An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1297


Filed: 1 July 2003


v .                             Durham County
                                No. 01 CVS 2229
and BRUCE PREISS, individually
and in his official capacity
as a police technician employed
by the Durham City Police

    Appeal by plaintiff from orders entered 7 November 2001 by Judge W. Osmond Smith, III, in Durham County Superior Court. Heard in the Court of Appeals 15 May 2003.

    Douglas T. Simons, for plaintiff-appellant.

    Newsom, Graham, Hedrick & Kennon, P.A., by Joel M. Craig, and Faison & Gillespie, by Reginald B. Gillespie, Jr., for defendants-appellees.

    CALABRIA, Judge.

    This appeal arises upon the trial court's granting of defendants' motions to dismiss; therefore, we treat plaintiff's factual allegations, which follow, as true. Cage v. Colonial Building Co., 337 N.C. 682, 683, 448 S.E.2d 115, 116 (1994). In late October of 1998, Yvonne Walker (“plaintiff”) was attacked and raped. As a result of injuries sustained during the attack, plaintiff went into a coma and was hospitalized for a substantial period of time. During the investigation of the attack, BrucePreiss (“Preiss”), a police technician for the City of Durham (“Durham”), was instructed to collect and store various pieces of evidence from the original crime scene including, but not limited to, items to be fingerprinted and plaintiff's clothing to be analyzed for the suspect's DNA. After leaving the evidence in the trunk of his car for several months, Preiss, either negligently or intentionally, destroyed the evidence and subsequently submitted false statements concerning their disposition.
    A man suspected of the attack on plaintiff was arrested and indicted for assault with a deadly weapon with intent to kill; however, on 27 July 2000, the trial court learned of the destruction of the evidence collected by Preiss and dismissed the pending charges against the suspect. Upon learning of the dismissal of charges due to the loss of evidence and the release of her suspected assailant, plaintiff alleged she suffered severe emotional distress.
    On 9 May 2001, plaintiff filed a complaint for infliction of emotional distress in Durham County Superior Court alleging negligent and intentional misconduct by Durham through its agent Preiss (collectively “defendants”) in the handling and reporting of evidence taken during the investigation of the attack and rape against plaintiff. Defendants moved to dismiss plaintiff's claim pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2001). At the hearing on defendants' motions, defendants asserted the public duty doctrine and argued plaintiff had failed to allege the necessary elements of intentional infliction of emotional distress. On 7November 2001, the trial court granted defendants' motions to dismiss for failure to state a claim upon which relief could be granted. Plaintiff appeals.
I. Standard of Review
    Our standard for review on a motion to dismiss is “whether the allegations of the complaint, if treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory.” Thompson v. Waters, 351 N.C. 462, 463, 526 S.E.2d 650, 650 (2000).
II. Public Duty Doctrine
    Defendants contend plaintiff's claims are barred by the public duty doctrine. We do not agree. The public duty doctrine applies where “a municipality and its agents act for the benefit of the public[;] 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). “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., 330 N.C. at 370- 71, 410 S.E.2d at 901. The doctrine is applicable 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, 526 S.E.2d 652, 654 (2000).
    Plaintiff asserts the public duty doctrine is not implicated because the evidence collected and subsequently destroyed concerned only plaintiff and the criminal prosecution of her attack and rape,not the public at large. Plaintiff cites no authority for this proposition, nor can we find any. Indeed, the collection of forensic evidence to be used in a criminal prosecution is an integral part of any criminal investigation undertaken by the government to protect against crime. The “local government's duty to protect against crime flows to the general public rather than to specific individuals.” Wood v. Guilford Cty., 355 N.C. 161, 167, 558 S.E.2d 490, 495 (2002) (citing Braswell, 330 N.C. at 371, 410 S.E.2d at 901). To hold as plaintiff urges would make any individual victim of any crime a person to whom local governments and criminal investigators would be liable for deviations from proper performance of their duties and would eviscerate the conceptual underpinnings of the public duty doctrine. Accordingly, we find no merit in plaintiff's argument.
