. at 461, 526 S.E.2d at 654,
an earlier appeal in this very case, confined the public duty
doctrine for local government to its original application in
Braswell. In our Supreme Court's most recent opinion on the public
duty doctrine,
Wood v. Guilford Cty., the Court reaffirmed this
limitation. 355 N.C. 161, 167, 558 S.E.2d 490, 495 (2002) ("Thus,
the public duty doctrine, as it applies to local government, is
limited to the facts of
Braswell.") (citation omitted). In
Braswell, the public duty doctrine was applied to protect the city
from suit for failure to provide protection to a specific
individual from the criminal acts of another.
330 N.C. at 370-71,
410 S.E.2d at 901-02.
Several opinions of our Court have recognized this limitation
on the public duty doctrine, explaining how the decision in
Lovelace I overruled many past applications of the public duty
doctrine.
See,
e.g.,
Willis v. Town of Beaufort, 143 N.C. App.
106, 109, 544 S.E.2d 600, 603,
disc. review denied, 354 N.C. 371,
555 S.E.2d 280 (2001) (noting that
Lovelace I had overruled the
previous application of the public duty doctrine to fire protection
services);
Hargrove v. Billings & Garrett, Inc., 137 N.C. App. 759,761-62, 529 S.E.2d 693, 695 (2000) (recognizing that the N.C.
Supreme Court has recently restricted the application of the public
duty doctrine as applied to local government). As our Supreme
Court stated in
Lovelace I, "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." 351 N.C. at 461, 526 S.E.2d at 654.
As noted above, in
Lovelace I, the N.C. Supreme Court has
already addressed the applicability of the public duty doctrine to
the situation in this case.
Id. The Court in
Lovelace I held that
the public duty doctrine should not be extended to protect the City
of Shelby from the alleged negligence of its 911 operator for
allegedly delaying in dispatching fire department services.
Id. at
461, 526 S.E.2d at 654;
see also Willis, 143 N.C. App. at 109, 544
S.E.2d at 603. Defendant again has essentially the same claim
before our Court. The only difference is that, due to an amendment
in the City of Shelby's answer, it is now alleged that the 911
operator was not only an employee of the Shelby Police Department,
but was in fact a police officer. The fact that the 911 operator
was an employee, and thus an agent of the Shelby Police Department,
was part of the record in the
Lovelace I case.
Block, 141 N.C.
App. at 275, 540 S.E.2d at 417 (noting that the allegations of the
non-moving party in a motion to dismiss a case are taken as true)
(citation omitted). There is contention between the parties as to
whether the Supreme Court, in addressing this case on a Rule
12(b)(6) motion, knew that the 911 operator was a police officer,and not simply an employee of the Shelby Police Department.
However, even assuming the Supreme Court did not know that the 911
operator was an actual police officer, this difference does not
allow application of the public duty doctrine as delineated in
Braswell. 330 N.C. at 370-71, 410 S.E.2d at 901-02. As our
Supreme Court stated in
Lovelace I:
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.
351 N.C. at 460-61, 526 S.E.2d at 654 (quoting
Braswell, 330 N.C.
at 370-71, 410 S.E.2d at 901). Plaintiff's cause of action against
the City of Shelby does not allege a failure of the city to furnish
police protection to plaintiff or her children. In fact, plaintiff
alleges in her complaint that the police department did arrive and
join in a rescue attempt, but the fire department did not arrive
until more than ten minutes had passed.
Our Supreme Court has not seen the public duty doctrine as
blanket protection for local municipalities carrying out all of the
activities traditionally undertaken by them. The narrow scope of
the public duty doctrine does not increase the burden on local law
enforcement and city officials in that their duties are no greater
than they have always been. The public duty doctrine is simply
meant to provide protection to local law enforcement officials and
the municipalities for which they work in a narrow set ofcircumstances. The trial court's decision denying the City of
Shelby's Rule 12(c) motion is affirmed.
In review, we dismiss Lee's appeal as interlocutory. We
affirm the order of the trial court denying the City of Shelby's
Rule 12(c) motion.
Dismissed in part; affirmed in part.
Judges McCULLOUGH and BRYANT concur.
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