JAMES T. JEFFERSON, Administrator
Of the estate of DORIS JEFFERSON
AND JAMES T. JEFFERSON, individually,
Plaintiffs,
v
.
Vance County
No. 01 CVS 177
COUNTY OF VANCE,
Defendant
Appeal by plaintiffs from order entered 18 July 2001 by Judge
Stafford G. Bullock in Vance County Superior Court. Heard in the
Court of Appeals 21 August 2002.
Rogers and Rogers, Lawyers, by Bobby W. Rogers, for plaintiff.
Bailey & Dixon, LLP, by Gary S. Parsons and Warren T. Savage,
for defendant.
BRYANT, Judge.
Plaintiffs filed an action against defendant County of Vance
on 28 February 2001, alleging 911's negligent failure to dispatch
law enforcement assistance. Defendant filed a Rule 12(b)(6) motion
to dismiss for failure to state a claim upon which relief could be
granted. This matter came for hearing at the 16 July 2001 term of
Vance County Superior Court with the Honorable Stafford G. Bullock
presiding. By order entered 18 July 2001, the trial court granted
defendant's Rule 12(b)(6) motion to dismiss. Plaintiffs gave
notice of appeal on 15 August 2001.
On 29 June 1997, James and Jendine Wimbush were visiting with
James and Doris Jefferson. Sometime during the course of that day,
James Wimbush began to violently fight his wife Jendine. Doris
called Vance County's 911 emergency system for help. A 911
operator informed Doris that law enforcement would be immediately
dispatched. Subsequently, James Jefferson phoned 911 because law
enforcement had not arrived following Doris's call for help. A 911
operator informed James Jefferson that law enforcement was on the
way.
Sometime after James Jefferson called 911, James Wimbush shot
him and killed both Jendine and Doris. Law enforcement had not
arrived between the time James Jefferson called 911 and the time of
the shooting incidents.
To determine whether a complaint is sufficient to survive a
Rule 12(b)(6) motion to dismiss, the court must ascertain
"'whether, as a matter of law, the allegations of the complaint,
treated as true, are sufficient to state a claim upon which relief
may be granted under some legal theory.'" Shell Island Homeowners
Ass'n, Inc. v. Tomlinson, 134 N.C. App. 217, 225, 517 S.E.2d 406,
413 (1999) (citation omitted). "'A complaint may be dismissed
pursuant to Rule 12(b)(6) if no law exists to support the claim
made, if sufficient facts to make out a good claim are absent, or
if facts are disclosed which will necessarily defeat the claim.'"
Id. (citation omitted).
Under North Carolina's public duty doctrine, "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). Law enforcement resources are limited,
and our courts have refused to judicially impose the burden of
liability for failure to prevent every criminal act.
330 N.C. at
370-71, 410 S.E.2d at 901. In applying the public duty doctrine,
our Supreme Court has declined to expand its protection to agencies
other than local law enforcement departments exercising their duty
to protect the public.
Wood v. Guilford Cty., 355 N.C. 161, 166-
67, 558 S.E.2d 490, 495 (2002);
see, e.g., Lovelace v. City of
Shelby, 351 N.C. 458, 526 S.E.2d 652,
reh'g denied, 352 N.C. 157,
544 S.E.2d 225 (2000).
Our courts have recognized two exceptions to the public duty
doctrine. First, where there is a special relationship between the
injured party and law enforcement. Second, when a law enforcement
officer promises protection to an individual, the protection is not
forthcoming, and the individual's reliance on the promise is
causally related to his injury.
Braswell, 330 N.C. at 371, 410
S.E.2d at 902;
see Little v. Atkinson, 136 N.C. App. 430, 524
S.E.2d 378,
review denied, 351 N.C. 474, 543 S.E.2d 492 (2000),
Hedrick v. Rains, 121 N.C. App. 466, 466 S.E.2d 281,
aff'd, 344
N.C. 729, 477 S.E.2d 171 (1996),
Clark v. Red Bird Cab Co., 114
N.C. App. 400, 442 S.E.2d 75 (1994).
Plaintiffs admit that thereare no facts alleged that would indicate that a special
relationship existed between plaintiffs and law enforcement. In
addition, we note that plaintiffs did not allege that law
enforcement made a promise that protection was forthcoming.
Therefore, neither exception as articulated above applies to this
case.
Plaintiffs allege that since defendant's 911 operators, not a
police officer, failed to dispatch assistance in a timely manner,
the public duty doctrine does not apply. We disagree.
In their complaint, plaintiffs alleged that defendant operates
a 911 emergency system, and did so on the day and at the times
complained of. They alleged that the 911 operators were employees
of the defendant. They alleged that on the day and at the times
complained of, the 911 operators were acting within the course and
scope of their employment with defendant. They alleged that on the
day and at the times complained of, plaintiffs called 911, and were
assured by the 911 operators that law enforcement assistance was
forthcoming. They alleged that the 911 operators failed to
dispatch law enforcement; and this failure constituted negligent
behavior, imputed to the defendant.
As clearly stated in
Braswell, "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, 330 N.C. at 370, 410 S.E.2d at 901
(emphasis added). In plaintiffs' complaint, they alleged that the
911 operators were the employees of defendant. Moreover, theyalleged that the 911 operators were acting within the course and
scope of their responsibilities on the day and at the times
complained of. By performing within the course and scope of their
employment with defendant, the 911 operators, in essence,
functioned as agents acting on the behalf of the defendant.
Accordingly, there is no appreciable difference between suing the
defendant (the principal) based on its direct alleged negligent act
of failing to dispatch law enforcement, or suing the defendant
based on its 911 operators' (the agent) alleged negligence in this
regard. We hold that the trial court did not err in granting
defendant's Rule 12(b)(6) motion to dismiss. Therefore,
plaintiffs' assignment of error is overruled and the trial court's
order is affirmed.
AFFIRMED.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).
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