    Because Preiss' actions were an exercise of Durham's police powers for the benefit of the general public, any claim based on negligence, from simple to willful, must fail in light of the public duty doctrine; however, plaintiff asserts that since the allegations in the complaint allege intentional infliction of emotional distress, the public duty doctrine does not shield defendants from liability.
    As stated before, the public duty doctrine is a prudential doctrine necessarily functioning to prevent overwhelming liability on the part of a local government as it undertakes the performance of duties associated with its police power. Braswell, 330 N.C. at 370-71, 410 S.E.2d at 901. It balances the limited resources oflaw enforcement against the right of an individual to recover for certain wrongful acts.
    However, the public duty doctrine does not shield liability for all wrongful acts. “As long as the claim is negligence, . . . the public duty doctrine supports the dismissal of the complaint based on the failure to state a claim.” Clark v. Red Bird Cab Co., 114 N.C. App. 400, 406, 442 S.E.2d 75, 79 (1994) (emphasis added). “[W]here the conduct complained of rises to the level of an intentional tort . . . the public duty doctrine cease[s] to apply . . . .” Id. See also Little v. Atkinson, 136 N.C. App. 430, 432, 524 S.E.2d 378, 380 (2000). Accordingly, we must determine whether the complaint sufficiently alleges the elements of intentional infliction of emotional distress.
III. Intentional Infliction of Emotional Distress
    “The elements of intentional infliction of emotional distress are: '(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress.'” Denning-Boyles v. WCES, Inc., 123 N.C. App. 409, 412, 473 S.E.2d 38, 40-41 (1996) (quoting Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 487-88, 340 S.E.2d 116, 119 (1986)). “'Because the forecast of evidence as to the factual basis of each [claim of intentional infliction of emotional distress] is unique, each claim must be decided on its own merits.'” Denning-Boyles, 123 N.C. App. at 412, 473 S.E.2d at 40 (quoting Hogan, 79 N.C. App. at 490, 340 S.E.2d at 121).    To satisfy the intent requirement of this tort, plaintiff must show Preiss intended to cause emotional distress or acted in a way indicating reckless indifference to the likelihood that severe emotional distress would result. Southern Furn. Hdwe., Inc. v. Branch Banking & Tr. Co., 136 N.C. App. 695, 702, 526 S.E.2d 197, 201 (2000).
    In her complaint, plaintiff alleged the following:
        18. As a direct and proximate result of Defendant Preiss' willful, malicious, capricious intentional misconduct and/or negligence, which conduct is imputed to Defendant City of Durham, [the suspect] was released from jail and immediately released into the general public causing the plaintiff to fear for her safety, her life, and the lives of her children, based upon information and belief that [the suspect] would attack and brutally assault her and the children and rape the Plaintiff again.
        19. As a direct and proximate result of Defendant Preiss' willful, malicious, capricious intentional misconduct and/or negligence, which conduct is imputed to Defendant City of Durham, the Plaintiff has suffered and continues to suffer severe emotional distress from the release of [the suspect] from the Durham County Jail, along with the dismissal of the charge pending against him . . . [.]

    The allegations of the complaint indicate plaintiff suffered emotional distress from fears relating to the suspect's release as a result of the dismissal of the charges. No allegation tends to show Preiss acted with intent or with reckless indifference as to plaintiff's emotional state of mind either in destroying the evidence or falsifying the documents. At most, plaintiff alleges she suffered emotional distress resulting from the release of the suspect following the dismissal of the charge after Preissdestroyed the evidence in question. The intent or reckless indifference alleged by plaintiff is too attenuated from the resulting emotional distress to be legally cognizable. We are dismayed by Preiss' callous disregard for protocol and his duties as a police technician; however, because plaintiff failed to allege facts in her complaint necessary for the elements of intentional infliction of emotional distress, defendants' motions to dismiss were properly granted by the trial court.
    Judges McGEE and TYSON concur.
    Report per Rule 30(e).

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